Summary

Source: icsid.worldbank.org

PROCEDURAL ORDER NO. 6
ON THE
RULE 67 APPLICATION BY THE EUROPEAN COMMISSION
AND THE
RULE 68 APPLICATION BY THE REPUBLIC OF BULGARIA

BACKGROUND AND ISSUES TO BE ADDRESSED

1. This Procedural Order addresses the applications to intervene in the present proceedings by, respectively, the European Commission ("Commission"), pursuant to Rule 67 of the ICSID Arbitration Rules 2022 ("ICSID Rules"), and the Republic of Bulgaria ("Bulgaria"; together, the "Applications" and the "Interveners"), pursuant to Rule 68 of the ICSID Rules. Relevant background to these Applications, and to the Tribunal's decisions in respect thereof, is as follows.

2. On 30 September 2025, the Tribunal issued its Decision on the Respondent's Rule 41 and Rule 48 Objections ("Decision"). The background and procedural history of the case are set out in Sections I and II of the Decision and are not repeated herein. Of relevance for present purposes, the Decision addressed, inter alia, the Respondent's Rule 41 objection concerning the application, in the circumstances of the Claimants' Request for Arbitration, of the Agreement for the Termination of Bilateral Investment Treaties between the Member States of the European Union ("EU Termination Agreement").

3. By its Procedural Order No. 3 dated 25 April 2025 ("PO3"), the Tribunal denied an Application for Leave to Intervene as Non-Disputing Party by the Commission "at this stage of the proceedings." By a decision communicated to the Parties by letter dated 27 September 2025, the Tribunal denied the Respondent's request for leave to submit into the record of the proceedings an additional document comprising "a formal communication transmitted by the Republic of Bulgaria" setting out Bulgaria's position on the legal effect of the EU Termination Agreement and related matters.

4. By its Decision, the Tribunal, inter alia, dismissed the Respondent's Rule 41 Objection but directed, "pursuant to Rules 42(6) and 43(3) of the ICSID Arbitration Rules, that the EU Termination Agreement issues raised by the Respondent through its Rule 41 Objection should be addressed in a separate preliminary phase of the proceedings", described as a Bifurcated Preliminary Procedure ("BPP").

5. By Procedural Order No. 4 dated 4 December 2025 on ICSID Arbitration Rules 67 and 68 Applications ("PO4"), the Tribunal prescribed a cut-off date of 30 December 2025 in respect of any application under Rule 67 or Rule 68 of the ICSID Rules.

6. By an Application for Leave to Intervene as Non-Disputing Party dated 26 December 2025, the Commission seeks leave to intervene in the proceedings pursuant to Rule 67 of the ICSID Rules ("Rule 67 Application"). In support of its Application, the Commission contends that the submissions it has in contemplation, disputing the jurisdiction of the Tribunal, would assist the Tribunal, inter alia, "with a matter within the scope of the dispute by allowing the reasons why Articles 19(1) TEU, 267 and 344 TFEU and the general principles of Union law of autonomy of the EU legal order and mutual trust between EU Member States preclude intra-EU investment arbitration, as well as the follow-up given to that finding in the Termination Treaty, to be explained" (Rule 67 Application, ¶ 23). The Commission further contends that "[t]he proceedings [...] raise important questions concerning the interplay between the EU Treaties, the Bulgaria-Romania BIT and the ICSID Convention" and that the Commission "brings to this dispute a perspective, particular knowledge or insight that is different from that of the disputing parties concerning the EU Treaties" (Rule 67 Application, ¶ 24). The Commission contends, additionally, that it "has a significant interest in ensuring that [the] Tribunal is fully aware of the legal consequences flowing from EU law as interpreted by the CJEU, and considers these in its assessment of the EU Termination Agreement issues raised by the Respondent."

(Rule 67 Application, ¶ 34)

7. The Order sought by the Commission requests the Tribunal to

a. grant the Commission leave to intervene in the present proceedings;

b. set a deadline for the Commission to file a written amicus curiae submission;

c. allow the Commission access to the documents filed in the case, to the extent necessary for its intervention in the proceedings;

d. allow the Commission to attend hearings in order to present oral argument and reply to the questions of the Arbitral Tribunal at those hearings.

(Rule 67 Application, ¶ 35).

8. By an Application for Leave to Intervene as Non-Disputing Treaty Party dated 30 December 2025, Bulgaria seeks leave to intervene in the proceedings pursuant to Rule 68 of the ICSID Rules ("Rule 68 Application"). On the scope of its anticipated intervention, Bulgaria indicates that it intends "to provide a short explanation about the termination of the Agreement between the Government of Romania and the Government of the Republic of Bulgaria on Mutual Promotion and Protection of Investments, signed in Bucharest on 1 June 1994, and the non-applicability of its investor-State arbitration provision."

