Summary

Source: icsid.worldbank.org

PROCEDURAL HISTORY

1. On 30 September 2024, ExxonMobil Petroleum & Chemical BV ("EMPC" or the "Claimant") filed its Request for Arbitration against the Kingdom of the Netherlands (the "Netherlands" or the "Respondent") arguing that the Respondent has breached its obligations under international law and Article 10(1) of the Energy Charter Treaty (ECT).

Accordingly, EMPC requested the institution of arbitration proceedings against the Netherlands in accordance with Article 26 of the ECT and Article 36 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the "ICSID Convention"). For the purposes of these proceedings, both ExxonMobil Petroleum & Chemical BV and the Kingdom of the Netherlands will be referred to collectively as (the "Parties").

2. On 21 October 2024, the ICSID registered the Request for Arbitration under ICSID Case No. ARB/24/44 (the "Case" or "Arbitration").

3. This proceeding is administered under the ICSID Arbitration Rules in force as of 1 July 2022 ("ICSID Rules" or "ICSID Arbitration Rules").

4. On 15 July 2025, the Secretary-General notified the Parties of the constitution of the Tribunal pursuant to ICSID Arbitration Rule 21(1), following the acceptance by the Tribunal Members of their appointments as arbitrators in this case.

5. On 19 August 2025, EMPC submitted a Second Application for Provisional Measures under Article 47 of the ICSID Convention and ICSID Arbitration Rule 47 together with a cover letter of the same date, Annex A, Exhibits C-42bis, C-45bis, C-46bis, C-79 through C-123, and Legal Authorities CL-22ter, CL-46 through CL-49 (the "Claimant's Second Application") requesting that the Tribunal issue provisional measures to suspend the issuance of further statutory levies under the Temporary Groningen Act, or any other analogous payment demand in a different form, pending the issuance of the Tribunal's award in this Arbitration, including a request for immediate relief pending the Tribunal's decision on the Second Application (the "Interim Provisional Relief").

6. On 20 August 2025, the Respondent requested leave to respond to the Claimant's Cover Letter of 19 August 2025 by 27 August 2025 and confirmed that "it will not take any actions that would deprive the request for immediate and provisional interim relief of its apparent object before Monday 1 September 2025."

7. On the same date, the Claimant proposed that the issues of the Claimant's request for immediate relief pending a decision on its Second Application and the procedural timetable for briefing the Second Application be addressed orally during the hearing scheduled for 26 August 2025.

8. Also on the same date, ICSID informed the Parties that the Tribunal considered the Respondent's request to revert with its position on briefing the Second Application by 27 August 2025 to be reasonable, and will not compel oral briefings on this matter unless the Respondent is in agreement to so proceed.

9. On 27 August 2025, the Respondent sent a letter to the Tribunal in which the Netherlands requested the Tribunal to: a) fix the deadlines for the Response to 7 October 2025, for the Reply to 28 October 2025 and for the Rejoinder to 18 November 2025; and b) fix the deadlines for the Claimant's motivated submissions on its request for Interim Provisional Relief pending the Tribunal's decision on the Second Application to 2 September 2025, and for the Respondent's response thereto to 16 November 2025.

10. On 28 August 2025, the Claimant requested the Tribunal's permission to respond to the Respondent's letter of 27 August 2025, which concerned the briefing schedule for the Claimant's Second Application for Provisional Measures and the Claimant's request for the Interim Provisional Relief in connection with that Application.

11. On 29 August 2025, the Tribunal invited the Claimant to respond to the Respondent's letter of 27 August 2025 by 5 September 2025, and further invited the Respondent to reply, if it so wished, by 12 September 2025. In the interim, the Tribunal encouraged the Parties to explore areas of agreement regarding the briefing schedule in relation to the Claimant's Second Application for Provisional Measures.

12. On 5 September 2025, the Claimant submitted its response and requested that: (i) if by 12 September 2025 the Respondent has failed to provide an undertaking not to issue the 2025 Levy or other Payment Demand during the pendency of the Second Application, then, regardless of the briefing schedule set for the Second Application, the Claimant requested that the Tribunal promptly grant the Provisional Order on the terms set forth in the Second Application; (ii) the Tribunal establish a timetable for further briefing on the Second Application that provides the Parties with equal time for their submissions, as was the case with the Claimant's first application for provisional measures of 12 June 2025 (the "First Application"). The Claimant will make itself available to provide further briefing on the application on whatever schedule the Tribunal considers reasonable; and (iii) the Tribunal communicate its availability for a virtual hearing on the Second Application allowing at least ten days after the last written submission.

13. On 12 September 2025, the Netherlands submitted the Respondent's response to the Claimant's request for Interim Provisional Relief, together with its letter on the briefing schedule for the Second Application for Provisional Measures. In its submission, the Respondent requested that the Tribunal: (i) reject the request for Interim Provisional Relief made by EMPC in its Second Application, and in particular at paragraphs 82-84 and 90 thereof; (ii) reject the request for an undertaking to the Tribunal, EMPC, and NAM; and (iii) order EMPC to bear the costs associated with the determination of its request for the Interim Provisional Relief.

