“(a) exclude from the record the ‘declaration’” of Mr. Ponta and all cross-references thereto;
(b) exclude from the record the expert report of Ms. Reichardt and all cross-references thereto in Respondent’s Counter-Memorial, Rejoinder, and other expert reports;
(c) exclude from the record the letters submitted with the Rejoinder as Exhibits CMA-122 and CMA-123 and all cross-references thereto;
(d) order Respondent to resubmit its Counter-Memorial, Rejoinder, and any accompanying statements, reports, or opinions without any references to Mr. Ponta’s ‘declaration’, Ms. Reichardt’s expert report, or Exhibits CMA-122 and CMA-123;
(e) allow Claimants to submit rebuttal documents in response to the new issues presented in Respondent’s Rejoinder witness statements and expert reports at a date in advance of the Hearing, pursuant to paragraph 16.3 of PO 1; and
(f) confirm that witnesses and experts may provide rebuttal testimony in direct examination at the Hearing (of up to 30 minutes for fact witnesses and for experts as part of the direct examination or presentation of up to 1 hour permitted by PO 1 paragraph 18.5.3) to address the new issues presented in Respondent’s Rejoinder, witness statements and expert reports, pursuant to paragraph 17.2 of POL.”
(Cl. 19.07.19, para. 82; Cl. 20.08.19, paras 139-140)
“i) Scope of the rebuttal evidence - The Claimants will only be allowed to produce new evidence which is ‘strictly responsive to new evidence presented in the Rejoinder;’
ii) Timing of filing of the rebuttal evidence by both parties - Any new evidence must be produced at the latest on 30 September 2019 to allow the Respondent to file responsive documentary evidence, if required, at the latest by 4 November 2019 (i.e. four weeks in advance of the hearing).
iii) Measures relating to the hearing - The Claimants’ request to present new evidence on direct examination at the hearing should be denied without any hesitation. Should the Tribunal allow new witness or expert testimony, such evidence should be strictly limited to written rebuttals of the Respondent’s witnesses and experts evidence submitted with the Rejoinder, and should be filed at the latest on 30 September 2019 to allow sufficient time for the Respondent to file responsive witness or expert evidence, if required, by 4 November 2019 (i.e. four weeks in advance of the hearing). Considering these rebuttal statements would be ‘limited in scope’ (as recognized by the Claimants), there is sufficient time before the hearing for such an exchange to take place without requiring to move the hearing.” (Resp. 09.08.19, para. 128; Resp. 27.08.19, paras 91-92).
- First, the exclusion from the record of testimony that Claimants have no opportunity to confront through cross-examination (hereinafter the “First Request”).
- Second, the opportunity to submit focused rebuttal evidence in response to the new evidence first submitted by Respondent with its Rejoinder (hereinafter the “Second Request”).
(i) a witness statement submitted by Respondent with its Rejoinder from former Romanian Prime Minister, Mr. Ponta, styled as a “Declaration”;
(ii) the expert opinion submitted by Respondent with its Counter-Memorial from Ms. Cathy Reichardt of Chris Morgan Associates (“CMA”);
(iii) a letter from Dr. Amalia Şerban, an official from Romania's Ministry of Health, responding to various questions posed by Respondent's counsel for purposes of this arbitration, submitted with the Rejoinder as Exhibit CMA-122; and
(iv) a letter from Romania's Deputy Prime Minister and Minister of Environment Ms. Graţiela Leocadia Gavrilescu, responding to various questions posed by Respondent's counsel for the purposes of this arbitration, submitted with the Rejoinder as Exhibit CMA-123.
- ICSID Rule 34(1): “The Tribunal shall be the judge of the admissibility of any evidence adduced and of its probative value”.
- ICSID Rule 34(2)(a): “The Tribunal may, if it deems it necessary at any stage of the proceeding: (a) call upon the parties to produce documents, witnesses and experts”.
- ICSID Rule 34(3): “The parties shall cooperate with the Tribunal in the production of the evidence and in other measures provided for in paragraph (2).”
- ICSID Rule 35(1): “Witnesses and experts shall be examined before the Tribunal by the parties under the control of its President. Question may also be put to them by a member of the Tribunal”.
- Paragraph 18.6, PO 1: “Witnesses and experts shall be made available for examination during the oral hearing. If a witness or expert whose appearance has been requested pursuant to §18.2 fails without a valid reason to appear at the hearing, the Tribunal may exclude any statement(s) or report(s) of such witness or expert from the record, and/or accord such weight, if any, to the witness testimony as it deems appropriate.”
