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Procedural Order No. 1 (Resubmission Proceeding)

Introduction

The first session of the Tribunal was held on April 3, 2017, at 10 a.m. (EDT), by telephone conference. The session was adjourned at 11:40 a.m.
An audio recording of the session was made and deposited in the archives of ICSID. The recording was distributed to the Members of the Tribunal and the parties.
Participating in the conference were:

Members of the Tribunal

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

Dr. Stanimir Alexandrov, Arbitrator

Prof. Brigitte Stern, Arbitrator

ICSID Secretariat:

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

Attending / Participating on behalf of the Claimant:

Ms. Andrea J. Menaker, White & Case LLP

Mr. Petr Polášek, White & Case LLP

Ms. Kristen M. Young, White & Case LLP

Ms. Harpreet K. Dhillon, White & Case LLP

Mr. David Nicholson, General Counsel, TECO Energy, Inc.

Mr. Javier Cuebas, Senior Corporate Counsel, TECO Energy, Inc.

Attending / [Participating] on behalf of the Respondent:

Mr. Nigel Blackaby, Freshfields Bruckhaus Deringer US LLP

Mr. Lluís Paradell Trius, Freshfields Bruckhaus Deringer LLP

Mr. Omar Naqib, Freshfields Bruckhaus Deringer LLP

Ms. Francesca Loreto, Freshfields Bruckhaus Deringer LLP

Mr. Alexander Cutz Calderón, Ministerio de Economía, Republic of Guatemala

Mr. Francisco Fernando Vásquez Collado, Ministerio de Economía, Republic of Guatemala

Ms. Ana Luisa Gatica Palacios, Procuraduría General de la Nación, Republic of Guatemala Ms. Lilian Elizabeth Nájera Reyes, Procuraduría General de la Nación, Republic of Guatemala

Mr. Pablo A. Bonilla Hernández, Procuraduría General de la Nación, Republic of Guatemala

The Tribunal and the parties considered the following:

- The Draft Agenda circulated by the Tribunal Secretary on February 22, 2017, as amended by the parties on March 28, 2017.

- The Draft Procedural Order circulated by the Tribunal Secretary on February 22, 2017; and

- The parties’ comments on the Draft Agenda and the Draft Procedural Order received on March 28, 2017, indicating the items on which they agreed and their respective positions regarding the items on which they did not agree.

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

Order

Pursuant to ICSID Arbitration Rules 19 and 20, this first Procedural Order sets out the Procedural Rules that govern this arbitration. The timetable is attached as Annex A.

1. Applicable Arbitration Rules

Convention Article 44; ICSID Arbitration Rule 55(4); DR-CAFTA Article 10.16.5
1.1.
These proceedings are conducted in accordance with the ICSID Arbitration Rules in force as of April 10, 2006, except to the extent modified and/or supplemented by the Dominican Republic-Central America Free Trade Agreement (“DR-CAFTA”), in force for the United States since March 1, 2006, and for Guatemala since July 1, 2006.

2. Constitution of the Tribunal and Tribunal Members’ Declarations

Convention Article 37; Arbitration Rule 6; DR-CAFTA Article 10.19
2.1.
The Tribunal was constituted on February 8, 2017 in accordance with the ICSID Convention, the ICSID Arbitration Rules and the DR-CAFTA. The parties confirmed that the Tribunal was properly constituted and that no party has any objection to the appointment of any Member of the Tribunal.
2.2.
The Members of the Tribunal 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 February 8, 2017.
2.3.
The Members of the Tribunal confirmed that they have sufficient availability during the next 24 months to dedicate to this case.

3. Fees and Expenses of Tribunal Members

Convention Article 60; Administrative and Financial Regulation 14; ICSID Schedule of Fees
3.1.
The fees and expenses of each Tribunal Member 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 (effective July 1, 2016), each Tribunal Member receives:

3.2.1. US$3,000 for each day of meetings or each eight hours of other work performed in connection with the proceedings or pro rata; and

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

3.3.
Each Tribunal Member shall submit his/her claims for fees and expenses to the ICSID Secretariat on a quarterly basis.
3.4.
Non-refundable expenses incurred 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 Tribunal constitutes a quorum for its sittings, (including presence by any appropriate means of communication such as audio or video conference for procedural meetings or decisions when physical presence is not possible). Physical presence will be required for hearings on substance.

