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Procedural Order No. 1

Introduction

The first session of the Tribunal was held on June 6, 2019, at 9 a.m. EDT by telephone conference. The session was adjourned at 10:50 a.m. EDT.
An audio recording of the session was made and deposited in the archives of ICSID. The recording was distributed to the Members of the Tribunal and the parties.
Participating in the conference were:

Members of the Tribunal

Ms. Jean Kalicki, President of the Tribunal

Professor Bernard Hanotiau, Arbitrator

Professor Brigitte Stern, Arbitrator

ICSID Secretariat

Mrs. Ana Constanza Conover Blancas, Secretary of the Tribunal

On behalf of the Claimant

Ms. Amanda Fullerton, Gran Colombia Gold Corp.

Mr. Alejandro Ramirez Echeverry, Gran Colombia Gold Corp.

Mr. Jose Ignacio Noguera Gomez, Gran Colombia Gold Corp.

Mr. Lombardo Paredes Arenas, Gran Colombia Gold Corp.

Ms. Meriam Al-Rashid, Dentons US LLP

Mr. John Hay, Dentons US LLP

Ms. Diora Ziyaeva, Dentons US LLP

Ms. Ulyana Bardyn, Dentons US LLP

Mr. Levon Golendukhin, Dentons US LLP

Ms. Rocio Monzón, Dentons US LLP

On behalf of the Respondent

Ms. Ana María Ordóñez Puentes, Director of International Defense, Agencia Nacional de Defensa Jurídica del Estado

Ms. Maria Paula Arenas, Attorney, Agencia Nacional de Defensa Jurídica del Estado

Mr. Fernando Mantilla-Serrano, Latham & Watkins

Mr. John Adam, Latham & Watkins

Mr. Diego Romero, Latham & Watkins

Ms. Paloma García Guerra, Latham & Watkins

The Tribunal and the parties considered the following:

- The draft agenda circulated by the Secretary of the Tribunal on April 29, 2019;

- The draft procedural order circulated by the Secretary of the Tribunal on April 29, 2019; and

- The parties' comments on the draft agenda and the draft procedural order received on May 30, 2019, indicating the items on which they agreed and their respective positions regarding the items on which they did not agree.

Following the first session, by letter of June 7, 2019, the Tribunal requested the parties' feedback on two issues that arose during its deliberations. By letter of June 14, 2019, the Claimant conveyed a response on behalf of both parties, to which the Respondent confirmed its agreement by email dated June 15, 2019.
Taking all the above into account, the Tribunal now issues the present Order:

Order

Pursuant to ICSID Arbitration Rules 19 and 20, this first procedural order sets out the procedural rules that govern this arbitration. The timetable is attached as Annex A.

1. Applicable Arbitration Rules

Convention Article 44
1.1.
These proceedings are conducted in accordance with the ICSID Arbitration Rules in force as of April 10, 2006, except to the extent modified by Section B of Chapter Eight (Investment) of the Free Trade Agreement between Canada and the Republic of Colombia signed on November 21, 2008 and which entered into force on August 15, 2011 (the “Treaty” or the “FTA”), and supplemented by any rules adopted by the Commission under Articles 822(2), 832, and 2001(3)(a) of the FTA.

2. Constitution and Reconstitution of the Tribunal, Tribunal Members' Declarations

Arbitration Rules 6 and 11
2.1.
The Tribunal was originally constituted on October 31, 2018 in accordance with the ICSID Convention and the ICSID Arbitration Rules. The Tribunal was reconstituted on April 25, 2019 following the resignation of arbitrator Loretta Malintoppi and the acceptance of Ms. Jean Kalicki as arbitrator in accordance with ICSID Arbitration Rule 11(1). The parties confirmed that the Tribunal was properly constituted and that no party has any objection to the appointment of any Member of the Tribunal.
2.2.
The Members of the Tribunal timely submitted their signed declarations in accordance with ICSID Arbitration Rule 6(2). Copies of the declarations of Professors Hanotiau and Stern were distributed to the parties by the ICSID Secretariat on October 31, 2018. A copy of the declaration of Ms. Kalicki was distributed to the parties by the ICSID Secretariat on April 25, 2019.
2.3.
The Members of the Tribunal confirmed that they have sufficient availability during the next 24 months to dedicate to this case.

