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INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES

Smart Energy B.V. and PJSC Ukrgazvydobutok

v.

Ukraine

(ICSID Case No. ARB/25/38)

DECISION ON THE CLAIMANTS' APPLICATION
FOR PROVISIONAL MEASURES

Members of the Tribunal
Sir Christopher Greenwood, GBE, CMG, KC, President of the Tribunal
Prof Zachary Douglas KC, Arbitrator
Prof Dr Stephan W. Schill, Arbitrator

Secretary of the Tribunal
Ms Jara Mínguez Almeida

Assistant to the President of the Tribunal
Mr Arjun Solanki

7 May 2026

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TABLE OF CONTENTS

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I. PROCEDURAL HISTORY

1. On 6 August 2025, the Claimants, Smart Energy BV (“Smart Energy”), a company incorporated under the law of the Netherlands, and PJSC Ukrgazvydobutok (“UGV”), a company incorporated under the law of Ukraine, all of whose shares are said to be owned by Smart Energy, filed a Request for Arbitration, together with exhibits C-1 to C-46, with the Centre. Smart Energy is said by the Claimants to be wholly owned by Smart Energy (Cy) Limited (“Smart Energy Cyprus”), which is in turn wholly owned by Smart Holding (Cyprus) Limited (“Smart Holding"), both of which are incorporated in Cyprus. According to the Claimants, until 1 December 2022, Smart Holding was wholly owned by Mr Vadym Novynskyi, but on that date he transferred his entire shareholding to two Cyprus trusts (the “Trusts").

2. The Claimants rely upon the Agreement on Promotion and Reciprocal Protection of Investments between the Kingdom of the Netherlands and Ukraine (the “Treaty”) as the basis for jurisdiction.¹

3. On 11 August 2025, the Acting Secretary-General of ICSID registered the Request in accordance with Article 36(3) of the ICSID Convention and notified the Parties of the registration. In the Notice of Registration, the Acting Secretary-General invited the Parties to proceed to constitute an arbitral tribunal as soon as possible in accordance with Rule 7(d) of ICSID’s Rules of Procedure for the Institution of Conciliation and Arbitration Proceedings.

4. On 21 October 2025, the Claimants filed an application for provisional measures, together with exhibits C-47 to C-69, and legal authorities CL-1 to CL-22 (the “Application”) “to restrain Ukraine from ‘arresting’ and ‘transferring’ UGV’s assets to the Ukrainian National Agency of Ukraine for Detection, Search and Management of Assets Obtained from Corruption and Other Crimes (“ARMA”) pending the conclusion of the present arbitration”, arguing that since the Claimants filed their request for arbitration, “Ukraine

¹ Exhibit C-1. ↩

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has taken further actions that exacerbate the parties’ dispute and will inflict immediate, irreparable harm upon the Claimants’ procedural and substantive rights”. In paragraph 91 of the Application, the Claimants requested that the Tribunal issue an interim order pending the Tribunal’s determination of the Application.

5. On the same date, pursuant to ICSID Arbitration Rule 47(2)(c), as the Tribunal was not yet constituted, the Secretary-General fixed time limits for written submissions on the Application, which she revised on 4 November 2025. The Parties further agreed to extensions to the briefing schedule on 11 December 2025, 16 January 2026 and 3 February 2026.

6. On 19 December 2025, the Respondent filed its Response on Provisional Measures, together with exhibits R-1 to R-53 and legal authorities RL-1 to RL-42 (the “Response").

7. On 21 January 2026, the Claimants filed their Reply on Provisional Measures, together with exhibits C-70 to C-111 and legal authorities CL-6 (resubmitted) and CL-23 to CL-35 (the “Reply"). In paragraph 118 of the Reply, the Claimants renewed their request for interim relief.

8. On 27 January 2026, the Secretary-General, in accordance with Rule 21(1) of the ICSID Rules of Procedure for Arbitration Proceedings (the “Arbitration Rules"), notified the Parties that all three arbitrators had accepted their appointments and that the Tribunal was therefore deemed to have been constituted on that date. Ms. Jara Mínguez Almeida, ICSID Team Leader and Senior Legal Counsel, was designated to serve as Secretary of the Tribunal.

9. On 30 January 2026, the Tribunal invited the Parties to confirm their availability, by 3 February 2026, to hold the First Session by videoconference on 11 February 2026 and gave notice that it might want to ask questions of the Parties regarding the Application.

10. On 1 February 2026, the Claimants confirmed their availability to hold the First Session by videoconference on 11 February 2026.

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11. On 3 February 2026, the Parties informed the Tribunal they had agreed to extend the deadline for the Respondent to file its rejoinder on the Application, at that time due on 4 February, until 18 February 2026.

12. That same day, the Respondent said that it was not available on the date proposed for the First Session, indicating it would make itself fully available for the First Session after its rejoinder on the Application had been filed and suggested dates in late February.

13. The Tribunal invited the Claimants to confirm their availability on either 23 or 25 February 2026.

14. On 6 February 2026, the Claimants advised the Tribunal that they were unavailable on the proposed dates and requested to hold the First Session and a hearing on provisional measures via Zoom on 2 March 2026.

15. On the same date, the Respondent sought leave to comment on the Claimants’ request.

16. Also on the same date, the Tribunal granted the Respondent’s request and invited the Respondent to submit its comments by no later than 10 February 2026.

17. On 9 February 2026, the Tribunal informed the Parties that the First Session would take place on 2 March 2026 in any event, and that it would determine, upon receipt of the Respondent’s comments, whether a hearing on the Application would also be held on that date.

18. On the same date, the Claimants wrote to the Tribunal stating that the Respondent “is seeking to initiate additional proceedings aimed at seizing the Claimants’ documents and assets” and referring to a letter² sent by the [Redacted] on [Redacted] (a [Redacted] in which, according to the letter, “[Redacted]”) requesting information “in order to identify the assets of the person against whom the

² Exhibit C-112. ↩

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sanction has been applied, and to prepare a claim to the [Redacted] on the application of the sanction in the form of recovery of assets to the state income." The Claimants argued that if the [Redacted] application was successful “it will result in the full confiscation of the assets, meaning the complete, permanent and irrevocable deprivation of ownership title”.

19. The Claimants requested that the Tribunal “consider this new event as it deliberates their pending Application”. They also asked that “because a proceeding before the [Redacted] could very well finish before the pending Application is decided”, the Tribunal should order temporary relief as set forth in paragraph 118 of the Claimants’ Reply.

20. On 10 February 2026, the Respondent confirmed its availability to hold the First Session on 2 March 2026 and noted that a decision to hold a hearing on provisional measures was premature as the Tribunal had not yet been fully briefed through written submissions, but that it would be available for an eventual hearing on provisional measures on 6, 9 or 10 March 2026. The Respondent further requested leave to respond to the Claimants’ letter of 9 February 2026 and suggested that it do so in its rejoinder on provisional measures due on 18 February 2026.

21. On 11 February 2026, the Tribunal granted the Respondent leave to respond to the Claimants’ letter of 9 February 2026 but directed that it be done by 13 February 2026 to permit the Tribunal to give a timely ruling on the request for temporary relief. The Tribunal also reminded both Parties “that they must do nothing which would extend or aggravate the dispute pending the ruling of the Tribunal.”

22. On the same date, the Tribunal confirmed that the First Session would be held on 2 March 2026, and invited the Claimants to confirm, as soon as possible, their availability for a possible hearing on provisional measures on 9 March 2026. The Claimants confirmed their availability on 13 February 2026.

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23. Also on 13 February 2026, the Tribunal confirmed that the Parties should reserve 9 March 2026 subject to the Tribunal’s decision on whether an online hearing on provisional measures would be necessary after receipt of the rejoinder on the Application.

24. On the same date, further to the Tribunal’s directions of 11 February 2026, the Respondent submitted its response to the Claimants’ letter of 9 February 2026, filing with it exhibits R-54 to R-61 and legal authority RL-43.

25. On 16 February 2026, the Tribunal issued its Decision on the Claimants’ interim relief application, reminding the Parties of their duty not to take any steps which might aggravate the dispute and directing each Party to immediately inform the Tribunal and the other Party of any measures that might alter the ownership, or the ultimate beneficial ownership, of any of the assets with which the proceedings are concerned or affect the access of a Party to evidence which it might reasonably require to make out its case.

26. On 18 February 2026, the Respondent filed its Rejoinder on Provisional Measures, together with exhibits R-62 to R-80 and legal authorities RL-44 to RL-56.

27. On 24 February 2026, the Tribunal informed the Parties that it would be assisted by hearing oral submissions on the Application and to that end would hold an online hearing on 9 March 2026, and invited the Parties to confer and, if possible, agree on a timetable by 27 February 2026.

28. On 27 and 28 February 2026, the Parties informed the Tribunal of their agreed timetable for the hearing on provisional measures, which was adopted by the Tribunal on 2 March 2026.

29. In accordance with ICSID Arbitration Rule 29, the Tribunal held a First Session with the Parties on 2 March 2026 by videoconference.

30. Following the First Session, on 4 March 2026, the Tribunal issued Procedural Order No. 1 recording the agreement of the Parties on procedural matters and appointing Mr Arjun Solanki as Assistant to the President of the Tribunal. Procedural Order No. 1 provides,

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inter alia, that the applicable Arbitration Rules would be those in effect from 1 July 2022, that the procedural language would be English, that the place of the proceeding would be Paris, France, and set out the procedural calendar for the proceeding.

31. On the same date, the Tribunal issued Procedural Order No. 2, on transparency and confidentiality.

32. On 6 March 2026, the Claimants submitted additional exhibits C-115 to C-122 and a core bundle of documents.

33. On the same date, the Respondent submitted corrected translations of exhibits R-21 and R-30.

34. On 8 March 2026, the Respondent objected to the Claimants’ unilateral submission of additional exhibits but consented to their admission on the condition that the Tribunal also admit exhibits R-81 to R-84.

