- Category 1: documents which would show that the evidence on which Guatemala relies to question Dr. Alexandrov's independence and impartiality was publicly available long before Guatemala filed its Annulment Application. These are 32 international arbitration press articles and hearing transcripts, Costa Rica's pleadings and the expert report of Mr. Brent Kaczmarek in the case Aaron C. Berkowitz & Ors. (formerly Spence Int'l Investments & Others) v. Republic of Costa Rica, ICSID Case No. UNCT/13/2.
- Category 2: documents which would serve to rebut Guatemala's allegations concerning the relationship between Dr. Alexandrov and Mr. Kaczmarek. The evidence consists of three publicly available documents from investment arbitration cases and two resolutions of the Ministry of Foreign Trade of Costa Rica that serve to prove that the arbitrator and the expert were engaged by opposing parties and that Mr. Kaczmarek was also directly engaged by the disputing party in some other cases (as opposed to engaged by the counsel representing the disputing party).
- Category 3: documents with information on counsel and expert appointments in investment arbitration cases, namely, three publicly available studies related to investment arbitration and a recent biography of Mr. Kaczmarek, also publicly available.
- Category 4: documents to rebut Guatemala's allegation of a special relationship between the arbitrator's and expert's former firms, Sidley Austin LLP and Navigant Consulting Inc. These consist of three documents: Navigant annual reports, information about Sidley's size as a law firm over the relevant period of time and docket information from the cases that Guatemala has relied on.
- Category 5: documents regarding the disqualification applications of Dr. Alexandrov in other cases, on which Guatemala has relied to make its arguments. These are six international arbitration press articles.
- Category 6: relevant information from the ICSID website, in the form of procedural details of some of the cases relied upon by Guatemala, the table listing the outcomes in ICSID disqualification decisions and the announcement of Dr. Alexandrov's designation to the ICSID panel of arbitrators.
- Category 1: Guatemala argues that these documents – purportedly verifying that the evidence on which Guatemala relies to contest Dr. Alexandrov's independence and impartiality was publicly available – are irrelevant for the issues to be adjudicated by the Committee3.
The committee in Eiser v. Spain annulled the award due to the improper constitution of the tribunal despite the availability of the information to the public. The relevant issue in this case is that Dr. Alexandrov failed to disclose the information about his relationship with Mr. Kaczmarek and thus, Guatemala had no basis to seek his disqualification4.
- Category 2: the documents that would show that Dr. Alexandrov and Mr. Kaczmarek were engaged by opposing parties, or that the expert was directly engaged by Costa Rica in other cases are also irrelevant. This does not take away from the fact that Dr. Alexandrov and Mr. Kaczmarek had a long-standing relationship, including two arbitrations running in parallel to the underlying arbitration of this case5.
- Category 4: the documents regarding the volume of cases and workload of Sidley Austin LLP and Navigant Consulting Inc. are also irrelevant because they do not excuse Dr. Alexandrov from his duty to disclose his relationship with Mr. Kaczmarek6.
- Category 5: similarly, the documents concerning the outcomes of the disqualification proceedings against Dr. Alexandrov have no bearing in this case, because the relevant issue is whether, in the underling arbitration of this annulment proceeding, Dr. Alexandrov made a proper disclosure of his relationship with the expert7.
- Category 7: the information regarding the U.S. enforcement proceedings relates to events that occurred after the Resubmission Proceeding and has no relation to Guatemala's allegation regarding Dr. Alexandrov's lack of independence and impartiality or any other of the issues the Committee is called upon to adjudicate8.
- Categories 3 and 6: Guatemala says that TECO has failed to explain why it seeks to introduce any of the following documents: counsel and expert appearances in investor-State arbitration cases, information from the ICSID website on the procedural details of certain cases, the table listing the outcomes in ICSID disqualification decisions and the announcement of Dr. Alexandrov's designation to the ICSID panel of arbitrators. Since TECO has failed to justify the reason why they are being presented, these documents lack prima facie relevance9.
"16.4. Given the nature of an annulment proceeding, the Committee expects that the Parties will primarily refer to the evidentiary record of the arbitration proceeding and it does not expect to receive new witness statements or expert reports.
16.5. 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 to the Committee to that effect. A Party may not annex the evidence it seeks to file to its request. The Committee will promptly decide on the admissibility of these new documents and/or evidence, after hearing from the other Party".