3. Fees and Expenses of Tribunal Members

Convention Article 60; Administrative and Financial Regulation 14; ICSID Schedule of Fees
3.1.
The fees and expenses of each Tribunal Member shall be determined and paid in accordance with the ICSID Schedule of Fees and the Memorandum on Fees and Expenses of ICSID Arbitrators in force at the time the fees and expenses are incurred.
3.2.
Under the current Schedule of Fees, each Tribunal Member receives:

3.2.1 US$3,000 (three thousand United States dollars) for each day of meetings or each eight hours of other work performed in connection with the proceedings or pro rata; and

3.2.2 subsistence allowances, reimbursement of travel, and other expenses pursuant to ICSID Administrative and Financial Regulation 14.

3.3.
Each Tribunal Member shall submit her/his claims for fees and expenses to the ICSID Secretariat on a quarterly basis.
3.4.
Non-refundable expenses incurred in connection with a hearing as a result of a postponement or cancellation of the hearing shall be reimbursed.

4. Presence and Quorum

Arbitration Rules 14(2) and 20(1)(a)
4.1.
The presence of all Members of the Tribunal constitutes a quorum for its sittings, including by any appropriate means of communication.

5. Rulings of the Tribunal

Convention Article 48(1); Arbitration Rules 16, 19 and 20
5.1.
Decisions of the Tribunal shall be taken by a majority of its Members.
5.2.
ICSID Arbitration Rule 16(2) applies to decisions taken by correspondence except that where the matter is urgent, the President may decide procedural matters without consulting the other Members, subject to possible reconsideration of such decision by the full Tribunal.
5.3.
The Tribunal will draft all rulings, including the award and any preceding decision on jurisdiction, within a reasonable time period. If a ruling, other than an award or a decision on jurisdiction, has not been issued within one (1) month after the final submission on a particular matter, the Tribunal will provide the parties with status updates every month. If an award or a decision on jurisdiction has not been issued within six (6) months after the final submission on a particular matter, the Tribunal will provide the parties with status updates every three (3) months.
5.4.
The President is authorized to issue procedural orders on behalf of the Tribunal.
5.5.
The Tribunal’s rulings on procedural matters may be communicated to the parties by the Tribunal Secretary in the form of a letter or email.

6. Power to Fix Time Limits

Arbitration Rule 26(1)
6.1.
The President may fix and extend time limits for the completion of the various steps in the proceeding.
6.2.
In exercising this power, the President shall consult with the other Members of the Tribunal. If the matter is urgent, the President may fix or extend time limits without consulting the other Members, subject to possible reconsideration of such decision by the full Tribunal.

7. Secretary of the Tribunal

Administrative and Financial Regulation 25
7.1.
The Tribunal Secretary is Mrs. Ana Constanza Conover Blancas, Legal Counsel, ICSID, or such other person as ICSID may notify the Tribunal and the parties from time to time.
7.2.
To send copies of communications by email, mail, and courier/parcel deliveries to the ICSID Secretariat, the contact details are:

Mrs. Ana Constanza Conover Blancas

ICSID

MSN C3-300

1818 H Street, N.W.

Washington, D.C. 20433

United States of America

Tel.: + 1 (202) 473 9042

Fax: + 1 (202) 522 2615

Email: aconover@worldbank.org

7.3.
For local messenger deliveries, the contact details are:

Mrs. Ana Constanza Conover Blancas

1225 Connecticut Ave N.W.

(“C Building”), 3rd Floor

Washington, D.C. 20036

Tel.: + 1 (202) 473 9042

8. Representation of the Parties

Arbitration Rule 18
8.1.
Each party shall be represented by its respective counsel listed below and may designate additional agents, counsel, or advocates by notifying the Secretary of the Tribunal promptly of such designation.

For Claimant

Ms. Meriam Al-Rashid

Mr. John J. Hay

Ms. Diora M. Ziyaeva

Ms. Ulyana Bardyn

Mr. Levon Golendukhin

Ms. Christina Dumitrescu

Ms. Rocio Monzon

Dentons US LLP

1221 Avenue of the Americas

New York, N.Y. 10020

Tel. 212-768-6700

Fax.212-768-6800

Emails:

meriam.al-rashid@dentons.com

john.hay@dentons.com

diora.ziyaeva@dentons.com

ulyana.bardyn@dentons.com

levon.golendukhin@dentons.com

christina.dumitrescu@dentons.com

rocio.monzon@dentons.com

For Respondent

Mr. Camilo Gómez Alzate

Ms. Ana María Ordóñez Puentes

Ms. Maria Paula Arenas

Agencia Nacional de Defensa Jurídica del Estado

Carrera 7 No. 75-66

2nd and 3 rd floors Bogotá, D.C.

