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

Procedural Oder No. 1 (Annulment Proceeding)

Introduction

The first session of the ad hoc Committee and the parties and the Hearing on Stay of Enforcement of the Award was held on 29 April 2020, at 7:30 a.m. (EDT), by video conference. The session was adjourned at 1:39 p.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 Committee and the parties on 4 May 2020.
Participating in the session/hearing were:

Members of the ad hoc Committee

Prof. Joongi Kim, President of the ad hoc Committee

Ms. Carita Wallgren-Lindholm, Member of the ad hoc Committee

Judge Bernardo Sepúlveda Amor, Member of the ad hoc Committee

ICSID Secretariat:

Mr. Gonzalo Flores, Secretary of the ad hoc Committee

Ms. Marisa Planells-Valero, ICSID Counsel

Participating on behalf of Tethyan Copper Company Pty ("Claimant"):

NameAffiliationMode ofParticipation
Party Representatives
Mr. William Hayes Tethyan Copper Company Video
Mr. Ramon Jara Tethyan Copper Company Video
Mr. Julian Anderson Antofagasta Minerals Video
Mr. Jonathan Drimmer Barrick Gold Video
Counsel
Mr. Donald Francis Donovan Debevoise & Plimpton LLP Video
Mr. Mark Friedman Debevoise & Plimpton LLP Video
Ms. Natalie Reid Debevoise & Plimpton LLP Video
Ms. Berglind Halldorsdottir Birkland Debevoise & Plimpton LLP Video
Ms. Elizabeth Nielsen Debevoise & Plimpton LLP Video
Mr. Adam Moss Debevoise & Plimpton LLP Video
Ms. Moeun Cha Debevoise & Plimpton LLP Video
Ms. Lisa Wang Lachowicz Debevoise & Plimpton LLP Video
Mr. Feisal Hussain Naqvi Bhandari Naqvi Riaz (BNR) Video

Participating on behalf of the Islamic Republic of Pakistan ("Applicant"):

NameAffiliationMode ofParticipation
Party Representatives
Mr. Mohammad Farogh Naseem Minister of Law and Justice Video
Mr. Khalid Jawed Khan Attorney General for Pakistan Video
Mr. Ahmad Irfan Aslam Head, International Disputes Unit, Office of the Attorney-General for Pakistan Video
Ms. Maleeka Bukhari Parliamentary Secretary for Law & Justice Video
Mr. Someir Siraj Office of the Attorney General for Pakistan Video
Mr. Raja Naeem Sr. Consultant, Ministry of Law and Justice Video
Mr. Sameer Shafiq Office of the Attorney General for Pakistan Video
Ms. Ambreen Abbasi Consultant, Ministry of Law and Justice Video
Mr. Jam Kamal Khan Chief Minister, Government of Balochistan Video
Mr. Fazeel Asghar Chief Secretary, Government of Balochistan Video
Mr. Zafar Bokhari Secretary, Mines and Mineral Development Department, Government of Balochistan Video
Mr. Ahmed Nadeem Law Department, Government of Balochistan Video
Mr. Saif Ali Law Department, Government of Balochistan Video
Mr. Atif Rafique Law Department, Government of Balochistan Video
Counsel
Mr. Ignacio Torterola GST LLP Video
Mr. Diego Brian Gosis GST LLP Video
Mr. Quinn Smith GST LLP Video
Ms. Katherine Sanoja GST LLP Video
Mr. Gary J. Shaw GST LLP Video
Ms. Bethel Kassa GST LLP Video
Mr. Sam Wordsworth, QC Essex Court Chambers Video
Mr. Lucas Bastin Essex Court Chambers Video
Mr. Sean Aughey 11 King’s Bench Walk Video
Mr. Usman Raza Jamil RJT Litigators Video

The Committee and the parties considered the following:

- The Draft Agenda circulated by the Secretary of the Committee on 2 April 2020.

- The Draft Procedural Order circulated by the Secretary of the Committee on 2 April 2020; and

- The parties’ comments on the Draft Agenda and the Draft Procedural Order received on 17 April 2020, indicating the items on which they agreed and their respective positions regarding the items on which they did not agree.

Following the session, the Committee now issues the present Order:

Order

Pursuant to ICSID Arbitration Rules 19, 20 and 53, this first Procedural Order sets out the Procedural Rules that the parties have agreed and that the Committee has determined that shall govern this annulment proceeding. A timetable is attached as Annex A.

