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Lawyers, other representatives, expert(s), tribunal’s secretary

Procedural Order No. 33

I. PROCEDURAL BACKGROUND

1.
On 5 May 2020, the Tribunal invited the Parties to confer and discuss the possibility of holding the September Hearing virtually, in light of the difficulties caused by Covid-19.
2.
On 29 June 2020, the Parties agreed to hold the September Hearing virtually. The Parties’ agreement was confirmed by the Tribunal on 1 July 2020.
3.
On 3 July 2020, the Parties submitted a joint proposed protocol for the virtual hearing and on 6 and 7 August 2020, the Parties submitted a jointly proposed tentative hearing schedule.
4.
On 24 August 2020, a pre-hearing organizational meeting between the Parties and the Tribunal was held by video conference (the "Pre-Hearing Conference"), to discuss any outstanding procedural, administrative, and logistical matters in preparation for the September Hearing, in accordance with Section 19.1 of PO 1.
5.
During the Pre-Hearing Conference, the Parties and the Tribunal discussed the draft agenda circulated to the Parties on 21 August 2020 and the Parties’ jointly proposed hearing protocol and tentative hearing schedule.
6.
An audio recording of the Pre-Hearing Conference was made and deposited in the archives of ICSID, and it was made available to the Members of the Tribunal and the Parties on 24 August 2020.
7.
The Parties submitted further comments to the jointly proposed protocol and tentative hearing schedule on 2, 3, 7, 8 and 10 September 2020.
8.
The Tribunal has considered the Parties’ positions and, in the present Order, sets out the procedural rules that the Parties have agreed upon and/or the Tribunal has determined will govern the conduct of the September Hearing.

III. ORGANIZATION OF THE HEARING

A. Hearing Venue, Duration, and Allocation of Time

9.
The Parties agree to hold the hearing virtually due to the current Covid-19 pandemic. The Parties further agree not to challenge the Tribunal’s Award in any subsequent proceeding solely on the basis that the hearing was held virtually rather than in person. Such a stipulation, however, will not bar a Party from challenging an award based upon the manner in which a remote video proceeding was actually conducted.
10.
The total time for the hearing shall be seven days, comprising six hours in total per day. (See PO 25 ¶16)
11.
The hearing dates shall be Monday, September 28 to Sunday, October 4, 2020.
12.
The hearing times shall be 8:00 am DC time / 2:00 pm Geneva time / 3 pm Bucharest time to 2:00 pm DC time / 8:00 pm Geneva time / 9 pm Bucharest time each day. Each day shall include one meal break of 1 hour and two breaks of 15 minutes. (See PO 25 ¶30)
13.
The hearing time shall be allocated equally between the Parties. It shall nevertheless be managed with flexibility by the Tribunal in order to ensure that no inequality results in the treatment of a Party. (PO 25 ¶19)
14.
A total of 3.5 hours is allocated for the Tribunal’s questions to counsel, witnesses, and experts. (See PO 25 ¶20)
15.
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. (PO 25 ¶20)
16.
The hearing will comprise 42 hours in total (7 days of 6 hours each day). Each Party thus has a total of 14 hours; this total results from a calculation of six hours per hearing day for a seven-day hearing (42 hours), minus 10.5 hours of breaks, minus 3.5 hours of Tribunal time. (See PO 26 ¶36) The Parties are free to use their time as they see fit.
17.
The time will be kept with the chess-clock system by the Tribunal Secretary and the time used will be communicated at the end of each day. (PO 25 ¶21)
18.
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. (PO 25 ¶21)

B. Videoconference Platform and Security

19.
The Parties agree with ICSID’s recommendation to use Cisco WebEx as the videoconferencing platform to host the virtual hearing.
20.
The WebEx platform shall be password-protected and restricted to the approved list of hearing participants. A new link and password shall be used for each hearing day.
21.
The Parties may not provide the WebEx password to the virtual hearing room to any person not on the approved list of hearing participants.
22.
If a Party wishes to include an additional person not identified on the approved list, such person may participate only with the agreement of all Parties or at the direction of the Tribunal. In any event, no individual shall be in attendance who is not announced at least 48 hours in advance.
23.
Participants to the hearing shall be limited to:

a. Party representatives,

b. the Parties’ counsel,

c. the Tribunal members,

d. the Tribunal Secretary,

e. the Tribunal Assistant,

f. fact and expert witnesses,

g. court reporters, and

h. such other logistical, technical, or other support as may be required to assist in the presentation of evidence.

