RvA bouwgeschillen, 21-03-2022, nr. 37.379

Documentgegevens:

ECLI:NL:RVAB:2022:7

Instantie: Raad van Arbitrage in bouwgeschillen
Datum: 21-03-2022
Zaaknummer: 37.379
Vakgebied(en): Burgerlijk procesrecht (V)
Brondocumenten en formele relaties: ECLI:NL:RVAB:2022:7, Uitspraak, Raad van Arbitrage in bouwgeschillen, 21‑03‑2022

Uitspraak 21‑03‑2022

Partij(en)

Essentie: Kort geding. Voertaal Engels. Afwijzing verzoeken tot overdracht van fabriek met de documenten en andere informatie benodigd voor de bedrijfsvoering daarvan bij wege van voorlopige maatregel omdat niet voldaan is aan de voorwaarden voor toewijzing van een voorlopige maatregel in kort geding. Toewijzing verzoek in reconventie tot overlegging van kopieën van bescheiden omdat aanneemster tot het moment van overdracht van de fabriek verplicht is de operationele kosten te dragen, maar daartegenover recht heeft op betaling van de opbrengsten, en zonder die bescheiden de hoogte van die kosten en opbrengsten in de daarover lopende bodemprocedure niet kan bepalen. Verzoeken om (aanvullende) zekerheid over en weer afgewezen.

Nr. 37.379

ARBITRAL AWARD

in a dispute in preliminary relief proceedings between

A.,

hereinafter referred to as ‘A.’,

claimant in the main action,

respondent in the counterclaim action,

attorneys: mr. A. Oorthuys, mr. W.J.L. de Clerck, and mr. B.C. Wilton all practising in Leiden,

and

B.,

hereinafter referred to as ‘B.’,

respondent in the main action,

claimant in the counterclaim action,

attorneys: mr. M.B. Klijn, mr. L.F. Dröge and mr. A.J.J.M. Feenstra, all practising in Amsterdam.

The arbitral tribunal

1.

The undersigned, mr.R.E. WEENING, lawyer-member of the Council of Arbitrators of the Arbitration Board in construction disputes (Raad van Arbitrage in bouwgeschillen (Hereinafter ‘RvA’), ir.J.M. KULING, and mr.ing. E.R.C. VAN TOORENBURG, both member-experts of this Council, have been appointed arbitrators in this dispute in accordance with the articles of association of the RvA. The arbitrators accepted their appointment in writing. The parties were informed of this by letter of 23 February 2022. Mr. C.M.H. Kroeks was added to the arbitral tribunal as secretary (secretaris).

The proceedings

2.

The course of the proceedings is as follows:

—: A.'s request for interim relief (the ‘Request’), received on 23 February 2022, with exhibits R-59 through R-76. This request was intended as a provisional request (provisionele vordering) on the basis of article 1043b paragraph 1 Dutch Code of Civil Proceedings (‘DCCP’) in the already pending urgency proceedings on the merits (spoedbodemprocedure) (case number RvA 37.298). As the arbitrators in the proceedings on the merits were not available on short notice, the parties agreed to the appointment of the undersigned arbitrators in these preliminary relief proceedings (kort geding) on the basis of article 1043b paragraph 2 DCCP;
—: B.'s opposition to A.'s request for interim relief and B.'s counter-request for interim relief (the ‘Opposition’), with exhibits C-77 through C-103;
—: the e-mail from mr. De Clerck of 8 March 2022 with exhibits C-1, C-2, R-33, R-39 and R-77 through R-85;
—: the e-mail from mr. Oorthuys of 10 March 2022 12:02 with exhibits R-86 through R-91;
—: the e-mail from mr. Klijn of 10 March 2022 16:06 with exhibits C-104 through C-108;
—: the e-mail from mr. Oorthuys of 10 March 2022 16:22 with exhibits R-92 through R-94;
—: the e-mail from mr. Dröge of 10 March 2022 18:35 with exhibits C-109 and C-110;
—: the inventory lists submitted by the parties;
—: the pleading notes of mr. Oorthuys and mr. De Clerck (also containing A.'s opposition to B.'s counterclaim);
—: the pleading notes of mr. Dröge and mr. Feenstra;
—: the e-mail from C. (D.) of 10 March 2022 containing their reaction to TAUW's report N001-12842270FD-V01-ssc-NL-E. plant standby mode, and a written Amendment of Claim (1 page), both submitted by mr. Oorthuys during the hearing.

