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An Ad Hoc Arbitration Under the Rules of Arbitration Of AN AD HOC ARBITRATION UNDER THE RULES OF ARBITRATION OF THE UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW, 1976 AND PURSUANT TO THE ENERGY CHARTER TREATY PCA CASE NO. 2020-07 BETWEEN NORD STREAM 2 AG (Claimant) - and - THE EUROPEAN UNION (Respondent) CLAIMANT’S MEMORIAL The Tribunal Counsel for the Claimant Professor Ricardo Ramírez Hernández Professor Dr Kaj Hobér Mr Justice David Unterhalter Professor Philippe Sands QC 3 Verulam Buildings Gray's Inn London WC1R 5NT Tel: +44 20 7831 8441 Fax: +44 20 7831 8479 Andrew Cannon Lode Van Den Hende Iain Maxwell Hannah Ambrose Louise Barber Juliana Penz-Evren Jerome Temme Helin Laufer Herbert Smith Freehills LLP Exchange House Primrose Street London EC2A 2EG United Kingdom Tel: +44 20 7374 8000 Fax: +44 20 7374 0888 3 July 2020 1 TABLE OF CONTENTS I. INTRODUCTION ............................................................................................................ 6 II. SUMMARY OF CLAIM ................................................................................................... 8 III. OVERVIEW OF ECT PROTECTIONS BREACHED BY THE EU ............................... 15 III.1 The EU’s politically-motivated targeting of Nord Stream 2 undermines the very purpose of the ECT and its protection of the rule of law in the energy sector ..................................................................... 15 III.2 Breach of Article 10(1) – Fair and Equitable Treatment ............................... 17 III.3 Breach of Article 10(1) – Impairment by Unreasonable or Discriminatory Measures .............................................................................. 17 III.4 Breach of Article 10(1) of the ECT – Most Constant Protection and Security .................................................................................................. 18 III.5 Breach of Article 10(7) of the ECT – National Treatment and Most Favoured Nation Treatment .......................................................................... 18 III.6 Breach of Article 13 of the ECT – Expropriation ........................................... 18 IV. THE EU GAS DIRECTIVE AND THE INTERNAL MARKET FOR GAS: LEGAL AND FACTUAL BACKGROUND ..................................................................... 20 IV.1 Introduction ................................................................................................... 20 IV.2 EU gas import infrastructure ......................................................................... 21 IV.3 The role and regulation of transmission infrastructure in the EU's internal gas market ....................................................................................... 26 Focus on the internal market ........................................................................ 26 Regulatory concepts ..................................................................................... 27 Unbundling .................................................................................................... 29 Third party access and tariff regulation ......................................................... 31 The EU's Gas Target Model ......................................................................... 34 Regulatory bodies ......................................................................................... 35 IV.4 The Gas Directive and EU practice recognise that the EU’s regulatory framework described above undermines the ability to finance major new gas infrastructure ............................................................ 37 IV.5 Before the adoption of the Amending Directive, third country import pipelines were outside the scope of the EU rules .............................. 38 V. THE NORD STREAM 2 PROJECT AND NSP2AG’S INVESTMENT IN THE EU ........................................................................................................................ 40 V.1 Introduction ................................................................................................... 40 V.2 The Nord Stream 1 project and the background to Nord Stream 2 .............. 40 Planning begins for Nord Stream 2 in 2011 .................................................. 41 NSP2AG is incorporated in 2015 .................................................................. 43 V.3 Key milestones of the Nord Stream 2 project ............................................... 44 NSP2AG concludes key contracts for the construction of Nord Stream 2 ........................................................................................................ 44 Conclusion of the Gas Transportation Agreement ........................................ 45 Financing of the Nord Stream 2 project ........................................................ 47 V.4 The construction of the pipeline .................................................................... 51 Overview of the construction process ........................................................... 51 Production and coating of the pipes.............................................................. 52 Permitting process ........................................................................................ 52 Progress of the construction works ............................................................... 53 2 NSP2AG made its investment on the understanding that the Third Energy Package did not apply to Nord Stream 2, and the expectation that this would not change ......................................................... 53 V.5 Amending Directive prevents the raising of project finance ........................... 54 V.6 Status of the project as at 23 May 2019 ....................................................... 55 V.7 Current status of the Nord Stream 2 project ................................................. 57 V.8 Conclusion: NSP2AG has made a very valuable and sizeable investment in the EU ..................................................................................... 57 VI. THE AMENDING DIRECTIVE IS TARGETED AT, AND DESIGNED TO OBSTRUCT, NORD STREAM 2 .................................................................................. 59 VI.1 Introduction ................................................................................................... 59 VI.2 The EU's specific institutional structure and law-making process ................ 60 VI.3 The key EU actors involved in the adoption of the Amending Directive were politically motivated against Nord Stream 2 .......................... 63 The EU Member States ................................................................................ 63 The European Commission .......................................................................... 65 The European Parliament ............................................................................. 67 VI.4 Attempt by various EU actors to advance the position that the existing Gas Directive applied to Nord Stream 2 .......................................... 69 VI.5 The European Commission’s subsequent plan – a specific Nord Stream 2 treaty.............................................................................................. 71 VI.6 Legal concerns raised by the Council Legal Service .................................... 72 VI.7 The European Commission’s response – the proposal for the Amending Directive ....................................................................................... 74 VI.8 The Amending Directive was adopted and entered into force on 23 May 2019, making Nord Stream 2 subject to the Gas Directive .............. 78 VI.9 The Amending Directive includes the possibility of derogation under Article 49a for existing pipelines, which is drafted so as to exclude Nord Stream 2 ................................................................................. 80 VI.10 The EU’s haste in passing the Amending Directive in order to exclude Nord Stream 2 from the temporal scope of the Article 49a derogation regime .................................................................................. 85 No consultation and no impact assessment ................................................. 85 The European Commission’s false justifications .......................................... 87 VI.11 The practical effect of the Amending Directive – Nord Stream 2 is the only pipeline impacted ............................................................................ 91 VI.12 The stated objectives of the Amending Directive are entirely specious, not least because the Amending Directive, as it is formulated, is simply incapable of achieving them ....................................... 94 The proposal for the Amending Directive ..................................................... 95 The final Amending Directive ........................................................................ 99 Even in the absence of any derogations, the Amending Directive would not contribute to the internal market objective.................................... 99 Even in the absence of any derogations, the Amending Directive would not contribute to the security of supply objective ............................. 103 Due to the derogations, the limited coverage of the Amending Directive is such that it could not, in any event, contribute to its purported aims ............................................................................................ 105 VI.13 The existing Article 36 regime is fundamentally different to and is no substitute for the new Article 49a derogation regime ............................ 105 VII. THE AMENDING DIRECTIVE WILL BE CATASTROPHIC
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