1. Applicable Arbitration Rules

Convention Article 44 and Arbitration Rule 53
1.1.
These proceedings are conducted in accordance with the ICSID Arbitration Rules in force as of 10 April 2006. In accordance with Arbitration Rule 53, the Arbitration Rules apply, mutatis mutandis, to annulment proceedings.

2. Constitution of the Committee and the Committee Members’ Declarations

Convention Article 52(3); Arbitration Rules 6 and 52
2.1.
The Committee was constituted on 25 March 2020 in accordance with the ICSID Convention and the ICSID Arbitration Rules. The parties confirmed that the Committee was properly constituted and that no party has any objection to the appointment of any Member of the Committee.
2.2.
The Members of the Committee timely submitted their signed declarations in accordance with ICSID Arbitration Rule 6(2). Copies of these declarations were distributed to the parties by the ICSID Secretariat on 25 March 2020.
2.3.
The Members of the Committee confirmed that they have sufficient availability during the next 24 months to dedicate to this case.

3. Fees and Expenses of the Committee Members

Convention Article 60; Administrative and Financial Regulation 14; ICSID Schedule of Fees
3.1.
The fees and expenses of each Member of the Committee 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 Member of the Committee receives:

(i) USD3,000 for each day of meetings or each eight hours of other work performed in connection with the proceedings or pro rata; and

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

3.3.
Each Member of the Committee shall submit his/her claims for fees and expenses to the ICSID Secretariat on a quarterly basis.
3.4.
Non-refundable expenses incurred by the Members of the Committee 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 Committee constitutes a quorum for its sittings, including by any appropriate means of communication.

5. Rulings of the Committee

Convention Article 48(1); Arbitration Rules 16, 19 and 20
5.1.
All rulings of the Committee; i.e. procedural orders and decisions, shall be taken by a majority of the Members of the Committee.
5.2.
ICSID Arbitration Rule 16(2) applies to decisions taken by correspondence among its members 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 Committee.
5.3.
The Committee will draft all rulings, including its final decision, within a reasonable time period. The Committee will provide the parties with status updates at appropriate intervals.
5.4.
The President is authorized to issue Procedural Orders on behalf of the Committee.
5.5.
Procedural rulings shall be made after the parties have been afforded an adequate opportunity to present their views in relation thereto.
5.6.
The Committee’s rulings on procedural matters may be communicated to the parties by the Secretary of the Committee 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 Committee. 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 Committee.

7. Secretary of the Committee

Administrative and Financial Regulation 25
7.1.
The Secretary of the Committee is Mr. Gonzalo Flores, Deputy Secretary-General of ICSID, or such other person as ICSID may notify the Committee 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:

Mr. Gonzalo Flores

ICSID

MSN C3-300

1818 H Street, N.W.

Washington, D.C. 20433

U.S.A.

Tel.: + 1 (202) 458-1505

Email: gflores@worldbank.org

Paralegal email (Ms. Ivania Fernandez): ifernandez1@worldbank.org

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

Mr. Gonzalo Flores

ICSID

1225 Connecticut Ave. N.W.

(World Bank C Building)

3rd Floor

Washington, D.C. 20036

U.S.A.

Tel. 202-458-1534

8. Representation of the Parties

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

For Tethyan Copper Company Pty

Mr. Donald Francis Donovan

Mr. Mark W. Friedman

Mr. Dietmar W. Prager

Ms. Natalie L. Reid

Mr. Carl Riehl

Ms. Berglind Halldorsdottir Birkland

Ms. Elizabeth Nielsen

Debevoise & Plimpton LLP

919 Third Avenue New York, NY 10022

U.S.A.

dfdonovan@debevoise.com

mwfriedman@debevoise.com

dwprager@debevoise.com nlreid@debevoise.com

criehl@debevoise.com bhbirkla@debevoise.com

enielsen@debevoise.com TCC.ICSID@debevoise.com

Lord Goldsmith QC

Mr. Patrick Taylor

Debevoise & Plimpton LLP

65 Gresham Street

London EC2V 7NQ United Kingdom

United Kingdom

phgoldsmith@debevoise.com ptaylor@debevoise.com

Mr. Feisal Hussain Naqvi Bhandari Naqvi Riaz (BNR)

