Subject: Dutch litigation - up-date
From: [email-masked]
To: [email-masked], [email-masked], [email-masked], [email-masked], [email-masked], [email-masked], [email-masked], [email-masked], [email-masked], [email-masked], [email-masked]
Cc: [email-masked], [email-masked], [email-masked], [email-masked]
Date: Wed, 24 May 2000 06:58:00 -0700 (PDT)

Following the first instance decision in the Civil Summary Proceedings, Ross, 
Teun and myself met with Clifford Chance again yesterday to stress-test our 
litigation strategy going forward and we arrived at the view that, at the 
current juncture, the strategy we laid down over the last 10 days or so is 
still correct.

That strategy - with an anticipated time-line is as follows:

1. Friday, 26 / 5:  We file an Urgent Appeal on the Civil Summary proceedings 
in the Civil Court.  (We spent some time yesterday reviewing the draft Appeal 
proceedings).  This is the last date for filing an Appeal on the Summary 
proceedings. 

2. Between now and the end of next week, we try again to get Sep to confirm 
in writing the amount of t-o-p they have for energy, minimum cross-border 
capacity required, etc. on their import contracts. 

3. Mid-June:  Accordingly to CC's latest intelligence, the current 
anticipated ETA of the DTe's decision in the Appeal on DTe Decision 005.

4. Around mid-June:  Judge decides whether or not we are going to be granted 
witness hearings on t-o-p obligations of Sep (these will fall away if Sep 
complies with point 2).

5. Mid-June:  If we get a vague or adverse decision by the DTe re point 3, we 
lodge an appeal in Summary Proceedings before the CBB (the Administrative 
court) against the DTe's decision in the Appeal on DTe 005.  Appeal will 
probably be lodged on grounds that Sep contracts violate EU Directive.    

Note:  if the DTe's decision is adverse (e.g., t-o-p relates to capacity not 
energy), then our Civil Appeal (point 1) will at that stage fall away.

6. Mid-August:  Earliest possible date (per procedural rules) for Decision of 
CBB in Summary Proceedings Appeal (if launched) per point 5.  Could be later.

7. End-August: Earliest possible date (per procedural rules) for hearing of 
Civil Summary Proceedings Appeal per point 1(note:  this will be heard if 
either DTe makes a decision favourable to us in mid-June per point 3 or if we 
get an adverse DTe appeal decision, but we get a favourable CBB appeal 
decision per point 6 - in the latter case the Civil appeal will, in effect, 
be "re-instated").

In practice, this appeal might not be heard however until end October.  

8. September: Witness hearings - unless Sep complies with 2 and judge does 
not reject our request for witness hearings per point 4.

9. (End??) December:  According to latest CC intelligence, NMa will probably 
make decision, and hence report, on our NMa complaint filed in January re 
TenneT's alocation of cross-border capacity for the Y2K.    

Additional Notes:

A.  The benefits of lodging an Appeal against the decision of the civil court 
in the Civil Summary proceedings are (a) gives us additional litigation 
optionality, (b) keeps the pressure on the system,  (c) if we are successful 
on the DTe 005 appeal, or were successful in a CBB appeal against an 
unfavourable DTe 005 appeal decision, then this Civil Appeal goes to 
enforcement of that decision against Sep / TenneT and (d) was perceived to 
have no material down-side.

B.  I have requested Clifford Chance to let me have (1) estimate of costs of 
launching Civil Appeal + estimate of costs which we would have to pay to Sep 
/ TenneT if we lost that Appeal and (2) total of our legal costs to-date, 
broken down between those we have paid, and those which have not yet been 
billed or billed but unpaid + estimate of our legal costs going forward on 
the basis of the above strategy plus estimate of costs payable by us to 
defendants if we lose any of the above actions going forward.

C.   It will be noted that the above does not take into account any Brussels' 
angle.  This needs to be reviewed again when DTe makes decision on the 
Decision 005 Appeal - i.e., probably mid-June.  

D.  CC still attempting to find out when CBB will in effect decide whether or 
not TenneT is an administrative body (which impacts the forum, and hence to a 
certain extent, the above time-scale). 

E.  Clearly, legal strategy is not caste in stone but may change depending on 
how the litigation chess-game unfolds over the next succeeding weeks and 
months.  This will be constantly reviewed.        

If you have any questions, please do not hesitate to contact me.

Kind regards

Mark