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Lawyers, other representatives, expert(s), tribunal’s secretary

Procedural Order No. 1

Introduction

The first session of the Tribunal was held on 13 April 2020, at 9:30 a.m. (Washington, D.C. time), by teleconference. The session was adjourned at 10:02 a.m.
The Tribunal was unable to hold the first session together with the parties within the 60 days provided for in Arbitration Rule 13(1).
An audio recording of the first session was made and deposited in the archives of ICSID. The recording was distributed to the Members of the Tribunal.
A telephone conference was then fixed for 26 June 2020 at 9:30 a.m. (Washington, D.C. time), to discuss the procedural matters set out in this Procedural Order No. 1. The session was adjourned at 12:10 p.m.
An audio recording of the telephone conference to address procedural matters was made and deposited in the archives of ICSID and distributed to the Members of the Tribunal and the parties.
Participating in the telephone conference to address procedural matters were:

Members of the Tribunal

Prof. Zachary Douglas QC, President of the Tribunal

Mr. Fernando Piérola Castro, Arbitrator

Mr. Samuel Wordsworth QC, Arbitrator

ICSID Secretariat:

Ms. Leah Waithira Njoroge, Secretary of the Tribunal

Attending /Participating on behalf of the Claimants:

Dr. Ezzat Youssef, Youssef Law Firm

Mrs. Dina Hafez, Youssef Law Firm

Mr. Amr Gamal, Youssef Law Firm

Ms. Soaad Zaki, Youssef Law Firm

Ms. Mona Magdi, Youssef Law Firm

Mr. Osama Badr, Youssef Law Firm

Attending / Participating on behalf of the Respondent:

Mr. Ed Poulton, Baker McKenzie

Mr. Steve Abraham, Baker McKenzie

Ms. Katia Finkel, Baker McKenzie

Ms. Katia Contos, Baker McKenzie

Ms. Marina Gaballah, Baker McKenzie

The President opened the session and welcomed the participants. The President introduced the Tribunal and the Secretary of the Tribunal and noted that the respective representatives had introduced themselves previously.
During the procedural conference, the Tribunal and the parties considered the following:

- The Draft Agenda circulated by the Tribunal Secretary on 26 May 2020;

- The Draft Procedural Order No. 1 circulated by the Tribunal Secretary on 26 May 2020; and

- The parties’ comments on the Draft Agenda and the Draft Procedural Order No. 1 received on 19 June 2020, indicating the items on which they agreed and their respective positions regarding the items on which they did not agree. Further exchanges of correspondence regarding the parties’ positions took place after this date, with the last piece of correspondence being circulated on 25 June 2020.

Following the teleconference to address procedural matters, the Tribunal now issues the present Order:

Order

Pursuant to ICSID Arbitration Rules 19 and 20, this first Procedural Order sets out the Procedural Rules that govern this arbitration. Once the procedural timetable has been settled by the Tribunal, it will be attached as Annex A.

1.Applicable Arbitration Rules

Convention Article 44
1.1.
These proceedings are conducted in accordance with the Arbitration Rules in force as of 10 April 2006.

2.Constitution of the Tribunal and Tribunal Members’ Declarations

Arbitration Rule 6
2.1.
The Tribunal was originally constituted on 3 October 2019. Its Members were: Prof. Zachary Douglas QC, Mr. Fernando Piérola Castro and Mr. V.V. Veeder QC.
2.2.
On 15 January 2020, following the resignation of Mr. Veeder, the Secretary-General notified the parties of the vacancy on the Tribunal.
2.3.
On 11 March 2020, the Tribunal was reconstituted. Its Members are: Prof. Zachary Douglas QC; Mr. Fernando Piérola; and Mr. Samuel Wordsworth QC.
2.4.
The parties confirmed that the Tribunal was properly constituted and that no party has any objection to the appointment of any Member of the Tribunal.
2.5.
The Members of the Tribunal timely submitted their signed declarations in accordance with ICSID Arbitration Rule 6(2). Copies of these declarations were distributed to the parties by the ICSID Secretariat on 3 October 2019. A copy of Mr. Wordsworth’s declaration was distributed to the parties on 11 March 2020.
2.6.
The Members of the Tribunal confirmed that they have sufficient availability during the next 24 months to dedicate to this case.

