- The general practice is to have an equal time for each Party to present its case.
- This practice is indeed in line with the principle of equal treatment absent exceptional circumstances.
- An allocation per number of witnesses and experts is not appropriate in the present case where the duration of the examination of a witness could differ from one to another.
- Further, in the present case there is not a significant difference in the number of witnesses and experts to be examined by each Party.
- In any case, the Tribunal will manage the allocation with flexibility in order to ensure that no inequality is resulted in the treatment of a Party.
A total of five hours is allocated for the Tribunal's questions to counsel, witnesses, and experts.
The time for responding to the Tribunal's questions, including responses of the Parties' witnesses and experts to such questions, will be considered as the Tribunal's time and will not be deducted from the time allotted to the Parties.
The time will be kept with the chess-clock system by the Secretary of the Arbitral Tribunal and that the time used will be communicated at the end of each day.
In this connection, the Parties clarify that if a Party objects or otherwise intervenes during the other Party's speaking time, that time will be counted as part of the objecting Party's time.
According to Claimants, this division would ensure that the witness and expert testimony most relevant to liability would be heard during the first hearing and that the witness and expert testimony most relevant to quantum would be heard during the second hearing. Hearing Romanian law and social license issues together with the witnesses who address the facts of the case will be essential to appropriately frame facts and corresponding issues within the context of those subjects. It will also be most efficient and cost effective to arrange to hear all of the witnesses requiring Romanian language interpretation during the first hearing. Adrian Gligor, who is a Romanian speaker and an employee of RMGC should be called for examination grouped together with the other employees of RMGC who should be heard during the December Hearing.
According to Respondent, fact witnesses and experts whose evidence primarily pertains to issues of liability should be examined first and fact witnesses and experts whose evidence primarily pertains to issues of causation and quantum should be examined second. It will be more useful for the Tribunal to hear the environmental and social license experts during the same hearing as the fact witnesses who speak to these issues. It would be logical to examine the legal experts during the second hearing, after the evidence on facts, including from experts relying on these facts, is completed. As the evidence of Adrian Gligor relates to the cultural management programme and its effects on the feasibility of the Project and delays in its implementation, it is more useful for the Tribunal and more efficient to consider his evidence together with that of other experts testifying on feasibility during the second hearing. His evidence on cultural issues also overlaps with that of several legal experts who should be heard during the second hearing.
- The Tribunal shall duly and rigorously consider and assess all evidence and witness and expert testimony presented by the Parties.
- The fact that the Hearing has been bifurcated does not change this principle or affect the ability of this Tribunal to decide on the Parties' dispute in the fairest possible way.
- Both Parties' proposals on allocation of their witnesses and experts in each hearing appear reasonable.
- Nevertheless, to decide in favour of one, based on the merits of the Parties' arguments as those may relate to the substance of the dispute may lead a Party to assume that the Tribunal has already decided on the content and relevance of a particular group of evidence.
- Accordingly, what is proper in these circumstances is to follow the “customary” approach and hear all factual witnesses first, followed by all legal experts, followed by all other technical experts, finally followed by all quantum witnesses and experts.
a. The first hearing shall comprise the examination of the Parties' fact witnesses, including Adrian Gligor, the Parties' legal experts and the Parties' social licenses witnesses and experts (as agreed to between the Parties).
b. The second hearing shall comprise the remaining technical experts and quantum witnesses and experts.
c. The Parties are invited to liaise and present, based on the Tribunal's decision, a joint proposal for the schedule of each hearing. They shall do so by 5 November 2019.
- Claimants envision six hours opening for the first hearing and two hours for the second hearing.
- Respondent, envisions approximately three and a half hours for each Party for the first hearing and no opening for the second hearing.
- In principle each Party shall be able to use their equally allocated time as they see fit.
- This being said, the time used for opening statements should not be excessive.
- Therefore each Party shall have an opportunity for an opening statement in the first hearing of a maximum of four hours. This may require a longer sitting during Day 1 of the first hearing.
- Further, each Party should have an opportunity to present an opening statement at the beginning of the second hearing of a maximum of two hours. This opening statement should be only devoted to the questions that will be heard at the second hearing and should not comprise any closing arguments in respect of the first hearing.
a. Each Party shall have an opportunity for an opening statement in the first hearing of a maximum of four hours.
b. Each Party shall have an opportunity for an opening statement in the second hearing of a maximum of two hours, focused only on the questions that will be heard during the second hearing.
- Claimants submit that Section 18 of PO 1 governs this matter.
- Respondent submits that cross-examination should focus on areas addressed by the witness/expert in the witness statement/expert report, with the exception that the adverse Party may ask the witness about any documentary evidence in the record of which the witness could reasonably be expected to have personal knowledge.
a. Cross-examination will be limited to matters arising out of the direct testimony or statement or report of the witness or expert that is being cross-examined; and
b. Any questions beyond that scope may be made in relation to matters that such expert or witness had direct knowledge of, although not covered in their statement or report, subject to the control of the Tribunal.
- Claimants submit that Section 18 of PO 1 governs this matter, as modified by PO 23
- Respondent submits that (i) under Section 18.5.2 of PO 1, fact witnesses may be examined in direct examination for no longer than fifteen minutes; and (ii) under Section 18.5.3 of PO 1, the expert witnesses may give a presentation of the key points of their report directly and/or through direct examination for no longer than one hour.
Section 18 shall govern the direct examinations and presentations of witnesses and experts, but with respect to witnesses and/or experts providing rebuttal or sur-rebuttal testimony, the Tribunal confirms its decision in PO 23, that the timing and scope of the direct examination of both Parties' witnesses and experts shall be handled by the Tribunal with flexibility.
a. Pursuant to Section 16.6 of PO 1, demonstrative exhibits must not contain any new evidence. Separate to that, their form and manner of presentation shall be determined by each Party as they see fit (and as usual in international arbitration practice). In case of objections, the Tribunal will decide before the use of the demonstrative exhibits.
b. Demonstrative exhibits shall be provided to the other party no later than 48 hours prior to the presentation of the relevant exhibit.
a. The Tribunal members, the Tribunal Secretary and the Tribunal Assistant shall be provided a USB key with the entire case file.
b. Each Party shall provide a hard copy file of any witness or expert bundle that it will use for cross-examination only to the specific witness or expert.
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