- First, the Committee must assess whether the new evidence is prima facie relevant to the adjudication of the case (B.); and
- Second, the Committee must determine whether given the present circumstances, the admissibility of the new evidence is warranted (C.).
"the most relevant facts supporting such grounds can be summarized in the facts that, during more than four years that the Resubmission Proceedings lasted […]
(i) Dr. Alexandrov failed to disclose at least seven (7) cases in which he was working in parallel, or had worked in the recent past, directly with Mr. Kaczmarek […]
(ii) Dr. Alexandrov also failed to disclose the nearly twenty-year professional attorney-client relationship that the firm to which he belonged for much of the pendency of the Resubmission Proceedings, Sidley Austin, had with Navigant [Mr. Kaczmarek's former firm] […]
(iii) […] the non-disclosure of similar relationships had already caused Dr. Alexandrov at least three challenges in parallel international arbitrations […]" [Emphasis by the Committee]
|Category (i) – Evidence that directly rebuts the new arguments made and evidence submitted by Guatemala in its Memorial (Third Annulment) in support of its allegation that Dr. Stanimir Alexandrov lacked independence and impartiality, warranting an annulment of the Resubmission Award, by showing that the new "facts" on which Guatemala relies were publicly available and, therefore, known or knowable by Guatemala long before it filed its Application for Annulment.|
|1.||Luke Eric Peterson, Analysis: Umbrella Clause And Fair And Equitable Treatment Claims Founder in Unglaube v. Costa Rica Eco-Tourism Case Due to Inability to Show That State Had Made Key Promises, IA Reporter 9 July 2012.|
|2.||Luke Eric Peterson, Analysis: Tribunal in Costa Rica Case Rejects Investors' Reading of Non- Discrimination Obligation, Affirms That Adequate Legal Remedies Are Part of Fair And Equitable Treatment, IA Reporter 9 July 2012.|
|3.||Luke Eric Peterson, Damages Analysis: Arbitrators in Costa Rica Case Wrestle With How To Compensate An Unlawful Expropriation When Treaty Is Silent, IA Reporter 9 July 2012.|
|4.||Luke Eric Peterson, In Split Decision, Majority Finds No Fault with Peru's Treatment of Struggling Bank; Comparison of Claimant to Larger Rivals Are Not Appropriate, IA Reporter 5 Mar. 2014.|
|5.||Luke Eric Peterson, Jurisdiction Upheld In Peru Bank Failure Case Even Though Claimant Made No Investments, And Acquired Her Shares (For Free) Years After Bank Closure, IA Reporter 5 Mar. 2014.|
|6.||Luke Eric Peterson, Majority in Peru Banking Crisis Case Says That Savvy Investor Should Have Known Of the Strengths And Weaknesses of Peruivian Institutions, IA Reporter 5 Mar. 2014.|
|7.||Peru defeats banking claim at ICSID, Global Arbitration Review ("GAR") 4 Mar. 2014.|
|8.||Claimant seeks to annul award over Peruvian bank, GAR 27 May 2014.|
|9.||Richard Woolley, Books balanced in Peruvian banking case, GAR 9 Oct. 2014.|
|10.||Lacey Yong, Panama faces ICSID claim over ecotourism resort, GAR 23 Apr. 2015.|
|11.||Benjamin Button-Stephens, Costa Rica narrows claim over turtle sanctuary, GAR 27 Oct. 2016.|
|12.||Douglas Thomson, Costa Rica wins at ICSID and defends DR-CAFTA award, GAR 26 Jan. 2017.|
|13.||Baker Botts and Sidley pick up Costa Rica cases, GAR 26 July 2013.|
|14.||Aaron C. Berkowitz & Ors. (formerly Spence Int'l Investments & Others) v. Republic of Costa Rica, ICSID Case No. UNCT/13/2, Hearing transcripts, Costa Rica's pleadings, and expert report of Mr. Brent Kaczmarek.|
|15.||Peru claim dismissed for abuse of process, GAR 20 Jan. 2015.|
|16.||Clovis Trevino, Arbitrators Toss Out ICSID Claim Against Peru Due to Abusive Restructuring of Investment, IA Reporter 18 Jan. 2015.|
|17.||Luke Eric Peterson, The Philip Morris v. Uruguay Award on the Merits: Part One of Our Three Part Analysis, Focusing on the Expropriation Claim, IA Reporter 10 July 2016.|