3.

The hearing of this dispute was held on 11 March 2022.

The grounds of the decision

in the main action and the counterclaim action

jurisdiction

4.

The arbitral tribunal's jurisdiction to settle this dispute by arbitral award is undisputedly established by the parties. Article 29.1 of the Turnkey agreement concluded by the parties, as amended in an Addendum of 24 April 2019, contains an arbitration clause that refers to the RvA. The arbitration rules of 15 February 2016 apply.

The facts

5.

In so far as relevant to this dispute, the following has been established by the parties:

a.: B. is part of the B. Group of companies that are active in the area of the production of clean energy, fertilizer, and recycled water from virtually any waste stream offering a wide range of maximizing resource recovery through the offer of Solutions for the municipal, industrial, commercial, and agricultural markets.
b.: On 4 December 2017, the parties concluded a turnkey agreement for the design, construction and completion of a biogas installation (hereinafter: the ‘EPC’) for a contract price of € 22,500,000.00, exclusive of VAT.
c.: The Plant is an anaerobe digestion (AD) plant, designed for feeding ‘feedstock’ of fluid and solid organic materials to bacteria, which anaerobically digest such feedstock into biogas. The biogas produced in the digesters is fed into the gas grid.
d.: Article 5.1.10 EPC reads:
‘Until the Substantial Completion Date, Contractor will (i) perform the Work related to the start-up and commissioning of the Plant, including, but not limited to, feeding-in the substrates (and inoculum) that are supplied by Principal, (ii) arrange and pay for the provision of electricity, water, fire protection, sewage and waste disposal services related to the performance of the Work or any other obligations of Contractor hereunder, (iii) bear and pay 100% of the costs of the Plant and the Work (such as electricity, water, natural gas if needed, wastewater disposal, construction waste disposal and other construction related costs, fuel, consumables). For the avoidance of doubt, Substrate supply during ramp-up will be supplied by the Employer to the Contractor free of charge according to a rampup schedule which will be prepared by the Contractor (in the format as attached as Annex 23). In this connection, it is agreed and understood that (I) Principal shall not be required to participate In or incur any cost or expense in respect of the Plant or the Work (with the exception of any specific provision stated in this Agreement) until Substantial Completion has been achieved and (ii) Contractor shall be entitled to receive any and all revenues to be generated from or in respect of the Plant until the Substantial Completion Date. Principal shall promptly remit to Contractor any such revenue’.
e.: Article 11.5.1 states the following:
‘The Principal undertakes to supply the Plant with Sufficient Substrates, including inoculum as required for the commissioning start up of the Plant. Any deviation from the quantities, characteristics, ingredients and composition of the recipe prepared by Contractor not in line with the indicators stated under the ‘Table of Quality and Quantities Substrates Deviances’ attached under Annex 14, by mass or by each of the specifications as detailed under such Annex, must be approved in writing by the Contractor prior to such change. If written approval is not provided by the Contractor, the Plant will be considered as operated not in line with the Manual’.
f.: The Starting Date of Construction was 1 July 2019.
g.: On 29 October 2020, both parties and the ‘Lender's Engineer’ signed a ‘Certificate of Mechanical Completion’ (capitalised terms in this arbitral award have the meaning as defined in the EPC).
h.: Disputes have arisen between the parties about their respective rights, obligations and (alleged) liabilities under the EPC in respect of — inter alia — the quality and quantity of delivered feedstock, missed revenues, (extra) costs, technical defects in the machinery, and (the cause of and responsibility for) delays in various stages of completion of the work. Urgency proceedings on the merits (spoedbodemprocedure) regarding these disputes were initiated by B. in 2021 and are still pending under case number RvA 37.298. A hearing before the arbitral tribunal in that case will be held on 13 April 2022.
i.: By letter of its attorney of 3 February 2022 (Exhibit R-71) A. partially terminated (rescinded) the EPC ‘on the basis of Article 6:265 DCC and, alternatively, in accordance with Articles 20.2.3 [regarding termination in case of substantial violations of the EPC] and 20.4 EPC [regarding notification of such termination]’. The termination (rescission) was limited to the part of the agreement which had not been performed yet, B.'s rights and obligations under Article 5.1.10 EPC and related clauses of the EPC. According to the letter, the construction works performed so far by B. pursuant to Article 5.1.6 EPC and related clauses of the EPC remain in place.
j.: By letter of its attorney of 4 February 2022 (Exhibit R-64) B. disputed A.'s right to terminate the EPC and announced that as of Monday 7 February 2022, the Plant would be put in Stand-By mode until A. conceded that the attempted Performance Test was deemed to have been passed, or, at B.'s discretion, and without prejudice to its position that no additional testing was necessary, A. would demonstrate by submitting written, verifiable proof that it could deliver stable feedstock in line with Annex 14 for a period of at least five consecutive weeks.
k.: A. did not comply with the aforementioned demands and B. put the Plant in Stand-By modus on 7 February 2022.