9. By Procedural Order No. 5 dated 15 December 2025 ("PO5"), unpublished at the time of the applications to intervene, the Tribunal addressed the scope of the BPP, directing that it shall be confined to what was described as the Respondent's "EU Termination Agreement Objection". The Tribunal also laid down a Procedural Schedule for the BPP and gave directions regarding possible calls for the production of essential documents. In respect of each of these aspects, the terms of PO5 had in contemplation the possibility of Non-Disputing Party ("NDP") and Non-Disputing Treaty Party ("NDTP") applications to intervene. The terms of PO5 remain controlling of the issues addressed therein, save only for any revision/s that may be warranted in due course. No such revisions are intended by the present Procedural Order.

10. In the course of what the Tribunal will, for ease of reference, describe as the "Rule 41 Proceedings", and correspondence shortly thereafter, the Tribunal sought and obtained from the Parties agreement on certain questions relevant to possible intervention in the event that the Tribunal were to decide on what is now the BPP.

11. Having been invited to do so, the Parties submitted written observations on the Commission's and Bulgaria's applications to intervene, in the case of the Respondent, on 20 January 2026 ("Respondent's Observations"), and, in the case of the Claimants, for reason of a Tribunal-sanctioned 24-hour delay to the prescribed filing date, on 21 January 2026 ("Claimants' Observations").

12. The Claimants agree that the Commission should be permitted to intervene by way of both written and oral submissions but propose conditions with respect to that intervention as follows (Claimants' Observations, ¶¶ 1.1 - 1.3.7):

- written submissions should be limited to 10 pages;

- access to relevant documents should only be given after the Claimants have filed their first-round written submissions;

- the Claimants reserve their rights with respect to the call for documents procedure laid down in PO5;

- referencing the scope of the Commission's proposed intervention, the Claimants observe that "the Commission may address these issues to the extent that they consider them relevant to the EU Termination Agreement Objection;

- the intervention should be subject to the condition that the Commission undertakes to pay the costs arising from its intervention.

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52. Having regard to the decisions, directions and arrangements set out herein applicable to the intervention by the Commission and Bulgaria in the BPP phase of the proceedings, the Tribunal:

a. grants the Commission and Bulgaria leave to intervene in the BPP phase of the present proceedings to make written and oral submissions subject to the conditions set out in this Procedural Order;

b. directs that the Procedural Schedule set out in Procedural Order No. 5 applies in respect of these submissions;

c. directs that the Commission and Bulgaria be provided with access to the documents indicated herein subject to the arrangements indicated herein, including (but not restricted to) the confidentiality, data privacy and cyber-security undertakings required herein; and

d. directs that other arrangements pertaining to the intervention of the Commission and Bulgaria in the BPP shall be as addressed in this Procedural Order subject to any variation thereof as may be necessary or appropriate in due course, either on application by a Party or by an Intervener, or on the basis of the Tribunal's appreciation proprio motu.

53. The Commission and Bulgaria are requested to respond within one week of receipt of this Procedural Order to affirm their intervention in the proceedings on the terms herein prescribed.

54. The Tribunal reserves all other issues of procedure relevant to the BPP, including as may arise with respect to the interventions of the Commission and Bulgaria, to further decision in due course.

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ANNEX - Bifurcated Preliminary Procedure -- Questions for Interveners

Having reviewed the record of the Rule 41 Proceedings on the issue of the conclusion, interpretation and application of the Agreement for the termination of Bilateral Investment Treaties between the Member States of the European Union (OJ L 169/1. 29.05.2020; "EU Termination Agreement") and its effect on the Agreement between the Government of Romania and the Government of the Republic of Bulgaria on Mutual Promotion and Protection of Investments ("Romania-Bulgaria BIT"), the Tribunal considers that it would be assisted in its understanding of the issues by submissions from the European Commission ("Commission") and the Republic of Bulgaria ("Bulgaria"; together "the Interveners"), inter alia, on the questions set out below, without prejudice to other issues which each Intervener may consider appropriate to address, subject to the strict limits of the permission granted by the Tribunal in respect of each intervention.

In addressing the questions below, or any other issues considered to be relevant, each Intervener is invited to submit any relevant documentation in support of its submissions.

In setting out the questions that follow, the Tribunal firmly cautions both the Parties and the Interveners that they should not read into the questions any view or any inclination of the Tribunal on the merits of the issues, nor any direction of travel in the Tribunal's consideration of the issues.

The questions arise from or are suggested by the Parties' submissions in the Rule 41 Proceedings and are identified at this stage simply with a view to ensuring that the Tribunal is fully informed on issues that may be relevant to its deliberations in due course. The Parties and the Interveners should also not read into any question either an understanding or a misunderstanding by the Tribunal on any issue. The questions are posed, including in the specifics of their formulation, as the Tribunal wishes to have on the record of the proceedings the Interveners, and in due course the Parties', views on the issues raised.

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Questions for the European Commission

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Questions for the Republic of Bulgaria

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