Previous procedural decisions are insufficient to justify costs order

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In any case, the Netherlands provided insufficient evidence of costs incurred

Tribunal sees no need to decide whether the Netherlands breached the ICSID Convention by lodging German proceedings

It is “inherently contradictory” for the Netherlands to request costs from ICSID tribunal after challenging its jurisdiction before German courts

No need to decide whether claimant implicitly agreed to tribunal’s power to allocate costs

Background: RWE requests discontinuance after German court confirms anti-arbitration declaration; the Netherlands asks for costs

Background and procedural details

OLG Cologne declares that the arbitration is inadmissible under EU and German law

Tribunal recommends non-aggravation and invites respondent to reconsider whether German proceedings remain necessary in light of the Komstroy Decision

Tribunal reserves its right to adopt expedited provisional measures in the future if an anti-arbitration injunction is filed

Tribunal finds “with some hesitation” that order to discontinue the German proceedings is not warranted, given the remaining uncertainties and the respondent’s assurances

Tribunal also notes that the Netherlands may have a duty under EU law to pursue the German proceedings

Arbitrators agree with RWE that the German proceedings could pose a threat to Kompetenz-Kompetenz, ICSID exclusivity, and the integrity of the arbitration

Tribunal has prima facie jurisdiction, and sees prima facie case on the merits

Arbitrators identify four-prong test for granting provisional measures

Tribunal identifies rights that allegedly require protection

Tribunal decides that provisional measures request is admissible

Background: Claimants ask for provisional measures aimed at halting German anti-arbitration proceedings

Bifurcation of the ancillary claim is not in the interest of fairness, justice, and procedural efficiency

The state’s right to frame its jurisdictional objection as it sees fit also militates against bifurcation of intra-EU objection

Claimants would not be prejudiced by a decision not to bifurcate the intra-EU objection

Traditional test for bifurcation is satisfied for intra-EU objection

Unusual features of RWE’s bifurcation application must be considered together with traditional bifurcation factors

Background: The Netherlands lodges German anti-arbitration proceedings in parallel to coal phase-out ICSID arbitrations; RWE claims violation of ICSID’s exclusivity and asks for bifurcation

Claimant is ordered to bear nearly all costs, but a 10% discount is granted due to one of the respondent’s objections being unfit for Rule 41(5) proceedings

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