5. Decisions and Procedural Rulings of the Tribunal

Convention Article 48(1); Arbitration Rules 16, 19 and 20
5.1.
Decisions of the Tribunal shall be taken by a majority of the Members of the Tribunal.
5.2.
ICSID Arbitration Rule 16(2) applies to decisions taken by correspondence. Rule 16(2) provides that “[e]xcept as otherwise provided by these Rules or decided by the Tribunal, [the Tribunal] may take any decision by correspondence among its members, provided that all of them are consulted. Decisions so taken shall be certified by the President of the Tribunal.” 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 Tribunal.
5.3.
The Tribunal will draft all rulings, including the award, within a reasonable time period. If a ruling has not been issued within three months after the final submission on a particular matter, the Tribunal will provide the parties with status updates as soon as possible after the expiration of the three month period and every three months thereafter.
5.4.
The President is authorized to issue Procedural Orders on behalf of the Tribunal.
5.5.
The Tribunal’s rulings on procedural matters will be communicated to the parties by the Tribunal Secretary in the form of email.

6. Power to Fix Time Limits

Arbitration Rule 26
6.1.
The Tribunal shall fix time limits and any extension thereto in consultation with the parties.
6.2.
As provided at §[5.2], when exigency so requires, the President of the Tribunal may make procedural decisions, such as ruling on requests for extensions of time, on his own, subject to possible reconsideration of such decision by the full Tribunal.

7. Secretary of the Tribunal

Administrative and Financial Regulation 25
7.1.
The Tribunal Secretary is Mrs. Mercedes Cordido-Freytes de Kurowski, Legal Counsel, ICSID, or such other person as ICSID may notify the Tribunal 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:

Mrs. Mercedes Cordido-F. de Kurowski

ICSID

MSN J2-200

1818 H Street, N.W.

Washington, D.C. 20433

USA

Tel.: + 1 (202) 473-3171

Fax: + 1 (202) 522-2615

Email: mkurowski@worldbank.org

Paralegal email: ivaniafernandez1@worldbank.org

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

Mrs. Mercedes Cordido-F. de Kurowski

701 18th Street, N.W. (“J Building”)

2nd Floor

Washington, D.C. 20006

Tel.: + 1 (202) 458-4567

8. Representation of the Parties

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

For Claimant

Andrea J. Menaker

Petr Polášek

Kristen M. Young

White & Case LLP

701 Thirteenth Street, NW

Washington, DC 20005-3807

United States of America

Tel. +1 202 626 3600

Fax +1 202 639 9355

Email: TECOvGuatemala@whitecase.com

David Nicholson

Javier Cuebas

TECO Energy, Inc.

702 North Franklin Street

Tampa, FL 33602-4429

United States of America

Tel. +1 813 228 1111

Fax +1 813 228 1328

Email: jcuebas@tecoenergy.com

For Respondent

Nigel Blackaby

Jean Paul Dechamps

700 Thirteenth Street, NW

Suite 1000

Washington, DC 20005

Tel. + 1 202 777 4500

Fax +1 202 777 4555

Email: nigel.blackaby@freshfields.com

jean-paul.dechamps@freshfields.com

Lluís Paradell Trius

Omar Naqib

Francesca Loreto

Piazza del Popolo, 18

00187, Roma

Italy

Tel: +39 06 533 1

Fax: +39 06 69533 800

Email: lluis.paradell@freshfields.com

omar.naqib@freshfields.com

francesca.loreto@freshfields.com

Mr. Rubén Estuardo Morales Monroy, Ministro de Economía, Ministerio de Economía, Republica de Guatemala

Tel: +502 2412-0200

Email: rmorales@mineco.gob.gt

Ms. Licda. Gladys Annabella Morfin Mansilla

Procuradora General de la Nación, Procuraduría General de la Nación, Republica de Guatemala