Colombia

Mr. Fernando Mantilla-Serrano

Mr. John Adam

Mr. Diego Romero

Ms. Paloma García Guerra

Latham & Watkins LLP

45, rue Saint-Dominique

75007 Paris

France

Emails:

camilo.gomez@defensajuridica.gov.co

ana.ordonez@defensajuridica.gov.co

maria.arenas@defensajuridica.gov.co

arbitrajesdeinversion@defensajuridica.gov.co

Fernando.Mantilla@lw.com

John.Adam@lw.com

Diego.Romero@lw.com

Paloma.Garcia-Guerra@lw.com

ICSIDArb18-23.LWTEAM@lw.com

8.2.
In order to ensure the integrity of the proceedings, the Tribunal may refuse to permit a party's new legal representative to appear where the appearance of such legal representative could potentially give rise to the disqualification or resignation of a Tribunal Member.

9. Apportionment of Costs and Advance Payments to ICSID

Convention Article 61(2); Administrative and Financial Regulation 14; Arbitration Rule 28
9.1.
The parties shall cover the direct costs of the proceeding in equal parts, without prejudice to the final decision of the Tribunal as to the allocation of costs.
9.2.
By letter of November 1, 2018, ICSID requested that each party pay US$150,000.00 (one hundred fifty thousand United States dollars) to cover the initial costs of the proceeding. ICSID received Claimant's payment on November 14, 2018 and the Respondent's payment on December 26, 2018.
9.3.
ICSID shall request further advances as needed. Such requests shall be accompanied by a detailed interim statement of account.

10. Place of Proceeding

Convention Articles 62 and 63; Administrative and Financial Regulation 26; Arbitration Rule 13(3)
10.1.
Washington D.C. shall be the place of the proceeding.
10.2.
The Tribunal may hold hearings at any other place that it considers appropriate if the parties so agree.
10.3.
The Tribunal may deliberate at any place it considers convenient.

11. Procedural Languages, Translation and Interpretation

Administrative and Financial Regulation 30(3) and (4); Arbitration Rules 20(1)(b) and 22
11.1.
English and Spanish are the procedural languages of the arbitration.
11.2.
Routine, administrative, or procedural correspondence addressed to or sent by the ICSID Secretariat will be in English.

For Parties' Pleadings

11.3.
Written requests and applications shall be submitted in English.
11.4.
Pleadings, expert opinions, witness statements, exhibits, legal authorities, and any other accompanying documentation shall be submitted in one procedural language, provided that a translation to English of any document in a language other than English is filed simultaneously.
11.5.
If the document is lengthy and relevant only in part, it is sufficient to translate only relevant parts, provided that the Tribunal may require a fuller or a complete translation at the request of any party or on its own initiative.
11.6.
Translations need not be certified, unless there is a dispute between the parties regarding a translation provided and the Tribunal determines that certification is necessary.
11.7.
Documents exchanged between the parties under §15 below (Production of Documents) may be produced in the original language and need not be translated.

For Hearings

11.8.
Either procedural language, English or Spanish, may be used during hearings, with simultaneous interpretation to the other procedural language. Transcripts shall be taken in both procedural languages.
11.9.
The testimony of a witness called for examination during the hearing who prefers to give evidence in a language other than English or Spanish shall be interpreted simultaneously into English.
11.10.
The parties will notify the Tribunal, as soon as possible, and no later than at the pre-hearing organizational meeting (see §20 below), which witnesses or experts require interpretation.
11.11.
The costs of the interpreters will be paid from the advance payments made by the parties, without prejudice to the decision of the Tribunal as to which party shall ultimately bear those costs.

For Tribunal’s Documents Except the Award

11.12.
The Tribunal may make procedural orders or decisions in either procedural language.

For Tribunal’s Award

11.13.
The Tribunal shall render the Award in English and Spanish simultaneously. Both language versions shall be equally authentic.

12. Routing of Communications

Administrative and Financial Regulation 24
12.1.
The ICSID Secretariat shall be the channel of written communications between the parties and the Tribunal.
12.2.
Each party's written communications shall be transmitted by email or other electronic means to the opposing party and to the Tribunal Secretary, who shall send them to the Tribunal.
12.3.
Electronic versions of communications ordered by the Tribunal to be filed simultaneously shall be transmitted to the Tribunal Secretary only, who shall send them to the opposing party and the Tribunal.
12.4.
The Tribunal Secretary shall not be copied on direct communications between the parties when such communications are not intended to be transmitted to the Tribunal.