35. A hearing on provisional measures was held online on 9 March 2026 (the “Hearing"). The following persons were present at the Hearing:

Tribunal:
Sir Christopher Greenwood, GBE, CMG, KC
Prof Zachary Douglas KC
Prof Dr Stephan W Schill

President
Arbitrator
Arbitrator

ICSID Secretariat:
Ms Jara Mínguez Almeida

Secretary of the Tribunal

Assistant to the President:
Mr Arjun Solanki

Assistant to the President of the Tribunal

For the Claimants:
Dr Georgios Petrochilos KC
Mr Scott Vesel
Prof Charles Kotuby
Ms Julia Sherman
Ms Erin Collins

Three Crowns LLP
Three Crowns LLP
Three Crowns LLP
Three Crowns LLP
Three Crowns LLP

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For the Respondent:

Court Reporter:
Ms Anne-Marie Stallard

36. On 10 March 2026, the Tribunal invited the Parties to file further submissions. The Claimants were invited to address the trust deeds and beneficiary information as well as the effects of potential remedies in the proceedings brought by ARMA³ and the Security Service of Ukraine (the “SSU"). The Respondent was invited to address the difference between corporate and operational management in the context of ARMA and the interpretation of the Ukraine’s Law “On Sanctions” of 2014 (the “Sanctions Law”) and relevant Supreme Court case law.

³ See para. 4, above.

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37. On 16 March 2026, the Claimants filed their post-hearing letter, together with exhibits C-73 (resubmitted), C-123 and C-124, and the Respondent filed its post-hearing letter, together with exhibits R-85 to R-93.

38. On 20 March 2026, the Claimants filed their reply post-hearing letter, together with exhibits C-125 to C-136, and the Respondent filed its reply post-hearing letter, together with exhibits R-94 to R-101.

39. On 24 March 2026, the Respondent sought leave to respond to certain assertions in Section B of the Claimants’ reply post-hearing letter of 20 March 2026 concerning the scope of Ukrainian sanctions law, submitting that the Claimants had made “serious misrepresentations on matters of Ukrainian law." The Claimants did not oppose the request but sought leave to file a response on the topic of confidentiality undertakings for trust-related documents.

40. That same day, the Tribunal granted both requests. The Tribunal further allowed the Claimants to file a submission on the confidentiality undertakings by 27 March 2026.

41. On 27 March 2026, the Respondent filed its response concerning the scope of Ukrainian sanctions law, together with exhibits R-102 and R-103, and the Claimants filed their submission on the confidentiality undertakings for trust-related documents.

42. On 1 April 2026, the Claimants filed their reply on the scope of Ukrainian sanctions law, together with exhibit C-137.

43. On 7 April 2026, the Tribunal invited the Parties to provide an update on the status of confidentiality undertakings by 9 April 2026.

44. On 9 April 2026, the Parties informed the Tribunal that discussions on the confidentiality undertakings were ongoing. On 2 May 2026, the Parties informed the Tribunal that they had been unable to reach agreement and would address the Tribunal on the subject at a later date.

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II. THE PARTIES' POSITIONS

45. The Tribunal has carefully considered all the submissions of the Parties, both written and oral, together with the supporting evidence and legal authorities. Those arguments are summarised in the following paragraphs. The omission of reference to a particular argument, authority, or piece of evidence does not mean that it was not considered by the Tribunal.

A. THE APPLICATION

46. The Claimants’ Application raises the question of whether the Tribunal should recommend provisional measures to prevent what the Claimants characterise as ongoing and escalating interference with their investment pending the conclusion of the Arbitration. The Parties disagree on the applicable legal standard, the threshold the Claimants must meet, and whether the specific grounds advanced by the Claimants justify the relief sought. The Tribunal summarises below the relief sought,⁴ the Parties’ positions on the legal framework and the elements of the applicable test, and their respective arguments on each of the specific measures in dispute.

47. First, the Claimants request that the Tribunal immediately issue an interim order (the “Interim Order”) directing the Respondent “to take all measures necessary to prevent any interference, and cease and desist from interfering, with the Claimants’ rights in respect of UGV and/or their assets, and in particular, to prevent …(a) the transfer of UGV’s assets to ARMA; (b) any declaration by the Ukrainian courts that the 1 December 2022 transfer of shares in Smart Holding to the Trusts is invalid; and (c) the return and/or transfer of any shares in Smart Holding held by the Trusts to Mr Novynskyi.”⁵

48. Secondly, the Claimants request that the Tribunal, upon determining the Application, put in place a restraining order on equivalent terms pending the conclusion of the Arbitration (the “Restraining Order”), directing the Respondent to: “(a) continue to take all measures

⁴ Application, paras. 7, 91, 94.
⁵ Application, para. 7(i)(a)-(c); see also Application, para. 94(i)(a)-(c).

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necessary to prevent any interference with the Claimants’ rights in respect of UGV and/or their assets, including preventing: the transfer of control over the Ukrainian Subsidiaries’ assets to ARMA; any declaration by the Ukrainian Courts that the 1 December 2022 transfer of shares in Smart Holding to the Trusts is invalid; and the return and/or transfer of any shares in Smart Holding held by the Trusts to Mr Novynskyi; and (b) cease and desist from any action that would aggravate or expand the dispute.”⁶

49. Finally, the Claimants seek an order requiring the Respondent to reimburse the Claimants’ legal and other costs incurred in connection with the Application, together with interest on such costs.⁷

50. At the hearing, the Claimants presented a revised formulation of the relief sought, which they described as a “clarif[ication] and sharpen[ing]" of the original wording.⁸ Under the revised formulation, the Claimants seek to prevent “any involuntary transfer of management or ownership of shares in UGV,” instead of “the return and/or transfer of any shares in Smart Holding held by the Trusts to Mr Novynskyi.”⁹ The Claimants emphasised that they do not seek to stop criminal investigations or to prevent the implementation of Supreme Court decisions; rather, they seek only “the preservation of the status quo at the commencement of this arbitration.”¹⁰

51. The Respondent characterises the updated formulation as having been seen for “the first time” at the hearing and submitted that, “[e]ven with the relief as recast on slide 22 of the Claimants’ presentation,” the request for an Interim Order and Restraining Order remained “too broad” because it “would encompass any measure that might theoretically or incidentally affect the Claimants."¹¹ The Respondent requests that the Tribunal dismiss

⁶ Application, para. 7(ii); see also Application, para. 94(ii)(a)-(b).
⁷ Application, para. 95.
⁸ Tr. Day 1, p. 38, lines 18-25.
⁹ Claimants’ Opening Slides, Slide 22.
¹⁰ Tr. Day 1, pp. 39-40.
¹¹ Tr. Day 1, p. 100, lines 18-22; p. 124, lines 4-22.

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the Application in full and order the Claimants to bear their costs incurred in connection with the Application, together with interest.¹²

B. THE TRIBUNAL'S POWER AND THE APPLICABLE THRESHOLD

(1) The Tribunal's Power to Recommend Provisional Measures

52. The Tribunal’s power to recommend provisional measures derives from Article 47 of the ICSID Convention, which provides that the Tribunal “may, if it considers that the circumstances so require, recommend any provisional measures which should be taken to preserve the respective rights of either party.” ICSID Arbitration Rule 47 further governs the procedure and requirements for such measures. Both Parties accept that the Tribunal possesses this power, although they disagree on the test to be applied and the threshold the Claimants must satisfy.

(2) Whether Exceptional Circumstances or Bad Faith Are Required

53. A central point of disagreement concerns whether the Claimants must demonstrate “exceptional circumstances” or “bad faith” to obtain provisional measures constraining the exercise of sovereign authority. The Claimants submit that no such requirement exists, while the Respondent maintains that a heightened threshold applies where national security considerations are engaged.

a. The Claimants' Position

54. The Claimants frame the applicable test as comprising four elements: (i) prima facie jurisdiction and a prima facie case on the merits; (ii) necessity, in the sense that the measures are “necessary to prevent serious harm to a right related to the dispute”; (iii) urgency; and (iv) proportionality, understood as “the harm spared to the requesting party exceeds the effect of the measure on the respondent."¹³ The Claimants reject the Respondent’s formulation of urgency, maintaining that urgency is satisfied where a party

¹² Response, para. 180; Rejoinder, para. 125.
¹³ Claimants’ Opening Slides, Slide 23; Application, para. 43.

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“risks suffering serious or irreparable prejudice in the absence of the requested provisional measures prior to the end of the arbitration.”¹⁴

55. The Claimants contend that ICSID tribunals have not imposed a requirement of “exceptional circumstances” or “bad faith” as a precondition for granting provisional measures constraining a State’s sovereign authority, citing Caratube, Italba, and Manolium-Processing. The Claimants invoke Ipek v. Turkey, where the tribunal granted provisional measures finding it “need not analyse the appropriateness of the criminal proceedings at all,” and SGS v. Pakistan, where, in the Claimants’ submission, the tribunal granted measures requiring the State not to take any step to initiate a complaint for contempt of court. In the Claimants’ submission, the Tribunal need only “weigh the harms facing the claimant against those the respondent would suffer" and where the harms concern the Claimants’ ability to fairly present their case, a lower threshold applies.¹⁵ At the hearing, the Claimants reiterated the limited scope of their request, submitting that because they do not seek to stay or terminate any criminal investigation or judicial proceeding, no threshold of exceptional circumstances or bad faith applies.¹⁶

b. The Respondent's Position

56. The Respondent frames the applicable standard differently, emphasising that provisional measures are “extraordinary” and may only be granted in “exceptional circumstances,” relying on Occidental Petroleum v. Ecuador and Caratube v. Kazakhstan. The threshold, the Respondent argues, is “exceptionally high” where the measures sought would “interfere with a State’s sovereign right and duty to conduct good faith criminal investigations.”¹⁷ Relying on CC/Devas v. India, the Respondent contends that national security concerns the “existential core of a State” and that “an investor who wishes to challenge a State decision in that respect faces a heavy burden of proof, such as bad faith."¹⁸ In the Respondent’s

¹⁴ Reply, para. 87.
¹⁵ Reply, paras. 96-100; Claimants’ Opening Slides, Slides 25-28.
¹⁶ Tr. Day 1, p. 39, lines 1-17.
¹⁷ Response, paras. 2, 96-99; Respondent’s Opening Slides, Slides 25-26; Rejoinder, para. 53.
¹⁸ Rejoinder, para. 55.