15 Av. 9-69, zona 13

Ciudad de Guatemala

Guatemala

Tel: +502 2414-8787

Emails: despacho@pgn.gob.gt;

despachopgn@pgn.gob.gt

9. Apportionment of Costs and Advance Payments to ICSID

Convention Article 61(2); Arbitration Rule 28; DR-CAFTA Article 10.26.1 last sentence; Administrative and Financial Regulation 14
9.1.
The parties shall cover the direct costs of the proceeding in equal parts, without prejudice to the final decision of the Tribunal as to the allocation of costs.
9.2.
By letter of February 8, 2017, ICSID requested that each party pay US$200,000 to cover the initial costs of the proceeding. ICSID confirmed the receipt of Claimant’s payment on March 7, 2017 and the Respondent’s payment on March 23, 2017.
9.3.
ICSID shall request further advances as needed. Such requests shall be accompanied by a detailed interim statement of account.
9.4.
For budgetary reasons, Respondent requests that any advance payment be requested by no later than August of the previous calendar year for which the payment is to be applied.

10. Place of Proceedings

Convention Articles 62 and 63; Arbitration Rule 13(3); DR-CAFTA Article 10.20.1; Administrative and Financial Regulation 26
10.1.
Arbitration proceedings shall be conducted in accordance with Article 62 of the ICSID Convention.
10.2.
Hearing(s) shall be held in Washington, DC. If the parties so agree, the Tribunal may hold hearings at any other place that it considers appropriate.
10.3.
The Tribunal may deliberate at any place it considers convenient.

11. Procedural Language(s), Translation and Interpretation

Arbitration Rules 20(1)(b) and 22; Administrative and Financial Regulation 30(3) and (4)
11.1.
English and Spanish are the procedural languages of the arbitration.
11.2.
Routine, administrative, or procedural correspondence addressed to or sent by the ICSID Secretariat may be in either procedural language.
11.3.
Any written requests and applications from the Parties may be either in English or Spanish, provided that a translation of such document to the other procedural language is filed within three (3) consecutive days thereafter. However, should the Party filing the request or application require immediate reaction from the Tribunal, such request or application should be filed simultaneously in English and Spanish.
11.4.
Pleadings, expert opinions, witness statements, and any other accompanying documentation (subject to §11.5 below) shall be submitted in one procedural language, provided that a translation of such document to the other procedural language is filed within twelve (12) days thereafter.
11.5.
If a factual exhibit or a legal authority is lengthy and relevant only in part, it is sufficient to translate only relevant parts, provided that the Tribunal may require a fuller or a complete translation at the request of any party or on its own initiative.
11.6.
Translations need not be certified unless there is a dispute as to the translation provided and the party disputing the translation specifically requests a certified version.
11.7.
Documents exchanged between the parties under §[16] below (Production of Documents) may be produced in the original language and need not be translated.
11.8.
The hearing will be subject to simultaneous English/Spanish interpretation at all times, including for testimony of witnesses called for examination during the hearing.
11.9.
Each party will notify the Tribunal, as soon as possible, and no later than at the pre-hearing organizational meeting (see §21 below), in which language each witness and expert presented by the respective party will testify.
11.10.
The costs of the interpreter(s) will be paid from the advance payments made by the parties, without prejudice to the decision of the Tribunal as to which party shall ultimately bear those costs.
11.11.
The Tribunal may initially make any order or decision in one procedural language and subsequently issue that order or decision in the other procedural language. Both language versions shall be equally authentic.
11.12.
The Tribunal shall render the Award in English and Spanish simultaneously. Both language versions shall be equally authentic.

12. Routing of Communications

Administrative and Financial Regulation 24; DR-CAFTA Article 10.27 and Annex 10-G
12.1.
The ICSID Secretariat shall be the channel of written communications between the parties and the Tribunal.
12.2.
Each party’s written communications shall be transmitted by email to the opposing party and to the Tribunal Secretary, who shall send them to the Tribunal.
12.3.
Electronic versions of communications ordered by the Tribunal to be filed simultaneously shall be transmitted to the Tribunal Secretary only, who shall send them to the opposing party and the Tribunal after both parties’ communications have been received.
12.4.
The Tribunal Secretary shall not be copied on direct communications between the parties when such communications are not intended to be transmitted to the Tribunal.
12.5.
Where the matter is urgent, the parties may transmit procedural communications directly by email to Tribunal Members, the ICSID Secretariat and the opposing Party.
12.6.
The email addresses of the Members of the Tribunal are:

Prof. Vaughan Lowe VLowe@essexcourt.net

Dr. Stanimir Alexandrov salexandrov@sidley.com

Prof. Brigitte Stern brigitte. stern@jstern.org

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

Arbitration Rules 20(1)(d) and 23; DR-CAFTA Article 10.21.4; Administrative and Financial Regulation 30
13.1.
By the relevant filing date, the parties shall submit by email to the Tribunal Secretary and the opposing party an electronic version of the pleading with witness statements, expert reports and a list of documents including translations as required in §[11] above,1 and within three working days upload the entire submission, including the pleading, the witness statements, expert reports, documents, and legal authorities to the file sharing platform (“BOX” or similar) that will be created by ICSID for purposes of this case.
13.2.
Within three working days following the electronic filing, the parties shall courier to the Tribunal Secretary (along with any translations as required in §[11] above):

13.2.1. one unbound hard copy in A4/Letter format2 of the entire submission, including signed originals of the pleading, witness statements, and expert reports, together with documents (but not including legal authorities);

13.2.2. one hard copy in A5 format of the entire submission including the pleading, the witness statements, expert reports, and documents (but not including legal authorities); and

13.2.3. three USB drives, with full copies of the entire submission, including the pleading, the witness statements, expert reports, documents, and legal authorities.

13.3.
Within three working days following the electronic filing, the parties shall courier to the opposing party at its Washington, DC address indicated at §[8.1] above and to each Member of the Tribunal, in accordance with their preferences indicated at §§[13.3.2 - 13.3.3] and at the addresses indicated at §[13.4] below (together with any translations as required in §[11] above):

13.3.1. [one] hard copy in A5 format of the entire submission including the pleading, the witness statements, expert reports, and documents (but not including legal authorities) for the opposing party;

13.3.2. three USB drives for the opposing party and one USB drive for each Member of the Tribunal with a full copy of the entire submission, including the pleading, the witness statements, expert reports, documents, and legal authorities.

13.3.3. Prof. Lowe would like to receive one hard copy in A5 format of the entire submission including the pleading, the witness statements, expert reports, and documents (but not including legal authorities); Prof. Stern will only require a hard copy in A4 format, single spaced, of the pleading, and the rest (the witness statements, expert reports, documents, and legal authorities) in electronic format; and Dr. Alexandrov would like to receive everything in electronic format only.

13.4.
The addresses of the Tribunal Members are as follows:

Prof. Vaughan Lowe

Essex Court Chambers

24 Lincoln’s Inn Fields

London WC2A 3EG

United Kingdom

Tel: +44(0)20 7813 8000

Dr. Stanimir Alexandrov

Sidley Austin LLP

1501 K Street, NW

Washington, DC 20005 U.S.A.

Tel: +1 202 736 8000

Prof. Brigitte Stern

7 rue Pierre Nicole

75005 Paris

Code : A1672

France

Tel: +33 (0)1 40 46 93 79

13.5.
Legal authorities shall be submitted in electronic format only, unless a hard copy is specifically requested by the Tribunal.
13.6.
Electronic versions of a pleading shall be text searchable (i.e., OCR PDF or Word).
13.7.
Pleadings shall be accompanied by an index hyperlinked to the supporting documentation.
13.8.
The official date of receipt of a pleading or communication shall be the day on which the electronic version is sent to the Tribunal Secretary.
13.9.
A filing shall be deemed timely if sent by a party by midnight, Washington, D.C. time, on the relevant date.
13.10.
The parties shall submit a redacted version of any submissions containing protected information pursuant to DR-CAFTA Article 10.21.4, within one week of filing. The provisions of DR-CAFTA Article 10.21.4 otherwise apply to protected information.
13.11.
The parties may submit for the Tribunal’s consideration a proposed joint confidentiality agreement to apply to this proceeding, within two (2) weeks from the date of the Tribunal’s Procedural Order No. 1.

