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International Arbitration Forum

Suomi Power Networks TopCo B.V., Supernova II Bidco BV and AMF Tjänstepension AB v. Republic of Finland

Case summary

At a glance

Parties
Suomi Power Networks TopCo B.V., Supernova II Bidco BV and AMF Tjänstepension AB v. Republic of Finland
Case no.
ICSID Case No. ARB/24/37
Forum and rules
ICSID Convention arbitration; ICSID Arbitration Rules in force as of 1 July 2022; place of proceeding Washington, D.C.
Treaty
Energy Charter Treaty (Articles 10 and 26)
Tribunal
Eric Schwartz (President), Peter Turner KC, Zachary Douglas KC
Sector
Electricity distribution
Outcome
No award among the published documents. Finland's request for bifurcation was dismissed on 8 August 2025, and later orders deal with document production and privilege.

The dispute

The Claimants, two Dutch companies and a Swedish company, invested in Caruna, a Finnish group of companies that distributes electricity in Finland. Caruna is wholly owned by Suomi Power Networks TopCo B.V. (SPN). The Claimants challenge the Finnish Energy Authority's 2023 Confirmation Decision and claim that Finland breached Article 10 of the Energy Charter Treaty (ECT). Finland raised three preliminary objections. First, it says it denied SPN and Supernova the benefits of the ECT under Article 17(1) by a notice of 15 July 2024. Second, it says Article 26 of the ECT does not apply between EU Member States (the intra-EU objection, relying on Komstroy and the 26 June 2024 inter se declaration and agreement). Third, it says Caruna's parallel proceedings before the Finnish Market Court trigger the fork-in-the-road clause in Article 26(3)(b)(i), or alternatively make the claims inadmissible.

Key holdings

  1. Bifurcation refused for the denial of benefits objection. Even if upheld, it would affect only SPN and Supernova and leave AMF's claim intact. Finland did not show that the issues and evidence would be reduced enough to justify a separate phase. PO3 ¶ 93
  2. Bifurcation refused for the parallel-proceedings objections (fork-in-the-road and inadmissibility). Deciding them would require the Tribunal to examine the scope of the ECT claims and how far they overlap with Caruna's Market Court claims, which engages the merits. The inadmissibility objection may concern coordination between two fora rather than a ground for dismissal. Whether to stay the arbitration was not decided. PO3 ¶¶ 94–97
  3. The intra-EU objection would dispose of the whole dispute and raises discrete questions of public international law separate from the merits. On a prima facie review it is serious and substantial, partly because most earlier decisions predate the 26 June 2024 declaration and agreement. Even so, the Tribunal refused to bifurcate it. A failed bifurcation could delay the final award to about December 2029, against May 2028 without bifurcation. The substantial body of earlier decisions disfavouring the objection, taken into account only as a fact, weighed against bifurcation. PO3 ¶¶ 91, 99–105
  4. The request for bifurcation is dismissed and the case proceeds on the Scenario 1 timetable. Costs of the bifurcation phase are reserved for the Final Award. PO3 ¶¶ 106–107
  5. Deliberative process privilege: tribunals owe deference to laws protecting the secrecy of internal government communications, but that deference is not absolute. It must be weighed against fairness and equality between the parties, including the requesting party's need for the documents. Finland's privilege log did not allow a ruling. Finland was ordered to give high-level descriptions of the withheld or redacted documents, and the Tribunal set a schedule for document-by-document decisions. The Claimants may apply to amend their Reply once any documents are produced. PO5 ¶¶ 75, 82–86
  6. The Claimants' updated privilege log complies with ¶ 15.2 of PO1. A log need only cite an applicable IBA Rule as the basis for a claim of privilege or confidentiality, not the governing law. Finland's requests for a revised log and for high-level descriptions were dismissed. PO6 ¶¶ 26–31
  7. The Claimants must produce the documents in all 82 categories listed in the experts' Joint Statement on the CAPEX models: items 1–33 and 48–82 on the experts' agreement, and items 34–47 on Mr Nicholson's explanation. This does not decide which expert's view is to be preferred. Production is due by 11 August 2026. PO7 ¶¶ 6–9

Procedural history

  1. 9 January 2024Claimants' Notice of Dispute under the ECT.
  2. 15 July 2024Finland issues a notice denying SPN and Supernova the benefits of the ECT under Article 17(1).
  3. 23 August 2024The ICSID Acting Secretary-General registers the case.
  4. 14 February 2025Tribunal constituted; the first session follows on 20 March 2025.
  5. 16 April 2025Procedural Order No. 1 (procedural rules) and Procedural Order No. 2 (transparency and confidentiality, including use of material in ICSID Case No. ARB/24/38, Sauna UK BidCo Limited v. Finland).
  6. 22 May 2025Claimants file their Memorial; Finland requests bifurcation on 9 June 2025.
  7. 8 August 2025Procedural Order No. 3: request for bifurcation dismissed.
  8. 7 April 2026Procedural Order No. 4: decisions on the Parties' document production requests.
  9. 2 July 2026Procedural Order No. 5 on Finland's assertion of deliberative process privilege.
  10. 21 July 2026Procedural Order No. 6 dismisses Finland's application on the Claimants' privilege log; Procedural Order No. 7 orders production of CAPEX-related documents.

Tribunal, counsel and experts

Decided by
For the claimant
Debevoise & Plimpton LLP
For the respondent
Three Crowns LLP

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Keywords

Summary generated with AI from the published documents — refer to the award for the authoritative text.

Case ID
ICSID Case No. ARB/24/37
Country
Section