(a) The Respondent’s challenges to jurisdiction that have been pleaded in the Rejoinder, in so far as they relate to the Claimants’ case as pleaded in the Memorial, are inadmissible and shall be disregarded by the Tribunals; and
(b) The Respondent’s defences to the Claimants’ case as pleaded in the Memorial, in so far as those defences have not already been pleaded in the Counter-memorial, are inadmissible and shall be disregarded by the Tribunals.
(a) The Respondent within seven days provide the documents which are referred to in the Rejoinder and on which it relies;
(b) The Claimants file their observations, together with any supporting evidence, on the Respondent’s Rejoinder within eight weeks of the Tribunals notifying the parties of the new timetable;
(c) The Respondent file its response to the Claimants’ observations, together with any supporting evidence, within four weeks of receiving the Claimants’ observations and evidence;
(d) The Respondent’s challenges to jurisdiction are joined to the merits of the cases; and
(e) (save as to provisional measures) permission to file additional submissions must be sought from the Tribunals in advance by the party wishing to file such submissions.
“3.1.1 The investments (if any) are not owned by foreign investors (Rejoinder, paras 932 to 942).
3.1.2 The Claimants’ investments (if any) are indirect investments, namely shares in Zimbabwean companies. Indirect investments are not covered investments under the BITs (Rejoinder, paras 963 to 977).
3.1.3 There has been no "investment" pursuant to Rule 25 of the ICSID Convention because the Claimants have not put anything at risk, their activities are merely commercial, and they have not made any contribution to the Respondent’s economic development (Rejoinder, paras 943 to 962).
3.1.4 The Claimants are claiming for losses on behalf of the Zimbabwean companies as opposed to losses that they have suffered themselves (Rejoinder, paras 964 and 971).
3.1.5 There has been no "investment" as defined under the German BIT because there was no specific approval of the Claimants’ investments by the Respondent during the period 1988 to 2004 (Rejoinder, paras 978 to 981).
3.1.6 The Claimants have not proven that they have made any investment into Zimbabwe and therefore they are not "investors" (Rejoinder, paras 985 and 986).
3.1.7 The Claimants have not proven that they are the beneficial owners of their investments and therefore they are not "investors" (Rejoinder, para 987).”
“4.1.1 A defence of Necessity (based on customary international law, as opposed to the BITs) precluding the wrongfulness of any act of the Respondent during the period 2000 until the time that the proposed new Constitution is put to a referendum in 2013 (Rejoinder, paras 812 to 928).
4.1.2 A defence that the fair and equitable treatment standard and the full security and protection standard in the BITs do not require treatment beyond that which is required by the customary international law minimum standard of treatment (Rejoinder, para 348).
4.1.3 A defence that there has been no expropriation of any of the Zimbabwean Properties as the Claimants continue to control the Zimbabwean Properties (Rejoinder, paras 1055 to 1060). This is in spite of the fact that the Respondent in para 125 of its Counter-memorial admitted that the Zimbabwean Properties that were directly subject to the Constitutional Amendment had been expropriated.
4.1.4 A defence that by reason of the fact that the Claimants have pleaded that the Zimbabwean Courts ruled that all of the Section 5 Notices were invalid, there is no case to answer in regard to the Claimants’ claim that the Constitutional Amendment expropriated their investments (Rejoinder, paras 1013 to 1026).
4.1.5 A defence that the Calvo Doctrine is applicable, i.e. the Claimants are entitled to no greater treatment to that as received by Zimbabweans (Rejoinder, paras 409 to 413). In effect this is an argument that apart from the national treatment standard, none of the other standards in the BITs are applicable.
4.1.6 A defence that any award of damages must take into account Zimbabwe’s ability to pay (Rejoinder, paras 1061 to 1072).
4.1.7 A defence that "declarations, political speeches and similar acts of communication", all of which were pleaded in the Memorial, are not attributable to the Respondent under public international law (Rejoinder, paras 1082 to 1087).”