13. Number of Copies and Method of Filing of Parties' Pleadings

Administrative and Financial Regulation 30; Arbitration Rules 20(1)(d) and 23
13.1.
On the relevant filing date, the relevant party shall submit by email to the Secretary of the Tribunal and the opposing party the password protected electronic version of the pleading with witness statements, expert reports, and a consolidated index of all the exhibits and legal authorities attached to the pleading (the “Electronic Email Filing”).1
13.2.
Within three (3) business days after the Electronic Email Filing, the parties shall upload the entire submission, including the pleading, witness statements, expert reports, exhibits, legal authorities, and the corresponding consolidated index, to the folder created by ICSID for this case in the World Bank's electronic file sharing platform (“Electronic Platform Filing”).
13.3.
Within seven (7) business days of the Electronic Email Filing, the relevant party shall courier to the Tribunal Secretary:

13.3.1 one (1) unbound hard copy in A4/Letter double-sided format2 of the submission, including originals of the pleading, the witness statements, expert reports, exhibits (but not including legal authorities), and the corresponding consolidated index, both in their original language and translated where required under §11.4 supra; and

13.3.2 two (2) USB drives with full electronic copies of the submission, including the pleading, the witness statements, expert reports, exhibits, legal authorities, and a consolidated hyperlinked index of all the exhibits and the legal authorities attached to the pleading (both in their original language and translated where required under §11.4 supra).

13.4.
On the same day set forth in §13.3 supra the relevant party shall courier to the Members of the Tribunal at the addresses indicated at §13.5 below:

13.4.1 For Professor Hanotiau, one (1) hard copy of the submission, including (a) the pleading, the witness statements and expert reports in A5 format, and (b) the exhibits (not including legal authorities) in A4 format, and (c) the corresponding consolidated index (all of these in their original language and translated where required under §11.4 supra).

13.4.2 For Professor Stern and Ms. Kalicki, one (1) hard copy of the pleading only (not witness statements, expert reports or exhibits), in A4 format, in its original language and translated where required under §11.4 supra.

13.4.3 For each Member of the Tribunal, one (1) USB drive (PC and Mac compatible) with a full electronic copy of the entire submission, including the pleading, the witness statements, expert reports, exhibits, legal authorities, and a consolidated hyperlinked index of all the exhibits and the legal authorities attached to the pleading (both in their original language and translated where required under §11.4 supra).

13.5.
The addresses of the Tribunal Members are as follows:

Ms. Jean Kalicki

Kalicki Arbitration

201 West 72nd St., #6A

New York, NY 10023

United States of America

Professor Bernard Hanotiau

Hanotiau & van den Berg

IT Tower, 9th Floor

480 Avenue Louise, B9

1050 Brussels

Belgium

Professor Brigitte Stern

7 rue Pierre Nicole

Paris 75005

France

13.6.
Legal authorities shall be submitted in electronic format only, unless a hard copy is specifically requested by the Tribunal.
13.7.
On the same day set forth in §13.3 supra the relevant party shall courier to the opposing party at the address(es) indicated at §8.1 above one (1) hard copy set of the submission, in such format as hereafter agreed between the parties, unless the parties hereafter agree to dispense with hard copies as between themselves for all or some part of the submission.
13.8.
Electronic versions of pleadings, witness statements, expert reports, exhibits and legal authorities shall be text searchable (i.e., OCR PDF or Word).
13.9.
All pleadings shall be accompanied by a consolidated index to the supporting documentation, which will be hyperlinked with respect to §§13.3.2 and 13.4.3. The consolidated index referred to in §§13.1 to 13.4 supra shall indicate the document number, its title, its date, the pleading with which it was submitted, and the language of the document.
13.10.
The official date of receipt of a pleading or communication shall be the day on which the electronic version is sent to the Secretary of the Tribunal by email.
13.11.
A filing shall be deemed timely if sent by a party by midnight, Washington, D.C. time, on the relevant date.

14. Number, Sequence and Length of Pleadings

Arbitration Rules 20(1)(c), 20(1)(e), 29 and 31
14.1.
The parties shall submit their pleadings in accordance with the procedural calendars established in Annex A, which envisages three different scenarios:

14.1.1 Scenario 1 shall apply in the event that objections to jurisdiction (if any) are made with the counter-memorial and there is no request for bifurcation.

14.1.2 Scenario 2 shall apply in the event that objections to jurisdiction are made in response to the Memorial on the Merits, and there is a request for bifurcation which is granted.

14.1.3 Scenario 3 shall apply in the event that objections to jurisdiction are made in response to the Memorial on the Merits, and there is a request for bifurcation which is refused.