|18.||Tom Jones and Sebastian Perry, Uruguay defeats Philip Morris claim, GAR 11 July 2016.|
|19.||Douglas Thomson, UPDATED: Two Lat Am awards revisited at ICSID, GAR 17 Aug. 2016.|
|20.||Uruguay won't cave in on tobacco laws, GAR 7 Oct. 2010.|
|21.||Luke Eric Peterson, Uruguay Hires Law Firm and Secures Outside Funding to Defend Against Philip Morris Claim; Not the First Time An NGO Offers Financial Support For Arbitration Costs, IA Reporter 20 Oct. 2010.|
|22.||Tribunal chosen in Uruguay tobacco dispute, GAR 21 Mar. 2011.|
|23.||Personnel Picked For Several ICSID Annulment Committees; Philip Morris v. Australia Case Leads To Resignation Of A Pair Of Arbitrators, IA Reporter 21 Dec. 2012.|
|24.||Arbitrators Selected to Hear Billion-Dollar Treaty Claim By Vattenfall Arising Out of Germany's Phase-Out of Nuclear Power Generation, IA Reporter 2 Jan. 2013.|
|25.||Douglas Thomson, Uruguay fails to stub out Philip Morris claim, GAR 5 July 2013.|
|26.||Michail Dekastros, Analysis: Uruguay Fails to Persuade Arbitrators That Investment Treaty Does Not Protect Philip Morris's Investments, IA Reporter 17 July 2013.|
|27.||Richard Woolley, World Health Organisation weighs in on tobacco case, GAR 27 Feb. 2015.|
|28.||Luke Eric Peterson, The Philip Morris v. Uruguay Award On the Merits: Part One of Our Three Part Analysis, Focusing on the Expropriation Claim, IA Reporter 10 July 2016.|
|29.||Tom Jones & Sebastian Perry, Uruguay defeats Philip Morris claim, GAR 11 July 2016.|
|30.||Who is sitting at ICSID? GAR 19 Aug. 2016.|
|31.||Alison Ross and Douglas Thomson, Eventful times: GAR Live BITS, Washington, DC 27 April, GAR 15 June 2015.|
|32.||Lisa Bohmer & Vladislav Djanic, Peru Defeats BIT Claim By Spanish Investor, IA Reporter 8 Mar. 2020.|
|33.||Tom Jones, Peru defeats claim over vehicle inspection deal, GAR 9 Mar. 2020.|
|Category (ii) – Evidence rebutting Guatemala's allegations of a special relationship between Dr. Alexandrov and Mr. Kaczmarek, including in the form of cases in which they were engaged by opposing parties and publicly-available evidence showing that Mr. Kaczmarek was engaged directly by the party for some cases.|
|1.||LSF-KEB Holdings SCA et al. v. Republic of Korea, ICSID Case No. ARB/12/37, parties' pleadings.|
|2.||Gramercy Funds Management LLC, and Gramercy Peru Holdings LLC v. The Republic of Peru, ICSID Case No. UNCT/18/2.|
|3.||Convial Callao S.A. and CCI - Compañía de Concesiones de Infraestructura S.A. v. Republic of Peru, ICSID Case No. ARB/10/2.|
|4.||Order of the Ministry of Foreign Trade, Costa Rica dated 9 June 2010 with the reference "Direct Contracting 2010CD-001799-79600 Recruitment of Professional Services for the Issue of a Damage Report to provide evidence in the International Arbitration Process Marion Unglaube v. Republic of Costa Rica (ICSID Case No. ARB/08/1); and Reinhard Hans Unglaube v. Republic of Costa Rica (ICSID Case No. ARB/09/20), consolidated case."|
|5.||(a) Final Resolution No. DM-00308-14, awarding contract no. 2014CD-000030-79600 (regarding professional services for the preparation of a report on damages to be used as evidence in international arbitration process Spence & Berkowitz v. Republic of Costa Rica) to Navigant Consulting, dated 19 June 2014, and (b) contract PI-COT-CAI-001-2014 executed between the Ministry of Foreign Trade, Costa Rica and Navigant Consulting, pursuant to the resolution.|
|Category (iii) – Relevant information regarding counsel and expert appearances in investor-State arbitration cases|
|1.||Credibility International, Study of Damages Awards in Investor-State Cases, Jan. 2021.|
|2.||UNCTAD Note, Investor-State Dispute Settlement Cases: Facts And Figures 2020, Sept. 2021.|
|3.||GAR 100 Expert Witness Power Index – and other tables, GAR 28 Apr. 2020.|