24.
To avoid any confusion during the hearing, participants should join the WebEx platform using the name and affiliation indicated in the attendance sheet (See Section 3.1.3 of the ICSID Secretariat’s Guidelines for Remote Hearings (without interpretation)).
25.
The President of the Tribunal shall confirm at the start of each hearing day that:

a. the only persons permitted to attend the hearing are those approved by the Parties and the Tribunal, and that no unauthorized parties shall attend in violation of that agreement; and

b. any witness or expert who is giving evidence shall not be assisted during the course of his or her evidence.

26.
The Tribunal Secretary shall:

c. Identify and announce all participants at the start of each hearing day and confirm any new participant after each break; and

d. Maintain an electronic or technological attendance sheet of all participants for each day of the proceedings, including all log-in and log-off times.

27.
A secondary videoconferencing platform such as Vidyo, Zoom or Kudo, as well as a back-up telephone dial-in, shall be arranged by the Tribunal Secretary in the event WebEx is unavailable for part or all of the hearing.
28.
The Tribunal may terminate the video conference at any time if the Tribunal deems the video conference so unsatisfactory that it is unfair to either Party to continue.

C. Active Speakers

29.
The Tribunal Secretary or another ICSID staff shall serve as the "host" of each hearing session. The host will have the ability, inter alia, to admit and exclude participants and to mute participants’ microphones.
30.
Before each hearing session, the Parties shall notify the Tribunal Secretary who will be the active speaker(s) to present arguments and conduct examinations during that session.
31.
If at any point the Tribunal members, the Parties’ active speakers, or the testifying witness or expert are not visible and cannot be heard through WebEx, the Tribunal Secretary shall be immediately alerted in order to resolve the issue as soon as possible.
32.
The other hearing participants shall be muted and will not appear on video.
33.
The Tribunal and the Parties should agree on a speaking protocol at the outset of the hearing to minimize over-speaking. For time sensitive communications, such as objections, participants are encouraged to raise their hand when wishing to interrupt a speaker, or otherwise use a facility to that effect on the software provided. A designated messaging system or chat window shall remain active on WebEx during the proceedings to allow all participants, including the court reporters, to raise non-time sensitive communications with all participants.
34.
The Tribunal Secretary shall monitor the connections of all participants; if any member of the Tribunal, active speaker, or testifying witness or expert is disconnected, the Tribunal Secretary shall pause the hearing until he or she is able to reconnect, on the back-up system if needed. A telephone dial-in shall be available in the event a Tribunal member or active speaker is unable to reconnect to WebEx. This option, however, shall not be used by a testifying witness or expert in view of the safeguards to avoid witness/expert tampering.

D. Technology

35.
Each Party is responsible for ensuring that its representatives, witnesses, and experts have reliable, high-speed Internet connections and suitable video and audio capabilities and equipment.
36.
The Parties shall adhere, to the extent practicable, to the following recommendations for video and audio technology, Internet connections, and equipment. The Parties will seek to implement the ICSID Secretariat’s Guidelines for Remote Hearings (without interpretation), notably Section 2 on "Technical recommendations".

a. Video

i. Generally, the Parties shall aim to comply with the following:

1. Receiving 1080p HD video – 2.5 Mbps upload/download

2. Sending 1080p HD video – 3 Mbps upload/download

3. H.323 for internal video conferencing bridge

ii. The Parties at a minimum shall ensure that their representatives, witnesses, and experts meet the recommended requirements of the Webex platform.

b. Audio

i. A headset with integrated microphone is preferred.

ii. If a speaker is used, it shall have sufficient volume to be audible for all participants.

iii. In order to minimize background noise, participants shall mute their microphone and all electronic devices when others are speaking.

c. Connection

i. A wired connection is preferred over wireless connections.