14. Record of the Original Proceeding and Core Bundle

14.1.
The entire record of the original arbitration between the parties, including the annulment proceeding (the “Original Proceeding”), shall be admitted into the record of this resubmitted proceeding.
14.2.
Pleadings, expert reports, factual exhibits, and any other evidence of arguments concerning the Iberdrola arbitration that were stricken from the record in the Original Proceeding (or the stricken portions thereof, as the case may be), such as those proffered by Respondent in the Original Proceeding under the exhibit numbers R-189, R-191, R-193, R-194, R-195, R-197, R-200, and R-202 (partially excluded), and the references thereto stricken from Respondent’s pleadings and argument in the Original Proceeding, cannot be introduced in this proceeding.
14.3.
The numbering of factual exhibits and legal authorities (i) admitted into the record of the Original Proceeding; and/or (ii) submitted in this proceeding shall be numbered as agreed under §[17.5] below.
14.4.
Claimant shall send to the Secretary of the Tribunal and to each Member of the Tribunal on or before the date for filing the Memorial on the Merits one USB drive, agreed with Respondent, comprising all submissions made in the Original Proceeding (including electronic copies of any witness statements, expert reports, accompanying appendices, exhibits and/or legal authorities, and correspondence to/from the Centre and/or the original tribunal and the ad hoc Committee) with a hyperlinked index; and (ii) the transcripts of any hearing in the Original Proceeding. By the same deadline, Claimant shall further upload a full record of the Original Proceeding to the BOX folder.
14.5.
Additionally, each Party shall send, together with its first submission on the merits, a core bundle of the materials that they consider would most assist the Tribunal in this resubmitted proceeding, as follows: (i) one (1) hard copy in A5 format, and two (2) electronic copies on a USB drive to the Secretary of the Tribunal; (ii) one (1) hard copy in A5 format, and one (1) electronic copy on a USB drive to Prof. Lowe; (iii) one (1) hard copy in A4 format, and one (1) electronic copy on a USB drive to Prof. Stern; and (iv) one (1) electronic copy on a USB drive only to Dr. Alexandrov, at their respective addresses indicated under §[13.4] supra. Respondent’s core bundle may take the form of a supplement to Claimant’s core bundle. This is in addition to any documents from the Original Proceeding that a party may wish to resubmit together with any of its pleadings in the present arbitration proceeding.

15. Number and Sequence of Pleadings

Arbitration Rules 20(1)(c), 20(1)(e), 29 and 31; DR-CAFTA Article 10.20
15.1.
The proceedings shall consist of a written phase followed by an oral phase.
15.2.
The parties agree that there should be two rounds of written submissions (i.e., Memorial, Counter-Memorial, Reply, Rejoinder), filed consecutively.
15.3.
The parties agree that the pleadings in the second round (i.e., Reply and Rejoinder) shall be strictly responsive and limited to rebutting the pleading filed by the other party in the immediately preceding round. This extends to any additional witness testimony, expert evidence, documentary or other evidence, and legal authorities accompanying the pleadings in the second round.
15.4.
The written procedure shall be organized as follows:

15.4.1. Claimant shall submit its Memorial on the Merits on September 1, 2017;

15.4.2. Respondent shall submit its Counter-Memorial on the Merits on February 2, 2018;

15.4.3. Claimant shall submit its Reply on May 25, 2018; and

15.4.4. Respondent shall submit its Rejoinder on September 21, 2018.

15.5.
Submissions by non-disputing State Parties pursuant to DR-CAFTA Article 10.20.2, and applications by amici curiae to make submissions pursuant to DR-CAFTA Article 10.20.3, if any, shall be filed following the Respondent’s Rejoinder and no later than two weeks after Respondent’s Rejoinder (see §[18]). The parties shall be given the opportunity to comment on applications by amici curiae to make submissions in this proceeding, if any, by one week after the amici curiae’s applications. The Tribunal shall render its decision on whether to receive such submissions, if any, by one week after the parties’ comments. Amici curiae submissions, if any, must be received by no later than one week after the tribunal’s decision (see §[18]).
15.6.
In the event of submissions by non-disputing State Parties or amicus curiae submissions, the parties shall be given the opportunity to submit simultaneous comments on such submissions, subject to appropriate page limits to be established by the Tribunal.

