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

Procedural Order No. 4

I. PROCEDURAL BACKGROUND

1.
On 10 March 2020, the Tribunal informed the parties that due to travel restrictions resulting from the COVID-19 pandemic, the Second Week Hearing would not be held in person. The Tribunal further consulted with the parties whether they would be amenable, at least in principle, to the option of videoconference to maintain the originally scheduled dates. On 11 March 2020, the parties responded with respect to this option.
2.
In light of the parties responses, on 13 March 2020, the Tribunal decided to postpone the Second Week Hearing and proposed newdates. On 18 March 2020, the Tribunal provided four specific days within the originally proposed new dates for the Respondent to indicate its availability. On 25 March 2020, the Tribunal confirmed the parties' agreed schedule for corrections to the transcript, written responses to the United States Non-Disputing Party submission, the tentative Second Week Hearing dates and the post-hearing briefs and requested that the Respondent confirm the new proposed dates for the Second Week Hearing as soon as possible.
3.
On23 April 2020, the Tribunal requested the Respondent to confirm the proposed dates for the Second Week Hearing. In this communication, the Tribunal also noted to the parties that the hearing could be held by videoconference if an in-person meeting proved to be impossible. On 30 April 2020, the Respondent confirmed its availability for the Second Week Hearing to be held from 13 to 16 October 2020.
4.
On 14 August 2020, the Tribunal advised the parties that due to the COVID-19 pandemic, the Tribunal considered that it would not be feasible to conduct the Second Week Hearing on 13 to 16 October 2020 in-person, as planned. As the possibility of a virtual hearing had already been announced in the 23 April 2020 letter, the Tribunal invited the parties to confirm they agreed to proceed with the Second Week Hearing remotely.
5.
On 17 August 2020 and 20 August 2020, the Claimants and the Respondent, respectively, confirmed their agreement to hold the Second Week Hearing remotely.
6.
On 31 August 2020, the parties submitted the proposed Second Week Hearing schedule attached to this order as Annex A. This proposed schedule shortened the first three hearing days and extended the fourth and final day to have a schedule starting at 9:00 am (EDT) and ending at 4:00 pm (EDT) for each day. This parties expressed that this proposal was mindful of the time zones and that shorter hearing days were preferable when conducting virtual/remote hearings.
7.
In addition to Procedural Order No. 3, this Order sets out additional procedural rules that the parties have agreed upon and/or the Tribunal has determined to reflect the virtual modality of the Second Week Hearing.
8.
On 22 September 2020, the Tribunal invited the parties to comment on a draft procedural order for the organization of the Second Week Hearing. On 2 October 2020, the parties submitted their agreements to the Tribunal.
9.
This Procedural Order reflects the agreement of the parties and further items that the Tribunal has considered necessary to rule in advance of the Second Week Hearing.

II. Organization of the Hearing

A. Date and Format

10.
The Hearing will take place virtually through the video conference platform called ZOOM on 13 to 16 October 2020 with the use of a third party service provider, FTI Consulting ("FTI").
11.
FTI has set up a portal with access to the Zoom platform, the document repository, English and Spanish transcript links ("Hearing Portal"). The Hearing Portal will be accessed through a link and a password. The ICSID Secretariat has provided the link with corresponding passwords of the Hearing Portal only to the individuals in the official email distribution list, court reporters, interpreters.

B. Order of Proceedings and Schedule

12.
In order to accommodate the different time zones of all Hearing Participants, the Hearing will start at 9:00 am (EDT). It is expected to conclude approximately by 4:00 pm (EDT). There will be one or two 15-minute breaks and a one-hour lunch break as reflected in Annex A.
13.
The order of proceedings and structure of the Second Week Hearing will be as indicated in the agenda incorporated as Annex A.
14.
The Tribunal reserves discretion to adjust the Second Week Hearing schedule as needed to accomplish the prescribed agenda and to accommodate any technical disruptions.
15.
For the purposes of the record, the remaining time for each party after the First Week Hearing is as follows: (i) Claimants have 12 hours and four minutes, and (ii) Respondent has 11 hours and forty-five minutes. The time allocation for each party for the Second Week Hearing will not take into account the time remaining and will solely follow the time estimates indicated in Annex A, to be adjusted, as necessary, to account for Respondent’s letter of 1 October 2020, stating the President Varela would not attend the Second Week Hearing. The Secretary of the Tribunal shall keep account of time and advise the parties of the total time used as allocated in Annex A.