14.2.
In accordance with the parties' agreement, a limit of 300 pages shall be observed for the parties' respective first-round of submissions (i.e., Memorial and Counter-Memorial) and a limit of 200 pages for their second round of submissions (i.e., Reply and Rejoinder).

15. Production of Documents

Convention Article 43(a); Arbitration Rules 24 and 33-36
15.1.
The Tribunal may be guided by the 2010 International Bar Association Rules on the Taking of Evidence in International Arbitration (“2010 IBA Rules”) in relation to document production.
15.2.
Each party may serve a request for production of documents on the other party on the date set forth in the procedural timetable in Annex A. The Tribunal shall not be copied on such a request, but the Tribunal Secretary shall be copied for informational purposes.
15.3.
The document production request, responses or objections to the request, the reply to the responses or objections to the request, and the Tribunal's decisions shall be recorded in a horizontal Schedule in both Word and PDF format in the form below:

Document Request No.
A. Documents or category of documents requested
B. Relevance and materiality: (1) paragraph reference to
submissions (2) comments (3) statement concerning custody and control
C. Summary of objections by disputing party to production of requested documents
D. Reply
E. Decision of the Tribunal

15.4.
The request for production of documents must contain:

15.4.1 In Row A of the Schedule a description of each requested document sufficient to identify it, or a description in sufficient detail (including subject matter) of a narrow and specific requested category of documents that are reasonably believed to exist;

15.4.2 In Row B of the Schedule a statement as to how the documents requested are relevant to the case and material to its outcome.

15.4.3 In Row B of the Schedule a statement that the documents requested are not in the possession, custody or control of the requesting party, and a statement of the reasons why the requesting party assumes the documents requested are in the possession, custody or control of the other party.

15.5.
The party who receives a request for document production shall produce the requested documents to the extent it makes no objection. Objections to the request shall be set out in the row designated for such objections in the Schedule provided by the requesting party (Row C), by the time stated in the procedural timetable in Annex A.
15.6.
The requesting party may reply to the other party's objections (if any) in the row designated in the Schedule for such reply (Row D), by the time stated in the procedural timetable in Annex A.
15.7.
The Tribunal reminds the parties of their duty to act in good faith in the taking of evidence and within the framework of the processes laid down by the Tribunal in the production of the evidence. This requires the parties not only to formulate narrow and specific document requests in the first instance, but also to cooperate in the process of achieving such formulations with respect to each other's requests. In consequence, a party objecting to a request on grounds of overbreadth or excessive burden should indicate whether there is a narrower formulation with which it would be willing to comply. In reply, the requesting party should likewise indicate, in addition to any comments on the other party's objection to its original formulation, whether there is a narrower formulation that it would be willing to accept. The parties should not shift entirely to the Tribunal the burden of identifying potential alternate formulations that avoid excessive burden while still allowing production of documents that are relevant and material to the outcome of the case.
15.8.
By the time stated in the procedural timetable in Annex A, the parties shall submit to the Tribunal a complete Schedule (with the parties' objections and replies) of all unresolved document requests. The Tribunal shall endeavor to rule on all such applications for document production (in Row E) of the respective Schedule on or before the time-limit established in the procedural timetable in Annex A.
15.9.
Documents produced in accordance with this §15 shall be communicated electronically (via email or a password protected USB drive) directly to the requesting party without copying the Tribunal or the Tribunal Secretary. Documents so produced under this §15 shall not be considered part of the record of this arbitration unless and until the requesting party subsequently files them as exhibits in accordance with the procedural timetable for this arbitration and the terms of this or any other applicable procedural order or ruling.
15.10.
If a party, contrary to an order by the Tribunal, fails to produce the documents without a valid cause, the Tribunal shall be authorized to draw from such failure inferences it deems appropriate, taking into consideration all prevailing circumstances.

16. Submission of Documents

Convention Article 44; Administrative and Financial Regulation 30; Arbitration Rule 24
16.1.
The Memorial and Counter-Memorial shall be accompanied by the documentary evidence relied upon by the parties, including exhibits and legal authorities. Further documentary evidence relied upon by the parties in rebuttal shall be submitted with the Reply and Rejoinder.
16.2.
The documents shall be submitted in the manner and form set forth in §13 above.
16.3.
Neither party shall be permitted to submit additional or responsive documents after the filing of its respective last written submission, unless the Tribunal determines that exceptional circumstances exist based on a reasoned written request followed by observations from the other party.

16.3.1 Should a party request leave to file additional or responsive documents, that party may not annex the documents that it seeks to file to its request.