3.Fees and Expenses of Tribunal Members

Convention Article 60; Administrative and Financial Regulation 14; ICSID Schedule of Fees
3.1.
The fees and expenses of each Tribunal Member shall be determined and paid in accordance with the ICSID Schedule of Fees and the Memorandum on Fees and Expenses of ICSID Arbitrators in force at the time the fees and expenses are incurred.
3.2.
Under the current Schedule of Fees, each Tribunal Member receives:

3.2.1. US$3,000 for each day of meetings or each eight hours of other work performed in connection with the proceedings or pro rata; and

3.2.2. Subsistence allowances, reimbursement of travel, and other expenses pursuant to ICSID Administrative and Financial Regulation 14.

3.3.
Each Tribunal Member shall submit his/her claims for fees and expenses to the ICSID Secretariat on a quarterly basis.
3.4.
Non-refundable expenses incurred in connection with a hearing as a result of a postponement or cancellation of the hearing shall be reimbursed.

4.Presence and Quorum

Arbitration Rules 14(2) and 20(1)(a)
4.1. The presence of all Members of the Tribunal constitutes a quorum for its sittings, including by any appropriate means of communication.

5.Rulings of the Tribunal

Convention Article 48(1); Arbitration Rules 16, 19 and 20
5.1.
Decisions of the Tribunal shall be taken by a majority of the Members of the Tribunal.
5.2.
ICSID Arbitration Rule 16(2) applies to decisions taken by correspondence except that where the matter is urgent, the President may decide procedural matters without consulting the other Members, subject to possible reconsideration of such decision by the full Tribunal.
5.3.
The Tribunal will draft all rulings, including the award, within a reasonable time period. If a ruling has not been issued within three months after the final submission on a particular matter, the Tribunal will provide the parties with status updates every month.
5.4.
The President is authorized to issue Procedural Orders on behalf of the Tribunal.
5.5.
The Tribunal’s rulings on procedural matters may be communicated to the parties by the Tribunal Secretary electronically in the form of a letter or email.
5.6.
Any ruling of the Tribunal, including the certified copy of the award, will be dispatched electronically to the parties.

6.Power to Fix Time Limits

Arbitration Rule 26(1)
6.1.
The President may fix and extend time limits for the completion of the various steps in the proceeding.
6.2.
In exercising this power, the President shall consult with the other Members of the Tribunal. If the matter is urgent, the President may fix or extend time limits without consulting the other Members, subject to possible reconsideration of such decision by the full Tribunal.

7.Secretary of the Tribunal

.
Administrative and Financial Regulation 25
7.1.
The Tribunal Secretary is Ms. Leah Waithira Njoroge, Legal Counsel, ICSID, or such other person as ICSID may notify the Tribunal and the parties from time to time.
7.2.
To send copies of communications by email, mail, and courier/parcel deliveries to the ICSID Secretariat, the contact details are:

Ms. Leah Waithira Njoroge

ICSID

MSN C3-300 1818 H Street, N.W.

Washington, D.C. 20433

USA

Tel.: + 1 (202) 473-7727

Fax: + 1 (202) 522-2615

Email: lnjoroge@worldbank.org

Paralegal email: Ms. Colleen Ferguson, cferguson2@worldbank.org

7.3.
For local messenger deliveries, the contact details are:

Ms. Leah Waithira Njoroge

ICSID

1225 Connecticut Ave. N.W.

(World Bank C Building)

3rd Floor

Washington, D.C. 20036

USA

Tel. 202-458-1534

8.Representation of the Parties

Arbitration Rule 18
8.1. Each party shall be represented by its counsel (below) and may designate additional agents, counsel, or advocates by notifying the Tribunal and the Tribunal Secretary promptly of such designation.