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submission, the wartime context elevates the threshold further: the standard is “further heightened in the case of measures to enjoin State action where there are demonstrable and justifiable specific national security concerns.” Urgency, accordingly, requires proof of “current or imminent harm, not hypothetical, remote or purely potential harm.”¹⁹

57. Concerning Manolium, the Respondent argues that the tribunal “itself declined to award provisional measures precisely because of the absence of bad faith” and relies on Quiborax v. Bolivia, where “criminal proceedings were commenced precisely and expressly because the claimant had initiated the arbitration.” The Respondent distinguishes the Claimants’ remaining authorities on the basis that each involved truly exceptional circumstances not present here, including seizure of corporate records and charges against witnesses (Quiborax), acknowledged evidence-gathering through criminal proceedings (Lao Holdings), coercive payment demands (City Oriente), and European Arrest Warrants (Nova Group), while noting that even in those cases the tribunals rejected broader relief requests. The Respondent submits that the Claimants’ requests are “similarly vague and overbroad."²⁰ At the hearing, the Respondent conceded that the present case “may be a novel, exceptional, perhaps extraordinary case in this context,” while maintaining that the threshold for provisional measures remained high and was not met.²¹

C. THE PARTIES' POSITIONS ON THE ELEMENTS OF THE TEST

(1) Prima Facie Jurisdiction and Prima Facie Case on the Merits

a. The Claimants' Position

58. The Claimants submit that prima facie jurisdiction is a “low threshold” requiring only an “initial analysis" of the facts alleged, “without verifying or analysing those facts in depth."²² As Netherlands nationals whose dispute concerns a protected investment, the Claimants observe that the Secretary-General’s registration itself demonstrates “ICSID’s

¹⁹ Rejoinder, paras. 51, 110, 122.
²⁰ Rejoinder, paras. 48-49, 55.
²¹ Tr. Day 1, p. 98, lines 10-11.
²² Application, paras. 47-48.

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own acceptance of prima facie jurisdiction pursuant to Article 36(3) of the ICSID Convention."²³ Moreover, the Respondent itself admits that “Smart Energy is incorporated in the Netherlands and that UGV is, on its face, controlled by Smart Energy,” which, in the Claimants’ submission, “puts an end to the prima facie inquiry."²⁴

59. On the question of whether the Tribunal can or should pierce the corporate veil and look at the underlying ownership of Smart Energy, the Claimants characterise it as “precisely the sort of fact-intensive inquiry that a tribunal should not engage in when determining whether it has prima facie jurisdiction” and one that is “rarely and always cautiously applied.²⁵ Neither the Treaty nor the ICSID Convention, the Claimants argue, “permits a tribunal to decline jurisdiction based on an analysis of ultimate beneficial ownership of claimants who otherwise satisfy the jurisdictional requirements." In support, the Claimants rely on Saluka, where the tribunal held it was “beyond the powers of this Tribunal to import into the definition of ‘investor’ some requirement relating to such a relationship...."²⁶

60. On illegality, the Claimants argue that the investments were made in compliance with Ukrainian law and any allegations concern conduct “almost a decade after the Claimants began investing in Ukraine,” rendering them “irrelevant to the Tribunal’s jurisdiction— prima facie or otherwise."²⁷ The Claimants submit that post-investment illegality must be considered a defence to the merits, and that pleas of non-compliance “require a full examination of facts and law, which is inappropriate to the prima facie standard for provisional measures.”²⁸

61. On the facts, the Claimants state that Mr Novynskyi is not a Russian citizen, having renounced Russian citizenship in 2012 with Russia terminating his citizenship on 13 April

²³ Application, para. 50; Reply, para. 14.
²⁴ Reply, paras. 17-18.
²⁵ Reply, paras. 18-19.
²⁶ Reply, paras. 20-21.
²⁷ Reply, paras. 28-29.
²⁸ Reply, paras. 30, 32.

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2013.²⁹ The share transfer, the Claimants note, occurred on 1 December 2022, before sanctions took effect upon publication in Uryadovyi Kurier on 6 December 2022.³⁰ The Claimants observe that the sanctions annex metadata shows it was created on 2 December 2022, meaning the names “were therefore not public on 1 December 2022 when the shares in Smart Holding were transferred."³¹

62. At the hearing, the Claimants maintained that the prima facie standard requires only that jurisdiction exists “at first sight” and characterised the illegality allegations as “just bold assertions" unsupported by evidence. Ukrainian courts, the Claimants observe, have “affirmed the exclusive jurisdiction of the Cypriot legal system over the Trusts.” The Claimants placed on the record Declarations of Trust dated 6 December 2022 identifying as beneficiaries “the unborn children of the Settlor” and “the unborn grandchildren of the Settlor” respectively, explaining these are abbreviated documents “prepared...so that something could be disclosed to the Ukrainian authorities” with additional beneficiaries not reflected. On “resulting trusts,” the Claimants observed that “[a] trust does not result until the end of its term, and the end of these trusts is the end of 2037.”³² The Claimants submit that the Trustees have agreed to disclose the trust deeds and letters of wishes within a confidentiality ring, citing Section 11(1) of the Cyprus International Trusts Law. The Claimants offer flexibility as to the arrangements, proposing that a custodian could bring hard copies to a location outside Ukraine for inspection and that the Tribunal could direct the filing of redacted or separate submissions for any confidential materials.³³

63. On the prima facie case on the merits, the Claimants identify two categories of substantive rights that the measures in dispute are said to violate: Article 3(2) of the Treaty (fair and equitable treatment) and Article 6 (protection against expropriation); Article 6, the Claimants note, prohibits the Respondent from substantially depriving the Claimants of

²⁹ Reply, para. 34(i).
³⁰ Reply, para. 34(ii)-(iii).
³¹ Reply, para. 34(iv).
³² Exhibits C-11, C-12; Tr. Day 1, pp. 179-181; Tr. Day 1, p. 135.
³³ Letter from the Claimants to the Tribunal dated 16 March 2026, paras. 2-4; Letter from the Claimants to the Tribunal dated 27 March 2026, paras. 1, 3-5.

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their investments except in the public interest, on a non-discriminatory basis, and with just compensation.³⁴ The Claimants characterise the potential transfer of UGV’s assets to ARMA as "tantamount to a complete and direct expropriation."³⁵

64. Finally, the Claimants submit that Article 1(2) of the Sanctions Law³⁶ permits sanctions only against (a) “foreign” subjects and (b) “subjects engaged in terrorist activities”. According to the Claimants, citizens of Ukraine may not be the subject of sanctions unless they are engaged in terrorist activities. Judicial interpretation, the Claimants argue, “may not amount to a statutory amendment” of the law’s express terms, and none of the Supreme Court decisions affirmatively held that sanctions could be imposed on a Ukrainian citizen absent a terrorism charge.³⁷ Mr Novynskyi, the Claimants contend, is a Ukrainian national and has been subjected to sanctions even though he has not been charged with any acts of terrorism. Further, the Claimants rely on the judgment of the European Court of Human Rights in MSL, Tov v. Ukraine,³⁸ which they maintain found an absence of meaningful judicial assessment and concluded that Ukraine had violated Article 13 of the European Convention on Human Rights and Article 1 of Protocol No. 1 to the Convention, noting that the Supreme Court of Ukraine has since reopened that case.³⁹ In the Claimants’ submission, Articles 1 and 3 of the Sanctions Law cannot be read as permitting sanctions on Ukrainian nationals merely because the activity-based grounds in Article 3(1) of the Law are met, and HACC decisions, the Claimants contend, affirm that Ukrainian citizens may be sanctioned only following a formal penal charge or terrorism designation.⁴⁰

³⁴ Application, para. 53.
³⁵ Application, para. 54.
³⁶ Exhibit R-14.
³⁷ Letter from the Claimants to the Tribunal dated 20 March 2026, paras. 11-12, 14; Letter from the Claimants to the Tribunal dated 1 April 2026, paras. 2-4; Exhibit C-137.
³⁸ Judgment of 16 October 2025 in Application No. 18048, Exhibit C-135.
³⁹ Letter from the Claimants to the Tribunal dated 20 March 2026, paras. 16-19; Exhibits C-8, C-14, C-133, C-135, C-136.
⁴⁰ Letter from the Claimants to the Tribunal dated 20 March 2026, paras. 14, 20-21; Exhibits C-127, C-129, C-130, C-134; Letter from the Claimants to the Tribunal dated 1 April 2026, para. 5.

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b. The Respondent's Position

65. The Respondent challenges the existence of a prima facie basis for jurisdiction on two independent grounds. First, the Respondent argues that the corporate veil should be pierced: “[b]y piercing the corporate veil, it is clear that Smart Energy and UGV largely remain Russian/Ukrainian controlled entities, notwithstanding the purported transfer of ownership to the Cypriot Trusts.”⁴¹ The transfers, the Respondent contends, were “purportedly made the same day as the sanctions on Mr Novynskyi took effect" with evidence of "further efforts by Mr Novynskyi to distort the recorded date of transfer in the Cypriot Register.” According to the Respondent, the trusts reveal “their true nature as an asset-shielding attempt,” “Mr Novynskyi remains the ultimate beneficial owner," and the Cypriot Trustees “are not independent fiduciaries."⁴² In the Rejoinder, the Respondent distinguishes Libra on the ground that in that case there was no evidence of bad faith or sanctions evasion on the part of the claimant. The Respondent also distinguishes Saluka on the basis that the tribunal acknowledged veil piercing where “corporate structures had been utilised to perpetrate fraud or other malfeasance,” declining only because “the alleged fraud and malfeasance have been insufficiently made out.” The Respondent maintains that there is “an abundance of evidence" of bad faith and sanctions evasion.⁴³

66. Secondly, the Respondent argues that what the Claimants assert are their investments are tainted by illegality. The Respondent rejects the argument that only illegality at the time of making an investment can be relevant, contending that “subsequent acts of illegality can also constitute grounds for a jurisdictional objection” (Littop) and “acts rooted in illegality or wrongdoing cannot give rise to enforceable rights under international law."⁴⁴ The Respondent relies on a [Redacted] confirming that Mr Novynskyi “continued to hold another valid Russian passport" [Redacted], and a Supreme Court decision confirming

⁴¹ Response, para. 110.
⁴² Response, paras. 105-108, 115.
⁴³ Rejoinder, paras. 22, 26-27.
⁴⁴ Rejoinder, paras. 36-37, 42-44; Response, para. 119.