The dispute

A.'s requests (in conventie)

6.

A. (Request, page 5, paragraph 9) states that ‘Placing the plant in stand-by mode will have serious and irreversible effects and puts A. in urgent need if interim relief’ because of:

a): technical repercussions (a reduction of at least four times in biogas production, starvation/loss of the anaerobic biomass in the digesters, a significant increase in flare usage, and a long recovery time);
b): administrative consequences (increased flaring may, according to A., be regarded as an infringement of the applicable permit requirements), strained supplier relations;
c): financial losses (according to A., on the basis of current biogas prices, ‘the plant must run at least at 80% of its designed production capacity in order to reach break-even on the operational costs’, which threshold cannot be met in stand-by mode).

7.

According to A. (Request, paragraph 35) its case for partial termination (sub 5(i) above) ‘is prima facie convincing and, as such, an additional basis to award the relief it is seeking in these interim proceedings’, because:

1): Substantial Completion is extremely delayed by over a year (Request, paragraph 38); and
2): B.'s volatility with respect to the conducting of plant operations violates Article 20.2.3 EPC.

8.

A. requests that the Arbitral Tribunal — according to A.: in order to minimize its (financial) damages — grants the interim relief specified below.

9.

A. concludes in its Request:

‘Request for interim relief

79.

A. request the arbitral tribunal to issue an arbitral award against B. pursuant to Article 1043b(4) DCCP in which B. is ordered to:

on A.'s primary request for interim relief:

within 48 hours after the order is issued:

79.1.

end plant operations and leave the site insofar as plant operations are concerned;

79.2.

provide A. with full administrator rights to F., including but not limited to the list of logins, passwords and any other means of access;

79.3.

provide (further) items, documents and information required to enable the taking over of plant operations including but not limited to:

a): all (other) logins, passwords, keys and other means of access (digital and physical) that enable the autonomous and safe operation of the plant, including but not limited to the: oxygen generator; BGU; Biofilter; internet & WiFi; communication provider; water utility; gas utility; and electricity provider;
b): operation and maintenance manuals of all equipment and instruments installed in the system;
c): all warranties for the constructions, equipment, instruments, and pipes;
d): spare parts lists; and
e): all safety documents;

79.4.

grant full and unconditional access to all systems and on-site areas and cooperate with any reasonable requests made by A. in connection therewith; and

79.5.

provide A. and its personnel (up to five people) with training and instruction enabling them to fully and safely operate the plant in accordance with Article 5.1.13 EPC Agreement;

on A.'s additional request for interim relief:

within six weeks after the order is issued:

79.6.: renew and re-issue the G. for a total amount of EUR 18,701,142, while ensuring that these remain valid for at least six months after the date of issuance of the order;

and within 48 hours after the order is issued:

79.7.

provide all as-built drawings relating to the plant and its components and in any case to the following components:

a): P&IDs;
b): mass & energy balances;
c): electrical design;
d): piping design; and
e): control system;

79.8.

issue a written statement confirming that it provided A. with all as-built drawings of the plant as well as with a list of as-built drawings that were not made and which cannot be provided;

on all of A.'s requests for interim relief:

79.9.: comply with the order within the respective timeframes set by the arbitral tribunal failing which a penalty of EUR 250,000 is due for every day that B. fails to comply with the order or any part thereof up to a total penaltyof EUR 2.5m;

80.

A. requests the arbitral tribunal to issue a cost order in favour of A. for the costs of this request for interim relief, including the costs of legal assistance.

81.

A. requests the arbitral tribunal to order that the arbitral award is enforceable regardless of any arbitral appeal filed by the Claimant.’.

10.

The aforementioned written Amendment of Claim, submitted by mr. Oorthuys during the hearing (sub 2 above) reads:

‘In addition to the claims submitted in the Request for interim relief of 18 February 2022, A. requests that the Interim Relief Tribunal renders those orders it considers appropriate to accommodate A.'s justified interests’.