16. Production of Documents

Convention Article 43(a); Arbitration Rules 24, 33 and 34
16.1.
Should either party wish to file a request for the Tribunal to decide on production of documents, it may do so. Respondent may file such a request within four weeks of receipt of Claimant’s Memorial, and Claimant may file such a request within four weeks of receipt of Respondent’s Counter-Memorial.
16.2.
The Tribunal may at any time order document production based on a showing of exceptional circumstances.
16.3.
The International Bar Association’s Rules on the Taking of Evidence in International Arbitration may be used as a guide by the Tribunal in assessing requests for and objections to the production of documents.
16.4.
The parties agree to use Redfern/Stern Schedules (Annex B).

17. Submission of Documents

Convention Article 44; Arbitration Rule 24; Administrative and Financial Regulation 30
17.1.
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.
17.2.
The documents shall be submitted in the manner and form set forth in this Procedural Order.
17.3.
Neither party shall be permitted to submit additional or responsive documents after the filing of its respective last written submission, unless the Tribunal determines that exceptional circumstances exist based on a reasoned written request followed by observations from the other party.

17.3.1. Should a party request leave to file additional or responsive documents, that party may not annex the documents that it seeks to file to its request.

17.3.2. If the Tribunal grants such an application for submission of an additional or responsive document, the Tribunal shall ensure that the other party is afforded sufficient opportunity to make its observations concerning such a document.

17.4.
The Tribunal may call upon the parties to produce documents or other evidence in accordance with ICSID Arbitration Rule 34(2).
17.5.
The documents shall be submitted in the following form:

17.5.1. Exhibits shall be numbered consecutively throughout these proceedings. The number of each Exhibit containing a document produced by Claimant shall be preceded by the letter “C-” for factual exhibits, starting with C-1001 and “CL-” for legal exhibits containing authorities, starting with CL-1001 etc. The number for each Exhibit containing a document produced by Respondent shall be preceded by the letter “R-” for factual exhibits, starting with R-1001 and “RL-” for legal exhibits containing authorities, starting with RL-1001 etc.

17.5.2. Each Exhibit shall have a divider with the Exhibit identification number on the tab.

17.5.3. A party may produce several documents relating to the same subject matter within one Exhibit, numbering each page of such Exhibit separately and consecutively.

17.5.4. Exhibits shall also be submitted in PDF format and start with the number “C-1001” and “R-1001,” respectively.

17.5.5. Each pleading shall be accompanied by a list of the exhibits and legal authorities submitted therewith. For any factual exhibits and legal authorities that are part of the record in the Original Proceeding that are resubmitted in the present proceeding, the list should additionally indicate, for the Tribunal’s convenience and by way of reference, their original factual exhibit or legal exhibit number.

17.5.6. Copies of documentary evidence shall be assumed to be authentic unless specifically objected to by a party, in which case the Tribunal will determine whether authentication is necessary.

17.6.
The parties shall file all factual exhibits and legal authorities only once in the present proceeding by attaching them to their pleadings. Documents so filed need not be resubmitted with witness statements or expert reports even if referred to in such statements or reports.
17.7.
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 clearly indicate on each demonstrative exhibit the reference number of the exhibit(s) or legal authorit(ies) from which it is derived. The party submitting such exhibits shall provide them in hard copy to the other party, the Tribunal Members, the Tribunal Secretary, the court reporter(s) and interpreter(s) at the hearing at a time to be decided at the pre-hearing organizational meeting.