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that the sanctions imposed by the National Security and Defence Council of Ukraine (the “NSDC”) entered into force on 1 December 2022.⁴⁵

67. The Respondent relies on the decision of the Supreme Court of Ukraine in Chaika,⁴⁶ which it maintains “fundamentally altered the litigation landscape in Ukraine” by confirming that courts must “examine the substance and economic reality of the underlying corporate transactions when determining who was the UBO in sanctions cases, including whether such arrangements were being used to circumvent sanctions.”⁴⁷ The Respondent further invokes a Supreme Court decision confirming that sanctions took effect immediately on 1 December 2022,⁴⁸ and characterises the Claimants’ withdrawal of certain court proceedings as “a tactical response to Chaika, not conduct undertaken in the spirit of the Tribunal’s decision” of 16 February 2026.⁴⁹

68. Turning to the trust arrangements, the Respondent argues that the trusts are “resulting trusts" because they “were declared solely in favour of non-existent beneficiaries: unborn children and grandchildren,” meaning “the assets remain beneficially owned by the settlor, Mr Novynskyi."⁵⁰ The Respondent submits that the proposed confidentiality arrangements are “oppressive” and “fundamentally unworkable,” preventing Ukraine from making “any meaningful use of the Trust Documents in presenting its defence.” The Respondent is prepared to treat the documents as confidential under Procedural Order No. 2 but does not agree to the terms proposed.⁵¹

69. On the Sanctions Law, the Respondent conceded that “the wording of the law could have been drafted better” but submitted that Articles 1 and 3 must be read together such that “any individual whose actions cause a real or potential threat to ‘national security,

⁴⁵ Rejoinder, paras. 42-44.
⁴⁶ Exhibit R-83.
⁴⁷ Tr. Day 1, pp. 73-74.
⁴⁸ Exhibit R-73; Respondent’s Opening Slides, Slide 8.
⁴⁹Tr. Day 1, p. 73 line 25 to p. 74 line 2.
⁵⁰ Tr. Day 1, p. 87.
⁵¹ Letter from the Respondent to the Tribunal dated 20 March 2026, paras. 2-13.

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sovereignty and territorial integrity of Ukraine’ can be subject to sanctions.”⁵² The Respondent relies on decisions of the Supreme Court of Ukraine, which hold that the categories in Article 1(2) are “criteria-based, indicative, illustrative, but not exhaustive,” and notes that the NSDC has sanctioned multiple Ukrainian nationals and the HACC Appeals Chamber has held that sanctions apply regardless of citizenship.⁵³ The Respondent maintains that the Claimants’ reliance on a separate opinion in the relevant judgment is misplaced as separate opinions have no binding effect.⁵⁴ As to the decision of the European Court of Human Rights (para. 64, above), the Respondent submits that it did not condemn the Ukrainian judicial system and made clear that its findings related solely to the facts of that particular case.⁵⁵

70. Alternatively, the Respondent argues that even if the illegality objection were characterised as admissibility rather than jurisdiction, there is “no basis to grant the requested provisional measures on the basis that the Claimants have no prima facie case on the merits."⁵⁶ At the hearing, Professor Douglas enquired how the analysis would be affected if the illegality allegation was “properly characterised as [going to] admissibility rather than jurisdiction”. The Respondent confirmed that “it does not change anything for the provisional measures stage, because the prima facie test would apply as well.”⁵⁷

(2) Necessity

a. The Claimants' Position

71. The Claimants submit that provisional measures “are justified if they are necessary to protect the Claimants’ rights related to the dispute”. They submit that these rights include both the substantive rights under the Treaty which they are asserting in the proceedings and the procedural rights to a full and fair hearing and to submit relevant evidence.

⁵² Tr. Day 1, pp. 164-166.
⁵³ Letter from the Respondent to the Tribunal dated 16 March 2026, paras. 17-23; Exhibits R-89, R-90, R-91, R-92, R-93, R-103.
⁵⁴ Letter from the Respondent to the Tribunal dated 27 March 2026, paras. 3-9.
⁵⁵ Letter from the Respondent to the Tribunal dated 27 March 2026, paras. 10-11; Exhibit C-135.
⁵⁶ Rejoinder, para. 39.
⁵⁷ Tr. Day 1, p. 159, lines 12-17; Tr. Day 1, p. 164, lines 3-6.

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Irreparable harm, the Claimants argue, is not required: “any harm to the Claimants’ right to pursue their claims in the arbitration is ‘inherently irreparable by monetary damages.""⁵⁸ The Claimants observe that the Respondent’s contrary position is "based on a mischaracterisation of the relevant commentary and case law,” observing that Professor Schreuer himself notes that a “few tribunals have even held that ‘irreparable harm’ is not necessary." Relying on PNG, the Claimants contend that “‘irreparable’ harm is properly understood as requiring a showing of material risk of serious or grave damage."⁵⁹

72. First, on the question of harm, the Claimants maintain that serious economic loss constitutes sufficiently serious harm: in Perenco, the tribunal found that the business “would be crippled, if not destroyed” and in Burlington, the tribunal concluded that “the risk... is the destruction of an ongoing investment and of its revenue-producing potential."⁶⁰ The Respondent, the Claimants further argue, “has a history of non-payment of arbitral awards, with approximately USD 142 million in outstanding unpaid awards.”⁶¹

73. Secondly, on witnesses, the Claimants argue that employees would “fear reprisals from the State should they choose to testify against it” and would, in case control over UGV was transferred to ARMA, “need permission to testify against Ukraine to be given by ARMA, a state agency.”⁶² As to documents, UGV possesses “a huge number of documents over decades, and many of those do not exist other than in paper copy," making copies "practically impossible.”⁶³ More broadly, the Claimants observe that the Prosecutor’s Motion seeks “the corporate rights (in whole or in part)” and “[i]t’s really hard to distinguish between only the corporate rights, but having the corporations still exist.”⁶⁴ At

⁵⁸ Application, paras. 55-56.
⁵⁹ Reply, paras. 37-39; Claimants’ Opening Slides, Slide 34.
⁶⁰ Reply, para. 64; Application, para. 61.
⁶¹ Reply, paras. 68-69.
⁶² Reply, paras. 57-58.
⁶³ Response, para. 135; Tr. Day 1, pp. 168-169.
⁶⁴ Tr. Day 1, pp. 177-178.

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the hearing, counsel maintained that they would not be able to take instructions from the Second Claimant if ARMA assumed management.⁶⁵

74. Finally, on preservation of the status quo, the Claimants submit that this is a “free-standing right" and that parties should not take steps that might “aggravate or extend their dispute or prejudice the execution of the award.” The Claimants argue that the Prosecutor’s Motion "seeks to shift the status quo on that issue in Ukraine’s favour."⁶⁶ If assets are transferred to ARMA, the Claimants maintain, there are “very real risks of prejudicing the Claimants’ rights”; if the SSU’s claims succeed, they would be exposed to the full effect of sanctions. Moreover, the SSU, the Claimants observe, had not initiated its claims at the time of the Request for Arbitration.⁶⁷ Relying on Biwater Gauff, the Claimants submit that even when risks “have yet to manifest themselves in concrete terms,” the tribunal’s “mandate extends to attempting to reduce the risk of future aggravation."⁶⁸ The Claimants distinguish EuroGas v. Slovak Republic, where the respondent had suspended criminal proceedings, returned seized documents, and provided undertakings. According to the Claimants, these protections are absent in the present case.⁶⁹ At the hearing, the Claimants emphasised that the status quo had “very clearly changed since the beginning of the arbitration”: an investigation by the [Redacted] arose between pleading rounds, the Ministry of Justice action was foreshadowed post-pleadings, the Respondent refused every invitation to provide undertakings, and the SSU’s expedition of proceedings after the Tribunal’s 16 February 2026 direction demonstrated the urgency of the requested measures.⁷⁰

b. The Respondent's Position

75. The Respondent contends that the Claimants “misstate the necessity standard”: provisional measures require harm that “cannot be repaired" or is not “adequately reparable by an

⁶⁵ Tr. Day 1, pp. 141-142.
⁶⁶ Application, paras. 74-77.
⁶⁷ Reply, paras. 78-79.
⁶⁸ Reply, paras. 71, 75.
⁶⁹ Reply, para. 76.
⁷⁰ Tr. Day 1, p. 140, lines 6-8; Tr. Day 1, pp. 45-46, 59-60.

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award of damages,” citing “no fewer than 16 cases" in support.⁷¹ The Respondent also relies on Italba v. Uruguay for the requirement of “substantive and compelling evidence of a serious risk that Claimant’s rights will suffer irreparable harm."⁷² The Respondent submits that PNG and City Oriente are “outlier cases”: the PNG tribunal “in fact required imminent and actual or concrete future serious harm supported by sufficient evidence.” The Respondent further argues that the Ipek tribunal “expressly relied on the very same irreparable harm standard that the Claimants now vigorously contest.”⁷³

76. First, on the question of harm, the Respondent argues that “[p]ure economic loss does not justify provisional measures.”⁷⁴ The Respondent observes that ICSID tribunals are "capable of fashioning meaningful relief in the form of monetary damages” even in “the most extreme circumstances."⁷⁵ The Respondent maintains that "[n]one of the measures envisaged by Ukraine require any payment, threaten forcible collection, or involve the risk of termination of contracts." Any harm, the Respondent submits, would be “marginal, purely economic, and fully capable of being compensated by a final award."⁷⁶ In any event, the Respondent further argues that tribunals “do not treat the mitigation of damages as a basis for granting provisional measures.”⁷⁷

77. Secondly, on documents, the Respondent submits that they “are available now” and “will be available and can be accessed in the future also."⁷⁸ The witness contentions, the Respondent argues, are “hopelessly speculative and flatly unsupported by any evidence”: in Nova Group, the claimant provided “[n]o information regarding who such witnesses are, why they are material to the integrity of this case.” The Respondent observes that Articles 21 and 22 of the ICSID Convention guarantee witness immunity.⁷⁹ The

⁷¹ Response, paras. 122-123.
⁷² Response, para. 127.
⁷³ Rejoinder, paras. 61-63.
⁷⁴ Response, para. 138.
⁷⁵ Rejoinder, paras. 92-93.
⁷⁶ Response, paras. 140, 175; Rejoinder, para. 89.
⁷⁷ Rejoinder, para. 94.
⁷⁸ Tr. Day 1, p. 167, lines 20-24.
⁷⁹ Rejoinder, paras. 68, 81-82.