11.

According to B., Mechanical Completion occurred slightly later than initially planned as a consequence of acts and omissions on A.'s part and Events of Force Majeure, such as the COVID-19 pandemic and extreme weather conditions.

12.

B. states that, by signing a ‘Certificate of Mechanical Completion’, both parties and the ‘Lender's Engineer’ acknowledged that ‘Mechanical Completion’ had occurred on 29 October 2020. According to B. (Opposition, page 7/82), A. cannot retract that acknowledgement and therefore, according to Article 12.3 EPC and the definition of Mechanical Completion in the EPC, it must be deemed that:

‘12.3.1.: Construction of the Plant has been completed in accordance with the Plans and Specifications;
12.3.2.: Alle equipment and other components of the Plant, including the Gas Upgrade System, has passed all standard and required electrical testing, hypot, megger testing, flushure and pressure testing of piping, and all other applicable testing, per codes and guides, including any applicable Caterpillar Application and Installation Guides;
12.3.3.: The Plant is ready to be tested and commissioned’.

13.

According to B. the Plant has not been performing as scheduled because A. has consistently failed to comply with its key obligation under Article 11.5.1 EPC to deliver ‘Sufficient Substrates’ (sub 5(e) above; Opposition, paragraph 11–12). According to B., the Performance Test (a condition precedent to Substantial Completion, the step before Final Completion) scheduled for April 2021 has been performed in May 2021 and has failed due to a defect in the connection to the H. gas grid, for which A. is contractually responsible (Articles 2.1 and 5.2.2 EPC).

14.

B. states that since it cannot fulfil its own obligations under the EPC because of A.'s failure to supply Substantial Substrates, it finds itself in a ‘Catch-22 situation’ (Opposition, paragraph 54).

15.

B. states (Opposition, paragraph 46) that Substantial Completion has occurred, and points out that it invited A. by letter of its attorney of 7 December 2021 (Exhibit R-61; Opposition, paragraph 54) to discuss a coordinated handover of the Plant and issued detailed proposals to that end by letter of its attorney of 8 January 2022 (Exhibit C-84).

16.

B. points out that A., after initially showing willingness to discuss such handover by letter of 23 December 2021, rejected B.'s proposal by letter of 12 January 2022 and, after some further correspondence, invoked partial termination of the EPC (gedeeltelijke ontbinding) as referred to in Article 6:265 DCC by letter of 3 February 2022 (Exhibit R-71).

17.

According to B. (Opposition, paragraphs 23 and 60; Pleading Notes, paragraph 1.6) it had the right to put the Plant in Stand-By pursuant to Articles 11.5.2 and 11.5.3 EPC, which read, respectively:

‘[…] If such substrates are not Sufficient Substrates, Contractor [B.] might refuse to perform the Commissioning or shall amend the level of Performance Test to be reached under article 12 below and the respective indicators thereof’

and

‘If at any time the Contractor is idle, waiting for the Principal [A.] to provide permits, substrate or anything else related to Principal[s] responsibility that is required to finish the Work, Principal agrees to pay the Contractor for its Stand-By Costs as per the definition set out in Article 1 of this Agreement. In this event, the Liquidated Damages calendar is suspended until the situation is corrected by the Principal’.

18.

B. concludes that A.'s requests should be rejected because none of the following three conditions precedent for granting a claim in preliminary relief proceedings have been met:

l.: likelihood of success of the claims in the proceedings on the merits;
m.: the balance of the parties' interests tips the scales in favour of the claimant in the preliminary relief proceedings (A.);
n.: the claimant has an urgent need for the requested preliminary relief.

19.

Furthermore, according to B., the technical and juridical aspects involved in the assessment of the question which of both parties is in default, are too complex to be assessed in preliminary proceedings.

20.

In conventie, B. therefore concludes:

‘207.

For the foregoing reasons, B. respectfully requests that the Interim Relief Tribunal, in response to the Request filed by A.:

a.

Regarding A.'s primary request for interim relief as set out in paragraphs 79.1–79.5 of its Request:

(i): Dismiss A.'s request for interim relief; or
(ii): In the alternative, order that, as a condition precedent to the interim relief ordered taking effect, A. is obligated to provide security under the terms described in paragraph 80 above, for an amount of EUR 10,000,000;

b.

