1. Respondent may resubmit Mr. Ponta's statement as a “witness statement” by 20 September 2019 and such statement, including any references thereto, shall form part of the record and the procedure set out in paragraph 43 of the present Procedural Order shall apply. Otherwise, Mr. Ponta's “declaration” and any reference thereto shall be stricken from the record altogether.
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.
Claimants noted that they could not fairly respond within the 50-page limitation set out in PO No. 23 to the amount of new evidence Respondent saved for its Rejoinder. Claimants therefore asked the Tribunal to accept the exhibits as proposed (“Cl. 11.10.19”).
The Tribunal proposed to bifurcate the Hearing into (i) two weeks as originally scheduled from 2 to 13 December 2019 (without Saturdays); and (ii) one additional week as soon as possible. It therefore invited the Parties to liaise and agree if possible on the criteria that should be followed for the bifurcation.
Respondent requested, inter alia, that the Tribunal order Claimants to comply with PO 23 in relation to the 50-page limit, that Claimants' resubmitted exhibits be rejected and that Claimants summarize the new, rebuttal evidence that their witnesses intend to provide on direct examination (“Resp. 16.10.19”).
In relation to Claimants' rebuttal documents, to:
- “order the Claimants to resubmit their rebuttal evidence in a manner that complies with the Tribunal's direction, including the page limit set in [PO 23]”.
- “[i]nsofar as the Claimants wish to submit video evidence […] file transcripts of those videos that count towards the 50-page limit”.
- [i]nsofar as [Claimants] wish to include Excel files […] prepare the Excel sheets also in printable format in a manner that the number of pages may be assessed against the page limit”.
In relation to Claimants' envisaged rebuttal evidence during direct examination of Claimants' witnesses, to:
- “direct the Claimants to summarize the new, rebuttal evidence that their witnesses intend to provide on direct examination such that the Respondent and its witnesses are able to prepare their rebuttal” and “[i]n doing so, the Claimants should also indicate the specific paragraph(s) of the Rejoinder witness statements, expert reports, and/or exhibits to which they intend to provide new, rebuttal evidence on direct examination (as they have done with respect to the rebuttal exhibits)”.
In relation to Claimants' “resubmitted” exhibits, to:
- “reject the Claimants' resubmitted exhibits in their entirety” (Resp. 16.10.19).
- “accept the exhibits as proposed” in their filing of 11 October 2019 (Cl. 11.10.19); (Cl. 22.10.19).
- “reject Respondent's request for the Tribunal to reconsider its decision in PO23 as it relates to rebuttal testimony”.
- “rule on the instant matters urgently as they go to the heart of Claimants' ability to prepare to present, and in fact to present, their case”.
- The number and form of the rebuttal documents (Section IV below);
- The indicated subject matter of the rebuttal direct testimony (Section V below); and
- The appropriateness of resubmitting documents to be used in such rebuttal direct testimony (Section VI below).
- Exhibits C-2911 to C-2927: Rebuttal to the new testimony of Messrs. Boc, Ariton, Bode, and Găman
- Exhibits C-2928 and C-2929: Rebuttal to the new testimony of Respondent's local witness (Ms. Jeflea)
- Exhibits C-2930 to C-2935: Rebuttal to the new testimony of Respondent's social license expert Dr. Pop and Dr. Stoica
- Exhibits C-2936 to C-2940: Rebuttal to the new arguments on Romanian law
- Exhibit C-2941: Rebuttal to the new testimony of Respondent's experts Ms. Blackmore and Ms. Wilde
- Exhibits C-2942 to C-2944: Rebuttal to the new testimony of Respondent's mining expert Behre Dolbear
- Exhibits C-2945 and C-2946: Rebuttal to the new testimony of Respondent's experts Mr. McCurdy
- Exhibits C-2947 to C-2951: Rebuttal to the new testimony of Respondent's quantum expert Dr. Burrows
- The Tribunal could not envision the appropriate length of rebuttal documents at the time of issuing PO 23; as such, the limit of pages was, while important, only indicative in its number.
- Claimants' documents each comprise an average of three pages (excluding the Romanian originals).
- The Tribunal's direction that it will handle the timing and scope of the direct examination with flexibility in any event and without this implying that a direct rebuttal examination will result a long cross examination.
- To require Claimants to resubmit their exhibits at this stage of the proceedings and approximately one month before the proceedings, will only impact further the Parties' anticipated preparations for the Hearing and result in additional requests possibly during and after the Hearing.
- The Tribunal has already accepted Respondent's request to bifurcate the Hearing in order to ensure that the Parties have ample time to be heard on their respective cases.
- Jonathan Henry
- Dragos Tănase
- Elena Lorincz
- Horea Avram
- Professor Lucian Mihai
- Professor Corneliu Bîrsan
- Professor Ovidiu Podaru
- Robert Boutilier
- Charles Jeannes, former CEO of Goldcorp
- SRK Consulting
- Compass Lexecon
- C-460 resubmitted as C-460.01, 5 September 2013 (video)
- C-628 resubmitted as C-628.01, 18 August 2011 (video)
- C-791 resubmitted as 791.01, 19 August 2011 (video)
- C-791 resubmitted as C-791.02, 26 August 2011 (video)
- C-1516 resubmitted as C-1516.01, 15 September 2013 (video)
- C-2044 resubmitted, survey questionnaires, 2011
- C-2053 resubmitted, survey questionnaires, 2013
- C-2063 resubmitted, survey questionnaires, 2001
- C-2407 resubmitted, Waters Law No. 107/1996, 7 December 1996
- C-2632 resubmitted as C-2632.03, 29 August 2011 (video)
- C-2692 resubmitted as C-2692.01, 22 October 2013 (video)
- Stoica-19 resubmitted as C-2952, World Values Survey, 2010-2014
- CMA-76 resubmitted as C-2953
- C-1853-C (e-only)
- C-1876-C (e-only)
- C-2860 (e-only)
- The exact shortened versions of the videos specifically relied on in rebuttal, as well as their relevant transcripts and subtitles, and the exact texts or pages of documents of the purported 16 “resubmitted exhibits” shall be filed as new exhibits for rebuttal purposes pursuant to PO 23.
- These exhibits shall be accompanied by a list with comments in relation to the manner in which they will be relied on during the direct rebuttal testimonies (i.e., such as in Claimants' letter of 18 October 2019).
- The Tribunal reserves the right to reject the admissibility of any such exhibit that is longer than for the required purpose of direct rebuttal testimony.
- Claimants shall submit these new documents, as soon as possible and in any event no later than 25 October 2019.
2. Claimants shall resubmit: (a) the transcripts of the exact minutes of the videos which they purport to file in rebuttal (as these are indicated in the list of Claimants' letter of 18 October 2019); (b) the excel files in a readable format. Claimants shall do so by 25 November 2019.
3. Claimants' rebuttal submission, as supplemented in their letter of 18 October 2019, sufficiently presents the subject-matter of the new evidence as required by PO 23.
4. Claimants shall file their purported resubmitted documents as new documents and in the manner set out in paragraph 58 of the present Procedural Order by 25 October 2019. Respondent shall have an equal opportunity (in terms of length) to respond to Claimants' new documents by 14 November 2019. Such equal opportunity shall not be interpreted as an unlimited freedom in relation to the length and scope of its submission.
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