Summary

Inhoudsindicatie: Rv. art. 1065 lid 1 sub c, d en e. Vordering tot vernietiging arbitraal vonnis. Eiser beroept zich tevergeefs op de vernietigingsgronden schending opdracht, ontbrekende motivering en strijd met de openbare orde.

Bij exploot van 7 oktober 2019, met producties, heeft Gas Terra Eni gedagvaard voor dit hof en daarbij de partiële vernietiging gevorderd van een tussen partijen gewezen arbitraal vonnis van 8 juli 2019, met veroordeling van Eni, uitvoerbaar bij voorraad, in de kosten van het geding, met nakosten en rente over de proceskosten vanaf 14 dagen na datum van het arrest.

Bij conclusie van antwoord, met producties, heeft Eni verweer gevoerd en geconcludeerd tot afwijzing van de vorderingen van Gas Terra, met veroordeling van Gas Terra in de kosten van het geding, met nakosten en rente over de proceskosten vanaf 14 dagen na dagtekening van het arrest.

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Gasunie, Gas Terra, SNAM

ARTICLE VII

Revision

Each of the Parties may ask for a revision of the price 12 months before the beginning of the deliveries under this agreement and further every 3 years after this date.

7.1 In case economic circumstances which are beyond the control of Parties and which affect the energy market in Western Europe should undergo changes - for the first revision as compared to what both Parties have reasonably expected when entering into this agreement and for further revisions as compared to the immediately preceeding revision according to this article - of such a nature and extent that they would justify revision of the prices specified in the price article or of any other provision of this agreement, the one Party shall notify the other thereof in writing, also stating its reasons for revision, following which Parties shall enter into negotiations within two months in order to establish whether revision of the price or any other provision is justified. To determine whether, and if so, to what extent the price and/or other provisions need to be adapted, the specific delivery conditions pertaining to Gas deliveries under this agreement and the following factors shall especially be taken into account:

- the value of the gas in the enduser markets where the Gas is being sold, where the costs of transporting the Gas from the Dutch border to the Italian border are for SNAM, and are not considered to affect the value of the gas in the enduser markets.

- the prices of gas in comparable, commercial (i.e. only based on considerations of international gas-business), non-Netherlands gas import projects in Western Europe, assuming the transportcosts to the Italian border to be zero.

The pricing and the other conditions under this agreement shall enable SNAM economically to market the Gas delivered under this agreement assuming the application of the principles of sound marketing and efficient management by SNAM, however the costs of transporting the Gas from the Dutch to the Italian border are considered to be zero.

7.2 The levying of a consumption tax or any other fiscal measure affecting the gas in Italy, which is imposed after this agreement takes effect shall not be deemed a change in economic circumstances as referred to in paragraph 7.1. If, however, SNAM will be prohibited by law to pass on any such taxes or fiscal charges to their customers, contrary to provisions in their contracts, then Gasunie agrees to take into account the effect of such taxes or charges in the next renegotiation.

7.3 In case this agreement is revised, such revisions shall take effect as per the day on which the notice as referred to in paragraph 7.1 was given by one Party to the other. Each of the Parties may ask for a revision of the price one year before the beginning of the deliveries and further every 3 years after this date.

7.4 Any negotiations about implementation of the provisions of paragraph 7.1 shall be conducted in the shortest possible time and on the basis of the principles of sound marketing, efficient management and a reasonable return for SNAM with respect to the deliveries under this agreement. In case the Parties fail - within three months from the notice provided for under paragraph 7.1 - to reach an agreement whether revision under this article is justified, the dispute shall be submitted to arbitration according to Article XIII.

7.5 In case the award confirms that a revision is justified, the Parties shall - within three months - agree on the revised price and/or conditions. Failing such agreement the dispute shall be submitted to the same arbitration board - if possible - which will be empowered to make a final decision. Similarly in case the Parties agree that a revision is justified, but do not reach an agreement within three months on the revised price and/or conditions, the dispute shall be submitted to arbitration according to Article XIII and the arbitrators will be empowered to make a final decision.

7.6 As long as no agreement is reached and no arbitration award effective concerning a revision of this agreement, this agreement as then in force shall remain applicable."

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ARTICLE XIII

Arbitration

Any dispute, controversy or claim arising out of or relating to this agreement, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as in force at the signing date of this agreement:

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the place of arbitration shall be The Hague in The Netherlands;

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Het scheidsgerecht heeft in zijn gedeeltelijk eindvonnis ('Partial Final Award on Bifurcated Issues') van 8 juli 2019 (hierna: het arbitrale vonnis) de volgende beslissingen gegeven:

"1. The Arbitral Tribunal declares that

- The 2012 Review Round under the GU-2 Contract has been closed as a result of the 2012 Tribunal's dismissal of Eni's price revision claims for lack of evidence in the 2016 Award, having res judicata effect.

- An adjustment of the Contract Price with effect from 1 October 2012, for the 2012-2015 Period, is no longer possible.

- The 2016 Award did not establish a New Contract Price under the Letter Agreement and, hence, the Provisional Invoicing Price as defined in the Letter Agreement was and remained applicable between the Parties for all gas deliveries with effect from 1 October 2012, for the period between 1 October 2012 and 30 September 2015.

- Since GasTerra was not entitled to receive the Contract Price and Eni was not obliged to pay the Contract Price for deliveries made after 1 October 2012, no back-payments were due under the Letter Agreement.

- The Invoices issued by GasTerra and delivered to Eni following the 2016 Award were invalid.

- GasTerra's actions leading to the 2016 Award do not entitle Eni to any relief for alleged losses under the Heads of Agreement and the Letter Agreement, either of them, or Dutch law.

2. The Arbitral Tribunal orders GasTerra to issue credit notes in the amount equivalent to the Invoices invalidly issued to Eni."

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