16.3.2 If the Tribunal grants such an application for submission of an additional or responsive document, the Tribunal shall ensure that the other party is afforded sufficient opportunity to make its observations concerning such a document.

16.4.
The Tribunal may call upon the parties to produce documents or other evidence in accordance with ICSID Arbitration Rule 34(2).
16.5.
The documents shall be submitted in the following form:

16.5.1 Exhibits shall be numbered consecutively throughout these proceedings.

16.5.2 The number of each exhibit containing a document produced by Claimant shall be preceded by the letter “C-” for factual exhibits and “CL-” for legal authorities. The number for each exhibit containing a document produced by Respondent shall be preceded by the letter “R-” for factual exhibits and “RL-” for legal authorities.

16.5.3 Each exhibit filed in hard copy shall have a divider with the exhibit identification number on the tab.

16.5.4 Exhibits and legal authorities shall be submitted in PDF format and start with the number “C-0001” and “R-0001,” “CL-0001” and “RL-0001”, respectively, and include a short description of their contents and, where applicable, their respective dates (e.g., “C-0001 2014 02 01 Email from XXX”, “RL-0001 XXX v YYY ICSID Case No. Arb/ZZ/WW).

16.5.5 Electronic filings shall follow the naming conventions contained in Annex B.

16.6.
Copies of documentary evidence shall be assumed to be authentic unless specifically objected to by a party, in which case the Tribunal will determine whether authentication is necessary.
16.7.
The parties shall file all documents only once by attaching them to their pleadings. Documents so filed need not be resubmitted with witness statements even if referred to in such statements.
16.8.
Demonstrative exhibits (such as PowerPoint slides, charts, tabulations, etc.) may be used at any hearing, provided they contain no new evidence. Each party shall number its demonstrative exhibits consecutively, and indicate on each demonstrative exhibit the number of the document(s) from which it is derived. The party submitting such exhibits shall provide them in hard copy to the other party, the Tribunal Members, the Tribunal Secretary, the court reporters and interpreters at the hearing at a time to be decided at the pre-hearing organizational meeting.

17. Witness Statements and Expert Reports

Convention Article 43(a); Arbitration Rule 24
17.1.
Witness statements and expert reports shall be filed together with the parties' pleadings.
17.2.
Any person may present evidence as a witness, including a party or its officials, officers, employees or other representatives. Witness statements shall include:

17.2.1. the full name of the witness, a statement regarding his or her present and past relationship (if any) with any of the parties, and a description of his or her background, qualifications, training and experience, if such a description may be relevant to the dispute or to the contents of the statement; and

17.2.2. an affirmation of the truth of the witness statement.

17.3.
Expert reports shall include:

17.3.1. the full name of the expert, a statement regarding his or her present and past relationship (if any) with any of the parties, and a description of his or her background, qualifications, training and experience;

17.3.2. a description of the instructions pursuant to which he or she is providing his or her opinions and conclusions;

17.3.3. a statement of his or her independence from the parties, their legal advisors and the Arbitral Tribunal;

17.3.4. his or her expert opinions and conclusions, including a description of the methods, evidence and information used in arriving at the conclusions. Documents on which the expert relies that have not already been submitted shall be provided;

17.3.5. an affirmation of his or her genuine belief in the opinions expressed in the expert report; and

17.3.6. if the expert report has been signed by more than one person, an attribution of the entirety or specific parts of the expert report to each author.

17.4.
Neither party shall be permitted to submit any testimony 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 (following the procedure outlined in §16.3).
17.5.
Each witness statement and expert report shall be signed and dated by the witness.