C. Documents for Use at the Hearing

1. Electronic Hearing Bundle

16.
The parties have prepared a modified Second Week Hearing bundle which they have uploaded to the filesharing platform (BOX folder) for this case. The Tribunal was notified of this step.
17.
Claimants, on behalf of both of the parties, have provided Prof. Horacio Grigera Naon with a hyperlinked USB (PC and Mac compatible).
18.
The parties proposed that ICSID allow FTI to access the Box in order to pull the case files contained therein. The parties agree that the transcript of the First Week Hearing will be included in the secure file repository. On 5 October 2020, the ICSID Secretariat confirmed that FTI had been granted access to the files and that these had been successfully transferred. The document repository will only be accessible with a password for purposes of protected information. The ICSID Secretariat has provided the password to the individuals in the official distribution list. The password to the repository should not be distributed or should only be provided to those authorized to have access to protected information.
19.
Procedural Order No. 3 contains further provisions for the treatment of protected information.

2. Demonstrative Exhibits and Direct Presentations

20.
The parties agree that sections 24 and 26 of Procedural Order No. 3 shall continue to apply, as written, to the Second Week Hearing.
21.
The Parties shall also provide a copy of each of their Expert Witnesses’ direct presentations to the Tribunal Secretary to transfer to the Tribunal members, to opposing counsel, interpreters, court reporters and to FTI one hour prior to their testimony. FTI will upload the direct presentation to the secure document repository.

3. Electronic Presentation of Evidence

22.
Both parties will use FTI’s secure document repository feature, which shall contain the official record for use at the Second Week Hearing. Both parties also will use FTI’s Neutral Documentation Presentation and Annotation feature, and will split the cost of that feature. Electronic evidence will be presented at the Second Week Hearing by FTI from the FTI secure document repository.
23.
Documents that do not form part of the record may not be displayed.

D. Witness and Experts Examinations

24.
Each party will be responsible for sharing only the Zoom link with the witnesses and experts.
25.
In addition to the requirements and procedures established in sections 27 and 29 of Procedural Order No. 3 (and, by reference, section 18 of Procedural Order No. 1), the following shall also apply to the Second Week Hearing:

(a) Fact Witness: The fact witness testifying during the Second Week Hearing shall be sequestered, as provided in Procedural Order No. 1, section 18, and Procedural Order No. 3, section 29.

(i) The fact witness shall provide his testimony while alone in a room containing a 360-degree camera provided by FTI ("Testimony Room").

(ii) The fact witness shall remain sequestered until his testimony is completed, including during breaks in the Hearing. During the breaks, the fact witness will be taken to a virtual waiting room ("Sequestration Waiting Room").

(iii) The Testimony Room shall contain only the following Hearing-related materials:

(1) A clean, unmarked copy of the witness' witness statement(s).

(2) The electronic equipment (computer, screens, camera, etc.) provided by FTI.

(iv) The fact witnesses shall not bring any other materials or electronic equipment (such as personal cell phones, tablets, etc.) into the Testimony Room.

(v) When Respondent's remaining fact witness provides his testimony at the GALA Law Firm, Claimants shall have an observer ("the Observer") present in the GALA Offices. While the fact witness will be alone in the Testimony Room when providing testimony, the Observer may:

(1) Inspect the Testimony Room just prior to the fact witness' testimony to ensure that only the materials and equipment described above in Section 21(a)(iii) are present.

(2) Remain outside the Testimony Room during the fact witness' testimony to ensure that no one enters the room.

(3) Observe that sequestration of the fact witness is maintained, and that the foregoing provisions of Section 21(a) of this Procedural Order are applied.