14. On the same date, the Claimant requested the Tribunal's permission to submit a brief response to respond to paragraphs 17 to 29 of the Respondent's responsive submission on the Claimant's request for the Interim Provisional Relief. The Claimant proposed to do so by 17 September 2025.

15. On 15 September 2025, the Tribunal granted the Claimant leave to respond to Respondent's Response by no later than 17 September 2025. On the same date, the Netherlands requested to be granted until Monday 22 September 2025 to file a submission to respond to the Claimant's position on the matter of the Interim Provisional Relief. Also on the same date, the Tribunal granted the Respondent's request to submit a response by 22 September 2025.

16. On 17 September 2025, the Tribunal informed that Parties that it was required to issue directions in relation to two main issues:

"...With respect to (a), i.e., the briefing schedule for Claimant's Second PM, the briefing schedule, the Parties are in disagreement with respect to (1) whether equal time limits should be granted to both Parties; and (2) the start date from which the time limits for the Parties' submissions on bifurcation are to be calculated.

On the issues of equal timing, the Tribunal accepts that equal treatment does not necessarily entail equal timing, but it also sees no reason, in relation to this specific issue, not to give equal time limits to both Parties. There is no compelling reason and no identified prejudice that requires giving the Parties different time limits.

On the start date for calculating periods and whether that should be 19 August 2025 or 26 August 2025, the Tribunal does not consider this to be a major issue and nothing much turns on this, especially if the Tribunal fixes the dates from the date of issuing its directions in this respect.

In light of the above, the Tribunal directs as follows:

• Respondent shall file its full and complete response to Claimant's Second PM application by 8 October 2025 (i.e. three weeks from the date of these directions issued on 16 September 2025);
• Claimant shall file its rejoinder in response to Respondent by 29 October 2025 (i.e. three weeks from 8 October 2025); and
• Respondent shall file its final reply in response to Claimant's rejoinder by 19 November 2025 (i.e. three weeks from 29 October 2025).

In relation to the virtual hearing pertaining to Claimant's Second PM, the earliest date the Tribunal is able to propose is 8 December 2025, and the Parties are kindly requested, and indeed strongly encouraged, to confirm availability on 8 December 2025. The Tribunal looks forward to receiving the Parties' confirmation by 22 September 2025."

...

349. First, with respect to Perenco v. Ecuador, the Tribunal notes that the provisional measures were granted in a fundamentally different context. The dispute concerned the legality of Law 42 and Ecuador's coercive enforcement actions against the investor, including threats of judicial proceedings and unilateral alteration of participation contracts. In this case, the tribunal restrained Ecuador from pursuing such measures and required disputed sums to be paid into escrow as a safeguard. The relief was thus narrowly tailored to prevent aggravation of the dispute and to preserve the contractual framework pending a jurisdictional determination.394 By contrast, EMPC's claim does not challenge the legality of the levies themselves but rather their calculation, and there is no evidence of coercive enforcement measures comparable to those in Perenco. The factual and legal circumstances are therefore materially distinct.

350. Second, with respect to Burlington v. Ecuador, the Tribunal observes that the escrow account ordered there was designed to balance the parties' rights in relation to disputed productionsharing revenues under Law 42 and Decree 662. The tribunal required Burlington to pay both past and future amounts into an escrow account, with clear terms governing release, interest, costs, and reporting obligations. Importantly, the tribunal also ordered Ecuador to discontinue coercive collection proceedings (the coactiva process) and both parties to refrain from aggravating the dispute.395 The escrow arrangement was thus part of a broader package of measures aimed at stabilizing the contractual relationship and preventing disruption of ongoing operations. In the present case, however, EMPC's request would immobilize multibillion euro sums over several years, without comparable evidence of coercive enforcement or contractual destabilization. Moreover, EMPC's claim concerns the calculation of levies rather than their legality, and, as stated above, the Tribunal cannot at this stage determine either the precise percentage of EMPC's share or the extent to which any portion may ultimately be unlawful. Accordingly, the circumstances in Burlington do not justify the exceptional relief sought here.

351. Accordingly, the Tribunal concludes that the proportionality test is not satisfied in respect of this Second Application.

ORDER

352. For the foregoing reasons, the Arbitral Tribunal recommends as follows:

(a) The Claimant's request that the Netherlands be ordered to refrain from imposing any future levy under the Temporary Groningen Act and from making any other payment demand in connection with the subject matter of the present Arbitration, is denied;

(b) The Claimant's request that the Netherlands provide a written undertaking to the Tribunal, EMPC, and NAM acknowledging its commitment to abide by a final award in this Arbitration, and its request that the Tribunal order the Netherlands to comply with Articles 53 and 54 of the ICSID Convention, are moot given that the Respondent has already provided sovereign, legally binding, unconditional, unequivocal, and guaranteed assurances which the Tribunal considers to be sufficient and satisfactory; and

(c) The Claimant's alternative request that the Tribunal order the Netherlands to place into an escrow account thirty percent (30%) of the received amount of levy payments corresponding to EMPC's indirect interest, or such other percentage as the Tribunal may later determine to be just and fair, is denied.

353. The Tribunal reserves its decision on costs to a later stage of the proceedings.

For and on behalf of the Tribunal,

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Footnotes omitted