18. Examination of Witnesses and Experts

Arbitration Rules 35 and 36
18.1.
Any person may present evidence as a witness, including a party or a party's officer employee or other representative.
18.2.
On the date indicated in Annex A, each party shall notify the other party, with a copy to the Tribunal, which witnesses and experts of the opposing party, whose statement or report has been submitted, it wishes to cross-examine at the hearing.
18.3.
On the date indicated in Annex A, the Tribunal will indicate the names, if any, of the witnesses or experts whose statement or report has been submitted, not called by the parties, whom it wishes to examine at the hearing.
18.4.
Any witness who has submitted a witness statement or an expert report must, at the request of the other party made in accordance with the time-limits set out in the procedural timetable in Annex A, or at the request of the Tribunal, be made available for examination at the hearing.
18.5.
Each party shall be responsible for summoning and securing the appearance of its own fact and expert witnesses to the hearing when called for cross-examination by another party or the Tribunal, and shall assume the costs of appearance of such witnesses in the first instance without prejudice to the decision of the Tribunal as to which party shall ultimately bear those costs.
18.6.
If a witness or expert fails to appear at the hearing without justification, the Tribunal may, after hearing the parties, direct that the witness statement of such witness or report of such expert be struck from the record, or may attach such weight to the witness statement or expert report as it may consider appropriate in the circumstances.
18.7.
The Tribunal may, in its discretion, keeping the facts and circumstances in view and after hearing the parties in this regard, permit a witness to be examined by video conference or permit alternative arrangements for taking of his/her testimony.
18.8.
If a party has not called another party's fact or expert witness for cross-examination, that will not be deemed as an admission by that party nor will it imply that the party accepts that the substance of the relevant witness statement(s) or expert report(s) as correct or proven. Rather, the statement or report of such a witness or expert shall be examined and weighed by the Tribunal, in its discretion, in light of all the evidence presented by the parties.
18.9.
Pursuant to ICSID Arbitration Rule 35(1), witnesses and experts shall be examined by each party under the control of the President of the Tribunal. Before giving evidence, witnesses shall make the declaration set out in ICSID Arbitration Rule 35(2), and experts shall make the declaration set out in ICSID Arbitration Rule 35(3).
18.10.
Witnesses will first be briefly examined by counsel for the party that is presenting the witness (“direct examination”), for the purpose of introducing the witness and having him or her confirm the statement or report, including any corrections to be made thereto. Direct examination may not introduce new matters not already covered by the written statement or report, except as necessary to address new matters raised in the other party's last written submission. Experts may give a presentation before the start of their cross-examination, in lieu of traditional direct examination. Direct examination of fact witnesses presumptively shall not exceed 10 minutes, and expert presentations presumptively shall not exceed 30 minutes, subject to revisiting these presumptions with the parties during the pre-hearing organizational meeting or for good cause shown.
18.11.
Following direct examination and/or expert presentations, the witness may then be examined by counsel for the opposing party (“cross-examination”). Cross-examination of a witness shall not go beyond the scope of the issues and matters covered in the written witness statement and the documents on the record. The cross-examination of an expert shall remain within the confines of the issues on which the expert has opined.
18.12.
Following the cross-examination, “re-direct examination” of a witness or expert may be carried out by the party presenting that witness or expert, but shall be limited to the matters that arose during cross-examination of that witness or expert.
18.13.
The Tribunal may examine the witness or expert at any time during the oral procedure.
18.14.
The presence of fact and expert witnesses in the hearing room prior to giving their oral evidence shall be discussed between the parties prior to the pre-hearing organizational meeting to be held pursuant to §20.1 below and, if required, decided by the Tribunal at that meeting.

19. 2010 IBA Rules on the Taking of Evidence in International Arbitration

19.1.
In relation to evidentiary matters (including document production and taking of evidence from witnesses of fact and experts), the Tribunal may seek guidance from the 2010 IBA Rules.

20. Pre-Hearing Organizational Meetings

Arbitration Rule 13
20.1.
A pre-hearing organizational meeting shall be held by telephone at a date determined by the Tribunal after consultation with the parties and in accordance with Annex A between the Tribunal, or its President, and the parties in order to resolve any outstanding procedural, administrative, and logistical matters in preparation for the hearing.

21. Hearings

Arbitration Rules 20(1)(e) and 32
21.1.
The oral procedure shall consist of a hearing for examination of witnesses and experts, if any, and for oral arguments.
21.2.
The hearing shall be held at a place to be determined in accordance with §10 above.
21.3.
The hearing shall take place on the date indicated in Scenario 1 of the procedural timetable in Annex A. In case either Scenarios 2 or 3 applies to this proceeding, the date of the hearing shall be determined at a later stage as indicated in Scenario 2 or 3 of the procedural timetable in Annex A.
21.4.
The Members of the Tribunal shall endeavor to reserve at least one day after the hearing to determine the next steps and to hold deliberations.
21.5.
Other matters regarding the conduct of any hearing(s) (including hearing bundles, order of appearance of witnesses and allocation of time between the parties) shall be agreed upon by the parties at a later stage and in advance of the hearing, or, failing such agreement, decided by the Tribunal after consultation with the parties during a pre-hearing organizational meeting held pursuant to §20 above.
21.6.
Prior to the hearing, the parties shall use their best efforts to agree and prepare a single USB drive (PC and Mac compatible) including all pleadings, witness statements, expert reports, exhibits, legal authorities, decisions and orders in the arbitration file, with a unified hyper-linked index. As soon as possible, but no later than two weeks before the hearing, the parties shall courier two (2) copies of the USB drive to the Secretary of the Tribunal and one (1) copy of the USB drive (PC and Mac compatible) to each Member of the Tribunal.
21.7.
In accordance with Article 830(2) of the FTA, hearings shall be open to the public. The Tribunal may hold portions of hearings in camera to the extent necessary to ensure the protection of confidential information. The parties shall use best efforts to agree on proposed procedures for the protection of confidential information and appropriate logistical arrangements for open hearings, for consideration by the Tribunal at an appropriate time.
21.8.
Pursuant to Article 827(2) of the FTA, Canada, as the other Contracting Party to the Treaty, shall have the right to attend any hearings. Upon written notice to the disputing parties, the Government of Canada may make oral and written submissions to the Tribunal on a question of interpretation of the Treaty.

