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Procedural Order No. 1 (Annulment Proceeding)

Introduction

The first session of the ad hoc Committee (the "Committee") was held on July 22, 2019, at the World Bank Paris Conference Centre. The session was commenced at 8:58 AM and adjourned at 9:29 AM. The Hearing on the Arab Republic of Egypt’s application for continuation of the stay of enforcement of the Award was held on the same date immediately after the first session and was adjourned at 5:08 PM.
An audio recording of the first session was made and deposited in the archives of ICSID. The recording was distributed to the Members of the Committee and the parties.
The meeting was attended by:

Members of the ad hoc Committee

Mr. Andrés Jana Linetzky, President of the ad hoc Committee

Judge Bernardo Sepúlveda Amor, Member of the ad hoc Committee

Dr. Inka Hanefeld, Member of the ad hoc Committee

ICSID Secretariat:

Ms. Milanka Kostadinova, Secretary of the ad hoc Committee

Participating on behalf of Unión Fenosa Gas S.A.:

Mr. R. Doak Bishop, King & Spalding LLP (Houston)

Mr. James Castelo, King & Spalding LLP (Paris)

Ms. Sara S. Burns, King & Spalding LLP (Atlanta)

Mr. Aloysius Llamzon, King & Spalding LLP (Washington, D.C. and New York)

Mr. Rami Chahine, King & Spalding International LLP (Paris)

and

Mr. Mr Cesar Olano, Unión Fenosa Gas S.A.

Mr. Ignacio de la Peña, Unión Fenosa Gas S.A.

Mr. José de Lara, Unión Fenosa Gas S.A.

Participating on behalf of the Arab Republic of Egypt:

Counsellor Mohamed Khalaf, The Egyptian State Lawsuits Authority

Counsellor Yousria El Gamal, The Egyptian State Lawsuits Authority

Counsellor Nada Elzahar, The Egyptian State Lawsuits Authority

Dr. Claudia Annacker, Cleary Gottlieb Steen & Hamilton LLP (Paris)

Ms. Ariella Rosenberg, Cleary Gottlieb Steen & Hamilton LLP (Paris)

Ms. Laurie Achtouk-Spivak, Cleary Gottlieb Steen & Hamilton LLP (Paris)

Mr. Larry C. Work-Dembowski, Cleary Gottlieb Steen & Hamilton LLP (Paris)

Mr. Pablo Mateos Rodríguez, Cleary Gottlieb Steen & Hamilton LLP (Paris)

Ms. Zeïneb Bouraoui, Cleary Gottlieb Steen & Hamilton LLP (Paris)

Ms. Anastasia Poorhassan, Cleary Gottlieb Steen & Hamilton LLP (Paris)

Mr. Robert Garden, Cleary Gottlieb Steen & Hamilton LLP (Paris)

The Committee and the parties considered the following:

- The Draft Agenda circulated by the Secretary of the Committee on June 17, 2019;

- The Draft Procedural Order circulated by the Secretary of the Committee on June 17, 2019; and

- The parties’ comments on the Draft Agenda and the Draft Procedural Order received on July 10, 2019, 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 the Committee has determined that shall govern this annulment proceeding. The 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 April 10, 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 April 22, 2019 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 April 22, 2019.
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:

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 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.
Decisions of the Committee 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 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. If a ruling has not been issued within three months after the final submission on a particular matter, the Committee will provide the parties with status updates every three months.
5.4.
The President is authorized to issue Procedural Orders on behalf of the Committee.
5.5.
Procedural ruling 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 Ms. Milanka Kostadinova, Senior Legal Adviser, 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:

Ms. Milanka Kostadinova

ICSID

MSN C3-300

1818 H Street, N.W.

Washington, D.C. 20433

USA

Tel.: + 1 (202) 458-1746

Fax: + 1 (202) 522-2615

Email: mkostadinova@worldbank.org

Paralegal email: cpommier@worldbank.org

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

Ms. Milanka Kostadinova

1225 Connecticut Ave., N.W.

("World Bank C Building")