15 Zafar Ali Road

Gulberg V

Lahore

Pakistan

fhn@bnrlaw.net

For Islamic Republic of Pakistan

Mr. Ahmad Irfan Aslam

Mr. Someir Siraj

Mr. Sameer Shaquif

International Disputes Unit

Office of the Attorney General for Pakistan

Supreme Court Building

Constitution Avenue

Islamabad

Pakistan

ahmad.aslam@agfp.gov.pk

someir.siraj@agfp.gov.pk

sameer.shafiq@agfp.gov.pk

Mr. Ignacio Torterola

Mr. Diego Brian Gosis

Mr. Quinn Smith

Ms. Katherine Sanoja

Mr. Gary J. Shaw

Ms. Bethel Kassa

GST LLP

Watergate Building

2600 Virginia Avenue, NW, Suite 205

Washington, DC 20037

U.S.A.

ignacio.torterola@gstllp.com

diego.gosis@gstllp.com

quinn.smith@gstllp.com

katherine.sanoja@gstllp.com

gary.shaw@gstllp.com

bethel.kassa@gstllp.com

pakistan_tethyancase@gstllp.com

Mr. Sam Wordsworth QC

Mr. Lucas Bastin

Essex Court Chambers

24 Lincoln’s Inn Fields London WC2A 3EG United Kingdom

SWordsworth@essexcourt.net

LBastin@essexcourt.com

Mr. Sean Aughey

11 King’s Bench Walk

London EC4Y 7EQ

United Kingdom

Sean.Aughey@11kbw.com

Mr. Usman Raza Jamil

RJT Litigators

43B Gulberg V

Justice Sardar Iqbal Road

Lahore

Pakistan

usmanrjamil@gmail.com

8.2.
To ensure the integrity of the proceedings, the Committee 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 Committee Member.

9. Apportionment of Costs and Advance Payments to ICSID

Convention Article 61(2); Administrative and Financial Regulation 14; Arbitration Rule 28
9.1.
In accordance with Administrative and Financial Regulation 14(3)(e), the Applicant(s) shall be solely responsible for making the advance payments requested by the ICSID Secretariat to cover the costs of the proceeding. This is without prejudice to the Committee’s final decision as to the allocation of costs.
9.2.
By letter of 26 March 2020, the Centre requested the Applicant to make an advance payment of USD350,000, to cover the initial costs of the proceeding. The Centre received the Applicant’s payment on 21 April 2020.
9.3.
ICSID shall request the Applicant further advances as needed. Such requests shall be accompanied by a detailed interim statement of account. The final financial statement will include a breakdown of each member of the Committee’s fees and expenses.

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 Committee may hold hearings at any other place that it considers appropriate if the parties so agree.
10.3.
The Committee may deliberate at any place it considers convenient and may resort to any means of communication it may deem adequate.

11. Procedural Language, Translation and Interpretation

Administrative and Financial Regulation 30(3) and (4); Arbitration Rule 20(1)(b) and 22
11.1.
English is the procedural language of the annulment proceeding.
11.2.
Documents filed in any other language must be accompanied by a translation into English.
11.3.
If the document is lengthy and relevant only in part, it is sufficient to translate only relevant parts, provided that the Committee may require a fuller or a complete translation at the request of any party or on its own initiative.
11.4.
Translations need not be certified unless there is a dispute as to the content of a translation provided and the party disputing the translation specifically requests a certified version.
11.5.
The testimony of a witness called for examination during the hearing who prefers to give evidence other than in English shall be interpreted simultaneously.
11.6.
The parties will notify the Committee, as soon as possible, and no later than at the pre-hearing organizational meeting (see §17 below), which witnesses or experts require interpretation.
11.7.
The costs of the interpreter(s) will be paid from the advance payments made by the Applicant, without prejudice to the decision of the Committee as to which party shall ultimately bear those costs.

