On June 16, 2016, Claimants filed a Request for Provisional Measures (the "First Request for Provisional Measures"). In their First Request for Provisional Measures the Claimants requested the Tribunal to recommend that Respondent grant Claimants unrestricted access to and use of certain confidential and classified documents for the purposes of this arbitration. In a cover letter of the same date, Claimants also requested that the time limits for the Parties to present observations on the First Request for Provisional Measure be fixed by the Tribunal once constituted, and not by the Secretary-General pursuant to paragraph 5 of ICSID Arbitration Rule 39.
On July 28, 2016, the Claimants submitted a Second Request for Provisional Measures (the "Second Request for Provisional Measures") that included a Request for Emergency Temporary Provisional Measures pending the determination of this Second Request for Provisional Measures (the "Request for Emergency Temporary Provisional Measures"). In their Second Request for Provisional Measures, Claimants request the Tribunal to recommend Respondent:
(a) a series of measures related to the documents and information obtained by two divisions of Romania's National Agency for the Fiscal Administration ("ANAF") as a result of two investigations commenced on RMGC; and
(b) to refrain from enforcing or taking any action in connection with a VAT assessment served by ANAF on RMGC on July 7, 2016, in the principal amount of approximately USD 6.7 million (the "VAT Assessment") pending the resolution of RMGC's administrative and judicial challenge of such VAT Assessment.
The Respondent, inter alia, asserts that:
(a) neither the ICSID Convention nor the ICSID Rules provide a basis for the issuance of emergency relief pending the determination of a request for provisional measures;8
(b) Claimants have not demonstrated that Romanian authorities rendered the VAT Assessment in violation of the applicable Romanian law or that the conclusions contained therein are contrary to the applicable Romanian law;9
(c) the two investigations allegedly carried out by ANAF, as well as the VAT Assessment, even if enforced against RMGC, would not aggravate the dispute, since they are entirely unrelated to the claims in the arbitration and Article XII of the Canada - Romania BIT specifically excludes any claims, including request for interim relief, arising out of taxation measures;10
(d) the two investigations, as well as the VAT Assessment, even if enforced against RMGC, also would not threaten the procedural integrity of the arbitration and would certainly fail to justify an order of "emergency measures";11
(e) Article XIII(8) of the Canada - Romania BIT expressly excludes interim enforcement of the alleged rights under the BIT, which necessarily also encompasses emergency relief;12 and
(f) the Claimants' request for emergency relief does not meet the test for granting ordinary provisional measures, primarily because the Tribunal lacks jurisdiction to issue the relief sought and because the Claimants' rights are not in peril since, among other reasons, even if Claimants are required to transfer the [REDACTED], that amount is not significant as compared to the Claimants' financial resources.13
As indicated in the Secretariat's letter of August 19, 2016, the Tribunal, after careful consideration, unanimously decides as follows:
(a) The Claimants' Request for Emergency Temporary Provisional Measures is denied;
(b) Either party may bring to the Tribunal's attention any new, relevant, facts that fundamentally change the current circumstances; and
(c) Costs are reserved to be determined at a later date.
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