“We are writing to you following your request by which you required us to communicate to you what would be the nearest hospital to Roșia Montană that could ensure medical interventions to the victims of accidents (which involve cyanide) in case of a major incident with a large number of causalities:
i. either from a failure of the tailings management facility (which would contain cyanide) which would lead to a mudslide towards Abrud town;
ii. or, there could be an inadvertent release of cyanide which would most likely affect workers.
In view of drafting our institution's response we took into account the information concerning the Roșia Montană mining project communicated by your firm reiterated below.”
“We are writing to you further to the questions that your firm has asked in connection to the following matters, more specifically whether:
a) the provisions of Directive 2012/18/EU on the control of major accident hazards involving dangerous substances (“Seveso III Directive”) are applicable in the case of the consolidated unloading and storage hub which Roșia Montană Gold Corporation S.A. (“RMGC”) planned to build in the Ampellum industrial area of the city of Zlatna. More specifically, you requested from us to tell you whether this consolidated hub may be qualified as an “establishment” as per Article 3 (1) of Seveso III Directive. For that purpose, you sent us a copy of the C-0943 exhibit and you specified inter alia that: (i) RMGC's “Roșia Montană” project provided for two daily truck deliveries (from this consolidated hub in Zlatna to Roșia Montană), and every truck should have carried 20 tons of cyanide, and (ii) the cyanide should have been stored in Zlatna awaiting the truck delivery, therefore at least 20 tons of cyanide would have been stored anytime, especially in winter time, when the weather conditions would prevent road deliveries;
b) building the consolidated hub in question would also involve an environmental impact assessment (EIA procedure) in order to get the environmental permit for the authorisation of the construction works.
Regarding your questions, please be advised of the following: […].”
(i) Respondent's Counter-Memorial was accompanied by two witness statements: one from Mr. Sori Găman (official from the Ministry of Economy and member of RMGV's Board) consisting of seven pages, half of which address his personal background, and one from Ms. Dorina Mocanu (official from the Ministry of Environment) consisting of 116 pages, three of which address her personal background.
(ii) Respondent's Rejoinder in contrast was accompanied by 13 witness statements, 11 of them from new witnesses.
(iii) Mr. Găman's second statement is 78 pages long (with 247 footnotes referring to record evidence) and Ms. Mocanu's second statement is 83 pages long (with 323 footnotes referring to record evidence).
(iv) Entirely new witness statements are submitted by two former Prime Ministers, Mr. Emil Boc (15 pages) and Mr. Ponta (24 pages); former Minister of Economy Mr. Ion Ariton (38 pages); former Minister of Economy Mr. Lucian Bode (eight pages); local community activist and Project opponent, Mr. Ioan Jurca (54 pages plus a 19-page annex); members of the local community, Mr. Constantin Camarasan (three pages), Mr. Eugen Cornea (seven pages), Mr. Petru Devian (three pages), Mr. Augustin Golgoţ (three pages), Mr. Niculina Jeflea (three pages), and Ioan Petri (five pages).
(v) The Rejoinder also is accompanied by six entirely new expert reports, from: Ms. Christine Blackmore, Mr. Karr McCurdy, Prof. Dana Tofan, Profs Irina Sferdian and Lucian Bojin, Dr. Augustin Stoica, and Dr. Alina Pop.
(vi) This is in addition to second expert reports from each of Behre Dolbear, Dr. James Burrows, Mr. Dermot Claffey, Dr. Peter Claughton, Dr. Mark Dodds- Smith, Larraine Wilde, Prof. Dracian Dragoş, and Dr. Ian Thomspon, several of which present significant new expert analyses that should have been presented in the Counter-Memorial round (Cl. 19.07.19, para. 28).
- ICSID Rule 31(3): “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.”
- Paragraph 16.1, PO 1: “The Memorial and Counter-Memorial shall be accompanied by the documentary evidence relied upon by the parties, including exhibits and legal authorities (hereinafter ‘documents'). Further documents relied upon by the parties in rebuttal shall be submitted with the Reply and Rejoinder.”
- Paragraph 16.3, PO 1: “Either party may submit an application to present additional evidence after the filing of its respective last submission should it consider that exceptional circumstances exist, based on a reasoned written request followed by observations from the other party. The Tribunal shall decide, in its discretion, on any such application.”
- Paragraph 17.1, PO 1: “The Memorial and Counter-memorial shall be accompanied by the witness statements and/or expert reports relied upon by the parties. Further witness statements and/or expert reports relied upon by the parties in rebuttal shall be submitted with the Reply and Rejoinder.”
- Paragraph 17.2, PO 1: “Neither party shall be permitted to submit any testimony beyond what is contemplated in §18 below 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.”
(i) The Witness Statement of Mr. Boc (for Claimants see: Cl. 19.07.19, paras 37- 38-39; Cl. 20.08.19, paras 69-74; for Respondent see: Resp. 09.08.19, paras 61-64; Resp. 27.08.19, para. 48).
