7.1. Day 1 of the Hearing will begin with the Claimant's opening statement, followed by the Respondent's opening statement. Each Party will have up to three hours to present its opening statement. One hour will be reserved for the Tribunal's questions and any procedural and logistical matters.
7.2. To the extent that there remains time after completion of the Respondent's opening statement, the examination of witnesses may, at the Tribunal's discretion, begin on Day 1.
7.3. The total number of effective hearing hours per day is seven hours2, such that there are 35 effective hearing hours for Days 1 through 5, plus an additional seven hours in the event that the reserve day, Saturday, 25 January 2020, is used.
7.4. On each of Days 1 to 5 (and Day 6, if the reserve day is used), one hour will be reserved for addressing Tribunal questions and procedural and logistical matters, such that the Parties will have six hours of effective hearing time per day.
7.5. The Tribunal and the Parties' allotted time will be administered with a chess clock system.
7.6. It is anticipated that the examination of fact witnesses will take place on Days 2 and 3 of the Hearing, taking up 12 hours of effective hearing time for the use of the Parties. To reflect the fact that Claimant will cross-examine five fact witnesses compared to the Respondent, who will cross-examine only two fact witnesses, time will be allocated on a 60/40 basis on Days 2 and 3 (subject to the provision of 7.2 above). Consequently, the Claimant will have 7.2 hours and the Respondent will have 4.8 hours.
7.7. Each Party will have six hours for the examination of expert witnesses, which is anticipated to begin on Day 4, unless it is subsequently agreed that the reserve day, Saturday, 25 January 2020, is required, in which case each Party would have an additional three hours.
7.8. If a Party does not use all of the time allocated to it for the examination of fact witnesses on Days 2 and 3, or it exceeds that time, its remaining time for the examination of expert witnesses will be adjusted accordingly.
7.9. In accordance with the chess clock system, each Party will be free to allocate its allotted time as it deems convenient, notwithstanding the provision of the indicative (non-binding) timetable referred to in Section 3 above.
7.9.1. The following will not be counted against any Party's time:
126.96.36.199. time spent on questions posed by the Tribunal and on responses to those questions;
188.8.131.52. time spent on administrative or organizational matters; and
184.108.40.206. time spent dealing with objections from a Party.
7.9.2. Time allocated for opening statements and not used by a Party will be added to that Party's total time, unless the Tribunal, exercising its discretion pursuant to 7.2 above, determines that the examination of witnesses shall not begin on Day 1.
11.1. Claimant's fact witnesses:
• Mr. Mark Moseley-Williams
• Ms. Wilmer Gonzalez Aldana
11.2. Respondent's fact witnesses:
• Mr. Javier Garcia
• Ms. Luz Helena Sarmiento
• Ms. Brigitte Baptiste
• Mr. Carlos Sarmiento
• Ms. Maria Isabel Ulloa
11.3. Claimant's legal expert:
• Ms. Margarita Ricaurte
11.4. Respondent's legal expert:
• Mr. Felipe de Vivero Arciniegas
11.5. Claimant's mining and engineering experts:
• Mark K. Jorgensen
• Messrs. Bernard J. Guarnera and Robert Cameron
11.6. Respondent's mining and engineering experts:
• Mr. Christopher Johnson
• Mr. Mario Rossi
11.7. Claimant's damages experts:
• Messrs. Manuel A. Abdala and Pablo T. Spiller
11.8. Respondent's damages experts:
• Messrs. James C. Burrows and Tiago Duarte-Silva
19.7. Fact and expert witnesses shall be examined before the Tribunal by the Parties under the control of its President. The Tribunal may examine the witness at any time, either before, during or after examination by one of the Parties.
19.8. Fact witnesses giving oral evidence shall, before giving evidence, make the declaration in ICSID Arbitration Rule 35(2), and expert witnesses shall make the declaration in ICSID Arbitration Rule 35(3). The witnesses will be asked to confirm their statement or report and may then be briefly examined by counsel for the Party that is presenting the witness for “direct examination” which may not introduce new matters not already covered by the written statement or report, save in response to new matters raised in the Rejoinder. During the brief direct examination, the Party who has presented the witness may ask the witness introductory questions, including about any corrections to be made to the statement or report, and to address new matters raised in the Rejoinder. Expert witnesses may give a presentation before the start of their cross-examination. The witness may then be examined by counsel for the opposing Party (“cross-examination”), and subsequently by counsel for the Party offering the witness, limited to matters that arose during cross-examination (“re-direct examination”).
19.9. Each Party shall be responsible for the practical arrangements, cost and availability of any witness it offers, without prejudice to the final decision of the Tribunal as to the allocation of costs.
19.10. A fact witness shall not be present in the hearing room during the hearing of oral testimony, discuss the testimony of any other witness who has already testified prior to giving his/her testimony, or read any transcript of any oral testimony, prior to his or her examination, except with the express permission of the Tribunal upon request from a Party. This condition does not apply to experts.
19.11. The Tribunal shall, at all times, have complete control over the procedure for hearing a witness. The Tribunal may in its discretion refuse to hear a witness when it appears that the facts on which he or she is to testify are already proven by other evidence or are irrelevant. It may also order that a witness be recalled for further examination at any time. Any witness may only be recalled by the Tribunal (of its own motion or on request) if such intention is announced in time to assure the availability of the witness during the hearing.
19.12. Counsel may meet witnesses and potential witnesses to establish the facts, assist with the preparation of witness statements and oral examinations.
17.3. 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.
17.3.1. 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.
17.3.2. 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.
Claimant will require a travel certificate for:
• Wilmer Gonzalez Aldana, witness
• Margarita Ricuarte, expert
• Mark Moseley-Williams, witness
Respondent will require travel certificates for:
• Camilo Gómez Alzate, Agencia Nacional de Defensa Jurídica del Estado, Party Representative
• Ana María Ordoñez Puentes, Agencia Nacional de Defensa Jurídica del Estado, Party Representative
• Juan Sebastián Torres Oliver, Agencia Nacional de Defensa Jurídica del Estado, Party Representative
• Javier García Granados, Witness
• Brigitte Baptiste, Witness
• Luz Helena Sarmiento, Witness
• Carlos Sarmiento, Witness
• María Isabel Ulloa, Witness
• Felipe De Vivero Arciniegas, Expert
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