(vi) The fact witness will remain in the Sequestration Waiting Room to ensure that the witness is available in time to be brought into the Hearing Room. Once the fact witness is virtually brought into the Hearing Room by the ICSID Secretary at the instruction of the Tribunal, but before the witness takes the declaration and begins testifying, FTI shall present to the Hearing participants a full view of the Testimony Room using the 360-degree camera, allowing the Tribunal and participants to confirm that the witness is alone.

(b) Expert Witnesses : Expert witnesses shall not be sequestered, as was the case during the First Week Hearing.

(i) Expert witnesses shall provide their testimony while alone in a room containing a 360-degree camera provided by FTI ("Expert Testimony Room").

(ii) The Expert Testimony Room shall contain only the following Hearing-related materials:

(1) A clean, unmarked copy of the expert witness' report(s).

(2) A clean, unmarked copy of the expert witness' direct presentation.

(3) The electronic equipment (computer, screens, camera, etc.) provided by FTI (except in the case of Mr. Roy Pollitt who will be using electronic equipment provided by Shearman & Sterling).

(iii) Once an expert witness is virtually brought into the Hearing Room by the ICSID Secretary at the direction of the Tribunal, but before the expert witness takes the declaration and begins testifying, FTI shall present to the Hearing participants a full view of the Testimony Room using the 360-degree camera, allowing the Tribunal and the participants to confirm that the expert witness is alone.

E. Audio/Video Recording

26.
The parties agree that a video recording will be made of the Second Week Hearing. The video recording will not be made public or become part of the record of this arbitration. However, the video recording may be used to guide transcript corrections, and once transcript corrections have been completed, the transcript shall serve as the record of the Hearing. The Tribunal also may refer to the video recording, as it deems necessary.
27.
The audio recording shall be made by the ICSID Secretariat, and it will be shared with the parties and the Members of the Tribunal at the conclusion of the Second Week Hearing Hearing Participants shall not otherwise record, via audio, video or screenshot, the Second Week Hearing or any part of it.

F. Transcription

28.
Real-time court reporting in English and Spanish shall be made available to the Hearing Participants through the Hearing Portal. The details (key) and instructions to connect to the English streamed transcript shall be provided by the court reporter or the ICSID Secretariat to the Hearing Participants before the start of the Hearing day.
29.
Unless otherwise instructed by the parties, the final English and Spanish transcript will be distributed to the official email distribution list in the ICSID Secretariat records.
30.
As provided in Section 21.3 of Procedural Order No. 1, the deadline for corrections to the transcript shall be 30 days following the later of the dates of the receipt of the audio recordings and/or transcripts.

G. INTERPRETATION

31.
ICSID has made the required arrangements for interpretation and will communicate them to the parties and the Tribunal in due course.
32.
Each Participant should indicate the language it expects to use at the Hearing in Annex B of this Order. Once a language selection is made, it is highly recommended that the Participant

only use that language and avoid switching interpretation channels. The witnesses and experts will be shown the corresponding declaration of ICSID Rule 35 in the language that has been indicated in Annex B.

33.
The Participants should speak slowly, one person at a time, and should pause briefly when handing the floor to another Participant.
34.
Each Active Participant should, insofar as possible, circulate any speaking notes to the Secretary of the Tribunal to the start of each intervention.

H. Post-Hearing Briefing and Statements of Costs

35.
As confirmed by the Tribunal in its letter to the Parties of 25 March 2020, there shall be one-round of Post-Hearing Briefing, simultaneously filed, and limited to 100 pages in length. While the parties originally agreed to simultaneously exchange their Post-Hearing Briefs on 8 December 2020, Counsel for Respondent has now requested an extension of that deadline, and the parties have agreed that Post-Hearing Briefs will now be simultaneously exchanged on 21 December 2020.
36.
Each Party shall submit a one-page Statement of Costs, to be accompanied by a Submission of no more than five (5) pages in length by 11 January 2021. The parties submissions shall be simultaneously exchanged.

