- Claimants incorporated in their 11-page letter an Annex describing rebuttal documents C-2957 to C-2981, such documents totalling 50 pages.
- Respondent submitted two categories of documents to rebut new evidence tendered by Claimants on direct examination: i) a supplemental expert report by Behre Dolbear, authored by Mr. Michael (Mike) McLoughlin and its exhibits BD-24 to BD-30, and ii) the Expert Opinion of Dr. Thomas Brady.
- Claimants commented on the Parties' respective rebuttal submissions and requested the Tribunal to (a) admit Claimants' 50 pages of rebuttal documents and (b) exclude the two new expert reports by the two new expert witnesses Respondent has proffered.
- With its comments, Respondent filed a nine-page Annex commenting on each of Claimants' rebuttal documents. Respondent argued that, with one exception, none of the documents filed by Claimants on 10 April 2020 falls within the scope of admissible evidence. Respondent submitted that allowing these documents into the record would constitute a serious departure form a fundamental rule of procedure within the meaning of Article 52(1)(d) of the ICSID Convention.
1. Claimants' rebuttal documents and Respondent's rebuttal documents filed on 10 April 2020 are inadmissible.
2. The Parties shall resubmit their further rebuttal documents as follows:
(i) The Parties shall simultaneously address the rebuttal issues addressed in the December hearing in general. This can be done by way of arguments and / or documents but not new expert or witness testimony. To the extent that a Party needs to reply to any such argument and / or document, it can do so in the context of the Post-Hearing Briefs following the September hearing. The Parties shall do so by 12 May 2020 and in a maximum of 25 pages.
(ii) The Parties shall consecutively address the rebuttal issues to be discussed in the September Hearing. This can by way of arguments and / or documents, as well as by new expert or witness testimony. The Parties shall follow the format that was implemented for the December hearing documents (see template in Tribunal's letter dated 21 November 2019). Claimants shall do so by 12 May 2020 and in a maximum of 25 pages. Respondent shall do so by 26 May 2020 and in a maximum of 25 pages.
3. Claimants' legal authorities filed with their observations on the EC's submission are admissible.
4. All other requests are rejected.
Claimants, without waiving any objection and reserving all of their rights, requested that the Tribunal “confirm that PO 30 is not intended to, and does not, replace or limit its earlier decisions to allow rebuttal direct testimony, as at the December hearing, for the witnesses and experts scheduled to testify at the upcoming September hearing for whom Claimants already have provided notice” (“Claimants' Request”).
- First, that “the Parties may only submit rebuttal evidence pertaining to the December 2019 hearing if such evidence may still be examined with the relevant witnesses and experts during the September 2020 hearing”.
- Second, that “Respondent is allowed to submit the Behre Dolbear supplemental expert report, and its exhibits, in response to the new rebuttal evidence given by Ms. Lorincz at the December 2019 hearing” (“Respondent's Application for Reconsideration”).
A. Claimants' request for an extension of time
- As decided above, Claimants shall file their answers to the Tribunal's questions in PO 27 by 11 May 2020.
- The Parties shall confer and agree on a joint schedule on all pending steps between now and the hearing in September. They shall do so by 14 May 2020. In the unfortunate case of disagreement, which will necessarily impact the schedule, each Party shall state its proposal by the same date. In such case, the Tribunal will decide and its decision will be final.
B. Procedural Order No. 30
- It is recalled that the entire rebuttal phase was set up in order to mitigate any imbalance caused by the filing of Respondent's Rejoinder. It is indeed an ad hoc procedure which gives ample opportunity and room to both Parties to plead additionally their case. However, the Tribunal feels that there is no good will from either Party behind this difficult process concerning the “rebuttal issues”.
- The Tribunal attempted, again, to ensure that both Parties have adequately pleaded their case in this respect, taking into consideration the fact that the hearing has been bifurcated and the need to go forward. This is why the Tribunal, always in consultation with the Parties, discussed the possibility of “rebuttal documents”, “rebuttal submissions”, “rebuttal evidence” etc. It did so in a one-sided good intended attempt to assist the Parties in this respect.
The Tribunal however finds that the Parties are not amenable to its efforts to address this difficult situation and balance the competing rights in play: i.e., the right to rebut new evidence, the right to plead last and the right to be adequately heard. It therefore strongly invites both Parties to confer and agree on the form and scope of the “rebuttal phase” addressing the December 2019 and the September 2020 issues. The Parties shall do so by 14 May 2020.
- In the unfortunate case of disagreement, which will impact the schedule further, Claimants shall provide their comments to Respondent's Application for Reconsideration of PO 30 (originally due on 7 May 2020) by 14 May 2020. The Tribunal shall then decide and its decision shall be final. In this event, there shall be no further discussion or phases on the “rebuttal issues”.
C. September hearing
- Considering the above, as well as the current difficulties caused by Covid-19, the Parties are strongly invited to confer and agree on the way we shall proceed in relation to the September hearing.
- The Tribunal is amenable to holding the hearing virtually. However, the Parties must confer and discuss the possibility of doing so, taking into consideration the fact that it is a one week-hearing comprising of witness and expert examinations. This can be done also in consultation with the Tribunal Secretary.
- The Parties shall come back with a joint proposal in this respect by 21 May 2020. (emphasis in the original)
“The Parties have conferred and agreed that the Respondent will have an equivalent time to file its responses to the Tribunal's PO27 questions as the Claimants and thus has until 13 July 2020 to do so.
The Parties have also agreed that, in the event that the Tribunal has any follow-up questions on the Parties' submissions regarding the Tribunal's PO27 questions, the timing and modalities of addressing any such questions will be discussed at the September 2020 hearing.
Regarding the rebuttal evidence, the Parties have agreed that the supplemental rebuttal evidence submitted by the Parties on 10 April 2020 will be admitted into the record. They note that no further new evidence is allowed prior to the September hearing, subject to section 16.3 of PO1 which continues to apply.
The Parties agree to follow the same procedure regarding rebuttal evidence as with the December 2019 hearing. Thus, the Claimants will in advance of the hearing say when they will rely on which rebuttal exhibit. Also, pursuant to Section VII.4.iii of PO23, Mr. Jeannes, SRK, and Compass Lexecon may provide rebuttal testimony during the September 2020 hearing on the matters enumerated by the Claimants in their letter dated 11 October 2019. The Respondent's experts shall also be afforded the opportunity to respond to this new evidence during their own direct testimonies.
Finally, although the Respondent reserves the right to submit surrebuttal evidence in case the Claimants produce new evidence at the hearing, the Claimants do not agree to further unilateral submissions. In any event, the Parties agree that the Tribunal should decide following the September hearing whether there should be any further evidentiary submissions from the Parties.”
2. The Tribunal's decision in PO 30, concerning the admissibility of the Parties' rebuttal documents is no longer pertinent and Claimants' request for a confirmation in relation to the Tribunal's decision in PO 30 and Respondent's Application for Reconsideration of PO 30, both dated 29 April 2020, are now moot.
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