3rd Floor

Washington, D.C. 20036

Tel.: + 1 (202) 458-1746

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 Arab Republic of Egypt (Applicant)

Egyptian State Lawsuits Authority

International Law Division

Counsellor Mohamed Khalaf

Counsellor Amr Arafa Hassan

Counsellor Fatma Khalifa

Counsellor Lela Kassem

Counsellor Ahmed Sayed

Counsellor Yousria El Gamal

Counsellor Nada Elzahar

Counsellor Radwa Helmy

Counsellor Ebtehal Ahmed

Egyptian State Lawsuits Authority (ESLA)

42 Gameat El Dowal El Arabiya St.

Mohandeseen, Giza, Cairo

P.O. Box: 12311

Egypt

Phone: + 20 23 762 1357

Fax: + 20 23 762 1351

Emails:

mkhalaf@sla.gov.eg

aarafa@sla.gov.eg

fkhalifa@sla.gov.eg

lkassem@sla.gov.eg

asayed@sla.gov.eg

yelgamal@sla.gov.eg

nelzahar@sla.gov.eg

rhelmy@sla.gov.eg

aahmed@sla.gov.eg

and

Dr. Claudia Annacker

Mr. J. Cameron Murphy

Ms. Laurie Achtouk-Spivak

Mr. Larry C. Work-Dembowski

Ms. Ariella Rosenberg

Mr. Pablo Mateos Rodríguez

Ms. Zeïneb Bouraoui

Cleary Gottlieb Steen & Hamilton LLP

12, rue de Tilsitt

75008 Paris

France

Phone: + 33 1 40 74 68 00

Fax: + 33 1 40 74 68 88

Emails:

cannacker@cgsh.com

CMurphy@cgsh.com

lachtoukspivak@cgsh.com

lwork-dembowski@cgsh.com

arosenberg@cgsh.com

pmateosrodriguez@cgsh.com

For Unión Fenosa Gas S.A. (Respondent)

Mr. R. Doak Bishop

Mt. David Weiss

Ms. Sara K. McBrearty

King & Spalding LLP

1100 Louisiana Street, Suite 4000

Houston, TX 77002

U.S.A.

Phone: + 1 713 751 3205

Fax: +1 713 751 3290

Emails:

dbishop@kslaw.com

dweiss@kslaw.com

and

Mr. Edward G. Kehoe

Ms. Isabel Fernández de la Cuesta

Mr. Aloysius Llamzon

Ms. Erin Collins

King & Spalding LLP

1185 Avenue of the Americas

New York, NY 10036

U.S.A.

Phone: + 1 212 556 2100

zbouraoui@cgsh.com

Fax: +1 212 556 2222

Emails:

ekehoe@kslaw.com

ifernandez@kslaw.com

allamzon@kslaw.com

ecollins@kslaw.com

and

Ms. Sara Burns

King & Spalding LLP

1180 Peachtree Street, NE

Atlanta, GA 30309-3521 U.S.A.

Phone: + 1 404 572 4600

Fax: +1 404 572 5100

Email: sburns@kslaw.com

and

Mr. James E. Castello

Mr. Rami Chahine

King & Spalding International LLP

12, cours Albert 1er

75008 Paris

France

Phone: + 33 1 73 00 39 06

Fax: +33 1 7300 3959

Email:

jcastello@kslaw.com

rchahine@kslaw.com

8.2.
The Arab Republic of Egypt will be designated as the Applicant, and Unión Fenosa Gas S.A. will be designated as the Respondent.

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 shall be solely responsible for making the advance payments requested by the ICSID Secretariat to cover the costs following the Committee’s constitution. This is without prejudice to the Committee’s final decision as to the allocation of costs.
9.2.
By letter of April 24, 2019, the Centre requested the Applicant to make an advance payment of US$200,000, to cover the initial costs of the proceeding. The Centre received the Applicant’s payment on May 23, 2019.
9.3.
ICSID shall request the Applicant to make 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.
Paris, France 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.