1. Stable, reliable Internet connection.

2. Minimum of 3 Mbps upload/download and 0% packet loss is preferred.

ii. Where a wired connection is unavailable, the wireless connection must be password-protected and secure. Public WiFi may not be used.

d. Equipment

i. The Parties have reviewed the ICSID Secretariat’s Guidelines for Remote Hearings (without interpretation), Section 2.2 "Equipment and set up for individual connections", which will guide their own choice of set up.

ii. The Parties shall cover the cost of supplying the equipment to their own witnesses and experts, without prejudice to the Tribunal’s ultimate decision as to the allocation of costs between the Parties.

e. Virtual breakout rooms

i. ICSID shall arrange for a private, password-protected, and secure virtual breakout room for the Tribunal members to meet privately.

ii. The Parties shall arrange their own virtual breakout rooms.

37.
The Tribunal Secretary shall participate in technical preparation sessions with the Parties and the testifying witnesses and experts, at least four weeks before the hearing, to test their technology, equipment, and connections. The technical mechanisms utilized for such preparation sessions shall be the same as at the hearing.
38.
Each Party shall consider what additional technical training, if any, their representatives, witnesses, and experts may require to be fully prepared for the hearing.
39.
Each Party shall designate at least one technical specialist to attend the hearing and provide technical assistance as needed. This person shall be familiar with the technology, platforms, systems, and devices used.
40.
The Parties agree to use best efforts to cooperate on technical issues that may arise to ensure the efficient and orderly conduct of the virtual hearing.

E. Sequence of Hearing (order of presentations, order of witnesses and experts, etc.)

41.
Each Party shall have an opportunity for an opening statement of a maximum of three hours during the first day of the hearing. (PO 25 ¶29)
42.
The opening statements shall in principle be focused on matters to be presented during the September 2020 hearing; that said, a Party’s freedom to present its case in the manner it deems appropriate and reasonable is not limited so long as that broad principle is respected. (PO 26 §III.2)
43.
The remainder of the hearing shall consist of the examination of witnesses and experts.
44.
The witnesses and experts still to be examined at this hearing who were notified by the Parties on September 19, 2019 and on June 19, 2020 include:

Claimants’ witnesses and experts

a. Dr. Mike Armitage and Mr. Nick Fox

b. Mr. Barry Cooper

c. Mr. Charles Jeannes

d. Prof. Dr. Pablo T. Spiller and Mr. Santiago Dellepiane A.

Respondent’s experts

e. Ms. Cathy Reichardt1

f. Mr. Bernard J. Guarnera and Mr. Mark K. Jorgensen

g. Mr. Karr McCurdy

h. Dr. Thomas Brady

i. Dr. James C. Burrows

45.
The Parties will make best efforts to reduce the number of hearing locations and time zones and to ensure that the witnesses are available during the hearing times set out at section 12. Should a witness not be available to testify during those hearing times, accommodations to the schedule will be made for that witness to testify outside of the hearing times.
46.
In determining the order of witnesses and the hearing schedule, due consideration shall be given to the time zone in which a witness will testify. No witness shall be expected to testify at an unreasonable time either before 8:00 a.m. or after 8:00 p.m. based on their individual time zone.
47.
Without prejudice to Section 16 above, the Parties have agreed to a tentative schedule included as Annex A. In this regard, the Parties note the following:

i. there may be some spillover with individuals testifying on more than one day;

ii. experts and witnesses should in principle be available for examination on the day prior to their scheduled appearance;

iii. On 14 September 2020, the Parties confirmed the hearing locations of their witnesses and, in particular, whether the witnesses located in the western part of the U.S. and Canada (for the Claimants: Messrs. Lambert and Jeannes; for the Respondent: Messrs. Guarnera and Jorgensen, McCurdy, and Brady) will be able to testify from a location in the U.S. Eastern time zone. Should any of the witnesses not be able to travel to a location in the U.S. Eastern time zone, the Parties may reassess the order of witnesses and tentative schedule mentioned above, bearing in mind the need to be flexible and the need to minimize disruption to the hearing and basic considerations of fairness and due process. In case of disagreement, the Tribunal will decide.

