“4. In summary, the Respondent’s Illegality Objection as pleaded in its Rebutter is as follows. Article 9(a) of the German BIT and the second part of Article 2 of the Swiss BIT provide that the BITs to which they relate only apply to investments made in accordance with the laws of Zimbabwe. The Respondent in the Rebutter alleges that the Claimants’ investments into Zimbabwe were not made in accordance with the laws of Zimbabwe and therefore they are not covered by the BITs.
5. The Respondent’s Approval Evidence is pleaded extensively in the Rebutter. In brief, the Respondent’s Approval Evidence is that the Claimants’ investments were not approved in accordance with the procedure as detailed in Mr Nyaguse’s witness statement (filed with the Rebutter). As a consequence, the Respondent asserts that the Claimants’ investments do not comply with either Article 9(a) of the German BIT or Article 2 of the Swiss BIT and hence it seeks to raise the Illegality Objection in the Rebutter. Further, the Respondent alleges that the failure to comply with this procedure means that the Claimants are not compliant with Article 9(b) of the German BIT (the Respondent in its Rejoinder raised the Approval Objection, which asserts that Article 9(b) states that the German BIT only applies to investments “specifically approved” at the time of admission).” [citations omitted]
“3.2.1 Mr Nyaguse’s evidence is only admissible in support of the Respondent’s alleged defence under Article 9(b) of the German BIT;
3.2.2 the Claimants shall file their observations on Mr Nyaguse’s Witness Statement, together with any supporting evidence, by 9 September 2013;
3.2.3 the Claimants’ observations and supporting evidence referred to in para 3.2.2 above will cover the following matters (which are referred to in Mr Nyaguse’s statement) - the functions, powers and status of the Foreign Investment Committee (FIC), the Zimbabwe Investment Centre (ZIC), the Investment Committee (ZIC Investment Committee), the Reserve Bank and the Exchange Control Review Committee, in so far as they relate to the issue of the approval of foreign investment; and
3.2.4 the Claimants’ observations and supporting evidence referred to in para 3.2.2 above will also cover the Claimants’ interaction (if any) with the entities referred to in para 3.2.3 above.
“On 4 July 2013, in advance of and in anticipation of this application, the Respondent submitted to the Tribunals the 4 July letter. In that letter the Respondent asserts that the Illegality Objection and the Approval Evidence should be admitted into these proceedings, although it did not request such permission from the Tribunals. The 4 July Letter is 30 pages in length and its paragraphs are not numbered. For ease of cross-referencing, this application includes a copy of the 4 July Letter to which the Claimants have added paragraph numbers down the left hand margin of each paragraph. At the end of this application the Claimants have endeavoured to deal with the points raised in the 4 July Letter.”
“88. Should the Arbitral Tribunals consider that at any stage Respondent has not followed the form required or that its submissions need to be clarified, Respondent stands ready to respond and hereby petitions the Arbitral Tribunals for an opportunity (i) to correct any formal discrepancy or (ii) to provide any clarifications that the Arbitral Tribunals may require, if any were to be identified.
135. Claimants in Paragraph 73 pretend that their right to be heard will not been guaranteed unless their Application-to-Exclude-National-and-International-Requirement-of-Compliance-with-the-Law-and-Specific-Approval is upheld. As is now clear, Claimants have had ample chance and incentive to submit whatever approvals they obtained. However, should they have ideas about any additional approvals they might have overlooked, they will have had from 21 April 2013 receipt of Respondent’s 19 April 2013 Response to Claimants’ Observations on Respondent’s Rejoinder through 28 October 2013 to think back to that key paper they might have overlooked. The truth is everyone knows, as is discussed in Section 220.127.116.11 above, that Claimants have dug deep into their approval barrel, scrapping up such minute and or extraneous details as they “pay corporate tax,” “pulp waste, coffee effluent and industrial effluent” charges, and have “fire arms certificates.” Were they to have had actual foreign investment approval or even an application for same, there is every reason to conclude that they would have produced it by now.