Regarding A.'s additional request for interim relief as set out in paragraphs 79.7–79.8 of its Request:

(i)

Dismiss A.'s request for interim relief; or

(ii)

In the alternative:

(A): formulate the interim relief ordered in such a way that B. has a concrete list of information it must provide;
(B): grant B. a more appropriate (longer) time for the provision of the information than the 48 hours suggested by A.; and
(C): attach no penalty to the order, or alternately a penalty of a more appropriate (lower) amount than the amount proposed by A.;

c.

Dismiss A.'s additional request for interim relief as set out in paragraph 79.6 of its Request;

d.

Accord B. any further relief that the Interim Relief Tribunal deems appropriate in the circumstances in order to preserve B.'s rights during the Arbitration; and

e.

Order A. to pay B. all costs associated with the request for interim relief filed by A.’.

B.'s opposition and counter-requests (in reconventie)

21.

B. states that it has serious concerns about A.'s creditworthiness, since:

(1): A. has not published any financial accounts since book year 2018 (Opposition, paragraph 73), has granted its Lenders (to whom it owes € 24,8m) an omnibus right of pledge on all its rights, assets and receivables, both current and future, while A.'s balance sheet consisted almost exclusively of ‘Property, plant and equipment’ valued at € 26,m;
(2): according to B., the revenues from or in respect of the Plant will be significantly lower than expected; and
(3): According to its 2020 Annual accounts, B.'s parent company sold its interest in B. to a I. based limited liability company and B. believes A.'s ultimate beneficiary to be a Russian national whose assets might fall under the scope of the current sanctions in connection with Russian military presence in The Ukraine.

22.

B. furthermore states (Opposition, paragraph 168) that A.'s consistent refusal to pay the Revenues generated from or in respect of the Plant (to which B. is currently entitled; sub 5(d) above), or to even provide a proper accounting of such Revenues, as well as A.'s supposed financial distress, provide an urgent need for preliminary relief on B.'s part.

23.

B. therefore submits the following counter-request for interim relief, concluding:

‘208.

For the foregoing reasons, B. also respectfully requests that the Interim Relief Tribunal, in response to its counter-request as set out in Chapter 6 above:

a.

Order A. to produce the following information ultimately two days after the date of the arbitral award to be rendered by this Interim Relief Tribunal, on pain of a penalty of EUR 50,000 per day A. does not comply with the Interim Relief Tribunal's order, with a maximum of EUR 5,000,000:

(i): Copies of invoices A. has sent to J. between 29 October 2020 and the date of the award to be rendered by the Interim Relief Tribunal, for the sale of biogas produced by the Plant;
(ii): Copies of K.'s reporting on gas production injected into the grid, the associated ‘rapportages L.’, and the underlying calculations, from 29 October 2020 until date of the award to be rendered by the Interim Relief Tribunal;
(iii): Copies of invoices or documents from the period from 29 October 2020 until date of the award to be rendered by the Interim Relief Tribunal, showing the other Revenues, including with respect to feedstock and credits/claims that could be claimed by A. under applicable feedstock supply agreements, such as the feedstock agreements between A. and M., and between A. and N.;
(iv): Copies of the currently existing feedstock supply agreements and other written commitments from feedstock suppliers relating to the Plant;
(v): Copies of invoices/charges of ‘the costs of the Plant and the Work (such as electricity, water, natural gas if needed, wastewater disposal, construction waste disposal and other construction related costs, fuel, consumables)’ , as described in article 5.1.10 of the Agreement, from 29 October 2020 until date of the award to be rendered by the Interim Relief Tribunal;
(vi): Copies of the contracts between A. and third parties relating to such ‘costs of the Plant and the Work (such as electricity, water, natural gas if needed, wastewater disposal, construction waste disposal and other construction related costs, fuel, consumables)’, as described in article 5.1.10 of the Agreement;

b.

Order A. to, within two weeks after the date of the arbitral award to be rendered by this Interim Relief Tribunal, provide security under the terms described in paragraph 80 above, for an amount of EUR 10,000,000, on pain of a penalty of EUR 50,000 per day A. does not comply with the Interim Relief Tribunal's order, with a maximum of EUR 5,000,000.

c.

Accord B. any further relief that the Interim Relief Tribunal deems appropriate in the circumstances in order to preserve B.'s rights during the Arbitration;

d.

Order A. to pay B. all costs associated with B.'s request for interim relief; and

e.

Declare these orders to be provisionally enforceable.’.

A.'s opposition to B.'s counter-requests (opposition in reconventie)

24.

