Summary

Source: icsid.worldbank.org

Decision on Respondents' Request for Bifurcation

I. PROCEDURAL BACKGROUND

1. This Decision addresses the Request for Bifurcation made on 9 December 2024 by each of the Respondents in ICSID Cases Nos. ARB(AF)/23/1 ("EU Arbitration"), ARB/23/48 ("Denmark Arbitration") and ARB/23/49 ("Germany Arbitration") (collectively, the "Three Arbitrations").

2. The parties in the Three Arbitrations are as follows (the "Parties").

(a) Klesch Group Holdings Limited, Klesch Refining Denmark A/S, Kalundborg Refinery A/S and Raffinerie Heide GmbH are the Claimants and the European Union ("EU") is the Respondent in the EU Arbitration.

(b) Klesch Group Holdings Limited, Klesch Refining Denmark A/S and Kalundborg Refinery A/S are the Claimants and the Kingdom of Denmark ("Denmark") is the Respondent in the Denmark Arbitration.

(c) Klesch Group Holdings Limited and Raffinerie Heide GmbH are the Claimants the Federal Republic of Germany is the Respondent ("Germany") in the Germany Arbitration.

3. The disputes in the Three Arbitrations arise out of the "solidarity contribution" imposed on the Claimants pursuant to the EU's adoption and enforcement of European Union Council Regulation 2022/1854 of 6 October 2022 ("EU Regulation 2022/1854") and Denmark and Germany's consequent enactment of Danish Act No. 502 of 16 May 2023 ("Danish Act") and Article 40 of the German Annual Tax Act 2022 ("German Act") Decision on Respondents' Request for Bifurcation respectively.1 The Claimants allege that the solidarity contribution subjects them to current and future payment obligations in the aggregate amount of EUR 175.5 million,2 and the Respondents have, amongst other things, breached Articles 10(1), 10(7), 10(3) and 13 of the Energy Charter Treaty ("ECT") by imposing and enforcing the solidarity contribution.3

4. The Claimants' claims in the Three Arbitrations are similar but not identical. The Parties have agreed to coordinate the proceedings in the Three Arbitrations to the extent possible.4

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V. DECISION

64. For the foregoing reasons, the Tribunal, by majority, orders that:

(a) the Respondents' Request for Bifurcation is dismissed;

(b) the Parties shall follow the procedural timetable set out in Scenario 2 of Annex B to Procedural Order No. 1 in each of the Three Arbitrations; and

(c) the costs of this application are reserved to be dealt with at a later stage.

65. For the avoidance of doubt, the Tribunal's decision not to bifurcate the proceedings is without prejudice to any future ruling as to whether Claimants' claims fall within the

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Footnotes omitted