“i) the liberty Claimants took in amending and resubmitting their Memorial to include new claims almost one year after the date of their Memorial;
ii) the absence of “new” facts or documents with Respondent’s Rejoinder;
iii) Respondent’s offer in its letter of 4 December 2012 that Claimants comment on any issue by 7 January 2012 and Respondent reply by 14 January 2012.”
“Respondent advises that it will, by 15 January 2013, provide paper copies or extracts or relevant passages of the documents it submitted electronically with its 14 December 2012 Rejoinder.
Eight weeks from that date would, taking a Friday, bring the date for Claimants’ submission to 11 March 2013.
In turn, the Friday eight weeks from then would bring the date for Respondent’s submission to 17 May 2013.
To leave at least one month between the last exchange and the commencement of hearings in Singapore, this new timetable would bring the date for such hearings to mutually acceptable dates in July 2013.”
(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 counter-memorial, 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).
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.” (emphasis added)
(1) Where required, time limits shall be fixed by the Tribunal by assigning dates for the completion of the various steps in the proceeding. The Tribunal may delegate this power to its President.
(2) The Tribunal may extend any time limit that it has fixed. If the Tribunal is not in session, this power shall be exercised by its President.
(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.” (emphasis added)
“The Arbitrators will note that Respondent raises no issue as to the Arbitral Tribunal’s jurisdiction over the Parties to this dispute or over certain of Claimants’ claims. However, Respondent does point out that certain of Claimants’ claims do not meet the criteria for a protected investment under the BITs and that Claimants’ own legal argumentation fails to provide that they were expropriated by the 2005 Amendment to the Constitution of the Republic of Zimbabwe.”
“Any objection by a party to the dispute that that dispute is not within the jurisdiction of the Centre, or for other reasons is not within the competence of the Tribunal, shall be considered by the Tribunal which shall determine whether to deal with it as a preliminary question or to joint it to the merits of the dispute.”
“The Claimants’ Reply was submitted with amendments and clarifications to the claims. New issues were raised in the Reply.
We are seeking your consent to us sending the outstanding documents with the Rejoinder and amending the timetable to allow for your reply to the new issues that you had not had opportunity to respond to. The Rejoinder might also contain some information that you might need to respond to. Our proposal is that after we file our Rejoinder on the 14th of December 2012 you have up to 7th January 2013 to reply and then we will respond by the 14th of January 2013.”
(a) The Respondent’s challenges to jurisdiction which relate to the Claimants’ case as
pleaded in the Memorial are admitted and all of the challenges to jurisdiction pleaded in the Rejoinder are joined to the merits of the cases;
(b) The Hearing scheduled to take place in Singapore from 18 to 22 February 2013 (with 23 February 2013 being a reserve day) is vacated;
(c) The Hearing shall take place in Singapore from 10 to 14 June 2013 (with 15 June 2013 being a reserve day);
(d) The Respondent shall provide the Claimants and the Arbitral Tribunals with a copy of the documents which are referred to in its Rejoinder and on which it relies, or an appropriate excerpt thereof consistent with the parties’ agreement as recorded in paragraph 15.2 of the Minutes of the Joint First Session, by e-mail no later than 18 January 2013 and by courier on the following business day in accordance with paragraph 11.5 of the Minutes of the Joint First Session;
(e) The Claimants shall file their observations on the Respondent’s Rejoinder, including their response to the Respondent’s observations on the ancillary claims, together with any supporting evidence, by 1 March 2013;
(f) The Respondent shall file its response to the Claimants’ observations, including its reply to the Claimants’ response on the ancillary claims, together with any supporting evidence, by 19 April 2013;
(g) A Pre-Hearing Telephone Conference of the Parties with the Chairman of the Arbitral Tribunals shall take place during the week of 20-24 May 2013;
(h) the Parties shall exchange and file with the Arbitral Tribunals skeleton arguments no later than 31 May 2013; and
(i) (save as to provisional measures) permission to file additional submissions must be sought from the Arbitral Tribunals in advance by the party wishing to file such submissions.
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