For Claimants

Dr. Ezzat A. M. Youssef

Villa 26, 1st District, Block 7

90th Street, 5th Settlement

New Cairo

Arab Republic of Egypt

2.01111E+11

Email

dr.ezzat@yousseflawfirm.com

icsid.heritag19-20@yousseflawfirm.com

ezat_64@yahoo.com

For Respondent

Mr. Abdulrahim AlAwadhi

Ms. Dhuha AlSayer

Ms. Noura AlRoudan

Ms. AlZain AlSabah

Mr. Sulaiman AlFoudari

Department of Legal Advice and Legislation

Council of Ministers

Ahmad Al-Jaber Street

Al-Sharq – Kuwait City

State of Kuwait

and

Mr. Ed Poulton

Mr. Steve Abraham

Ms. Katia Finkel

Ms. Katia Contos

Baker & McKenzie LLP

100 New Bridge Street

London EC4V 6JA

United Kingdom

+44 (0) 207 919 1000

Email

Anama@fatwa.gov.kw

Abdulrahim.Alawadhi@fatwa.gov.kw

Dhuha.Alsayer@fatwa.gov.kw

Noura.Alroudan@fatwa.gov.kw

Sulaiman.Alfoudari@fatwa.gov.kw

Alzain.Alsabah@fatwa.gov.kw

Ed.Poulton@bakermckenzie.com

Steve.Abraham@bakermckenzie.com

Katia.Finkel@bakermckenzie.com

Katia.Contos@bakermckenzie.com

9.Apportionment of Costs and Advance Payments to ICSID

Convention Article 61(2); Administrative and Financial Regulation 14; Arbitration Rule 28
9.1.
The parties shall cover the direct costs of the proceeding in equal parts, without prejudice to the final decision of the Tribunal as to the allocation of costs.
9.2.
By letter of 7 October 2019, ICSID requested that each party pay US$150,000 to cover the initial costs of the proceeding. ICSID received the Claimants’ payment on 18 November 2019 and the Respondent’s payment on 6 December 2019.
9.3.
ICSID shall request further advances as needed. Such requests shall be accompanied by a detailed interim statement of account.

10.Place of Proceeding

.
Convention Articles 62 and 63; Administrative and Financial Regulation 26; Arbitration Rule 13(3)
10.1.
Paris, France shall be the place of the proceeding.
10.2.
The Tribunal may hold hearings at any other place that it considers appropriate if the parties so agree.
10.3.
The Tribunal Members may deliberate at any place and by any appropriate means it considers convenient.

11.Procedural Language(s), Translation and Interpretation

.
Administrative and Financial Regulation 30(3) and (4); Arbitration Rules 20(1)(b) and 22
11.1.
English is the procedural language of the arbitration.
11.2.
Documents filed in any other language must be accompanied by a translation into English.
11.3.
If the document is lengthy and relevant only in part, it is sufficient to translate only the relevant parts, provided that the Tribunal may require a fuller or a complete translation at the request of any party or on its own initiative.
11.4.
Translations need not be certified unless there is a dispute as to the content of a translation provided and the Tribunal requests a certified version.
11.5.
In the event of a dispute as to the content of a translation provided, the Tribunal shall nominate an accredited translation company to perform a further certified translation. The costs of such further translation will be paid from the advance payments made by the parties, without prejudice to the decision of the Tribunal as to which party shall ultimately bear those costs.
11.6.
Documents exchanged between the parties in a language other than English or Arabic under §14 below (Production of Documents) shall be translated.
11.7.
The testimony of a witness called for examination during the hearing who prefers to give evidence other than in the English language shall be interpreted through a suitable means of interpretation.
11.8.
The parties will notify the Tribunal, as soon as possible, and no later than at the pre-hearing organizational meeting (see §18 below), which witnesses or experts require interpretation.
11.9.
The costs of the interpreter(s) will be paid from the advance payments made by the parties, without prejudice to the decision of the Tribunal as to which party shall ultimately bear those costs.

12.Routing of Communications

Administrative and Financial Regulation 24
12.1.
The ICSID Secretariat shall be the channel of written communications between the parties and the Tribunal.
12.2.
Each party’s written communications shall be transmitted by email or other electronic means to the opposing party and to the Tribunal Secretary, who shall send them to the Tribunal.
12.3.
Electronic versions of communications ordered by the Tribunal to be filed simultaneously shall be transmitted to the Tribunal Secretary only, who shall send them to the opposing party and the Tribunal.
12.4.
The Tribunal Secretary shall not be copied on direct communications between the parties when such communications are not intended to be transmitted to the Tribunal.
12.5.
By the relevant filing date, the parties shall:

12.5.1. submit by email to the Tribunal Secretary and the opposing party an electronic version of the pleading with witness statements, expert reports and an index of all supporting documentation;1 and

12.5.2. upload the pleading with all the supporting documentation and updated index to the file sharing platform that will be created by ICSID for purposes of this case.