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Respondent contends that ARMA’s management “would not extend to ARMA stepping into the shoes of a shareholder” but would be limited to “the operational management.”⁸⁰

78. Finally, on the status quo, the Respondent contends that the complaints are “misplaced” because the proceedings predate the Arbitration, noting that the Smart Group initiated 45 proceedings creating an “environment of sustained litigation activity.” The Respondent submits that the SSU claims are “the logical conclusion” of the SSU’s complaint and the Prosecutor’s Motion is "the logical consequence” of the criminal investigation since January 2023.⁸¹ Tribunals, the Respondent argues, “only recommend measures to preserve or restore the status quo in exceptional circumstances” and “the right and duty to conduct criminal prosecutions is a prerogative of any sovereign State.” The Respondent relies on the EuroGas tribunal, which required "sufficient evidence of an actual threat of aggravation."⁸²

(3) Urgency

a. The Claimants' Position

79. The Claimants submit that “the need for provisional measures is inherently urgent where...the status quo is threatened, and the dispute is at risk of aggravation by a party’s decision to take matters into its own hands." Relying on Burlington, the Claimants argue that "when the measures are intended to protect against the aggravation of the dispute during the proceedings, the urgency requirement is fulfilled by definition."⁸³ The Claimants maintain that transfer of UGV’s assets to ARMA “may take place within a very limited timeframe, well before any final decision is issued in the arbitration,” that the Respondent “has not provided an undertaking” not to refile the Prosecutor’s Motion, and that in a prior case the court “granted the motion the following day."⁸⁴ The SSU proceedings, the Claimants argue, “likely will be resolved before the Tribunal renders an

⁸⁰ Tr. Day 1, p. 174, lines 3-7, p. 175, lines 7-11; Tr. Day 1, pp. 171, 174-175.
⁸¹ Rejoinder, paras. 100, 107-108.
⁸² Rejoinder, para. 103; Response, para. 143.
⁸³ Application, paras. 81-82.
⁸⁴ Application, paras. 29, 85; Reply, paras. 88-89.

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award" and the SSU’s assurance that “[c]urrently, the SSU does not plan to file other lawsuits” “further demonstrates the hollowness of Ukraine’s assurances.”⁸⁵

80. At the hearing, the Claimants emphasised that the Respondent had refused every invitation to provide undertakings, noting that the Respondent “has ignored every single invitation, [and] not even responded.”⁸⁶ The Claimants further argued that within days of the Tribunal’s 16 February 2026 direction, “the SSU and the court sua sponte started proactively resuming proceedings in almost a dozen of those cases, all scheduling expedited hearings this week or next.”⁸⁷

b. The Respondent's Position

81. The Respondent rejects the notion that urgency is “inherent,” calling this “self-evidently circular.” Provisional measures, the Respondent argues, are urgent only when a party “would otherwise suffer imminent harm, or at least harm that would arise before the award is rendered." The Respondent adds that “[t]he mere possibility of future harm is not sufficient."⁸⁸ Turning to the present case, the Respondent notes that the Prosecutor’s Motion was withdrawn with no renewed motion filed, and SSU hearings have been “postponed to May and June 2026 respectively” with “both cases...likely to be suspended."⁸⁹ In the Rejoinder, the Respondent elaborates, submitting that urgency requires “current or imminent harm, not hypothetical, remote or purely potential harm.” Urgency, the Respondent contends, is absent because the SSU proceedings “remain at a procedural standstill,” there “is no guarantee which way the Courts will decide,” and the Prosecutor’s Office “is awaiting the Ukrainian courts’ final determination on the question of the real UBOs."⁹⁰ At the hearing, the Respondent characterised the allegation that the

⁸⁵ Reply, paras. 6, 90-91.
⁸⁶ Tr. Day 1, pp. 45-46.
⁸⁷ Tr. Day 1, p. 36, lines 13-17.
⁸⁸ Response, paras. 159-162.
⁸⁹ Response, paras. 63, 164-166.
⁹⁰ Rejoinder, paras. 110-112(a)-(d).

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SSU had expedited proceedings as raised for “the first time actually that we heard” of it, warranting scrutiny given it had not been raised in the written proceedings.⁹¹

(4) Proportionality

a. The Claimants' Position

82. The Claimants submit that “the harm that the Claimants will suffer without Provisional Measures outweighs any harm that Ukraine is likely to sustain.” The measures “would cause no harm to Ukraine at all” because UGV’s assets include “affixed surface facilities and underground hydrocarbon reservoirs in Ukraine that are not at any risk of flight.”⁹² Bad faith, the Claimants argue, is not required: “[w]here the harms facing the claimant concern its ability to fairly present its case, a lower (not higher) standard applies."⁹³ The Claimants observe that they “are not subject to any economic sanctions” and contend that the Respondent’s position is contradictory: “either these proceedings are shortly forthcoming—in which case the harm the Claimants face is urgent; or [the Respondent] has no intention of progressing this litigation—in which case the measures requested can be hardly said to infringe on Ukraine’s sovereign prerogatives."⁹⁴

83. The Claimants respond that Russia’s invasion does not alter the proportionality analysis. Relying on Ipek v. Turkey, they argue that the Tribunal is “in no position now to make findings of fact about any of these wider allegations” and need only assess whether the conduct “is so likely to inhibit the fair process of this arbitration that the grant of provisional measures is urgently necessary to prevent irreparable harm."⁹⁵

b. The Respondent's Position

84. The Respondent submits that the Claimants “completely ignore the profound intrusion these measures would impose on Ukraine’s sovereignty, and the exceptionally high

⁹¹ Tr. Day 1, p. 148, lines 7-12.
⁹² Application, paras. 86-90.
⁹³ Reply, paras. 96-97.
⁹⁴ Reply, paras. 104-108.
⁹⁵ Reply, paras. 109-110.

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threshold required for such relief.” In the Respondent’s submission, “Russia’s full-scale invasion of Ukraine and the ensuing armed conflict cannot be ignored” and granting measures “would undermine Ukraine’s essential interests and undermine its ability to enforce compliance with its own laws.”⁹⁶ Citing Gerald International v. Sierra Leone, the Respondent argues that ordering the suspension of criminal investigations “would intrude too far into the rights of a State to enforce its criminal law."⁹⁷ More broadly, the Respondent contends that the requests are “vague and overly broad, lacking the specificity required for enforceable interim measures” and that the sanctions “are commensurate with the legitimate exercise of Ukraine’s inherent public international law right of self-defence against Russia’s armed attack.”⁹⁸

85. In the Rejoinder, the Respondent argues that the relief sought is “an exceptionally vague and overbroad request” that “requires Ukraine to refrain from taking any measure that may theoretically or incidentally affect the Claimants."⁹⁹ The Respondent submits that Ukraine’s sanctions “are driven by fundamental national security concerns" and that granting the measures “would effectively force Ukraine to cease any further steps in enforcing lawful and eminently appropriate sanctions against certain of Mr Novynskyi’s assets."¹⁰⁰ At the hearing, the Respondent contended that this constitutes a “strategic misuse of the ICSID system" that “should be firmly rejected."¹⁰¹

⁹⁶ Response, paras. 171-172, 177.
⁹⁷ Response, para. 170.
⁹⁸ Response, paras. 174, 178.
⁹⁹ Rejoinder, paras. 115-116.
¹⁰⁰ Rejoinder, para. 120; Response, para. 172.
¹⁰¹ Tr. Day 1, pp. 125-126.

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D. THE SPECIFIC MEASURES IN DISPUTE

(1) The Prosecutor General's Motion and the Potential Transfer of UGV's Assets to ARMA

a. The Claimants' Position

86. The Claimants submit that on 5 September 2025, “a mere four weeks after the registration of this arbitration at ICSID,” the Prosecutor filed an ex parte motion (the “Prosecutor’s Motion") requesting the transfer of UGV’s assets to ARMA “for the purpose of implementing asset management measures to ensure their preservation or the preservation of their economic value.” The Claimants maintain that the targeted assets included corporate rights, gas wells, natural gas reserves, and real estate. On 11 September 2025, the Prosecutor withdrew the Motion but "indicated that a revised motion would be submitted soon thereafter.” The Claimants argue that, based on prior practice, transfer could occur within approximately two months of a court order.¹⁰²

87. The Claimants contend that if UGV’s assets were transferred to ARMA, the Claimants would be able to access documents and take evidence from employees only “at the discretion of the government-appointed asset manager,” with “a significant risk that the asset manager may prevent the Claimants from accessing evidence.”¹⁰³ The Claimants further argue that ARMA lacks “the requisite specialist technical knowledge” for oil and gas management, creating a risk of “brain drain” given that UGV is “already operating with a minimal critical workforce."¹⁰⁴ In support, the Claimants rely on a Transparency International report showing a 13.6 per cent success rate in tendering for asset managers, a 2024 Audit Report documenting significant financial losses, and evidence that ARMA “systematically and unlawfully sells seized assets.” The Claimants also cite the Anti-Corruption Bureau’s findings of “serious corruption at the highest levels of ARMA’s management," noting that NABU and SAPO’s Operation Midas resulted in seven indictments for embezzlement, bribery, and illicit enrichment. ARMA’s own Acting Head,

¹⁰² Application, paras. 5, 29, 89.
¹⁰³ Application, paras. 59-60.
¹⁰⁴ Application, paras. 62, 65-67, 69-70.

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the Claimants observe, has acknowledged that the agency “is simply not physically capable of managing such a number of assets."¹⁰⁵

88. More broadly, the Claimants argue that Ukrainian law does not adequately protect them, since Articles 21(2) and 21(4) of the ARMA Law “impose no obligations on asset managers with respect to the preservation, accessibility, or safeguarding of documents or information for the purposes of other proceedings, let alone international arbitration.”¹⁰⁶ The Claimants maintain that transfer risks “a significant and irreparable reduction, if not complete collapse, in those assets’ value, and thus of the value of the Claimants’ investments in Ukraine.”¹⁰⁷ The Claimants submit that even Ukrnafta would “lack the requisite institutional knowledge" because “each reservoir...represents a unique hydrodynamic system" and safe management requires “five to seven years” of experience for senior specialists. The Claimants further contend that ARMA management would represent “a fundamental change to the status quo” and that “[t]emporary” management “could last many years,” noting that in September 2024 an owner was forced to initiate proceedings against ARMA when it refused to return funds.¹⁰⁸

89. Finally, the Claimants cite the case of VK Ukrnaftoburinnya (“VKU”), where the Director of Ukrnafta within days declared previous shareholder decisions invalid and replaced senior management. The Supreme Court upheld these decisions on the ground that the manager “‘substitutes’ the owner both de jure and de facto” and “only the manager may exercise the corporate rights arising from the share."¹⁰⁹ The Claimants argue that the Respondent’s characterisation of ARMA management as merely preserving assets is “not responsive" to these concerns, as ARMA assumes all powers of the owner and may sell assets under Articles 21(2) and 21(7) of the ARMA Law. The Claimants further note that the Respondent’s own acknowledgement that ARMA would exercise “certain shareholder-level powers, including at general meetings of the shareholders,”

¹⁰⁵ Application, para. 63; Reply, paras. 49-55.
¹⁰⁶ Reply, paras. 60-63.
¹⁰⁷ Application, para. 72.
¹⁰⁸ Application, paras. 67-70; Reply, paras. 82-83.
¹⁰⁹ Letter from the Claimants to the Tribunal dated 20 March 2026, paras. 6-10; Exhibits C-128, C-131.

