(b) Did Claimants’ alleged losses occur (or begin to occur) at the same point in time that the breach is said to have been consummated in respect of each claim? Should Claimants’ alleged losses be quantified on the date upon which each breach is alleged to have occurred? If not, is the point in time when Claimants’ alleged losses occurred relevant to establishing liability for a breach in respect of each claim?
The Tribunal gave both Parties an opportunity to address the issue in writing. Specifically:
- Claimants elaborated on Slides 56 and 57 of volume 4 of their Opening in light of Respondent’s objection in a letter dated 30 September 2020.
- Respondent submitted its comments to Claimants’ letter and objection on 1 October 2020.
- Claimants submitted their reply to Respondent’s letter on 2 October 2020.
- Respondent filed its comments to Claimants’ reply 4 October 2020.
- Claimants filed their further comments’ to Respondent’s comments on 7 October 2020.
- The only "measure of value" in dispute in this arbitration is Claimants’ claim for compensation based on the valuation date of 29 July 2011. Claimants could have made, but did not make, an alternative claim for compensation.
- Any new evidence cannot justify the introduction of a new claim at this stage of the proceedings.
- While allowing Respondent to comment on the new claim at this hearing is necessary, it is not a substitute for a full opportunity to respond to it in writing and, if necessary, by way of expert evidence and a further hearing.
- Claimants are requesting that, if the Tribunal does not award them the over USD 3.2 billion claimed in the prayer for relief in their written pleadings, it should, in the alternative, award them one of four sums which they mentioned for the first time during their Opening Statement and ranging between USD 706 million and USD 1.2 billion. This is not new argument. New argument would be further reasons why the Tribunal should award the Claimants USD 3.2 billion. These are new, alternative requests for relief. Further, this is not new evidence. New evidence would be further witness testimony or documents offered in support of their request for over USD 3.2 billion.
- A new claim cannot be justified on the grounds that it responds to new evidence or argument in a rejoinder. Respondent had notice that Claimants would describe certain limited rebuttal evidence during this second hearing, not that they would introduce the new claim. Furthermore, the Tribunal’s allowance of limited rebuttal evidence did not extend to allowance of new claims.
- Claimants confuse a party’s right to comment on a new argument and its right to respond to a claim, i.e. its right to present a defense, which entails its right to present expert and other evidence.
- The Tribunal cannot make an award based on a different Valuation Date when there is no argument or evidence from either Party as to what the market knew about the Project at that time. Respondent has not had the opportunity to present argument and evidence regarding a Valuation Date of 6 September 2013. Were the new claim allowed, Respondent would need to present argument and evidence, including documentary and oral as well as expert and fact witness evidence as to what the market knew and did not know about the Project as at 6 September 2013.
- The case law is well settled that an ICSID tribunal cannot award a claimant something that it did not request in its prayer for relief, as that would amount to a serious departure from a fundamental rule of procedure. The authorities that Claimants invoke, all confirm that investment tribunals have no authority to award compensation applying valuation dates different from those advocated by the parties.
- In the Rejoinder round, Dr. Burrows presented arguments about Gabriel Canada’s market capitalization and the market capitalization implied by indexing to the end of 2013 with reference to gold sector market indices.
- With their letter of 25 November 2019, Claimants identified as a rebuttal subject "Developments subsequent to the valuation date in Gabriel Canada’s stock market capitalization in light of the evolution of indexes of gold company stocks, in response to the Rejoinder report of Dr. Burrows" and produced several rebuttal documents relating to that subject. With their letter of 10 April 2020, Claimants submitted several further updates of those documents.
- The rebuttal arguments that Claimants presented on that subject on 28 September 2020 in their Opening also took account of the questions directed to the Parties by the Tribunal in PO 27, which included in ¶9(b) questions regarding the date as of when losses should be quantified.
- While Claimants quantified their request for compensation in their Request for Relief, Claimants also requested more broadly that the Tribunal "Award Claimants compensation on such other basis as the Tribunal may deem warranted."
(1) Except as the parties otherwise agree, a party may present an incidental or additional claim or counter-claim arising directly out of the subject-matter of the dispute, provided that such ancillary claim is within the scope of the consent of the parties and is otherwise within the jurisdiction of the Centre.
(2) An incidental or additional claim shall be presented not later than in the reply and a counter-claim no later than in the counter-memorial, unless the Tribunal upon justification by the party presenting the ancillary claim and upon considering any objection of the other party authorizes the presentation of the claim at a later stage in the proceeding.
(3) The Tribunal shall fix a time limit within which the party against which an ancillary claim is presented may file its observations thereon.
[e]xcept as the parties otherwise agree, the Tribunal shall, if requested by a party, determine any incidental or additional claims or counterclaims arising directly out of the subject-matter of the dispute provided that they are within the scope of the consent of the parties and are otherwise within the jurisdiction of the Centre.
"One may surmise than an incidental claim is one that arises as a consequence of the primary claim, such as a claim for interest or procedural costs. An additional claim may be seen to be one that is put forward by way of a later amendment to the original pleading. [...] No legal consequences are attached to a distinction between incidental or additional claims. [...] Incidental or additional claims can be of a varied nature. Recurrent instances of incidental or additional claims are third party contracts, interest or the sums claimed and procedural costs" (see C. Schreuer et al., The ICSID Convention: A Commentary (2nd edition, Cambridge University Press, 2009), pp 740-741, paras 33-35).
"An additional claim is normally presented as a new claim that supplements the original claims (thereby amending the body of claims originally formulated by the Claimant)" (see J. Fouret, R. Gerbay, G. Alvarez (eds.), The ICSID Convention, Rules and Regulations - A Practical Commentary, Cheltenham, 2019, p. 1168 (para. 25.110).
"[A]n additional claim is an augmentation of the original pleading to include a new cause of action or request for relief" (D. Kalderimis, B. Love, "ICSID Arbitration Rules, Chapter IV, Section 3, Arbitration Rule 46", in L. A. Mistelis (ed.), Concise International Arbitration, (2nd edition, Kluwer Law International), p. 120).
- In the Parties’ upcoming Post-Hearing Briefs? or
- In a parallel written procedure? or
- Only if and after the Tribunal has rendered a decision on jurisdiction and liability and were minded to entertain a different valuation date?
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