For the avoidance of doubt, the electronic filing process indicated in this subparagraph is applicable both to the original language submission and to any subsequent translations agreed by the parties.

12.6.
Electronic versions of pleadings, witness statements, expert reports, and legal authorities shall be text searchable to the extent possible (i.e., OCR PDF, JPG or Word).
12.7.
All pleadings shall be accompanied by a cumulative index to all the supporting documentation that the party has submitted up to the date of the pleading. The index shall indicate the document number and the pleading with which it was submitted. (Please follow the naming conventions contained in Annex B.)
12.8.
At the conclusion of the written phase of the proceeding, on a date to be determined by the Tribunal, or at any other time the Tribunal or the Secretariat so requests, the parties shall courier to the ICSID Secretariat and each Member of the Tribunal a USB drive containing an electronic copy of the entire case file (including pleadings, witness statements, expert reports, exhibits, legal authorities and Tribunal decisions and orders to date) with a consolidated hyperlinked index of all documents as well as a consolidated hyperlinked list of factual exhibits in chronological order.
12.9.
The official date of receipt of a pleading or communication shall be the day on which the electronic version is sent to the Tribunal Secretary by email.
12.1.
A filing shall be deemed timely if sent by a party by midnight, Washington, D.C. time, on the relevant date.

13.Number and Sequence of Pleadings

.
Arbitration Rules 20(1)(c), 20(1)(e), 29 and 31
13.1.
The procedural timetable for number and sequence of pleadings shall be as set out in Annex A.
13.2.
The parties are requested to confine their pleadings strictly to the limited issues for decision in these proceedings and to avoid unnecessary length. Responsive pleadings (i.e. the Reply, and Rejoinder) should be directed specifically to the matters of fact or arguments of law raised in the pleading under reply, and must not raise further issues extraneous to that.

14.Production of Documents

Convention Article 43(a); Arbitration Rules 24 and 33-36
14.1.
Articles 3 and 9 of the International Bar Association Rules on the Taking of Evidence in International Arbitration (2010) may guide the Tribunal and the parties regarding document production in this case.
14.2.
The time limits for the document production will be set out in the procedural timetable at Annex A.
14.3.
Every request for production of documents shall precisely identify each document, or category of documents sought and establish its relevance and materiality to the outcome of the case. Such a request shall be copied to the Tribunal Secretary.
14.4.
Each party shall state in writing its responses or objections to the requested documents with reference to the objections listed in Article 9(2) of the IBA Rules.
14.5.
Each party shall submit a reply to the responses or objections to the requested documents and at the same time submit its document requests along with any responses and replies to the Tribunal, with a copy to the other party (in both Word and PDF formats). Each party shall produce those documents for which it has no objection.
14.6.
If either party is concerned about the confidentiality of documents, the party may apply to the Tribunal for a confidentiality order.
14.7.
The Tribunal will rule on the objections.
14.8.
A party shall produce those documents for which no objection is sustained by the Tribunal within the timeframe set out in the Tribunal’s ruling and in accordance with the procedural timetable.
14.9.
The request, responses or objections to the request, the reply to the responses or objections to the request, and the Tribunal’s decisions referred to in this Section shall be recorded in a joint schedule in the form of Annex C to this Order.

15.Submission of Documents

.
Convention Article 44; Administrative and Financial Regulation 30; Arbitration Rule 24
15.1.
The Memorial and Counter-Memorial shall be accompanied by the documentary evidence relied upon by the parties, including exhibits and legal authorities. Further documentary evidence relied upon by the parties in rebuttal shall be submitted with the Reply and Rejoinder.
15.2.
The documents shall be submitted in the manner and form set forth in §13 above.
15.3.
Neither party shall be permitted to submit additional or responsive documents after the filing of its respective last written submission, unless the Tribunal determines that exceptional circumstances exist based on a reasoned written request followed by observations from the other party.