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 Committee.
12.2.
Each party’s written communications shall be transmitted by email or other electronic means to the opposing party and to the Secretary, who shall send them to the Committee.
12.3.
Electronic versions of communications ordered by the Committee to be filed simultaneously shall be transmitted to the Secretary only, who shall send them to the opposing party and the Committee.
12.4.
The Committee Secretary shall not be copied on direct communications between the parties when such communications are not intended to be transmitted to the Committee.
12.5.
The email addresses of the Members of the Committee are:

Joongi Kim

kimjg@yonsei.ac.kr

Carita Wallgren-Lindholm

Carita@lindholmwallgren.com

Bernardo Sepúlveda Amor

bernardo.sepulveda@creel.mx

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

Administrative and Financial Regulation 30; Arbitration Rules 20(1)(d),23 and 53
13.1.
By the relevant filing date, the parties shall:

(i) submit by email to the Secretary and the opposing party an electronic version of the pleading with witness statements, expert reports and an index of all supporting documentation;1 and

(ii) upload the pleading with all the supporting documentation and updated index to the file sharing platform (Box) that was created by ICSID for purposes of this case.

13.2.
Legal authorities shall be submitted in electronic format only, unless a hard copy is specifically requested by the Committee.
13.3.
Electronic versions of pleadings, witness statements, expert reports, and legal authorities shall be text searchable (i.e., OCR PDF or Word). The electronic versions of pleadings, reports (if any), and witness statements (if any) should include bookmarks for headings and subheadings and a table of contents. All electronic files (particularly charts, tables, and pictures, etc.) should be appropriately rotated so they can be read horizontally on a computer screen. The file names for all written statements, including exhibits, should (i) be in the same order and format throughout the proceedings, (ii) be dated, (iii) identify if they are from Applicant or Claimant, and (iv) include a short description of the contents (e.g., "2020 3 01 A Memorial", or "2020 12 01 C Rejoinder").
13.4.
All pleadings shall be accompanied by a cumulative index hyperlinked to all the supporting documentation that the party has submitted up to the date of the pleading. The index shall indicate the document number and the pleading with which it was submitted.
13.5.
At the conclusion of the written phase of the proceeding, on a date to be determined by the Committee, or at any other time the Committee or the Secretariat so requests, the parties shall courier to the ICSID Secretariat and each Member of the Committee a USB drive containing an electronic copy of the entire case file (including pleadings, witness statements, expert reports, exhibits, legal authorities and Committee decisions and orders to date) with a consolidated hyperlinked index of all documents.
13.6.
The official date of receipt of a pleading or communication shall be the day on which the electronic version is sent to the Secretary by email.
13.7.
A filing shall be deemed timely if sent by a party by midnight, Washington, D.C. time, on the relevant date.
13.8.
The addresses of the Committee Members are as follows:

Professor Joongi Kim

Yonsei Law School

50 Yonseiro, Seodaemun-gu

Seoul, 03722

Republic of Korea

Judge Bernardo SepúlvedaAmor

Campos Elíseos No. 67 – 801

Polanco

CP – 11580

Mexico City, Mexico

Ms. Carita Wallgren-Lindholm

Lindholm Wallgren, Attorneys Ltd.

Bulevardi 17 A 38

FI-00120 Helsinki

Finland

14. Number and Sequence of Pleadings

Arbitration Rules 20(1)(c), 29, 31 and 53
14.1.
See Timetable attached as Annex A.

15. Evidence: Supporting Documentation

Convention Article 44; Administrative and Financial Regulation 30; Arbitration Rule 24
15.1.
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.
15.2.
Given the nature of an annulment proceeding, the Committee expects that the parties will primarily refer to the evidentiary record of the arbitration proceeding.
15.3.
In principle, no new evidence shall be admitted in this proceeding. Should either party wish to introduce new documents or other evidence (other than legal authorities) – including factual evidence, witness statements, or expert reports – that party shall file a request seeking leave from the Committee to that effect that includes an explanation of the reasons for the admissibility and relevance of such evidence, having regard to the nature and purpose of annulment proceedings under the ICSID Convention. A party may not annex the evidence it seeks to file to its request. The other party will be provided with an opportunity to respond to such a request.
15.4.
Exhibits and legal authorities already included in the evidentiary record of the arbitration proceeding shall be labelled and referred to using the same numbering as in the arbitration proceeding. Any documents introduced as exhibits in this annulment proceeding shall be numbered using the following prefixes: "REA-" for Pakistan’s factual exhibits, "RAA-" for Pakistan’s legal authorities, "CEA-" for TCCA’s factual exhibits, and "CAA-" for TCCA’s legal authorities.
15.5.
For electronic copies, the exhibit number shall both be in the name of the file and appear on the first page of the PDF copy of the exhibit.
15.6.
Each party shall number paragraphs of each of its written pleadings
15.7.
Duly certified copies of documents are not required unless the authenticity of the copy is contested and the Committee deems the certification necessary.
15.8.
The parties shall include all of the evidence on which they intend to rely, including documents, legal authorities, written witness statements, expert opinions or reports, and other evidence in whatever form, with their written submissions.
15.9.
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 electronic form to the other party, the Committee Members, the Secretary, the court reporter(s) and interpreter(s) at the hearing.

