Eni International B.V., Eni Oil Holdings B.V. and Nigerian Agip Exploration Limited v Federal Republic of Nigeria - ICSID Case No. ARB/20/41 - Procedural Order No 4 - Decision on Petition under ICSID Arbitration Rule 37(2) - 7 March 2023
1. On 1 August 2022, ReCommon, the Human and Environmental Development Agenda ("HEDA") and Corner House Research ("CHR") (together, the "Petitioners") - an Italian, Nigerian, and UK- based non-governmental organization respectively - addressed a letter to the Tribunal and ICSID, expressing their interest to participate in this arbitration as amici curiae and seeking directions regarding the appropriate timing for making a written non-disputing party ("NDP") submission.
2. On 5 August 2022, the Tribunal Secretary (i) notified the Parties of the Petitioners' letter; (ii) informed them that the Tribunal intended to grant the Petitioners two weeks to substantiate their request for NDP status; and (iii) invited the Parties, if they so desired, to make any preliminary observations on the letter.
3. On the same day, the Tribunal Secretary informed the Petitioners that they had two weeks to substantiate their request for NDP status on the basis of ICSID Arbitration Rule 37(2) ("Rule 37(2)") and specify their requests for relief.
4. On 15 August 2022, the Claimants submitted their preliminary observations on the Petitioners' request to intervene ("C-Preliminary Observations"). In these observations, the Claimants also requested that the Parties be allowed to publish all procedural correspondence and eventual decisions pertaining to the Petition.
5. On 19 August 2022, the Respondent submitted its preliminary observations and responded to the Claimants' preliminary observations ("R-Preliminary Observations"). Among other matters, Nigeria opposed the Claimants' request for publication.
6. On 26 August 2022, following a brief extension, the Applicants filed a single joint petition substantiating their request to intervene (the "Petition"), which was shared with the Parties on 29 August 2022.
7. On 1 September 2022, the Claimants requested the Tribunal to decide their request for publication as set out in C-Preliminary Observations at the time of establishing the briefing schedule for the Petition.
8. On 5 September 2022, the Tribunal (i) invited the Parties to submit their observations on the Petition simultaneously, on 30 September 2022; (ii) denied the Claimants' publication request as it was premature at that stage; and (iii) informed the Parties that it would decide the publication issue at the same time as the Petition.
9. On 30 September 2022, (i) the Claimants filed their response to the Petition ("C-Response") accompanied by Exhibits C-369 to C-375 and legal authorities CLA-102 to CLA-124; and (ii) the Respondent filed its response to the Petition ("R-Response") together with Exhibits R-206 and R-207 and legal authorities RL-204 to RL-216.
10. The proceedings were suspended on 12 December 2022 due to the resignation of one of the Tribunal-members and before the Tribunal could issue its decision on the Petition. The proceedings resumed on 17 January 2023, following the reconstitution of the Tribunal.
11. This decision addresses the Petitioners' request to intervene in these proceedings as NDPs under Rule 37(2).