Regarding the counter-request to order A. to provide the information/documents set out at (i) through (vi), A. states that it currently ‘pays a lot more for feedstock than it receives’ and at the hearing A. stated that it is willing to provide an overview of revenues and expenses, but not the underlying receipts or agreements. According to A. it cannot be required to provide contracts with feedstock suppliers because of the business sensitive information they contain.

25.

According to A., the counter-request to order A. to provide security of up to an amount of € 10m should be rejected because no agreement or law gives B. that right.

The assessment of the dispute

A.'s requests

A.'s main request to take over the Plant and ancillary requests (nevenvorderingen) to provide documents, information, access to systems and training

26.

In assessing A.'s main request, the arbitral tribunal shall take into account that the granting of that request would result in a complete takeover of the Plant and its operations, which would be a very far-reaching, and in some respects even irrevocable, measure.

27.

Like any request for preliminary relief, the request must — as B. rightfully states — be assessed on the basis of the following criteria/questions:

1): is the request likely to be granted in the proceedings on the merits?
2): does the claimant have an urgent interest in the granting of the requested preliminary relief?
3): does a balancing of the parties' interests tip the scales in favour of the claimant?

28.

To properly answer the first question, the arbitral tribunal would have to assess which party is responsible/liable for the delay of the Works and for the fact that the Plant is not generating the expected amounts of gas, taking into account all statements and defences of the parties in the main proceedings, as wel as the expert reports submitted by both parties. Apart from the fact that in these preliminary proceedings not all such information has been made available, the arbitral tribunal is of the opinion that both the facts of the matter and their legal assessment are so complex that the requests set out in paragraph 79.1 through 79.5 of the Request are ill-suited to a decision in preliminary relief proceedings (niet geschikt om in kort geding te worden beslist) as referred to in article 256 of the Dutch Code of Civil Proceedings (DCCP).

29.

With respect to the second question, the arbitral tribunal deems it relevant that A. acknowledged at the hearing that the biomass is currently stable, notwithstanding the Plant being in Stand By mode. A.'s expert (C.) stated at the hearing that this may change in the future, but did not substantiate whether there is a concrete risk of this occurring. The expert also acknowledged that the current Stand By mode under B.'s control will not bring about any concrete safety risks for the people and the machinery at the Plant. Furthermore, the arbitral tribunal takes into consideration that even if the requests regarding — in short — the complete takeover of the Plant and its operations within 48 hours were to be granted, it would — as A. acknowledged at the hearing — take two months to acquire Sufficient Substrates. On the basis of the considerations set out in this paragraph, the arbitral tribunal is of the opinion that A. has not made a plausible case, a fortiori, that it has an urgent interest in the granting of the requests.

30.

Both parties have a considerable interest in having control of the Plant, if only because the right of retention that B. claims to have will be terminated at the very moment it loses control of the Plant. Especially in view of the obvious interest B. accordingly has in maintaining control of the Plant, the arbitral tribunal is of the opinion that A. has not sufficiently substantiated why a balancing of the parties' interests in awarding and rejecting the request would tip the scales in favour of A..

31.

From the above, it follows that the main request (de hoofdvordering) will be rejected. As a consequence thereof, the ancillary requests (nevenvorderingen) in paragraphs 79.2 through 79.5 will also be rejected, all the more because A. has not substantiated that it has an independent urgent interest in the granting of these ancillary requests.

A.'s requests in paragraph 79.6 of the Request (renewal and re-issue of G.)

32.

A. requests that the arbitral tribunal order B. to renew and re-issue the G. for a total amount of € 18,701,142, while ensuring that they remain valid for at least six months after the date the order is issued.

33.

However, A. has not disputed B.'s statement that B.'s parent company, which is deemed to be sufficiently creditworthy to cover all reasonably possible claims under the EPC, issued a parent company guarantee against which A. can have recourse in case B. itself provides insufficient recourse. The arbitral tribunal is therefore of the opinion that A. has no urgent interest in the granting of its request, as set out in paragraph 79.6 of the Request. This request will therefore be rejected.

The requests in paragraph 79.7 and 79.8 of the Request (provision of as-built drawings)

34.

A. requests that the arbitral tribunal order B. to provide as-built drawings of the plant and its components, and to issue a written statement confirming which drawings have been provided and to issue a list of as-built drawings that were not made and which cannot accordingly be provided.

35.