15.3.1. Should a party request leave to file additional or responsive documents, that party may not annex the documents that it seeks to file to its request.

15.3.2. If the Tribunal grants such an application for submission of an additional or responsive document, the Tribunal shall ensure that the other party is afforded sufficient opportunity to make its observations concerning such a document.

15.4.
The Tribunal may call upon the parties to produce documents or other evidence in accordance with ICSID Arbitration Rule 34(2).
15.5.
The documents shall be submitted in the following form:

15.5.1. Exhibits shall be numbered consecutively throughout these proceedings.

15.5.2. The number of each Exhibit containing a document produced by Claimant shall be preceded by the letter "C-" for factual exhibits and "CL-" for legal exhibits containing authorities etc. The number for each Exhibit containing a document produced by Respondent shall be preceded by the letter "R-" for factual exhibits and "RL-" for legal exhibits containing authorities etc.

15.5.3. A party may produce several documents relating to the same subject matter within one Exhibit, numbering each page of such Exhibit separately and consecutively.

15.5.4. Exhibits shall also be submitted in PDF format and start with the number "C-0001" and "R-0001," respectively.

15.5.5. Electronic files and the accompanying indexes shall follow the naming conventions contained in Annex B.

15.6.
Copies of documentary evidence shall be assumed to be authentic unless specifically objected to by a party, in which case the Tribunal will determine whether authentication is necessary.
15.7.
The parties shall file all documents only once by attaching them to their pleadings. Documents need not be resubmitted with witness statements even if referred to in such statements.
15.8.
Demonstrative exhibits (such as PowerPoint slides, charts, tabulations, etc.) may be used at any hearing, provided they contain no new evidence. Each party shall number its demonstrative exhibits consecutively and indicate on each demonstrative exhibit the number of the document(s) from which it is derived. The party submitting such exhibits shall provide them in electronic and hard copy to the other party, the Tribunal Members, the Tribunal Secretary, the court reporter(s) and interpreter(s) at the hearing at a time to be decided at the pre-hearing organizational meeting.

16.Witness Statements and Expert Reports

.
Convention Article 43(a); Arbitration Rule 24
16.1.
Witness statements and expert reports shall be filed together with the parties’ pleadings.
16.2.
Neither party shall be permitted to submit any testimony that has not been filed with the written submissions, unless the Tribunal determines that exceptional circumstances exist based on a reasoned written request followed by observations from the other party (following the procedure outlined in §15.3).
16.3.
Each witness statement and expert report shall be signed and dated by the witness.

17.Examination of Witnesses and Experts

.
Arbitration Rules 35 and 36
17.1.
Each witness and expert shall be available for examination at the hearing, subject to the provisions of this Order.
17.2.
Six weeks before a hearing, each party shall provide the opposing party, with a copy to the Tribunal and to the Tribunal Secretary, the names of any witnesses and experts whose statement or report has been submitted by the opposing party, with the request that they be available for cross-examination at the hearing. The Tribunal will rule on any outstanding issue in connection with the appearance of witnesses or experts shortly thereafter. Witnesses and experts who are not called for cross-examination shall not testify at the hearing. A party that does not call a witness or expert proffered by the other party for cross-examination shall not be deemed to have agreed to the correctness of the content of the witness statement or expert report.
17.3.
Shortly after the parties’ notifications, the Tribunal will indicate the witnesses or experts not called by the parties whom it wishes to question, if any.
17.4.
The procedure for examining witnesses and experts at the hearing shall be the following:

17.4.1. The Tribunal will be in control of any examination of witnesses and experts and shall intervene as appropriate should any questions go beyond the scope of the witness’s knowledge or expert’s competence.

17.4.2. The witness statement of each witness and the expert report of each expert shall stand in lieu of the examination by the party producing the witness and expert ("direct examination"), subject to the provisions below.

17.4.3. Without leave of the Tribunal, direct examination of fact witnesses shall not exceed 15 minutes and shall be limited to the scope of prior testimony.

17.4.4. Without leave of the Tribunal, direct examination of experts shall not exceed 20 minutes and shall be limited to the scope of prior testimony. The direct examination of an expert may take the form of a presentation by the expert.