(ii) The “Declaration” of Mr. Ponta (for Claimants see: Cl. 19.07.19, paras 40-43; Cl. 20.08.19, para. 9; for Respondent see: Resp. 09.08.19, para. 70; Resp. 27.08.19, para. 49).
(iii) The Witness Statements of Mr. Arito and Mr. Bode (for Claimants see: Cl. 19.07.19, paras 44-46; Cl. 20.08.19, paras 82, 84, 86-87; for Respondent see: Resp. 09.08.19, paras 66-68; Resp. 27.08.19, para. 48).
(iv) The Witness Statements of seven local residents: (for Claimants see: Cl. 19.07.19, paras 47-48; Cl. 20.08.19, paras 88-94; for Respondent see: Resp. 09.08.19, paras 73-83; Resp. 27.08.19, paras 60-65).
(v) The Second Statements of Mr. Găman and Ms. Mocanu (for Claimants see: Cl. 19.07.19, para. 49; Cl. 20.08.19, paras 50-51, 95-97; for Respondent see: Resp. 09.08.19, paras 87-92; Resp. 27.08.19, paras 67-68).
(vi) The Expert Report of Mr. McCurdy (for Claimants see: Cl. 19.07.19, paras 52-53; Cl. 20.08.19, paras 109-112; for Respondent see: Resp. 09.08.19, para. 93; Resp. 27.08.19, paras 69-72).
(vii) Expert Reports on Romanian law (for Claimants see: Cl. 19.07.19, paras 54, 58-61; Cl. 20.08.19, paras 99-107; for Respondent see: Resp. 09.08.19, paras 95-97; Resp. 27.08.19, paras 73-76).
(viii) Experts on Social License (for Claimants see: Cl. 19.07.19, paras 59-61; Cl. 20.08.19, paras 105-107; for Respondent see: Resp. 08.08.19, paras 100-104; Resp. 27.08.19, paras 54-58).
(ix) Other Expert Reports (for Claimants see: Cl. 19.07.19, paras 62-67; Cl. 20.08.19, paras 108-124; for Respondent see: Resp. 09.08.19, paras 98-125; Resp. 27.08.19, paras 77-89).
- The right of a party to plead last;
- The right of the Parties to meaningfully participate in the Hearing by having presented their entire case (and rebuttals); and
- The need to preserve the integrity of the proceedings and to prevent the disruption to either Party's preparation for the Hearing.
(i) Claimants shall submit limited rebuttal documents in response to the new issues presented in Respondent's Rejoinder witness statements and expert reports (50 pages maximum) by 4 October 2019.
(ii) Respondent shall submit any rebuttal documents (50 pages maximum) by 1 November 2019.
(iii) The timing and scope of the direct examination of both Parties' witnesses and experts shall be handled by the Tribunal with flexibility. The general timing of the Hearing will be decided, after consulting with the Parties, during the Pre-Hearing Organization Meeting. In case the Parties wish to extend the scope of the direct examinations, they should indicate the subject-matters by the dates on which their rebuttal documents are due.
(iv) Both Parties shall have, if necessary, a further opportunity for rebuttal of these documents, during the Hearing and during post-Hearing submissions.
2. Ms. Reichardt's expert report, including any references thereto, shall remain part of the record.
3. Respondent may resubmit Exhibits CMA-122 and CMA-123 as “witness statements” or “expert reports” by 20 September 2019 and such statements or reports, including any references thereto, shall form part of the record. In this case, the procedure set out in paragraph 43 of the present Procedural Order shall apply. Otherwise, Exhibits CMA-122 and CMA-123 and any references thereto shall be stricken from the record altogether.
4. A limited and focused opportunity of rebuttal shall take place as follows:
(i) Claimants shall submit limited rebuttal documents in response to the new issues presented in Respondent's Rejoinder witness statements and expert reports (50 pages maximum) by 4 October 2019.
(ii) Respondent shall submit any rebuttal documents testimony (50 pages maximum) by 1 November 2019.
(iii) The timing and scope of the direct examination of both Parties' witnesses and experts shall be handled by the Tribunal with flexibility. The general timing of the Hearing will be decided, after consulting with the Parties, during the Pre-Hearing Organization Meeting. In case the Parties wish to extend the scope of the direct examinations, they should indicate the subject-matters by the dates on which their rebuttal documents are due.
(iv) Both Parties shall have, if necessary, a further opportunity for rebuttal of these documents, during the Hearing and during post-Hearing submissions.
5. All other requests are rejected.
6. The costs associated with Claimants' application shall be referred to a later stage in the proceedings.
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