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

Procedural Order No. 4 (On the Organization of the Hearing) (Resubmission Proceeding)

I. INTRODUCTION

1.
This procedural order addresses the organization of the hearing on the merits in this resubmitted case, scheduled to be held on March 11-14, 2019 (the “Hearing”).
2.
Subject to the terms of this Order, the Hearing shall otherwise be conducted in accordance with the applicable provisions of Procedural Order No. 1.
3.
A Pre-Hearing Organizational Meeting between the President of the Tribunal, representing the Tribunal, and the Parties was held by conference call on Monday, February 11, 2019 at 10:00 a.m. EST, Washington, D.C. time in preparation for the Hearing in this case.
4.
Participating in the conference were:

On behalf of the Tribunal

Professor Vaughan Lowe, Q.C., President of the Tribunal

ICSID Secretariat:

Ms. Mercedes Cordido-Freytes de Kurowski, Secretary of the Tribunal

On behalf of the Claimant:

Counsel:
Ms. Andrea J. Menaker White & Case LLP
Mr. Petr Polasek White & Case LLP
Ms. Kristen M. Young White & Case LLP
Ms. Harpreet K. Dhillon White & Case LLP
Parties:
Mr. Javier Cuebas TECO Energy Inc.

On behalf of the Respondent:

Counsel:
Nigel Blackaby Freshfields Bruckhaus Deringer LLP
Lluís Paradell Freshfields Bruckhaus Deringer LLP
Francesca Loreto Freshfields Bruckhaus Deringer LLP
Alexander Alonso Freshfields Bruckhaus Deringer LLP
Jean Paul Dechamps Dechamps International Law
Republic of Guatemala’s Authorities:
Luisa Gatica Procuraduría General de la Nación
Lilian Nájera Procuraduría General de la Nación
Mario Mérida Procuraduría General de la Nación

5.
The President and the Parties considered: (i) the Parties’ Joint Proposal of January 23, 2019 regarding those aspects of the Hearing as to which the Parties have reached an agreement, (ii) the Parties’ respective letters of January 24, 2019 with their comments concerning the areas of disagreement, and (iii) Respondent’s letter of February 8, 2019.
6.
An audio recording of the telephone conference was made and deposited in the archives of ICSID. The recording was subsequently made available to the Members of the Tribunal and the Parties on February 12, 2019.
7.
The Parties’ agreements and the Tribunal’s decisions are reflected in this Order.

II. ORGANIZATION OF THE HEARING

A. HEARING DATES, VENUE, STARTING AND ENDING TIMES AND BREAKS

8.
As agreed by the Parties, the Hearing shall be held in Washington, D.C. at a venue to be advised by the Secretary of the Tribunal.
9.
The Hearing shall begin on Monday, March 11, 2019 and continue until Thursday, March 14, 2019.
10.
To allow time for the Parties’ submissions, Tribunal questions, and administrative matters, the starting and approximate ending times, coffee and lunch breaks will be as follows:

Day 1:

• The hearing shall start at 9:30 am and end at 5:30 pm, subject to the provisions set forth below. There will be two 15-minute breaks, one in the morning and one in the afternoon. There will be a 75-minute lunch break.

Days 2 and 3:

• The hearing day shall start at 9:30 am and end by 5:30 pm. There will be two 15-minute breaks, one in the morning and one in the afternoon. There will be a 75-minute lunch break.

Day 4:

• The hearing day shall start at 09:30 am and end by 4.30 pm (or later if the day starts with a session for the concurrent examination of the Parties‘ experts). There will be two 15-minute breaks, one in the morning and one in the afternoon. There will be a 75-minute lunch break.

11.
Further logistical details including setup, entry passes, room assignment, internet connection and catering will be provided in due course.

B. HEARING SCHEDULE

Approximate timings are given in order to plan the hearing and calculate the total amount of time (9.25 hours) available to each Party for the presentation of its case.

Day 1 (Monday, March 11, 2019)

i. Administrative matters

ii. Claimant’s Opening Statement: up to 3 hours (morning coffee when convenient)

iii. Lunch break

iv. Respondent’s Opening Statement: up to 3 hours (afternoon coffee when convenient)

Day 2 (Tuesday, March 12, 2019)

i. Mr. Brent C. Kaczmarek (Claimant’s expert)

a) Presentation: up to 45 min. [PO-1 # 20.9.3]

b) Cross: up to 3 hours (estimate)

c) Re-direct: up to 30 min. (estimate)

ii. end of Day 2

Day 3 (Wednesday, March 13, 2019)

i. Dr. Manuel A. Abdala / Mr Julián M. Delamer (Respondent’s experts)

a) Presentation: up to 45 min. [PO-1 # 20.9.3]

b) Cross: up to 3 hours (estimate)

c) Re-direct: up to 30 min. (estimate)

ii. end of Day 3

Day 4 (Thursday, 14 March)

i. [Possible session for one expert from each Party to answer Tribunal questions, followed by a break to allow the Parties to consider the answers given]

