"The proceedings shall consist of two parts. The first part ('Part I’) shall deal with the Applicant’s request that the enforcement of the Awards be stayed for the duration of the annulment proceedings. The second part ('Part II’) shall deal with the Applicant’s applications to annul the Awards. Each part of the proceedings shall consist of a written phase followed by an oral hearing before the Committees."
(a) "Procedural Order N° 1 is confirmed as written;
(b) VPB’s discussion of the merits of Applicant’s Annulment Applications from pages 14 to 33 of its Counter-Memorial on Stay:
a. is out of sequence,
b. is deemed not written and
c. shall not be discussed in Part I.
(c) The merits shall not be discussed in Part I but shall be addressed only in Part II on the dates mentioned in PO N° 1. Consequently:
a. The parties are not to brief, submit factual exhibits / legal authorities or argue the merits in Part I but will be free to brief, submit factual exhibits / legal authorities and argue these issues in Part II and
b. The Committees will not consider and / or deliberate on any arguments and / or factual evidence or legal authorities regarding the merits during Part I.
(d) VPB’s invitation in Paragraph 28 of its Rejoinder, 'Before reviewing the following sub-sections, the Committees may wish to re-read paras 33-69 of the VPBs’ Counter-Memorial on Stay. That is where the VPBs’ arguments that the annulment applications do not meet the Non-Dilatory Requirement are set out in full’ again constitutes discussion of the merits of Applicant’s annulment applications from pages 16 to 21 of its Rejoinder on Stay and consequently:
a. out of sequence,
b. deemed not written and
c. shall not be discussed in Part I.
(e) VPB’s defense in its Rejoinder on Stay of its discussion of the merits in Part I under the guise of 'dilatory’ will not be considered in Part I as it is based on the merits of heavy issues that are to be addressed only in Part II, particularly not in a cursory manner in Part I.
(f) The 30 November 2016 Organizational conference call, the Parties Skeleton Arguments and the December 2016 Oral Argument shall not address the merits."22
(a) "that the question of Stay be joined to the Merits and decided after the close of the agreed procedural steps relating to the merits listed in Procedural order N° 1, or
(b) in the extremely unlikely event that the Committees were to wish to consider certain issues regarding the merits in connection with Part I of these annulment proceedings, that the Committees:
a. clearly indicate what circumscribed issues the Committees wish the Parties to address in the Skeleton Arguments and at the Oral Hearing, so as to:
b. allow 30 days from PO N° 2 for Applicant to make written submission regarding any issues on the merits that the Committees consider relevant for determination in Part I and
c. allow 15 days to VPB to further rebut Applicant’s position on any issues on the merits that the Committees consider relevant for determination in Part l."24
(a) "identify the substantive and procedural right that requires protection;
(b) establish that the measures proposed are urgent; and
(c) show that there is necessity, i.e., that if the provisional measures are not ordered there will be irreparable damage to the rights that Zimbabwe seeks to protect."26
(a) The Applicant’s request for "clarification and confirmation of the scope" of Procedural Order No. 1 is not a procedural or substantive right and therefore "not amenable to an order on provisional measures;"37
(b) The Applicant’s alternative request to join Part I to Part II is also not a procedural or substantive right of the Applicant. The Parties must comply with the procedural calendar set by the Committees, "unless there are reasonable grounds for not being able to do so." According to the Respondents, no such grounds have been argued by the Applicant;38 and
(c) Finally, should the Committees decide that the Respondents have not breached Procedural Order No. 1 by addressing the Dilatory Test, there is no need for further submissions on the merits of the Annulment Applications or guidance from the Committees as the matters would have been dealt with appropriately in the pleadings to date. Further pleadings in Part I would also jeopardize the procedural timetable set by the Committees in Procedural Order No. 1.39
"Applicant has established in its Annulment Applications that there is prima facie a reasonable case for seeking annulment, as the grounds and facts on which Applicant relies in the Annulment Application, if proved, lead to annulment. Although Applicant does not request and the ad hoc Committees are not in a position during this preliminary phase of proceedings to decide on the merits of the Applicants Annulment Applications, on their face, prima facie, were the facts and law Applicant presented to be proven, one can reasonably envisage the possibility that the Awards be overturned."53
"In its Memorial on Stay, Zimbabwe argues that the Annulment Application are not dilatory in nature, trivial, frivolous or an abuse of process. It groups these matters under the notion of 'threshold criteria’ for the continuation of a stay on enforcement, as indeed they are.
[W]here an annulment application is dilatory, trivial, frivolous and/or abusive, a stay of enforcement will not be ordered; but meeting these low hurdles is not a factor in favour of ordering such a stay."54
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