22. Records of Hearings and Sessions

Arbitration Rules 13 and 20(1)(g)
22.1.
Sound recordings shall be made of all hearings and sessions. The sound recordings shall be provided to the parties and the Tribunal Members.
22.2.
Verbatim transcripts in the procedural languages shall be made of any hearing and session other than sessions on procedural issues. Unless otherwise agreed by the parties or ordered by the Tribunal, the verbatim transcripts shall be available in real-time using LiveNote or similar software and electronic transcripts shall be provided to the parties and the Tribunal on a same-day basis.

The parties shall agree on any corrections to the transcripts within thirty (30) days of the later of the dates of the receipt of the complete sound recordings and transcripts. The agreed corrections may be entered by the court reporter in the transcripts (“revised transcripts”). The Tribunal shall decide upon any disagreement between the parties and any correction adopted by the Tribunal shall be entered by the court reporter in the revised transcripts.

23. Post-Hearing Memorials and Statements of Costs

Convention Article 44; Arbitration Rule 28(2)
23.1.
The Tribunal and the parties will consider the need for post-hearing submissions at the close of the hearing.
23.2.
The Tribunal shall fix the modalities (including format and time) for submissions of statements of costs at the close of the hearing.

24. Public Access to Documents

Convention Article 48(5), Administrative and Financial Regulation 22, Arbitration Rule 48(4), Treaty Article 830
24.1.
In accordance with Article 830(1) of the Treaty, the award shall be publicly available, subject to the redaction of confidential information. The parties agree that any decision on jurisdiction, issued in advance of the award, also shall be publicly available, again subject to the redaction of confidential information, as shall the Notice of Intent and the Request for Arbitration. In the absence of agreement otherwise, and pursuant to Article 830(1) of the Treaty, the Tribunal’s procedural orders also shall be publicly available. Unless the parties otherwise agree, and always subject to the deletion of confidential information, no other documents submitted to, or issued by, the Tribunal shall be publicly available. A party providing information that it claims is confidential has the burden of designating it as confidential.
24.2.
Pursuant to Article 830(3) of the Treaty, a party may disclose to other persons in connection with the arbitral proceedings such unredacted documents as it considers necessary for the preparation of its case, but it shall ensure that those persons protect the confidential information in such documents.
24.3.
In accordance with Article 830(5) of the Treaty, to the extent that a Tribunal’s confidentiality order designates information as confidential and a law on access to information of either Contracting Party to the Treaty requires public access to that information, such domestic law shall prevail.

25. Submissions by a Non-Disputing Party

Arbitration Rule 37(2), Treaty Article 831 and Annex 831
25.1.
An application to the Tribunal for leave to file a non-disputing party submission, and the filing of a submission, if allowed by the Tribunal, shall be made in accordance with ICSID Arbitration Rule 37(2), and Article 831 and Annex 831 of the Treaty.
25.2.
The parties shall have the right to submit observations in relation to any non-disputing party application for leave to file a non-disputing party submission, and to any non-disputing party submissions, in accordance with the schedule prescribed by the Arbitral Tribunal or as agreed to between the parties.
25.3.
In accordance with ICSID Arbitration Rule 37(2) and Article 831 of the Treaty, the Tribunal shall ensure that any non-disputing party submission does not unduly disrupt the proceeding or unduly burden or unfairly prejudice either party.
25.4.
The Tribunal shall decide whether and to what degree a non-disputing party granted leave to make a submission shall be granted access to the pleadings submitted by the parties, subject to the deletion of confidential information and excluding their supporting documentation (including exhibits, witness statements, and expert reports). Any access to the pleadings shall be granted upon the execution of a non-disclosure agreement by the non-disputing party.
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