ii. Claimant’s Closing Statement: up to 2 hours

iii. Coffee break

iv. Respondent’s Closing Statement: up to 2 hours

v. Tribunal’s questions

vi. End of the Hearing

a) Corrections to transcripts

b) Post-Hearing Briefs

c) Submissions on Costs

C. ALLOCATION OF TIME

12.
In accordance with Procedural Order No. 1, Section 22.5, “[t]he principle of equal time shall be observed with flexibility, subject to adjustments if due process so requires. The Secretary of the Tribunal will keep a chess clock and advise the parties daily of the length of time used, it being understood that a fixed time will be established for opening statements and that the chess clock will count against a party during direct examination and re-direct examination of its own witnesses and experts and cross-examination of the opposing party’s witnesses and experts. The chess clock is stopped during tribunal questions and the answers thereto by witnesses, experts or counsel.”
13.
Taking into account the examination of experts announced by the Parties, and also taking into account the total time reserved for the Hearing, the Tribunal has determined the maximum time periods which the Parties shall have available for their presentations and examination and cross-examination of experts. On the basis of the Calculation of Hearing Time attached to this Order, the total maximum time available to each Party (including the Opening and Closing Statement and the presentation by the experts and the Party’s examinations of experts) shall be as follows:

a. 9.25 hours for the Claimant

b. 9.25 hours for the Respondent

As indicated above, Day 1 shall consist of the Opening Statements of the Parties; Day 2 shall consist of the examination of Claimant’s expert; Day 3 shall consist of the examination of Respondent’s expert; and Day 4 shall be reserved for the possibility of further questions to be put jointly by the Tribunal to one expert from each Party, and for closing statements by the Parties. Within that framework, each Party may decide how to allocate its time between the various elements of its presentation.

D. WITNESS AND EXPERT EXAMINATION

14.
The examination and cross-examination of experts shall be governed by Procedural Order No. 1, Section 20. Where two experts are listed as authors of a Report, they may both appear for examination. One of them shall be designated in advance as the lead expert, and all questions to the experts will be put initially to the lead expert, who may pass all or part of each question to the other expert if that is necessary because it relates to a section written by the other expert: having passed a question on, the lead expert may not add to the answer given by the other expert. The Parties shall indicate by March 1, 2019, which sections of an expert report were written by which co-author.

E. HEARING MATERIALS

15.
Demonstrative exhibits shall be used in accordance with Procedural Order No. 1, Section 17.7.
16.
Subject to that rule, the Parties may use PowerPoint or other slide presentations for their oral statements. The Parties shall submit hard copies to the Tribunal (3 copies), the Tribunal Secretary (1 copy), the opposing party (2 copies), the interpreters (2 copies), and the court reporters (2 copies), prior to the beginning of the statement, followed by the submission of electronic copies later that same day.
17.
The Party presenting the witness or expert for examination is responsible for ensuring that, prior to beginning their testimony, they have before them a copy of their statements or reports (without accompanying exhibits).
18.
The Party cross-examining the witness or expert shall provide a hard-copy binder of documents that it intends to refer to during the cross-examination in the number of copies specified in paragraph 8, followed by the submission of an electronic list of the documents used for the cross-examination of each witness or expert.
19.
The Parties consider, and the Tribunal confirms, that there is no need to submit a core bundle of documents at the hearing. Accordingly, neither Party intends to submit such bundle.
20.
The parties shall courier to the ICSID Secretariat and to each Member of the Tribunal a USB drive containing an electronic copy of the entire case file (including pleadings, witness statements, expert reports, exhibits, legal authorities and Tribunal decisions and orders to date) with a consolidated and the updated hyperlinked index of all documents. This, by Friday, February 22, 2019.

F. PUBLIC ACCESS

21.
In accordance with Procedural Order No. 1, Section 22.7, the hearing shall be “open to the public by way of a live video and audio transmission to a publicly accessible separate viewing room at the Centre’s headquarters in Washington, D.C. To the extent that protected information is referenced at the hearing, the Tribunal shall suspend the transmission to the viewing room. The parties shall give the Tribunal advance notice prior to referencing protected information at the hearing.”

G. CONFIDENTIALITY

22.
In accordance with Procedural Order No. 2, Section 8, there are four confidential exhibits on the record in this proceeding: Exhibits C-1101 (originally C-353), R-1056 (originally C-354), C-1083 (originally C-531/R-128), and C-1081 (originally C-557/R-126). Pursuant to Procedural Order No. 1, Section 22.7, to the extent that either Party references these exhibits and/or information contained therein in their opening or closing statements or elicits testimony that will tend to refer thereto, the Party will first request a temporary suspension of the public hearing.
23.
Each Party is free to request a temporary suspension of the public hearing if it considers in good faith that the foregoing exhibits and/or information contained therein are or are about to be referenced at the hearing.

H. AMENDMENTS

24.
After consultation with the Parties, the Tribunal may amend or change any of the rulings in this Order, if it considers appropriate.

I. OTHER MATTERS

25.
In accordance with Section 24.1 of Procedural Order No. 1, whether the Parties should file post-hearing briefs will be decided by the Tribunal at the close of the hearing, in consultation with the Parties.
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