136. Nevertheless, Respondent does not oppose Claimants making a submission on or before 9 September 2013 in this regard, with Respondent having the possibility to respond 14 days latter [sic], on 23 September under the same conditions agreed between the parties in their Agreed Points Letter of 23 July 2013.” (emphasis added)
“The Respondent reiterates that it did not breach any terms of the BITs as was fully explained in relation to the lawful taking. All the declarations sought by the Claimants are therefore opposed.”
(1) Any objection that the dispute or any ancillary claim is not within the jurisdiction of the Centre or, for other reasons, is not within the competence of the Tribunal shall be made as early as possible. A party shall file the objection with the Secretary-General no later than the expiration of the time limit fixed for the filing of the countermemorial, or, if the objection relates to an ancillary claim, for the filing of the rejoinder—unless the facts on which the objection is based are unknown to the party at that time.” (emphasis added)
(3) Any step taken after expiration of the applicable time limit shall be disregarded unless the Tribunal, in special circumstances and after giving the other party an opportunity of stating its views, decides otherwise.”
The Written Procedure
(3) A memorial shall contain: a statement of the relevant facts; a statement of law; and the submissions. A counter-memorial, reply or rejoinder shall contain an admission or denial of the facts stated in the last previous pleading; any additional facts, if necessary; observations concerning the statement of law in the last previous pleading; a statement of law in answer thereto; and the submissions.”
“[i]n accordance with the practice in international arbitration, it was agreed at the session that each party shall submit together with its respective pleading all evidence, in whatever form, including written witness statements and expert reports, upon which it relies in support of the respective pleading.”
* The Claimants’ reference to paragraph 13.3.2 of the Summary Minutes is noted, although this provision appears to address the specificity with which a party refers to a document in a pleading, not the specificity with which a party pleads its case or, for example, the relevance of that document.
“Claimants seem to want to ignore one key procedural reality: the proceedings are not closed and Respondent has every right during the oral phase of proceedings, during both cross-examination and oral argument, to draw the arbitrators’ or the witnesses’ attention to any document on the record and to draw any conclusion and make any suggested characterisation is wishes to make with respect to any issue related to the file.”
(a) The Claimants’ Illegality Objection is dismissed;
(b) The Claimants’ Approval Evidence Objection is dismissed;
(c) The Respondent’s petition is granted within the limits of paragraph 60(a) below;
(d) The Claimants’ request to file observations on Mr. Nyaguse’s witness statement, together with any supporting evidence, by 9 September 2013, is granted in part;
(e) The Claimants’ request that the Respondent’s July 4 Letter and the Respondent’s Reply not serve as additional pleadings in these proceedings is granted.
(a) The Respondent shall file no later than 16 August 2013 an addendum to its Rebutter containing a concise statement of its jurisdictional objection on the basis of Article 9(a) of the German BIT and Article 2 of the Swiss BIT, limited to the law and evidence already on the record of these proceedings, and not to exceed 15 pages (the “Re-Rebutter”). In particular, the Re-Rebutter shall include specific references to the Respondent’s relevant pleadings (i.e., the Rejoinder and the Rebutter) and any relevant documents on the record, consistent with paragraph 13.3.2 of the Summary Minutes;
(b) The Claimants shall file no later than 9 September 2013 their response to the Re-Rebutter and to the Respondent’s jurisdictional objection based on Article 9(b) of the German BIT as pleaded in the Rebutter (“Claimants’ 9 September Response”), including any responding evidence, the Claimants’ response not to exceed 30 pages;
(c) The Respondent shall file no later than 23 September 2013 any reply to the Claimants’ 9 September Response (“Respondent’s 23 September Reply”), including reply evidence, the Respondent’s Reply not to exceed 10 pages; and
(d) The pleadings directed in subparagraphs 60(a) to (c) above shall have numbered paragraphs; spacing shall be 1.5 lines with font no smaller than 11 points.
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