Procedural Posture

This Decision addresses a request for temporary measures filed by Enwell Energy plc (Claimant) against Ukraine (Respondent) in ICSID Case No. ARB/25/41. The Claimant sought immediate emergency relief pending the Tribunal’s determination of a broader application for interim measures. Specifically, the Claimant requested orders directing the Respondent to cease and desist from interfering with its rights in its Ukrainian subsidiaries, including preventing the transfer of control over the subsidiaries' assets to the National Agency of Ukraine for Detection, Search and Management of Assets obtained from Corruption and Other Crimes (ARMA), and preventing Ukrainian courts from invalidating certain upstream share transfers.

Parties' Positions and Legal Issues

The principal legal issue before the Tribunal was whether the circumstances necessitated urgent, temporary relief to preserve the status quo and protect the efficacy of the Tribunal's forthcoming decision on interim measures under Article 47 of the ICSID Convention and ICSID Arbitration Rule 47. The Claimant argued that the urgency of the matter outstripped the ordinary briefing schedule, citing the risk of ex parte actions by the Prosecutor General and the Security Service of Ukraine (SSU). The Respondent opposed the request, asserting that the measures lacked urgency and that there had been no aggravation of the dispute or alteration of the status quo that would justify emergency intervention.

Tribunal's Analysis and Reasoning

The Tribunal affirmed its competence to issue temporary measures to ensure that the primary request for provisional measures is not rendered moot by conduct attributable to the opposing party. In assessing necessity and proportionality, the Tribunal observed that the Prosecutor General’s prior ex parte motion to transfer the subsidiaries' assets to ARMA had been withdrawn. Consequently, an outright prohibition on such transfers was deemed unnecessary and disproportionate at this stage. However, recognizing the latent risk of a renewed ex parte application, the Tribunal concluded that a mandatory notice mechanism was required to prevent potential aggravation of the dispute.

Regarding the upstream share transfers, the Tribunal analyzed the trajectory of four pending SSU cases in the Ukrainian courts. It determined that the procedural timelines of these domestic proceedings were highly unlikely to preempt the Tribunal’s impending decision on the broader interim measures. Therefore, the Tribunal declined to enjoin the domestic proceedings but found it appropriate to require the Respondent to apprise the Tribunal of any new developments or applications initiated by the SSU.

Decision and Order

In its dispositive order, the Tribunal directed the Respondent to provide at least four days' prior written notice of any renewed request by the Prosecutor General to transfer control of the Claimant’s Ukrainian subsidiaries to ARMA. Furthermore, the Respondent was ordered to provide identical advance notice of any new SSU application or proceeding seeking to invalidate or render ineffective the upstream share transfers. These notice obligations remain in effect until the Tribunal issues its final decision on the requested interim measures.

Procedural Order No. 2 establishes the transparency and confidentiality regime governing the ICSID arbitration proceedings between Enwell Energy plc and Ukraine. Issued following consultation with the Parties during the first session, the Order applies the framework of the ICSID Convention and the 2022 ICSID Arbitration Rules to delineate the scope and handling of protected information.

The Tribunal defined confidential and protected information to include, inter alia, confidential business data, protected personal information, and information implicating a State party's essential security interests. Regarding publication, the Tribunal noted the Parties' consent to the publication of the final Award and Tribunal orders or decisions, subject to a formalized redaction process. Conversely, the Parties withheld consent for the publication of written submissions, supporting documents, and hearing transcripts. Furthermore, hearings shall remain closed to the public absent mutual agreement by the Parties.

To operationalize these confidentiality protections, the Tribunal instituted a strict procedural mechanism for redactions. Parties must submit non-disclosure requests within 21 days of a document's issuance, followed by a structured conferral period for any objections. Disputed redactions are to be resolved by the Tribunal via a dedicated Transparency Schedule. The Tribunal also explicitly directed the Parties to proactively redact sensitive personal data and identifiers to ensure compliance with data privacy standards.