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.
Oral testimony before the Committee shall be in English or in the principal language of the witness or expert, at the option of such witness or expert. If the witness or expert gives evidence in a language other than English, advance notice shall be given as soon as possible, and no later than two weeks before the hearing, so that simultaneous interpretation can be provided at the request of either party or as ordered by the Committee. The costs of such interpretation shall be paid from the advances to ICSID, without prejudice to the decision of the Committee as to which party shall ultimately bear those costs.
11.6.
The costs of interpreter(s), if any, 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 Committee 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 Committee 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.

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:

13.1.1. submit by email to the Committee Secretary and the opposing party an electronic version of the pleading with witness statements, expert reports and an updated index of all the supporting documentation attached to the pleading (including exhibits and legal authorities),1 and

13.1.2. upload the pleading with all the supporting documentation and the corresponding updated index to the file sharing platform that has been created by ICSID for purposes of this case.

13.2.
Three business days following the electronic filing, the parties shall courier to the Committee Secretary:

13.2.1. one unbound hard copy in A4/Letter format2 of the entire submission3, including signed originals of the pleading, witness statements, and expert reports, together with any other supporting documentation (but not including legal authorities) and the updated index; and

13.2.2. two USB drives, with full copies of the entire submission, including the pleading, the witness statements, expert reports, legal authorities.

13.3.
An updated hyperlinked index of all the supporting documentation shall be communicated to the Committee Secretary within two weeks following the electronic filing.
13.4.
Also within three business days following the electronic filing, the parties shall courier to one representative of the opposing party at the address(es) indicated at §[8.1] above and to each Member of the Committee at the addresses indicated at §[13.6] below:

13.4.1. one hard copy in A5 format (double sided and spiral bound) of the principal submission, including all supporting documentation and the updated index (but not including legal authorities); and

13.4.2. one minimum unencrypted USB drive, compatible with MacOS with a full copy of the entire submission, including the pleading, the witness statements, expert reports, exhibits, and legal authorities. The USB for the President of the Committee must be MacOS compatible.

13.5.
A hyperlinked index of all the supporting documentation shall be communicated to the opposing party and to each member of the Committee within two weeks following the electronic filing.
13.6.
The addresses of the Committee Members are as follows:

Mr. Andrés Jana Linetzky

BMAJ Abogados

Av. Andrés Bello 2711

Pisos 8 y 9, Torre Costanera

CP 7550611 Las Condes Santiago

Chile

Tel.: + 56 2275 77616

Judge Bernardo Sepulveda-Amor

Campos Eliseos No. 67 Dept. 801

Rincon del Bosque, Polanco

CDMX 11580

Mexico

Tel.: + 1 (5255) 4748 0621

Dr. Inka Hanefeld

Hanefeld Rechtsanwälte

Rechtsanwaltsgesellschaft mbH

Brooktorkai 20

Hamburg D-20457

Germany

Tel. : + 49 40 18048293 0

13.7.
Legal authorities shall be submitted in electronic format only, unless a hard copy is specifically requested by the Committee.
13.8.
Electronic versions of submissions shall be text searchable (i.e., OCR PDF or Word).
13.9.
Pleadings shall be accompanied by an updated index hyperlinked to the supporting documentation. The index shall indicate the document number and the pleading with which it was submitted.
13.10.
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.
13.11.
The official date of receipt of a pleading or communication shall be the day on which the electronic version is submitted to the Secretary of the Committee.
13.12.
A filing shall be deemed timely if sent by a party by 11:59 p.m., Washington, D.C. time, on the relevant date.

14. Number and Sequence of Pleadings

Arbitration Rules 20(1)(c), 29, 31 and 53
14.1.
A full procedural timetable, which includes written submissions and hearing(s), is provided in 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, and it does not expect to receive new witness statements or expert reports.4
15.3.
Evidence from the record of the original arbitration proceeding relied on by the parties, including witness statements, expert reports, transcripts of witness and expert evidence and exhibits, may be submitted by the parties in this annulment proceeding together with their written submissions, which should expressly and specifically refer to this evidence.
15.4.
The record of the witness or expert testimony given during the original arbitral proceeding to which either party has made express and specific reference as provided in §15.3 above shall stand as the testimony of that witness or expert for purposes of the annulment proceeding, without the need to re-submit the witness or expert for examination or cross-examination.
15.5.
In principle, no new evidence shall be admitted in this proceeding.5 Should either party wish to introduce new documents or other evidence, other than legal authorities, that party shall file a reasoned written request to the Committee to that effect. The requesting party may not annex such evidence to the request. The Committee will promptly decide on the admissibility of the new document and/or evidence, after hearing from the other party on the moving party’s request.
15.6.
Any documents introduced as exhibits in this annulment proceeding shall be labelled with numbers, and shall be organized in a clear order:

15.6.1. 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.

