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Procedural Posture and Rulings
This Procedural Order addresses post-hearing requests from both the Claimant and the Respondent to introduce new documentary evidence and additional legal authorities into the record. The Tribunal grants all requests, subject to the procedural framework for post-hearing submissions.
Respondent's Request to Introduce New Evidence
The Tribunal granted the Respondent's request for leave to introduce four new documents, consisting of briefs and a resolution from a domestic tutela review proceeding. The Respondent contended this evidence was necessary to rebut an argument, allegedly raised for the first time at the hearing, that the Claimant's related entity (Cerrejón) was denied due process and its right of defense. The Claimant opposed, arguing the issue was not new.
The Tribunal reasoned that while the general topic had been addressed in written submissions, the Claimant's oral argument at the hearing gave the allegation a "sharper legal characterization" as a standalone violation of due process and a denial of justice. This refinement justified the admission of the new evidence. The Tribunal also found no prejudice to the Claimant, as the documents originated from or were notified to Cerrejón, and the Claimant would have a full opportunity to address them in its post-hearing brief. The Tribunal concluded that the interest in deciding the case on a complete evidentiary record outweighed any concerns regarding the timing of the request.
Parties' Requests to Introduce New Legal Authorities
The Tribunal also granted requests from both parties to introduce new legal authorities. The Claimant sought to file thirteen authorities concerning damages and the probative value of witness testimony, in response to arguments it contended were new. The Respondent sought to introduce two new arbitral awards and supplement an existing authority. As neither party objected to the other's request (with the Respondent only reserving its rights to respond), the Tribunal admitted all proposed authorities into the record.
Order
The operative part of the Order directs both parties to submit the newly admitted documentary evidence and legal authorities, with their corresponding exhibit numbers, within three days of the notification of the Order.