17.4.5. The direct examination of witnesses is followed by examination by the other party ("cross-examination"), and subsequently by the party producing the witness ("redirect examination").

17.4.6. The redirect examination shall be limited to matters raised in cross-examination.

17.4.7. The Tribunal may pose questions during or after the examination of any witness or expert.

17.5.
The parties shall organize their allotted time at the hearing including with respect to witnesses, subject to the rules set forth herein. The Tribunal may, of its own initiative or at the request of a party, direct that a witness be recalled for further examination at any time or summon any other witness to appear.
17.6.
Witnesses of fact shall not be allowed in the hearing room before giving their oral evidence. In the event that a witness of fact is also a party representative, that witness may designate another individual to serve as party representative until that witness has testified. Experts shall be allowed in the hearing room at any time, and during the examination of other experts.
17.7.
If a witness who has submitted a witness statement or an expert who has submitted an expert report does not appear without a valid reason at the hearing, the Tribunal shall disregard that witness statement or expert report unless, in exceptional circumstances, the Tribunal determines otherwise. In this latter case, the Tribunal shall take into account that such testimony has not been subject to cross-examination.

18.Pre-Hearing Organizational Meetings

Arbitration Rule 13
18.1.
A pre-hearing organizational meeting shall be held at a date determined by the Tribunal after consultation with the parties by telephone between the Tribunal, or its President, and the parties in order to resolve any outstanding procedural, administrative, and logistical matters in preparation for the hearing.
18.2.
At a date to be determined by the Tribunal, the parties shall submit to the Tribunal jointly – or, where they are unable to agree, separately – a proposal regarding a daily schedule for the hearing.

19.Hearings

.
Arbitration Rules 20(1)(e) and 32
19.1.
The oral procedure shall consist of a hearing for examination of witnesses and experts, if any, and for oral arguments.
19.2.
The hearing shall be held at a place to be determined in accordance with §10 above or by video-conferencing if it is foreseeable that there will be relevant travel restrictions in place at the time of the hearing.
19.3.
The date of the hearing will be stipulated in Annex A.
19.4.
The Members of the Tribunal shall endeavor to reserve at least one day after the hearing to determine the next steps and to hold deliberations.
19.5.
Time shall be divided equally between the parties, who may decide how to allocate the use of such time.
19.6.
The hearings shall be closed to the public.

20.Records of Hearings and SessionsArbitration Rules 13 and 20(1)(g)

20.1.
Sound recordings shall be made of all hearings and sessions. The sound recordings shall be provided to the parties and the Tribunal Members.
20.2.
Verbatim transcript(s) in the procedural language(s) shall be made of any hearing and session other than sessions on procedural issues. Unless otherwise agreed by the parties or ordered by the Tribunal, the verbatim transcripts shall be available in real-time using LiveNote or similar software and electronic transcripts shall be provided to the parties and the Tribunal on a same-day basis.
20.3.
The parties shall agree on any corrections to the transcripts within 20 days of the later of the dates of the receipt of the sound recordings and transcripts. The agreed corrections may be entered by the court reporter in the transcripts ("revised transcripts"). The Tribunal shall decide upon any disagreement between the parties and any correction adopted by the Tribunal shall be entered by the court reporter in the revised transcripts.

21.Post-Hearing Memorials and Statements of CostsConvention Article 44; Arbitration Rule 28(2)

21.1.
At the conclusion of any hearing, the Tribunal shall decide whether the parties will file Post-Hearing Memorials. In any event, any such submissions shall not contain new evidence, documents, sources, declarations or expert reports.
21.2.
The Tribunal shall also consider when the parties shall file submissions regarding costs.

22.Publication

.
Convention Article 48(5), Administrative and Financial Regulation 22, Arbitration Rule 48(4)
22.1.
The parties consent to ICSID publication of the award and any order or decision issued in the present proceeding.

23.Other Matters

23.1.
The parties and the Tribunal acknowledge that the present proceedings are taking place during a global pandemic. To date, extraordinary measures have been taken by the majority of States to preserve the wellbeing of their citizens, including by the State of Kuwait.
23.2.
All exchanges, including correspondence, pleadings, and document production shall be by electronic means only.2
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