18. Non Disputing Party Submissions and Amicus Curiae Submissions

DR-CAFTA Article 10.20.2 and 10.20.3
18.1.
The Non-Disputing DR-CAFTA Parties shall be entitled to make oral and written submissions to the Tribunal within the meaning of Article 10.20.2 of the DR-CAFTA. The parties agree that any written submissions by the Non-Disputing DR-CAFTA Parties will take place following the exchange of written submissions by the parties and prior to the hearing, as set out above at §[15.5], and as reflected in Annex A to this Procedural Order No. 1, with the parties provided with the opportunity to comment on such submissions (see §[15.6]).
18.2.
Pursuant to DR-CAFTA Article 10.20.3, the Tribunal has the authority to accept and consider amicus curiae submissions from a person or entity that is not a disputing party. In deciding whether to accept a request to submit an amicus curiae submission, the Tribunal shall invite and consider the observations of the parties as to the appropriateness and relevance of the submission, within the time limit set out above at §[15.5], and as reflected in Annex A to this Procedural Order No. 1. In the event the Tribunal decides to receive amicus curiae submissions, it shall establish an appropriate page limit for such submissions. The submissions shall be made within the time limit set out above at §[15.5], and as reflected in Annex A to this Procedural Order No. 1, with the parties provided with the opportunity to comment on such submission (see §[15.6]).

19. Witness Statements and Expert Reports

Convention Article 43(a); Arbitration Rule 24; DR-CAFTA Article 10.24
19.1.
Witness statements and expert reports shall be filed together with the parties’ pleadings.
19.2.
Neither party shall be permitted to submit any testimony that has not been filed with the written submissions, unless the Tribunal determines that exceptional circumstances exist based on a reasoned written request followed by observations from the other party (following the procedure outlined in §[17.3]).
19.3.
Each witness statement and expert report shall be signed and dated by the witness.

20. Examination of Witnesses and Experts

Arbitration Rules 35 and 36
20.1.
Unless otherwise stated, the rules below apply to the examination of fact and expert witnesses subject to modifications following the pre-hearing conference.
20.2.
Each party shall be responsible for summoning its own witnesses to the hearing, except where the other party has waived cross-examination of a witness and the Tribunal does not direct his or her appearance.
20.3.
On the date provided in Annex A, each party shall notify the other party, with a copy to the Tribunal, which witnesses or experts of the other party it wishes to cross-examine at the hearing. On the following business day as counted in Washington, DC, each party may designate up to two (2) of its own witnesses or experts, who were not called for cross-examination, to testify.
20.4.
Shortly after the parties’ notification, the Tribunal will indicate to the parties whether it wishes any witnesses or experts who have not been designated to testify to appear at the hearing.
20.5.
The facts contained in the written statement of a witness whose cross-examination has been waived by the other party and who has not been called by the Tribunal to testify shall not be deemed established by the sole fact that no cross-examination has been requested. The Tribunal will assess the weight of the written statement taking into account the entire record and all the relevant circumstances.
20.6.
In exceptional circumstances, the Tribunal may allow a witness to be examined by video-conference.
20.7.
If a witness or expert fails to appear at the hearing without justification, the Tribunal may order the witness statement of such witness or report of such expert to be struck from the record, or may attach such weight as it thinks appropriate in the circumstances to the witness statement or expert report. If a witness’ or expert’s absence is determined to be justified (e.g., health), the Tribunal will assess the weight of the written statement taking into account the entire record and all the relevant circumstances.
20.8.
Subject to other arrangements agreed during the pre-hearing organizational meeting, fact witnesses shall be examined prior to expert witnesses, the Claimant’s witnesses being examined prior to the Respondent’s witnesses.
20.9.
At the hearing, the examination of each witness shall proceed as follows:

20.9.1. Before giving evidence, witnesses shall make the declaration in ICSID Arbitration Rule 35(2), and experts shall make the declaration in ICSID Arbitration Rule 35(3);

20.9.2. The party who has presented the fact witness may briefly examine the witness for purposes of asking introductory questions limited to their professional background, corrections to his/her written statement, and to address matters which have arisen after that witness’s statement was signed (direct examination);

20.9.3. The party who has presented the expert witness may examine the expert for up to 45 minutes, which examination may take the form of a presentation given by the expert;

20.10.
Cross-examination:

20.10.1. Factual witnesses may be cross-examined on the content of his/her witness statement, and on any question directly related to the issues in dispute of which the witness has personal knowledge.

20.10.2. Cross-examination of experts should be limited to the issues contained in their report, with the exception of questions relating to credibility.

20.10.3. The party who has presented the witness or expert may then re-examine the witness or the expert with respect to any matters or issues arising out of the cross-examination;

20.10.4. The Tribunal may examine the witness at any time, either before, during or after examination by one of the parties.