F. Witness and Expert Examination

48.
The Parties shall make best efforts to ensure that the venue, technology, and connections chosen by each of their witnesses and experts will not inhibit their examination.
49.
No person shall be present in the room with the testifying witness or expert.
50.
Any communications by or with the witness or expert during their examination are prohibited.
51.
Each witness and expert shall affirm at the start of the examination that he or she will not receive or provide communications of any sort during the course of his or her examination.
52.
The witness or expert shall remain visible at all times during the examination.
53.
The witness or expert shall not use a "virtual background" or in any way prevent or limit the recording of the remote venue from which he or she is testifying.
54.
The witness or expert shall be able to view the Tribunal members, the attorneys conducting the examination, and documents presented by the examining attorney through the WebEx platform. The witness or expert shall not have access to any other documents, notes, information, or materials of any kind (whether in hard copy or electronic form).
55.
In addition, by September 21, 2020, each Party shall provide to its witnesses and experts a password-protected USB key with all of the witness statements, expert reports, and factual exhibits in the record. The password to the USB key shall be disclosed to the witness or expert by separate e-mail. During the cross-examination, where questions are asked about an excerpt of a statement, report, or exhibit presented on WebEx, the witness or expert may open the document on the USB key and briefly have an opportunity to review it for context as would be permitted with documents in a cross-examination binder at an in-person hearing.
56.
Experts will be allowed to have with them a clean hard copy of their respective expert reports. This will also apply to Claimants’ quantum witnesses, Mr. Cooper and Mr. Jeannes, who will be allowed to have a clean hard copy of their respective witness statements.
57.
Concerning the examination of experts that have co-authored a report, the Tribunal has considered the Parties’ respective positions, deliberated and decided that once a question is posed by the cross-examiner, and unless such question relates to the expertise of a particular expert or to a specific part in the report prepared only by one author, either expert will be able to answer, but only one of them will be allowed to answer to each question. To the extent that there are clear and justifiable grounds to do so, this rule will be applied with flexibility.

G. Scope of Witness and Expert Testimony

58.
Section 18 of PO 1 shall govern the direct examinations and presentation 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. (PO 25 ¶34)
59.
The Parties agree to follow the same procedure regarding rebuttal evidence as with the December 2019 hearing. Thus, Claimants will in advance of the hearing state when they will rely on which rebuttal exhibit. Also, pursuant to Section VII.4.iii of PO 23, Mr. Jeannes, SRK, and Compass Lexecon may provide rebuttal testimony during the hearing on the matters enumerated by Claimants in their letter dated October 11, 2019. Respondent’s experts shall also be afforded the opportunity to respond to this new evidence during their own direct testimonies. (PO 32 §III.1)
60.
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. Any question 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. (PO 25 ¶32)
61.
Redirect examination will be limited to matters arising out of the cross-examination.

H. Witness and Expert Sequestration

62.
Section 18.4 of PO 1 on witness and expert sequestration applies. (PO 25 ¶35)

I. Language

63.
Interpretation will not be provided at the hearing. All arguments and testimony will be presented in English.

J. Transcripts and Sound Recordings

64.
The Parties agree that Section 21 of PO 1 applies to transcript and sound recordings. (PO 25 ¶65).
65.
The live transcription will not be visible through Webex, but will be made available on a website provided by the court reporter.
66.
The link for the live transcription shall be password-protected and restricted to the approved list of hearing participants, excluding witnesses and experts.
67.
The Parties may not provide the password for the live transcription website to any person not on the approved list of hearing participants.