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encompassing governance, economic, information, and disposition rights, means that no corporate rights would remain outside ARMA’s control.¹¹⁰ The Claimants submit that Article 21(4) of the ARMA Law, on which the Respondent relies, does not apply to UGV because it falls within the “exceptional cases” under Article 21-1 for natural gas producers, as confirmed by the Supreme Court.¹¹¹

b. The Respondent's Position

90. The Respondent submits that the Prosecutor’s Motion was withdrawn and there is no imminent risk.¹¹² The Respondent argues that ARMA operates within a “robust legal framework" designed to “preserve the economic value of the asset,” ensuring “personnel within UGV will remain unchanged and operations will continue as normal.” The Respondent adds that ARMA management concerns only “the property component (corporate rights, property, cash flows)” and that ARMA “is not the employer of UGV’s staff."¹¹³ On the question of harm, the Respondent contends that the Claimants “have not identified—let alone quantified—any comparable economic loss," and that gas production had "already fallen sharply due to the ongoing war and proximity to the front line.”¹¹⁴ The Respondent maintains that the corruption allegations are “isolated and historical incidents" raised "solely to taint Ukraine before this Tribunal.”¹¹⁵

91. On the question of ownership, the Respondent maintains that “the owner of the asset retains ownership even where the asset is transferred to ARMA for management” and that “[m]anagement does not alter the title of ownership—it merely limits the exercise of certain powers, such as use or disposal, and only for the duration of the arrest.” The Respondent further argues that ARMA’s management is “fiduciary in nature, temporary in duration, and strictly limited to the purpose of preserving the asset,” and that the manager is

¹¹⁰ Letter from the Claimants to the Tribunal dated 20 March 2026, paras. 4-5, 9; Exhibit C-49; Letter from the Respondent to the Tribunal dated 16 March 2026, para. 9 and fn. 14.
¹¹¹ Letter from the Claimants to the Tribunal dated 20 March 2026, para. 10; Exhibits C-49, C-128, C-131.
¹¹² Response, para. 63; Rejoinder, para. 108.
¹¹³ Response, para. 140.
¹¹⁴ Rejoinder, paras. 89, 96.
¹¹⁵ Rejoinder, paras. 72-78.

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prohibited from alienating the managed assets.¹¹⁶ The Respondent submits that Article 21(4) applies without reservation to UGV and that no corporate decision may be implemented without the prior approval of the owner. The Respondent contends that the “exceptional” regime under Article 21-1 applies only where “urgent intervention is required to prevent emergencies or disruptions affecting gas, electricity or enterprises in the defence-industrial sector,” and that no such circumstances are present in this case.¹¹⁷ The Respondent observes that even under ARMA management, UGV’s director would retain authority to instruct external lawyers, including in this arbitration.¹¹⁸

92. Finally, the Respondent disputes that transfer to ARMA would follow “almost automatically within two days.” A court, the Respondent argues, must refuse arrest unless the prosecutor proves necessity.¹¹⁹ The Respondent notes that 39 parallel commercial proceedings brought by Smart Group affiliates remain pending, some of which claimants have withdrawn to avoid court findings regarding sanctions evasion.¹²⁰ The Respondent submits that even if transfer is granted, appointment of a professional manager requires up to 80 days, during which ARMA is prohibited from managing the assets. The Respondent observes that Article 21-6 requires return within ten business days if the arrest is lifted.¹²¹

(2) The SSU Claims to Invalidate the December 2022 Share Transfers

a. The Claimants' Position

93. The Claimants submit that the SSU has repeatedly sought to invalidate the December 2022 transfer, filing four claims of which the first two were returned without consideration. A third was filed on 25 September 2025 and a fourth on 16 October 2025, which “demonstrates how Ukraine is taking increasingly aggressive actions targeting the Trusts since the Claimants commenced this arbitration.”¹²² The Claimants argue that these claims

¹¹⁶ Letter from the Respondent to the Tribunal dated 16 March 2026, paras. 7-8; Exhibits R-30, R-85.
¹¹⁷ Letter from the Respondent to the Tribunal dated 16 March 2026, paras. 10-12; Letter from the Respondent to the Tribunal dated 20 March 2026, para. 32.
¹¹⁸ Letter from the Respondent to the Tribunal dated 16 March 2026, paras. 3-4.
¹¹⁹ Letter from the Respondent to the Tribunal dated 20 March 2026, paras. 26-28; Exhibits R-20, R-100.
¹²⁰ Letter from the Respondent to the Tribunal dated 20 March 2026, paras. 24-25.
¹²¹ Letter from the Respondent to the Tribunal dated 20 March 2026, paras. 30-31, 33; Exhibits R-101, R-30.
¹²² Application, paras. 30-37.

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are “based on sweeping, vague and unevidenced allegations that the share transfer violates Ukrainian public policy.” The Claimants observe that the Supreme Court in January 2025 held that Ukraine lacks authority to regulate the transfer of Smart Holding to the Trusts, and that the SSU thus “seeks to relitigate an issue that has been finally decided by Ukraine’s highest courts.”¹²³

94. The Claimants submit that if the SSU’s claims are granted, the “purported ‘invalidation’ of the transfers in Ukraine and the ‘return [...]’ of shares to Mr Novynskyi would expose the Claimants to the full effect of sanctions Ukraine has issued against Mr Novynskyi, and thus risk immediately and irreparably crippling their businesses.” The Claimants argue that consequences would include loss of the ability to “reserve” employees from military conscription, inability to do business with Ukrainian banks, confiscation risk, and suspension of UGV’s Special Permit.¹²⁴

95. Finally, on the adequacy of domestic remedies, the Claimants argue that these would not provide effective protection within the relevant timeframe. The Claimants observe that in Case No 910/12907/25 a hearing is scheduled for 2 June 2026, and note that defendants would have 20 days to appeal with a further 60 days for the Court of Appeal, with cassation limited to four grounds and suspension “granted only in exceptional circumstances.”¹²⁵ With respect to the ARMA transfer, the Claimants submit that an investigating judge’s ruling would be immediately enforceable, that an appeal would not suspend enforcement, and that the special motion to cancel the “arrest” is rarely granted and not itself subject to judicial review. The Claimants contend that transfer to ARMA would be effected before any domestic remedy could take effect: the ruling is subject to one appeal within five days, the Court of Appeal’s judgment is final, and further rulings under Article 309 of the Criminal Procedure Code may not be subject to appeal at all.¹²⁶

¹²³ Application, paras. 6(i), 38-39.
¹²⁴ Application, paras. 6(iii), 68, 78.
¹²⁵ Letter from the Claimants to the Tribunal dated 16 March 2026, paras. 6-10; Exhibit C-123.
¹²⁶ Letter from the Claimants to the Tribunal dated 16 March 2026, paras. 11-14; Exhibit C-73.

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b. The Respondent's Position

96. The Respondent counters that the Supreme Court decision was confined to confirming the procedural annulment of Order No. 1286/5 on the ground that Amstor, the party which had brought the claim, lacked standing, and that “neither court examin[ed] the legality of the underlying changes to the registry, nor Cypriot trust arrangements.” At the hearing, the Respondent submits that the decision “only declared the original order to be annulled because of a lack of procedural standing of the applicant” and that there was “no decision whatsoever on the validity of the order, on substance.”¹²⁷

97. In the Rejoinder, the Respondent argues that the SSU Claims are “inextricably linked to the preceding steps” and represent “the logical conclusion” of the SSU’s enforcement mandate. The Respondent contends that no Ukrainian court has made “any substantive determination upholding, recognising, or giving legal effect to the December 2022 Transfers in the context of Ukrainian sanctions law.” According to the Respondent, in “at least three cases” Kyiv courts reached “substantive conclusions that the December 2022 Transfers formed part of an attempt by Mr Novynskyi to unlawfully evade sanctions.”¹²⁸ The Respondent notes that both SSU cases have been “suspended (or further postponed)” for failure to provide notarised translations under the Hague Service Convention, and that the SSU has confirmed it does not plan to file additional claims.¹²⁹ As to the alleged consequences, the Respondent disputes them, arguing that conscription exceptions apply to gas extraction enterprises, that the Cypriot Trustees “are subject to sanctions that are similar in effect," and that speculation about confiscation is “unsupported."¹³⁰

98. Finally, the Respondent observes that the 2 June 2026 hearing is a procedural pre-trial hearing, not a hearing on the merits, and adds that in the other case, pre-trial hearings have been postponed to 8 October 2026. The Respondent argues that the merits process “commonly spans more than one hearing” with at least three months for appeal and a

¹²⁷ Response, para. 47; Tr. Day 1, p. 172, lines 8-14.
¹²⁸ Rejoinder, paras. 100-102, 107.
¹²⁹ Rejoinder, para. 112.
¹³⁰ Response, para. 156.

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further three months for cassation, and that Article 332 contains no limitation to “exceptional circumstances."¹³¹ The Respondent submits that under Article 185(2), no case may proceed to merits until the court closes pre-trial proceedings, and that no such decision has been made. The Respondent further notes that Article 174 triggers an obligation to terminate the ARMA regime and return assets.¹³²

(3) The [Redacted] Action and Potential [Redacted] Confiscation Proceedings

a. The Claimants' Position

99. On 9 February 2026, the Claimants informed the Tribunal that on [Redacted] the [Redacted] issued formal requests concerning assets of Smart Holding, the ultimate parent entity in the corporate chain, seeking documents “for the purpose of recovery of the assets of a person subject to sanctions, and for the preparation of a statement of claim to the [Redacted] seeking the application of a sanction in the form of recovery of assets to state revenue.” The Claimants characterise this as “an entirely new front in the ongoing attack on Claimant’s investment” and submit that, if successful, it would result in “the full confiscation of the assets, meaning the complete, permanent and irrevocable deprivation of ownership title.”¹³³

100. The Claimants argue that the [Redacted] procedure is “highly expedited”: the respondent has five days to submit its defence and the court must render its decision within thirty days. This, the Claimants submit, contradicts the Response’s assertion that there is “no risk of aggravation of the dispute.” The Claimants contend that the [Redacted] letter “demonstrates that the risk to Claimants is imminent.”¹³⁴ At the hearing, the Claimants emphasised that the letter “ties everything together” and that “[w]hen it decides to move at

¹³¹ Letter from the Respondent to the Tribunal dated 20 March 2026, paras. 17-19, 23; Exhibits R-95, R-96, R-97, R-98, R-99.
¹³² Letter from the Respondent to the Tribunal dated 20 March 2026, paras. 15-16, 27, 31; Exhibits R-20, R-34.
¹³³ Letter from the Claimants to the Tribunal dated 9 February 2026, pp. 1-2.
¹³⁴ Letter from the Claimants to the Tribunal dated 9 February 2026, p. 2.