16. Examination of Witnesses and Experts

Arbitration Rules 35, 36
16.1.
Examination of witnesses and experts (if any) will be decided in consultation with the Committee.

17. Pre-Hearing Organizational Meetings

Arbitration Rule 13
17.1.
A pre-hearing organizational meeting shall be held at a date determined by the Committee after consultation with the parties, by any appropriate means between the Committee, or its President, and the parties in order to resolve any outstanding procedural, administrative, and logistical matters in preparation for the Hearing on Annulment.

18. Hearings

Arbitration Rules 20(1)(e), 32 and 53
18.1.
The oral procedure shall consist of oral arguments.
18.2.
Hearings shall be held at a place to be determined in accordance with §10 above or by videoconference if deemed necessary.
18.3.
The Hearing on Annulment shall take place on 26–28 May 2021 (29 May 2021 reserved).
18.4.
The Members of the Committee shall endeavor to reserve at least one day after the hearing to determine the next steps and to hold deliberations.
18.5.
The hearing time shall be in principle allocated equally between the parties on a chess clock system. The specific time allocation will be determined by the Committee in consultation with the parties at the time of the Pre-Hearing Organizational Meeting.
18.6.
All hearings, meetings, and conferences shall be closed to the public.
18.7.
There shall be no hard copy bundles at the hearing. Instead, the parties will prepare a joint electronic hearing bundle, which will contain all pleadings, witness statements, exhibits, and legal authorities, with a unified hyperlinked index.

19. Records of Hearings and Sessions

Arbitration Rules 13 20(1)(g) and 53
19.1.
Sound recordings shall be made of all hearings and sessions. The sound recordings shall be provided to the parties and the Committee Members.
19.2.
Verbatim transcript(s) shall be made of any hearing and session other than sessions on procedural issues. Unless otherwise agreed by the parties or ordered by the Committee, the verbatim transcripts shall be available in real-time and electronic transcripts shall be provided to the parties and the Committee on a same-day basis.
19.3.
The parties shall agree on any corrections to the transcripts within 10 business days of the later of the dates of the receipt of the sound recordings and transcripts. The agreed corrections may be entered by the court reporter in the transcripts ("revised transcripts"). The Committee shall decide upon any disagreement between the parties and any correction adopted by the Committee shall be entered by the court reporter in the revised transcripts.

20. Post-Hearing Memorials and Statements of Costs

Convention Article 44; Arbitration Rule 28(2)
20.1.
The parties and the Committee will discuss prior to or at the Hearing on Annulment whether it would be preferable to have post-hearing memorials in lieu of or in addition to oral closing arguments.
20.2.
In consultation with the parties, the Committee shall determine the page limits and format for such post-hearing memorials and may provide a non-exhaustive list of issues to be covered in post-hearing memorials.
20.3.
The Committee shall inform the parties when it considers the proceedings to be closed. It shall at that time request the parties to submit statements of costs in accordance with ICSID Arbitration Rule 28(2), without prejudice to submission of interim statements of costs before the closure of the proceedings if so ordered or agreed.

21. Publication

Convention Article 48(5), Administrative and Financial Regulation 22, Arbitration Rule 48 (4) and 53
21.1.
The ICSID Secretariat will publish the decision on annulment and any order or decision in the present case where both parties consent to publication. Otherwise, ICSID will publish excerpts of the decision on annulment pursuant to Arbitration Rule 48(4) and include bibliographic references to rulings made public by other sources on ICSID’s website and in its publications.

22. Confidentiality

The protections ordered by the Tribunal in Procedural Orders Nos. 7, 8, and 13 in the underlying arbitration continue to apply. Thus, any disclosure of "Protected Information" as defined in those Orders is limited to the individuals identified in the Orders and is subject to the conditions outlined in those Orders, including the obligation to provide express undertakings to the ICSID Secretariat.
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