PCA Case No. AA861
IN THE MATTER OF AN ARBITRATION UNDER THE ENERGY CHARTER TREATY
THE ARBITRAITON RULES OF THE UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW 1976
I. PROCEDURAL HISTORY
1. By Notice of Arbitration dated 22 December 2021, RSE Holdings AG (the "Claimant") commenced arbitration proceedings pursuant to Article 26 of the Energy Charter Treaty (the "ECT") and the UNCITRAL Arbitration Rules 1976 (the "UNCITRAL Rules") against the Republic of Latvia (the "Respondent", and together with the Claimant, the "Parties"). In its Notice of Arbitration, the Claimant proposed, inter alia, to designate the Secretary-General of the Permanent Court of Arbitration (the "PCA") as appointing authority under Article 7(2) of the UNCITRAL Rules in this arbitration.
2. By letter dated 1 February 2022, the Respondent rejected the Claimant's proposals to apply the 2010 version of the UNCITRAL Rules and to designate the Secretary-General of the PCA as appointing authority in this arbitration.
3. By letter dated 24 February 2022, the Claimant appointed Ms. Amy Frey as arbitrator.
4. On 11 March 2022, the Respondent filed a Notice of Challenge to Ms. Frey (the "Challenge") pursuant to Article 11 of the UNCITRAL Rules by reason of lack of impartiality, requesting that Ms. Frey (i) submit a written disclosure in accordance with Article 9 of the UNCITRAL Rules; and (ii) step down as arbitrator.
5. By letter dated 17 March 2022, Ms. Frey responded to the Respondent's Challenge and declined to withdraw as arbitrator. Ms. Frey also attached a list of the ECT arbitration cases in which she acts or acted as counsel and which involve a State's modifications of its renewable energy incentives programs.
6. By letter dated 28 March 2022, the Respondent appointed Ms. Sabina Sacco as arbitrator. In addition, in light of the Ms. Frey's letter, the Respondent indicated that it would supplement its Challenge in the coming days.
7. By letter dated 8 April 2022, the Respondent submitted a supplement to its Challenge (the "Supplement").
8. By e-mail dated 14 April 2022, the Claimant advised the Respondent that it did not agree to the Challenge.
9. On 19 April 2022, following an exchange of further correspondence, the Parties agreed that the Secretary-General of the PCA act as appointing authority in accordance with the UNCITRAL Rules.
10. On 26 April 2022, the Respondent requested that the Secretary-General of the PCA decide the Challenge pursuant to Article 12 of the UNCITRAL Rules.
11. On 10 May 2022, the Claimant submitted its comments on the Challenge (the "Response"). In its Response, the Claimant requested that the Secretary-General of the PCA (i) reject the Supplement as untimely, alternatively (ii) dismiss the Supplement, and in any event, (iii) dismiss the Challenge, and (iv) order the Respondent to reimburse the Claimant for the fees and expenses of counsel in these challenge proceedings.1
12. On 18 May 2022, Ms. Frey submitted her comments with respect to the Parties' submissions (the "Ms. Frey's Comments").
13. On 25 May 2022, the Respondent submitted its further comments on the Challenge (the "Reply").
14. On 1 June 2022, the Claimant submitted its further comments on the Challenge (the "Rejoinder").
NOW THEREFORE, I, Marcin Czepelak, Secretary-General of the PCA, having established to my satisfaction my competence to decide this challenge in accordance with the UNCITRAL Rules, and having considered the submissions of the Parties and the comments of Ms. Frey;
HEREBY ACCEPT the Challenge brought by the Respondent against Ms. Frey.
Done in The Hague on 24 June 2022,
Permanent Court of Arbitration