The Tribunal decided among other things that:
a. Each Party shall have an opportunity for an opening statement in the first hearing of a maximum of four hours.
b. Each Party shall have an opportunity for an opening statement in the second hearing of a maximum of two hours, focused only on the questions that will be heard during the second hearing.
(PO 25, para. 29).
Specifically, Claimants request to be permitted to allocate up to six hours during the first hearing and up to two hours during the second hearing for opening statements.
Claimants also request the Tribunal to clarify that the Parties are not limited as to the subjects of argument that may be made in opening statements during the second hearing.
Specifically, Respondent noted that it agrees to Claimants' request for an opening statement of up to six hours, provided that (i) Respondent commences its opening statement on the morning of the second day of the hearing (i.e., Tuesday 3 December 2019), (ii) the Tribunal also reserves up to six hours for Respondent; and (iii) if either party uses less than the six hours reserved, the saved time can be used for the examination of witnesses.
Further, Respondent noted with respect to the scope of the opening statements of the second hearing that it does not accept Claimants' request to remove all subject matter limitations.
- Claimants' request for reconsideration of PO 25, as it relates to the opening statements of the first and the second hearings (see below Section A);
- Respondent's request concerning the presentation of Prof. Henisz (see below Section B).
Based on the decisions it will take on these issues, it will invite the Parties to indicate the time that they estimate for the examination of the witnesses and the experts (see below Section C).
Further, the Tribunal confirms that, if either Party uses less than the six hours reserved, the remaining time can be used for the examination of witnesses. Indeed, this is in line with the Tribunal's decision in paragraph 19 of PO 25 that “[t]he time shall be allocated equally between the Parties” and that “[i]t shall, nevertheless be managed with flexibility by the Tribunal in order to ensure that no inequality is resulted in the treatment of a Party”. This is also in line with the Tribunal's first consideration in paragraph 28 of PO 25 that “[i]n principle each Party shall be able to use their equally allocated time as they see fit”.
- “Opening statements during the second hearing should be seen as a continuation of opening statements made during the first hearing without limitation as to subject matter or potential overlap of topics.” “There is an overlap and it is unavoidable.”
- “Claimants do not seek an opportunity in the second hearing to summarize the documentary and testimonial evidence presented during the first hearing.”
- “The ability to make additional written submissions, […] is not a substitute for the ability of the Parties' counsel to present oral argument to the Tribunal.”
[A]lthough he presented a witness statement in this arbitration rather than an expert report, Prof. Henisz, who is an expert on social license who studied the social license issues relating to the project contemporaneously, should be examined in a grouping with those who have presented an expert report on social license issues.
Claimants also referred to, among other things, the Tribunal's decision in PO 25 in relation to the grouping of examinations on social license issues and noted that the Hearing schedule must take into account the fact that Prof. Henisz is not available to provide testimony on 4, 5, 6 or 10 December 2019.
2. The opening statements of the second hearing shall in principle be focused on matters to be presented during the second hearing; that said, a Party's freedom to present its case in the manner that it deems appropriate and reasonable is not limited so long as that broad principle is respected.
3. The order of examination of Prof. Henisz is maintained.
4. The Parties shall complete Annex A to the present Procedural order by 18 November 2019.
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