Reproduced from www.worldbank.org/icsid with permission of ICSID.
III. THE PARTIES' REQUEST FOR RELIEF
A. The Claimants' Request for Relief
B. The Respondent's Request for Relief
IV. SUMMARY OF THE PARTIES' POSITIONS ON THE REQUEST
A. The Claimants' Position
B. The Respondent's Position
V. THE TRIBUNAL'S ANALYSIS
A. Applicable Standards
B. Analysis of the Claimants' Request
1. This Decision addresses the Request for Provisional Measures submitted by RWE AG and RWE Eemshaven Holding II BV (together, the Claimants or RWE) on 29 April 2022, in which the Claimants ask the Tribunal to direct the Kingdom of the Netherlands (the Respondent or the Netherlands) to withdraw or suspend proceedings against RWE AG before the Higher Regional Court of Cologne (the Request). The Netherlands opposes the Request.
93. For the reasons stated above, the Tribunal DECIDES and ORDERS as follows:
(A) The Claimants' Request for Provisional Measures ordering the Respondent immediately to withdraw or discontinue the German Proceedings or, alternatively, to suspend the German Proceedings pending the Tribunal's award in this arbitration, is denied at this time;
(B) The Tribunal recommends that the Respondent not aggravate this dispute by seeking to restrain the Claimants from participating fully in this arbitration, whether by injunctive relief in the German courts or any other action, either before or after any decision in the current German Proceedings, without first providing sufficient notice to the Claimants of its intention to do so such as to allow a renewed application for provisional measures to this Tribunal;
(C) The Tribunal recommends that the Respondent reconsider the necessity and appropriateness of continuing the proceedings before the Cologne Court, as the Parties do not dispute that the Court of Justice of the European Union has determined that Article 26 of the Energy Charter Treaty should be interpreted so as not to apply to intra-EU disputes;
(D) The Tribunal recommends that the Respondent communicate this Decision to the Higher Regional Court of Cologne; and
(E) The issue of costs is reserved to a later stage of the arbitration.
For the Tribunal
President of the Tribunal
Date: 16 August