Procedural Context and Applications for Intervention

This Procedural Order addresses applications for leave to intervene filed by the European Commission, as a non-disputing party pursuant to ICSID Arbitration Rule 67, and by the Republic of Bulgaria, as a non-disputing treaty party pursuant to Rule 68. The applications arise in the context of a Bifurcated Preliminary Procedure ("BPP") established by the Tribunal to address the Respondent's jurisdictional objection concerning the effect of the Agreement for the Termination of Bilateral Investment Treaties between the Member States of the European Union ("EU Termination Agreement") on the Romania-Bulgaria BIT and, consequently, on the Tribunal's competence.

The Tribunal's Analysis and Decision

The Tribunal considered the parties' observations, which generally supported the interventions but proposed various conditions regarding scope, timing, and costs. The Tribunal determined that submissions from both the Commission and Bulgaria would "materially assist" its appreciation of the complex issues of EU and international law at the core of the BPP. It reasoned that the purpose of intervention under the ICSID Rules is to aid the Tribunal's decision-making process, particularly on matters of jurisdiction which it must assess proprio motu. The Tribunal found that both written and oral participation by the interveners would be beneficial to its inquiry and would not unduly burden or prejudice the disputing parties, noting that the procedural schedule for the BPP had already contemplated such interventions.

The Order clarifies that the interveners will not become parties to the dispute or act in an adversarial capacity. Their role is limited to assisting the Tribunal, and they will address their submissions solely to the Tribunal, without being subject to examination by the parties.

Scope and Modalities of Permitted Intervention

The Tribunal granted both applications, permitting the Commission and Bulgaria to file one round of simultaneous written submissions and to participate in the oral hearing for the BPP. The scope of the intervention is strictly confined to the issues raised by the Respondent's "EU Termination Agreement Objection." This includes the conclusion, interpretation, and application of the EU Termination Agreement itself, its interaction with the Romania-Bulgaria BIT, and its effect on the BIT's termination and sunset provisions. The Tribunal declined to impose page limits on the submissions or to condition the intervention on an undertaking to bear costs.

Furthermore, the Order establishes a detailed protocol for providing the interveners with access to relevant documents from the case record. It sets a schedule for the parties to apply for redactions on confidentiality grounds before disclosure is made, ensuring a managed and secure process. To guide the submissions, the Tribunal attached an Annex containing a comprehensive list of specific legal questions directed to both the Commission and Bulgaria.

Operative Directions

The Tribunal formally grants the Commission and Bulgaria leave to intervene in the BPP phase subject to the conditions set out in the Order. It directs that the existing procedural schedule from Procedural Order No. 5 will apply to the interveners' submissions and confirms the arrangements for document access. The Commission and Bulgaria are requested to respond within one week to affirm their intervention on the terms prescribed by the Tribunal.