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the [Redacted] that can quickly pull Claimants’ assets into State revenue.”¹³⁵

b. The Respondent's Position

101. The Respondent characterises the [Redacted] letter as “a routine statutory request for information” addressed exclusively to the [Redacted] and [Redacted] arguing that it “concerns neither Smart Energy nor UGV” and does not disclose any decision to commence confiscation proceedings. The Respondent argues that the language about preparing “a statement of claim” is “standard wording used in [Redacted]” and "does not indicate that the [Redacted] has decided to initiate proceedings." The Respondent observes that since 24 May 2022 over 16,000 asset tracing requests have been issued, but only 52 claims for confiscation filed.¹³⁶ At the hearing, the Respondent submitted that the letter “does not concern any of the Claimant entities” and “does not in any way, expressly or implicitly, suggest the potential initiation of confiscation proceedings."¹³⁷

102. The Respondent argues that the statutory timeframes are “indicative, not mandatory” and that in complex sanctions cases courts extend them “as a matter of course,” citing three [Redacted] cases pending for between 18 months and over 2.5 years. The Respondent submits that there is “no realistic possibility that the [Redacted] could render a final decision without the Claimants receiving notice and this Tribunal having adequate time to consider submissions from the parties and render a decision.”¹³⁸

(4) The [Redacted] Investigation

a. The Claimants' Position

103. The Claimants submit that on [Redacted] the [Redacted] opened a criminal investigation into Mr Novynskyi, alleging that his [Redacted] was made with the proceeds

¹³⁵ Tr. Day 1, p. 37, lines 17-22.
¹³⁶ Letter from the Respondent to the Tribunal dated 13 February 2026, paras. 2-3, 12, 14.
¹³⁷ Tr. Day 1, p. 149, lines 17-22.
¹³⁸ Letter from the Respondent to the Tribunal dated 13 February 2026, paras. 18-20.

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of [Redacted]. On [Redacted], the [Redacted] granted the [Redacted] motion to obtain all related documents.¹³⁹ The Claimants characterise these as "stale allegations that have been tactically recast”: the original tax evasion allegations were time-barred, and the [Redacted] has "pivoted” to recasting them as [Redacted]. The Claimants contend that the investigation represents a “clear and new-found mission to confiscate Claimants’ assets" and that confiscation would be mandatory under Article 209 of the Criminal Code, including from bona fide possessors. The Claimants further maintain that “[t]he [Redacted] is driving to provide additional pretext for this objective, irrespective of the Cypriot trusts, irrespective of the Cypriot share transfers and even irrespective of the outcome of the SSU’s litigation.” While not seeking to prevent the investigation, the Claimants argue that mandatory confiscation falls on them if prosecution proceeds.¹⁴⁰

b. The Respondent's Position

104. The Respondent submits that the [Redacted] investigation concerns “[Redacted]" and is "not in any way connected to the main criminal case, 0091,” with “no link, no interconnection” to the present Arbitration. The Respondent argues that the investigation is “not aimed at confiscating assets, as the Claimants might want the Tribunal to believe,” and is “just an investigation at this stage” where the authorities “will first try to establish the facts before there’s any determination of next steps.”¹⁴¹ The Respondent contends that the court ruling granting access to historical documents “is a standard evidentiary measure in a [Redacted] investigation and has no impact whatsoever on the Claimants’ corporate rights, day-to-day operations, or their ability to participate in these proceedings."¹⁴²

¹³⁹ Reply, para. 78(ii); Tr. Day 1, p. 31.
¹⁴⁰ Tr. Day 1, pp. 31-32; Tr. Day 1, p. 32, lines 4-17.
¹⁴¹ Tr. Day 1, pp. 149-150; Tr. Day 1, p. 149, lines 4-11.
¹⁴² Rejoinder, para. 109.

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III. THE TRIBUNAL'S ANALYSIS

A. GENERAL CONSIDERATIONS

105. The Tribunal begins by noting that it is common ground between the Parties that the Tribunal has the power, under Article 47 of the ICSID Convention and Arbitration Rule 47, to indicate provisional measures of protection. Arbitration Rule 47(1) gives an indication of what will normally be the scope of such measures:

A party may at any time request that the Tribunal recommend provisional measures to preserve that party’s rights, including measures to:

(a) prevent action that is likely to cause current or imminent harm to that party or prejudice to the arbitral process;

(b) maintain or restore the status quo pending determination of the dispute;

(c) preserve evidence that may be relevant to the resolution of the dispute.

106. Three general considerations regarding the exercise of this power need to be made clear at the outset.

107. First, the only rights which this power is designed to preserve are those of a party to the proceedings. It is not a power which can be used to protect rights of a person or entity which is not a party to the proceedings. That consideration is particularly relevant in the present case. The parties to the proceedings are, on the one hand, Smart Energy BV and its wholly owned subsidiary, UGV, as Claimants, and Ukraine, as Respondent. Much of the discussion before the Tribunal has concerned Mr Novynskyi. Given that he was, until 1 December 2022 (and, according to the Respondent, may still be), the ultimate owner of both Claimants, his position is obviously of factual, and possibly legal, significance in these proceedings. He is not, however, a party to the proceedings and, indeed, could not be so. It follows that any rights which he might possess cannot be the subject of protection by

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way of provisional measures granted by this Tribunal. Accordingly, the treatment of Mr Novynskyi can be relevant to the Application for provisional measures only insofar as that treatment is capable of affecting the rights of one or both of the Claimants or the integrity of the arbitration proceedings. The difference of view between the Parties regarding the legality of imposing sanctions upon Mr Novynskyi has to be seen in this light.

108. Secondly, a tribunal faced with a request for provisional measures necessarily has to decide on that request on the basis of an incomplete record and relatively concise submissions by the Parties. It is not in a position to make definitive findings regarding jurisdiction, the admissibility of the claim, or the merits of the case. Nor is it entitled to do so. For the avoidance of doubt, nothing in the present decision is to be taken as indicating the views of the Tribunal regarding disputes of fact or law relevant to jurisdiction, admissibility, or merits. To the extent that the Tribunal makes any comment about the facts of the case, such comments are necessarily provisional and confined to the matters which have to be decided for the purpose of the present Application.

109. Lastly, while the Parties differ as to the precise limits of the Tribunal’s power (which will be considered below), there is no dispute regarding the basic conditions: there must be a prima facie basis for jurisdiction and the measures must be necessary to prevent an urgent risk of harm to the rights of a Party or to the integrity of the arbitration proceedings and they must be proportionate.

B. PRIMA FACIE BASIS FOR JURISDICTION

110. It is well established, both in the decisions of ICSID tribunals and in the jurisprudence of the International Court of Justice, that a precondition for the exercise of the power to recommend provisional measures is that there exists, prima facie, a basis for the jurisdiction of the Tribunal.

111. Article 9 of the Treaty confers jurisdiction in respect of “any dispute between either Contracting Party and a national of the other Contracting Party concerning an investment of that national in the territory of the former Party”.

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112. In the present case the Claimants maintain that all that is required to satisfy the condition of a prima facie basis for jurisdiction is that the Claimants are on their face “nationals” of one party to the Treaty, who appear to possess an “investment” as defined in the Treaty, and seek to bring a dispute relating to that investment.

113. As regards the question whether, prima facie, the Claimants are nationals of the Netherlands, Article 1(b) of the Treaty provides that:

the term 'nationals' shall comprise with regard to either Contracting Party:

i. natural persons having the nationality of that Contracting Party;

ii. legal persons constituted under the law of that Contracting Party;

iii. legal persons not constituted under the law of that Contracting Party but controlled by natural persons as defined in i. or by legal persons as defined in ii. above.

114. The Claimants rely on the fact that Smart Energy is a legal person incorporated under the law of the Netherlands and UGV is wholly controlled by Smart Energy. On that basis, they argue that Smart Energy falls within Article 1(b)(ii) and UGV within Article 1(b)(iii) of the Treaty. No further inquiry is required or permitted, they maintain.

115. The Respondent, on the other hand, maintains that the true position is that both companies are owned and controlled by Mr Novynskyi, whom the Respondent treats as Russian and the Claimants as Ukrainian. According to the Respondent, the Tribunal must lift the corporate veil and examine what it regards as the true position.

116. The Respondent raises a serious issue which will have to be considered at a later stage of the proceedings. It cannot, however, be considered now. The Tribunal does not have sufficient evidence before it to determine the relationship at the relevant time of Mr Novynskyi to the Claimants. In particular, there is an unresolved question as to whether Mr Novynskyi remains a beneficiary under the Cyprus Trusts in respect of which the

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Parties notified the Tribunal on 2 May 2026 that they had been unable to reach agreement concerning confidentiality conditions for the disclosure of the trust deeds. Moreover, the question whether the Tribunal is entitled to lift the corporate veil in determining whether the Claimants are nationals of the Netherlands for the purposes of the Treaty is one of some complexity and not one to be determined in what are necessarily summary proceedings.

117. The same is true of the question whether the Claimants have an investment within the meaning of Article 1(a) of the Treaty. That provision states:

the term 'investments' shall comprise every kind of asset and more particularly, though not exclusively:

1. movable and immovable property as well as any other rights in rem in respect of every kind of asset;
2. rights derived from shares, bonds and other kinds of interests in companies and joint ventures;
3. claim to money, to other assets or to any performance having an economic value;
4. rights in the field of industrial and intellectual property, such as copyrights, patents, industrial design or models, trade or service marks, trade names, technical processes, goodwill and know-how and any other similar rights;
5. rights granted under public law, including rights to prospect, explore, extract or exploit natural resources as well as all other rights given by law, by contract or by decision of competent authorities in accordance with the law.

118. On the face of the Request for Arbitration, Smart Energy's shares in UGV fall within Article 1(a)(ii), while UGV has investments within the meaning of Article 1(a)(i) and (v) and possibly other parts of this provision. The Respondent's argument of illegality, while it will have to be determined at a later stage of the proceedings, again raises issues of fact and law which cannot be determined at the provisional measures stage. The Tribunal therefore concludes that, prima facie, the Claimants have investments in Ukraine.