20.10.5. To the extent that it may assist its understanding, following the cross examination by the parties, the Tribunal may order two or more experts to be examined concurrently (expert conferencing). The manner and conduct of such conferencing will be discussed at the pre-hearing organizational meeting referred to in §[21.1].

20.11.
Subject to a different agreement by the parties, a fact witness shall not be present in the hearing room during oral testimony and arguments, or read any transcript of any oral testimony or argument, or view the hearing through video conference facilities prior to his or her examination. This limitation does not apply to expert witnesses, who may be present at all times.

21. Pre-Hearing Organizational Meetings

Arbitration Rule 13
21.1.
A pre-hearing organizational meeting shall be held at a date determined by the Tribunal after consultation with the parties by telephone between the Tribunal, or its President, and the parties in order to resolve any outstanding procedural, administrative, and logistical matters in preparation for the hearing.

22. Hearings

Arbitration Rules 20 and 32, DR-CAFTA Article 10.21.2
22.1.
The oral procedure shall consist of a hearing for examination of witnesses and experts, if any, and for oral arguments.
22.2.
The hearing shall be at the ICSID Headquarters in Washington, D.C., or a place to be determined in accordance with §[10] above.
22.3.
The hearing shall take place as promptly as possible following the Rejoinder submission, on dates to be agreed among the parties and the Tribunal at or soon after the First Session.
22.4.
The Members of the Tribunal shall endeavor to reserve at least one day after the hearing to determine the next steps and to hold deliberations.
22.5.
The 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.
22.6.
The parties shall consult in advance of the hearing in an attempt to agree the procedure for the hearing(s), including the length of opening and closing statements. If the parties fail to agree, the Tribunal shall make such determinations after consultation with the parties during the pre-hearing organizational meeting(s) referred to in [§20] above
22.7.
Pursuant to DR-CAFTA Article 10.21.2, the Tribunal shall conduct hearings 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.
22.8.
The Tribunal shall decide at a later stage in the proceeding whether it is necessary to accommodate oral submissions (if any) by Non-Disputing DR-CAFTA Parties or amici curiae.

23. Records of Hearings and Sessions

Arbitration Rules 13 and 20(1)(g)
23.1.
Sound recordings shall be made of all hearings and sessions. The sound recordings shall be provided to the parties and the Tribunal Members in both procedural languages.
23.2.
Verbatim transcripts in both procedural languages shall be made of any hearing and session other than sessions on procedural issues. Unless otherwise agreed by the parties or ordered by the Tribunal, the verbatim transcripts shall be available in real-time using LiveNote or similar software and electronic transcripts shall be provided to the parties and the Tribunal on a same-day basis.
23.3.
The parties shall agree on any corrections to the transcripts within [thirty] days of the later of the dates of the receipt of the sound recordings and transcripts. The agreed corrections may be entered by the parties in the transcripts (“revised transcripts”). The Tribunal shall decide upon any disagreement between the parties and any correction adopted by the Tribunal shall be entered by the parties in the revised transcripts.

24. Post-Hearing Memorials and Statements of Costs

Convention Article 44; Arbitration Rule 28(2)
24.1.
The need for and form of post-hearing submissions, if any, shall be decided by the Tribunal in consultation with the parties at the close of the hearing.
24.2.
In accordance with Arbitration Rule 28(2), within a time limit to be established by the Tribunal after the closure of the proceeding, each party shall submit to the Tribunal a statement of costs reasonably incurred or borne by it in the proceeding.

25. Award

Convention Article 48; Arbitration Rules 46-48; DR-CAFTA Articles 10.20 and 10.26
25.1.
The award shall be issued in English and Spanish simultaneously.

26. Publication

Convention Article 48(5); Arbitration Rule 48(4); DR-CAFTA Article 10.21; Administrative and Financial Regulation 22
26.1.
In accordance with DR-CAFTA Article 10.21, pleadings and any written submissions, minutes or transcripts of hearings, and orders, decisions and awards of the Tribunal shall be made public by Respondent, subject to redaction of designated protected information.
26.2.
The ICSID Secretariat may publish the award and any order or decision in the present case on its website, subject to redaction of designated protected information.
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