I. Transparency

37.
By letter dated 10 March 2020, the parties informed ICSID of their agreement that the Second Week Hearing, like the First Week Hearing, would be fully moderated, with non-protected information being released after the Hearing Sessions are completed and materials are properly redacted, in accordance with the Treaty.
38.
The ICSID Secretariat will inform the Government of the United States of America, the Non-Disputing Party pursuant to the United States -Panama Trade Promotion Agreement (TPA), of the dates of the upcoming Second Week Hearing.
39.
The ICSID Secretariat will publish an announcement of the hearing on its website in the following terms:

Omega Engineering LLC and Oscar Rivera v. Republic of Panama (ICSID Case No. ARB/16/42) - Public Hearing

A second part of the hearing on jurisdiction, merits and damages in the above case is scheduled to take place virtually on October 13 to 16, 2020.

In accordance with Article 10.21(2) of the United States-Panama Trade Promotion Agreement (TPA) which entered into force on October 31, 2012, the hearing shall be open to the public, except to the extent necessary to ensure the protection of confidential information. The transcripts of the hearing will be uploaded to the ICSID website after the hearing.

Please continue to monitor our website for further announcements concerning the dates in which the transcripts will be posted on the ICSID website.

J. Preparation for the Virtual Hearing

40.
The following procedures shall be followed in order to ensure the good conduct of the virtual hearing:

1. Testing

41.
The ICSID Secretariat will conduct a pre-hearing test with Hearing Participants to test connectivity to the video conference platform (ZOOM) and the real-time transcription ("Pre-hearing Test"). For this purpose, the Pre-hearing Test shall be held on Monday, 12 October 2020 at 8:00 a.m. (EDT) to verify the proper functioning of the videoconference system. The Hearing Participants will replicate to the extent possible the conditions which each person will participate in the hearing. The access details will be communicated by the ICSID Secretariat in due course.

2. Connectivity

42.
To improve operation of the ZOOM platform, the parties are advised to keep the number of video connections to a minimum and to Active Participants only. Passive Participants should preferably join the meeting through their computer but connecting only their audio (i.e. turning off their video).
43.
All Hearing Participants shall use the "mute microphone" function when not speaking to reduce background noise and to avoid interference with the audio recording.

3. Equipment and Set Up

44.
For optimum sound quality, especially for the audio recording and the transcription, ICSID highly recommends that the main speakers use a headset equipped with a microphone and connected through the USB or "mic" jack of the computer or laptop that they use for the ZOOM videoconference. Internal microphones do not give as good a sound quality as external microphones. If not available, Active Participants are asked to speak close to the microphone of the computer or laptop from which they are connected to the ZOOM session.
45.
While not indispensable, Hearing Participants are advised to have at least two screens, and preferably three (it can be one device with multiple screens or a combination of devices including tablets) to facilitate simultaneous viewing of: (i) the ZOOM video connection; (ii) the online real time transcript; and (iii) offline documents.
46.
Hearing Participants joining via video shall avoid sitting with a window or source of light behind them because this darkens their image on screen.

4. Participants

47.
Each Party provides below its List of Participants ("Hearing List of Participants") for the Hearing in Annex B. Each Party has designated the participants that will have an active speaking role ("Active Participants") and those who will be passive attendees ("Passive Participants").
48.
All Hearing Participants shall clearly denote their names and affiliation when connecting to ZOOM. Example: "Jane Doe (ICSID)." Any name appearing in ZOOM shall also be listed on the Hearing List of Participants (See Annex B). Should there be a discrepancy at any point during the Hearing, the Secretary of the Tribunal will alert the Tribunal, and the Tribunal will promptly address the matter.

5. Inter-team communication

49.
Each Party shall itself directly arrange for a separate channel to handle their team's internal communications during breaks, which shall be separate from the ZOOM virtual Hearing Room. The Tribunal will similarly make its own arrangements for use of a separate channel.

6. Hearing Protocol

50.
The hearing protocol to join the hearing and during the hearing is attached as Annex C.
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