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119. The Tribunal also concludes that, prima facie, the present dispute is one which concerns investments of the Claimants in Ukraine.

120. The issue at this stage of the proceedings is not whether the Tribunal has jurisdiction but whether there is a prima facie basis for jurisdiction. The Tribunal considers that this condition is satisfied.

C. THE SUBSTANTIVE CONDITIONS FOR THE INDICATION OF PROVISIONAL MEASURES

121. As stated above, there is no doubt that the substantive requirement for the recommendation of provisional measures is that the measures must be necessary to prevent an urgent risk of harm to the rights of a Party or to the integrity of the arbitration proceedings and they must be proportionate. Two preliminary points must, however, be made.

122. First, the Respondent contends that provisional measures are an exceptional remedy which should be granted only in extreme circumstances. In particular, the Respondent argues that bad faith is generally required. The Claimants dispute that. The Tribunal does not accept that a party seeking provisional measures is required to demonstrate the existence of bad faith on the part of the other Party. It agrees, however, that an arbitral tribunal should be cautious about indicating provisional measures which interfere with the judicial process in a State or with measures which a State considers necessary to protect its national security. That latter consideration is particularly pertinent where, as here, major hostilities are taking place on the territory of the State. That is not to say that provisional measures should never be granted in such a case, nor that the mere invocation of national security by a respondent State suffices to insulate that State from the power of a tribunal to indicate provisional measures, but it does highlight the need for caution.

123. Secondly, it is important always to keep in mind the purpose of the power to indicate provisional measures. That power exists, first, to ensure that a respondent does not take steps which mean that, if the claimant is ultimately successful, that success is negated or impaired. However, that concern has to be balanced against the concern that measures are not imposed which, if the respondent ultimately turns out to be successful in the

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proceedings, have caused irreparable harm to the respondent, particularly in a case where the respondent says it is acting to protect its national security interests. These competing concerns may require that a tribunal examine the balance of convenience, a factor which is a critical part of the proportionality requirement.

124. The power to indicate provisional measures has, in addition, a second purpose, namely to protect the integrity of the arbitration proceedings by ensuring that those proceedings are not prejudiced by the destruction or concealment of evidence or other action which denies a party the opportunity fairly and fully to put its case before the tribunal. A respondent may take action which, though it does not directly risk harm to the rights of the claimant, nevertheless creates a risk of prejudice to the proceedings in this sense. Again, the principle of proportionality requires that the Tribunal consider the balance of convenience in determining whether to indicate measures and, if it considers action is needed, then what measures it should recommend.

D. APPLICATION OF THE PRINCIPLES TO THE FACTS

125. With these considerations in mind, the Tribunal has carefully considered the arguments of the Parties regarding the four different actions by the Respondent which, according to the Claimants, create an urgent risk of irreparable harm to the rights claimed by the Claimants or of prejudice to the integrity of the arbitration.

(1) The Potential Transfer of UGV's Assets to ARMA

126. The first of the four actions is the risk of transfer of control of UGV to ARMA. The relevant facts are set out in the summary of the Parties' arguments in paragraphs II.D(1)a to 91, above. The Tribunal accepts that, as submitted by the Respondent, a court order transferring the assets to ARMA would involve only managerial control and would not affect ownership of the assets which would remain with UGV, while Smart Energy's ownership of the shares in UGV would be unaffected.

127. Nevertheless, the Tribunal considers that the Claimants have made out an arguable case that such a transfer of control might lead to a deterioration of the assets and thus to

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economic damage to UGV and Smart Energy if control over the day-to-day operations of UGV were to be vested in ARMA. The Tribunal also notes the Claimants' concern that an award of damages might not in practice afford compensation for such loss given that the Respondent's current economic circumstances might create a serious risk that any award of damages would not be paid within a reasonable time frame.

128. Whether that arguable case is sufficient to meet the criterion of necessity and, if so, whether the balance of convenience entailed by the proportionality criterion would favour the grant of the provisional measures requested would require careful consideration. However, the Tribunal has concluded that it is not necessary to embark upon that inquiry because it considers that the Claimants have not established that any risk of irreparable harm to their rights is urgent.

129. The Tribunal does not accept the Claimants' contention that “the need for provisional measures is inherently urgent where ... the status quo is threatened".¹⁴³ It agrees with the Respondent that urgency requires “current or imminent harm, not hypothetical, remote or purely potential harm”.¹⁴⁴ The Tribunal notes that the original Prosecutor's Motion regarding the possible transfer has been withdrawn and that any future proceedings would not lead, as the Claimants have suggested, to an automatic transfer within a few days after the filing of the Motion, but would be subject to scrutiny by a court and the possibility of an appeal. Since there are no proceedings currently under way, and if proceedings were instituted they would not lead to automatic transfer and would be subject to scrutiny by the courts, the Tribunal considers that it cannot be said that there is an urgent risk of irreparable harm to the rights asserted by the Claimants at this very moment.

130. Nor is the Tribunal persuaded that there is an urgent risk to the integrity of the arbitration proceedings and the ability of the Claimants to make their case. In the first place, the fact that there are no proceedings currently in hand for the transfer of UGV's assets to the management of ARMA means that any risk is speculative at this stage and cannot be

¹⁴³ See para. 79, above. ↩

¹⁴⁴ See para. II.C(3)b, above. ↩

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regarded as imminent. So far as concerns the gathering of evidence in support of the Claimants' case, the Claimants continue to enjoy access to the records of UGV (as they have done since the arbitration was instituted some nine months ago). In addition, the Tribunal takes note of the Respondent's assurance that even if ARMA were to take over the management of UGV's assets, that would not affect the ability of counsel for the Claimants to take instructions from UGV and have continued access to UGV's documents and members of staff who might have relevant evidence.¹⁴⁵ The Tribunal expects the Respondent to be scrupulous in ensuring that that would in fact be the case.

(2) The SSU Claims to Invalidate the December 2022 Share Transfers

131. The second action which the Claimants contend warrants the indication of provisional measures is the attempt by the SSU to invalidate the transfer by Mr Novynskyi on 1 December 2022 of his shares in the two Cyprus holding companies (Smart Energy Cyprus and Smart Holding) to the Trusts. These proceedings are ongoing with a pre-trial hearing scheduled, as of the date of the hearing, for 2 June 2026.

132. However, the Tribunal cannot see that these proceedings pose an urgent risk of irreparable harm to the rights of the Claimants. While they might affect the rights of the trustees of the Trusts and the beneficiaries of those Trusts (the identity of whom is not clear on the material currently before the Tribunal), neither the trustees nor those beneficiaries who have so far been identified are claimants in these proceedings. Nor could they be since none of them, it seems, is a national of the Netherlands.

133. The Claimants argue, nonetheless, that a reversal of the transfer of shares would leave them in the position that UGV would thenceforth be regarded as indirectly owned by a person subject to sanctions and that this would have adverse consequences which would cripple

¹⁴⁵ Letter from the Respondent to the Tribunal dated 16 March 2026, para. 4. ↩

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the business of UGV and thus cause serious economic damage to both Claimants.¹⁴⁶ The Respondent disputes that these consequences would in fact result.¹⁴⁷

134. The Tribunal considers that the Claimants have not established that the adverse consequences of which they complain would – on a balance of probabilities – follow from a decision on the share transfer. Moreover, such consequences would, in any event, be an indirect result of proceedings which are not yet at an advanced stage. In these circumstances, the Tribunal concludes that there is not a sufficiently urgent risk of irreparable harm to the rights of the Claimants. Nor do the share transfer proceedings pose an urgent risk to the integrity of the arbitration since a transfer in ownership of the shares in the First Claimant would not, in itself, affect the ability of the Claimants to prepare and present their case.

135. It is therefore unnecessary for the Tribunal to enter into the question of the precise effects of the January 2025 decision of the Supreme Court of Ukraine.

(3) The [Redacted] Action and Potential [Redacted] Proceedings

136. The Tribunal considers that the action of the [Redacted] in requiring information from the [Redacted] and [Redacted] concerning the assets of Smart Holding, a Cyprus company which is not party to these proceedings, is far too remote from any action which might affect the rights of the Claimants or the integrity of the arbitration to meet the requirements for the indication of provisional measures.

137. So far as possible [Redacted] confiscation proceedings affecting the Claimants are concerned, the Tribunal notes that no such proceedings are currently in hand. It also notes the submission of the Respondent that there is “no realistic possibility that the [Redacted] could render a final decision without the Claimants receiving notice and

¹⁴⁶ See para. 93, above. ↩

¹⁴⁷ See para. 96, above. ↩

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this Tribunal having adequate time to consider submissions from the parties and render a decision".¹⁴⁸

138. In these circumstances, the Tribunal concludes that there is no urgent risk either to the rights of the Claimants or the integrity of the arbitration.

(4) The [Redacted] Investigation

139. The final action in question is an investigation by the [Redacted] into Mr Novynskyi and the [Redacted]. The Tribunal notes that this is an investigation and not proceedings for confiscation. Should such proceedings eventually be commenced, they might give rise to a risk to the rights of the Claimants but that is not presently the case.

E. CONCLUSION

140. The Tribunal has therefore concluded that none of the actions relied upon by the Claimants meets the requirement of an urgent risk to the rights of the Claimants or the integrity of the arbitration.

141. Nevertheless, the Tribunal recognizes that matters might change and requires both Parties to keep the Tribunal informed of any material change. In addition, it expects both Parties to comply with the duty to litigate in good faith and to take no action which would undermine the integrity of the arbitration or further aggravate the dispute.

IV. DECISION

142. FOR THE REASONS STATED ABOVE:

1. The Tribunal dismisses the Claimants' application for provisional measures;

¹⁴⁸ Letter from the Respondent to the Tribunal dated 13 February 2026, paras. 18-20. ↩

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2. Requires both Parties to keep the Tribunal informed of any material change in any proceedings which might affect the rights of the Claimants or the integrity of the arbitration;
3. Gives the Claimants leave to make a fresh application in the event of a material change in circumstances;
4. Reminds both Parties of their obligation to litigate in good faith and refrain from aggravating the dispute; and
5. Reserves the question of costs to the Award.

On behalf of the Tribunal,

Signature

Sir Christopher Greenwood, GBE, CMG, KC
President of the Tribunal
Date: 7 May 2026