|4.||A recent biography of Mr. Brent Kaczmarek specifying the number of investor-State arbitration cases in which he has appeared as an expert (https://delosdr.org/my-events/conversation-special-on-quantum-experts/).|
|Category (iv) – Evidence rebutting Guatemala's allegations of a special relationship between Dr. Alexandrov's former law firm, Sidley Austin LLP ("Sidley"), and Mr. Kaczmarek's former firm, Navigant Consulting Inc. ("Navigant"), in the form of Navigant annual reports, information about Sidley's size as a law firm over the relevant period of time, and docket information from the cases that Guatemala relies upon|
|1.||Navigant Annual Reports 2010-2018.|
|2.||Stearns, et al. v. Navigant Consulting Inc., et al. 1: 99-CV-07617 (N.D. Ill. Nov 23, 1999) Court Docket and Denari v. Genesis Insurance Co., No. 01 C 2015 (N.D. Ill. 12 Dec. 2003).|
|3.||Sidley Austin's profile available at https://www.law.com/law-firm- profile/?id=274&name=Sidley-Austin&slreturn=20210915084438.|
|Cat case indi||egory (v) – Evidence about the outcome of disqualification applications made in other s, where Guatemala relies on the fact of the challenges against Dr. Alexandrov, without cating the outcome of such challenges|
|1.||Luke Eric Peterson, Spain follows up on its annulment strategy by filing a request to disqualify arbitrator, IA Reporter 18 Sept. 2017.|
|2.||Luke Eric Peterson, Pakistan's Effort to Disqualify Stanimir Alexandrov in Tethyan Copper Case Proves Unsuccessful, IA Reporter 7 Sept. 2017.|
|3.||Alexandrov survives Pakistan's challenge over "rare" damages model, GAR 8 Sept. 2017.|
|4.||Pakistan challenges entire tribunal over Alexandrov expert ties, GAR 29 Nov. 2017.|
|5.||Luke Eric Peterson, An Update on Arbitrator Challenges, Resignations, and Un-Resignations, IA Reporter 6 Feb. 2018.|
|6.||Lacey Yong, Three ICSID arbitrators survive challenge by Pakistan, GAR 8 Feb. 2018.|
|Category (vi) – Relevant information from the ICSID website, in the form of procedural details for some of the cases relied upon by Guatemala, the table listing the outcomes in ICSID disqualification decisions, and the announcement of Dr. Alexandrov's designation to the ICSID panel of arbitrators|
|1.||Aaron C. Berkowitz & Ors. (formerly Spence International Investments & Ors.) v. Republic of Costa Rica, ICSID Case No. UNCT/13/2, case details, available at:|
|2.||ICSID Decisions on Disqualification,available at: https://icsid.worldbank.org/cases/content/tables-of-decisions/disqualification.|
|3.||New Chairman's Designations to the ICSID Panels, ICSID News Release, dated 15 Sept. 2017.|
|Category (vii) – Documents concerning the U.S. enforcement proceeding relating to the unannulled portion of the Original Award, to which Guatemala was a party, in order to provide the Committee with the full context and procedural history of the dispute between the Parties|
|1.||Jessica Gramajo, US $ 15 million frozen in the US from the State of Guatemala, Soy 502 6 Nov. 2020.|
|2.||Urías Gamarro, Fitch downgrades Eurobond due to default risk and warns about the country's note, La Prensa Libre 18 Nov. 2020.|
|3.||Emmanual Louis Bacani, S&P puts Guatemala on CreditWatch negative due to bond payment dispute, S&P Global Market Intelligence 23 Nov. 2020.|
|4.||Oliver West, Guatemala hopes to end default dispute 'within two days,' GlobalCapital 18 Nov. 2020.|
|5.||Urías Gamarro And Rosa María Bolaños, Teco Energy Lawsuit: Guatemala's Path to Thaw US $ 15.75 Million at a New York Bank, La Prensa Libre 6 Nov. 2020.|
|6.||Urías Gamarro, US$37 millones pagó de golpe Guatemala a generador Teco Energy, La Prensa Libre 25 Nov. 2020.|
|7.||Oliver West, Guatemala pays US court award to dodge default, GlobalCapital 26 Nov. 2020.|
|8.||Ministry of Finance, Press Release No. 204, 24 Nov. 2020.|
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