On January 12, 2024, the arbitration tribunal in ICSID case no. ARB/21/4 (RWE AG and RWE Eemshaven Holding II v. Netherlands) issued its order taking note of the discontinuance of the proceeding and decision of costs.
This was one of two cases, together with ICSID case no. ARB/21/22 (Uniper v. the Netherlands), in which Claimants had initiated investment arbitration proceedings against the Netherlands concerning measures implemented to phase out coal-generated power by 2030 under the Energy Charter Treaty (“ECT”). Both cases have been formally discontinued.
Initiated by German investors, the Netherlands sought recourse in the German courts before the tribunals were constituted. This procedural step, invoking provisions within Germany’s arbitration law, allowed for review by the national courts to determine the admissibility of these arbitration proceedings. Ultimately, Germany’s Federal Court of Justice affirmed decisions of the Higher Regional Court of Cologne, confirming that these intra-EU arbitration proceedings are incompatible with EU law.
Dorieke Overduin led the legal representation on behalf of the Ministry of Economic Affairs and Climate Policy of the Netherlands, and collaborated with attorneys of NOERR, De Brauw Blackstone Westbroek and Foley Hoag LLP.
Relevant members
- Dorieke Overduin