However, since the request regarding the takeover of the Plant will be rejected, A. also has no (urgent) interest in the granting of the requests in paragraph 79.7 and 79.8 of the Request, for which reason they too will be rejected.

A.'s request in paragraph 79.9 of the Request for a penalty on pain of non-compliance (dwangsom)

36.

Since the main request will be rejected, the ancillary request to grant a penalty in case of non-compliance with the order will also be rejected.

A.'s request at sub 10 above (amendment of claim)

37.

With its request at sub 10 above to order those orders that the arbitral tribunal considers appropriate to accommodate A.'s justified interests, A.'s fails to appreciate that it is up to A. itself to lodge its requests with sufficient precision and not up to the arbitral tribunal. The request filed by way of an amendment of claim during the hearing will be rejected on grounds that it is insufficiently precise (onvoldoende bepaald).

B.'s requests in paragraph 207 of its Opposition (sub 20 above)

38.

Since all A.'s requests in conventie will be rejected, B.'s requests that conditions be set to cover the eventuality that such requests are granted (sub 20 above) need no further discussion or assessment, except for those pertaining to the costs, which will be assessed under the heading ‘The costs and other claims below’.

B.'s counter-request

B.'s requests in paragraph 208 under a of the Opposition (sub 23 above)

39.

In paragraph 208(a) of its Opposition, B. requests that A. be ordered to provide documents and information to enable B. to calculate its claim for Revenues pursuant to Article 5.1.10 EPC (sub 5(d) above).

40.

According to article 1040, paragraph 2 DCCP, the arbitral tribunal may, at the request of one of the parties or on its own initiative, order the party having such documents at its disposal to grant access to copies or extracts of certain documents relating to the dispute, unless the parties have agreed otherwise, and the arbitral tribunal will determine the conditions under which and the manner in which inspection, copies or extracts of documents will be provided. Both parties agree that article 1040 should be explained in line with article 843a DCCP. This means that the interest of B. in obtaining the requested documents should be balanced against the interest of A. in non-disclosure of those documents on the basis of the business sensitive information they contain.

41.

The arbitral tribunal is of the opinion that B., given its right to claim the Revenues referred to in article 5.1.10 EPC, has a legitimate interest to obtain copies of documents and other information reasonably necessary to substantiate its alleged claim against A. in the pending proceedings on the merits.

42.

As A. rightfully states, it is not obliged to provide copies of documents which contain business sensitive information, such as agreements and other written commitments between A. and its suppliers of feedstock, if there are other documents providing the information necessary to calculate the Revenues. B. has not substatiated its claim that it will need copies of the underlying Agreements once it has access to copies of the invoices regarding sales invoices based on those agreements.

43.

A. may, as B. states, be bound by an obligation to provide B. with ‘copies of the signed contracts for […] and the supply of substrates [i.e. feedstock; the arbitral tribunal] pursuant to article 11.1 EPC, as B. pointed out at the hearing. However, this obligation pertains to ‘Preliminary Contracts’ which ‘must be sufficient to build and operate the plant as detailed in this agreement’ and, according tot the preliminary findings of the arbitral tribunal, is not meant to serve as a basis for the substantiation of B.'s claim for Revenues pursuant to Article 5.1.10 EPC. Furthermore, B. confirmed at the hearing that its request is based on article 1040 paragraph 2 DCCP and not on article 11.1 EPC.

44.

Balancing both interests, the arbitral tribunal decides that A. should provide B. with the following documents regarding the relevant period (between 29 October 2020 and the date of this arbitral award). B.'s requests (i) through (vi) at a (sub 23 above) will therefore only be granted in as far as they pertain to the provision of copies of those documents, which are summarized below:

(i): Copies of the invoices A. sent to J. between 29 October 2020 and the date of this award, for the sale of biogas produced by the Plant;
(ii): Copies of K.'s reporting on gas production injected into the grid, the associated ‘rapportages L.’, and the underlying calculations, from 29 October 2020 until the date of this arbitral award;
(iii): Copies of invoices from 29 October 2020 until the date of this award showing the other Revenues, including those with respect to feedstock and credits/claims that could be claimed by A. under applicable feedstock supply agreements;
(v): Copies of invoices/charges of ‘the costs of the Plant and the Work (such as electricity, water, natural gas if needed, wastewater disposal, construction waste disposal and other construction related costs, fuel, consumables)’ as described in Article 5.1.10 EPC, from 29 October 2020 until the date of this arbitral award;

45.