15.6.2. Accordingly, for the purposes of numbering the exhibits and legal authorities, and regardless of which of the parties is the Applicant in the present case, Applicant’s exhibits shall be submitted in PDF format using the same numbering as in the arbitration proceeding (e.g. "R-0001" for factual exhibits and "RL-0001" for legal exhibits containing authorities). Respondent’s exhibits shall also be submitted in PDF format using the same numbering as in the arbitration proceeding (e.g., "C-0001" for factual exhibits and "CL-0001" for legal exhibits containing authorities).

15.6.3. Each exhibit shall have a divider with the exhibit identification number on the tab.

15.6.4. New exhibit and legal authority numbering shall commence with RA-01 and RLA-01 for Applicant and CA-01 and CLA-01 for Respondent. Each party shall number the accompanying documentation consecutively throughout the entire annulment proceeding and shall number the paragraphs of each of its written pleadings.

15.6.5. Duly certified copies of documents are not required unless the authenticity of the copy is contested, and the Committee deems the certification necessary.

15.7.
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.
15.8.
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 and hard copy to the other party, the Committee Members, the Secretary, the court reporter(s) and interpreter(s) at their time of use at the relevant hearing.

16. Examination of Witnesses and Experts

Arbitration Rules 35, 36
16.1.
Examination of witnesses and experts will be decided by the parties once submissions have been filed.

17. Pre-Hearing Organizational Meetings

Arbitration Rule 13
17.1.
A pre-hearing organizational meeting shall be held at the request of either party or if the Committee so decides at the appropriate juncture. The pre-hearing organizational meeting may be held by telephone or video conference, 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.

18. Hearings

Arbitration Rules 20(1)(e), 32 and 53
18.1.
The oral procedure shall consist of oral arguments, and may exceptionally include the examination of witness and experts, if any.
18.2.
The hearing shall be held at a place to be determined in accordance with § 10 above.
18.3.
The date of the hearing shall be determined during the first session on July 22, 2019.
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.

18.4.1. In principle, the parties shall be allocated equal time during any hearing unless otherwise agreed or directed in advance of any hearing. The principle of equal time shall be observed at the hearing through the use of a "chess-clock" procedure, with the Secretary responsible for keeping time.

18.5.
The hearing on annulment shall not be open to the public.

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) in English 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 using LiveNote or similar software and electronic transcripts shall be provided to the parties and the Committee on a same-day basis.
19.3.
The parties shall attempt to agree on any corrections to the transcripts within 25 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.
Whether there will be post-hearing briefs, and if so, their content and format, will be addressed at the close of the hearing.

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. Stay of Enforcement

22.1.
Pursuant to the Committee's directions of May 2, 2019, the Applicant filed Observations in Support of its Request for the Continuation of the Stay of Enforcement of the Award on May 17, 2019. The Respondent filed its Opposition to the Continuation of the Stay of Enforcement of the Award on May 31, 2019. The Applicant filed its Reply Observations in Support of its Request for the Continuation of the Stay of Enforcement on June 17, 2019. The Respondent filed its Rejoinder on Egypt's Request for Continuation of the Stay of Enforcement of the Award on July 5, 2019.
22.2.
The Secretary informed the parties on May 16. 2019 of the Committee’s decision that the provisional stay of enforcement would continue until the Committee has heard the parties and has reached a decision on the Applicant's request for continuation of the stay.
22.3.
At the first session, the parties presented their oral pleadings on the continuation of the stay of enforcement.
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