“Hearing the Cases Together
22.1. It was noted that in their letter of February 4, 2011, the Claimants stated:
‘22.1 Case Bernhard von Pezold & Ors v The Republic of Zimbabwe ICSID Case No. ARB/10/15, and case Border Timbers Limited & Ors v The Republic of Zimbabwe ICSID Case No. ARB/10/25 shall be heard together (but not formally consolidated).
22.2 The Claimants will submit joint pleadings, but will separately address those issues within a pleading where circumstances distinct to particular Claimants and/or a case necessitate separate treatment.
22.3 Each witness statement and expert report shall state whether it applies to one case or the other case.
22.4 The Tribunal shall issue separate awards in relation to each case but may nevertheless discuss these arbitrations in any award or procedural order as a single set of proceedings, except where circumstances distinct to particular Claimants necessitate separate treatment.”
22.2. At the session, it was agreed to follow the procedural approach in the two proceedings as proposed in the Claimants’ letter.’.” [emphasis added]
“The Tribunals requested that the parties confirm whether Item 22.4 of the Summary Minutes of the Joint First Session (i.e., that the Tribunals issue separate awards in relation to each case) is still standing.
64. On 3 November 2014, Steptoe & Johnson wrote to Kimbrough & Associés stating that “[g]iven that the arbitrations were never formally joined, the Claimants have a right to separate awards for each arbitration and will request the Tribunals to act accordingly”. There has not been a response to Steptoe’s letter. In any event, the Claimants’ position is unchanged to that as expressed in Steptoe’s letter.
65. Indeed, the issue of separate awards is not only a right in circumstances where there are separate proceedings, but also an imperative in these cases in order to protect the rights of the von Pezold Claimants, i.e. the claimants in ICSID Case No. ARB/10/15. The imperative arises because in the event of a single award, during the enforcement phase cooperation between all of the Claimants would be necessary. Such cooperation is likely to be impossible in the event that the Respondent takes control of the Border Company Claimants, which it may do in order to jeopardise the enforcement of a single award or for other reasons.”
“38. Claimants initiated two proceedings, prepared simultaneously yet filed weeks apart, which have been conducted as a single joint proceeding and which should result in a single award.
39. The discussion has taken place in a unified manner, without any clear distinction in issues, briefing or oral argument. Even the Exhibits were unified and not distinguished as between cases. The matters are so intertwined that it is appropriate to resolve all issues as a single award.
40. Given that single-mass nature of submissions, issues and oral debate, there is no reasonably reliable manner to accurately distinguish the quantum of costs and fees in two separate awards.
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