The arbitral tribunal is of the opinion that A. should be able to provide all such copies within 10 working days of the date of this arbitral award. Since A. does not contest the amount of the penalty on pain of noncompliance (dwangsom), that request will be granted as requested (€ 50,000 per day, with a maximum of € 5,000,000).

B.'s requests in paragraph 208(b) of the Opposition (sub 23 above)

46.

In paragraph 208(b) of the Opposition B. requests that A. be ordered to provide security in the amount of EUR 10,000,000, on pain of a penalty of EUR 50,000 per day that A. does not comply with the Interim Relief Tribunal's order, up to a maximum of EUR 5,000,000.

47.

B. takes the position that it has a right of retention (retentierecht) on the Plant. Given such presumed right of retention, B. has not made a plausible case, a fortiori, that it has an urgent interest in the granting of its request for additional security. That request will therefore be rejected.

B.'s requests in paragraph 208(c) of the Opposition (sub 23 above)

48.

In paragraph 208(c) of the Opposition, B. requests that B. be accorded ‘any further relief that the Interim Relief Tribunal deems appropriate in the circumstances in order to preserve B.'s request for interim relief’.

49.

With this request, B. fails to appreciate that it is up to B. itself to lodge its requests with sufficient precision, not up to the arbitral tribunal. The request in paragraph 208(c) of the Opposition will be rejected on grounds that it is insufficiently precise (onvoldoende bepaald).

B.'s requests in paragraph 208(d) and (e) of the Opposition (sub 23 above)

50.

The requests mentioned in the heading of this paragraph will be assessed below under the heading ‘The costs of the proceedings and other claims’.

In conventie en reconventie

Conclusion

51.

Based on the foregoing, all A.'s requests will be rejected and B.'s counterrequests will be granted as specified in the dictum (the operative part) of this arbitral award.

The costs and other claims

52.

The costs incurred by the RvA up to and including the filing of this judgment at the court registry of the Amsterdam District Court, with due observance of the RvA's Security Deposit/moderation schedule, amounted to € 54.832,05 (of which € 9.493,05 in VAT) and have been set off against the payments in the amount of € 27.416,03 made by A. and against the payment in the amount of € 27.416,02 made by B..

53.

Since A.'s requests will be rejected, and B.'s counter-requests will largely be awarded, the arbitral tribunal will order A. to pay the costs of the proceedings. The contribution to B.'s legal costs to be paid by A. is, pursuant to the RvA's Guideline for reimbursement of costs of procedural assistance, € 15.996,00 (1 point for the Opposition + 3 points for the hearing = 4 points at € 3,999.00 each = € 15.996,00).

54.

In order to offset the costs of the proceedings, A. must therefore pay B. € 27.426,02 + € 15.996,00 = € 43.422,02.

55.

As requested, the arbitral tribunal will declare the cost order immediately enforceable.

56.

All other claims will be denied.

The decission

The arbitral tribunal, rendering justice in accordance with the rules of law:

in conventie

REJECT all of A.'s claims;

in reconventie

ORDER A. to produce the following information no later than 10 working days after the date of this arbitral award, on pain of a penalty for noncompliance of € 50,000 (fifty thousand euros) for each day that A. does not comply with the Interim Relief Tribunal's order, up to a maximum of € 5,000,000 (five million euros):

(i): Copies of invoices A. sent to J. between 29 October 2020 and the date of this award, for the sale of biogas produced by the Plant;
(ii): Copies of K.'s reporting on gas production injected into the grid, the associated ‘rapportages L.’, and the underlying calculations, from 29 October 2020 until the date of this arbitral award;
(iii): Copies of invoices from the period from 29 October 2020 until the date of this award showing the other Revenues, including those with respect to feedstock and credits/claims that could be claimed by A. under applicable feedstock supply agreements;
(v): Copies of invoices/charges of ‘the costs of the Plant and the Work (such as electricity, water, natural gas if needed, wastewater disposal, construction waste disposal and other construction related costs, fuel, consumables)’ as described in Article 5.1.10 EPC, from 29 October 2020 until the date of this arbitral award;

in conventie en reconventie

ORDER A. to pay to B. € 43.422,02 (fourty three thousand four hundred and twentytwo euro and two eurocents) to offset the costs of the proceedings;

DECLARE this award provisionally enforceable;

DISMISS all other claims.

Rendered in Amsterdam, 21 March 2022

signed R.E. Weening

signed J.M. Kuling

signed E.R.C. van Toorenburg

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