Procedural Background and Purpose

This Procedural Order No. 5 establishes the framework for a Bifurcated Preliminary Procedure ("BPP") to address specific preliminary objections raised by the Respondent, Romania. The BPP follows the Tribunal's Decision of 30 September 2025 on the Respondent's Rule 41 and Rule 48 Objections, which directed that issues concerning the Agreement for the Termination of Bilateral Investment Treaties between EU Member States ("EU Termination Agreement") be addressed in a separate preliminary phase.

The Order records that the Parties agreed to confine the scope of the BPP to the EU Termination Agreement objection but submitted differing views on the appropriate procedural schedule.

The Tribunal's Decision and Directions

The Tribunal directs that the BPP shall be confined exclusively to the Respondent's EU Termination Agreement objection. Resolving the Parties' disagreement on timing, the Tribunal sets out a comprehensive Procedural Schedule, attached as Appendix A, governing the written and oral phases of the BPP, including deadlines for submissions, a pre-hearing conference, and an in-person hearing window in January 2027.

The Order further establishes a protocol for document production requests under ICSID Rule 36(3), clarifying that the Tribunal will exercise its power to compel production sparingly and only where essential for a fair adjudication, cautioning against "fishing expeditions." The Tribunal also provides guidance on the expected content of the Claimants' initial Statement of Jurisdiction and anticipates potential applications from Non-Disputing Parties (NDPs) and Non-Disputing Treaty Parties (NDTPs) under ICSID Rules 67 and 68, outlining how such applications will be managed within the BPP schedule. Finally, the Tribunal clarifies that any hearing will not permit Parties to directly question NDP/NDTP participants; oral submissions will be made to the Tribunal alone.