K. Hearing Materials and Demonstratives

68.
No new evidence is allowed prior to or during the hearing, subject to Section 16.3 of PO 1 which continues to apply. (PO 32 §III.1; PO 25 ¶43)
69.
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. (PO 25 ¶42.a)
70.
Demonstrative exhibits shall be provided to the other Party no later than 48 hours prior to the presentation of the relevant demonstrative exhibit. (PO 25 ¶42.b)
71.
The Parties shall present any PowerPoint presentations for their opening statements through the WebEx platform. The Parties shall e-mail a copy of such presentations to the Tribunal Secretary and to opposing counsel immediately before the start of the presentation.
72.
The Parties may present documents to witnesses and experts during their examination through the WebEx platform. The Parties shall e-mail the index of documents to be used during each direct or cross-examination to the Tribunal Secretary and to opposing counsel before the witness or expert begins his or her examination. In addition, as noted in Section 55 above, by September 21, 2020, the Parties shall provide its witnesses and experts a password-protected USB key with all of the witness statements, expert reports, and factual exhibits in the record.
73.
The Parties shall provide the Tribunal members, the Tribunal Secretary, and the Tribunal Assistant with a USB key with the entire case file, including hyperlinked indices to all briefs, exhibits and authorities.2 (PO 25 ¶¶ 48, 49)

L. Transparency

74.
After considering the Parties’ respective positions, the Tribunal has deliberated and decided that, in relation to transparency, it is appropriate to proceed in the manner described in sections 75 to 77 below.
75.
A video recording of the hearing will be made. The hearing will be made publicly accessible by streaming the recording on a video-conference platform (Webex) as soon as possible after the hearing.
76.
Any members of the public that wish to view the hearing will be requested to provide their names, affiliation (if any) and e-mail in advance of the streaming in order to receive a link to the videoconference.
77.
Before streaming the recording on the videoconference platform and in order to avoid public disclosure of confidential information, the recording will be edited after the hearing in accordance with the following Confidentiality Protocol:

i. At any time during the hearing, the Parties may request that a part of the hearing be held in private and thus excluded from the recording. To this effect, a Party shall orally inform the Tribunal before topics are raised (or immediately as they begin to be raised) which could reasonably be expected to address confidential information.

ii. If the other Party has an objection to the request, it shall immediately alert the Tribunal, which shall hear the Parties and decide on the matter. The discussion between the Parties and the Tribunal shall be held privately and excluded from the recording;

iii. Resumption of the non-confidential part of the hearing shall be orally requested by the same Party which made the confidentiality request of by the other Party, if it deems it necessary;

iv. The Tribunal shall rule on any dispute between the Parties in that respect;

v. In addition to the oral indications mentioned above, the Parties may communicate the confidential or non-confidential mode of the hearing using Webex’s chat feature;

vi. In order to minimize the number of interruptions, the Parties are invited to organize the topics addressed during their oral statements and witness/expert examinations so that those which involve confidential documents and information are grouped together, wherever possible;

vii. Exceptionally, either Party may request that a specific section of the hearing be considered confidential and therefore excluded from the recording AFTER the allegedly confidential document or information has been discussed, addressed or shown by the Party or by the witness or expert ("ex-post confidentiality requests"). The Party making the ex-post confidentiality request shall be responsible for providing to the Tribunal, the Secretary of the Tribunal and the opposing Party the exact period of time which it seeks to be removed from the recording. If the opposing Party has an objection to such request, the Tribunal shall decide after hearing both Parties.

viii. The Parties will edit the recording and the transcripts accordingly and send them to ICSID for publication. The Tribunal will decide if there are any pending disagreements.

78.
ICSID will announce the hearing on the Centre’s website before the hearing. (See PO 25 ¶53) Below is a draft of the public announcement:

"A hearing on jurisdiction and the merits in the above case is scheduled to take place virtually from September 28, 2020 to October 4, 2020.

Pursuant to Section I.1 of Annex C of the Agreement between the Government of Canada and the Government of Romania for the Promotion and Reciprocal Protection of Investments of May 8, 2009, the hearing shall be open to the public, except for those parts involving confidential information. A video of the hearing will be streamed through a videoconference platform as soon as possible after the hearing.

Please continue to monitor our website for further announcements with the exact dates and times of the streaming."

M. Further Submissions and Post-Hearing Briefs

79.
The Parties agree that, in the event that the Tribunal has any follow-up questions on the Parties’ submissions regarding the Tribunal’s PO 27 questions, the timing and modalities of addressing any such questions will be discussed at the hearing. (PO 32 §III.1)
80.
The Tribunal shall determine the schedule for the filing of post-hearing briefs and statements of costs in consultation with the Parties at the hearing. (See PO 25 ¶61)
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