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INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES

Discovery Global LLC

Claimant

v.

Slovak Republic

Respondent

(ICSID Case No. ARB/21/51)

PROCEDURAL ORDER NO. 4

Hearing organization

Tribunal

Professor Gabrielle Kaufmann-Kohler, President of the Tribunal

Mr. Stephen L. Drymer, Arbitrator

Professor Philippe Sands, Arbitrator

Secretary of the Tribunal

Ms. Jara Minguez Almeida

Assistant to the Tribunal

Dr. Magnus Jesko Langer

12 January 2024

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I. PROCEDURAL BACKGROUND

1. Pursuant to paragraph 20.1 of Procedural Order No. 1 (“PO1”), the pre-hearing organizational meeting between the Parties and the Tribunal was held by video conference on 10 January 2024 from 13:00 to 15:15 CET (the “Pre-Hearing Conference”), to discuss procedural, administrative, and logistical matters in preparation for the forthcoming hearing (the “Hearing”).

2. The following participants joined the conference:

Members of the Tribunal:
Prof. Gabrielle Kaufmann-Kohler, President of the Tribunal
Mr. Stephen L. Drymer, Arbitrator
Professor Philippe Sands, Arbitrator

Assistant to the Tribunal:
Dr. Magnus Jesko Langer

ICSID Secretariat:
Ms. Jara Minguez Almeida, Secretary of the Tribunal

Participating on behalf of the Claimant:
Mr. Mark Tushingham, Twenty Essex
Mr. Neil Newing, Signature Litigation LLP
Mr. Colin Grech, Signature Litigation LLP
Mr. Pietro Grassi, Signature Litigation LLP

Mr. Alexander Fraser, Discovery Global LLC

Participating on behalf of the Respondent:
Mr. Stephen Anway, Squire Patton Boggs US LLP
Ms. Tatiana Prokopová, Squire Patton Boggs US LLP
Mr. Jakub Kamenický, Squire Patton Boggs US LLP
Mr. Douglas Pilawa, Squire Patton Boggs US LLP
Ms. Christina Luo, Squire Patton Boggs US LLP

Ms. Zuzana Ješková, Ministry of Finance of the Slovak Republic
Mr. Julián Kupka, Ministry of Finance of the Slovak Republic
Ms. Petra Lešová, Ministry of Finance of the Slovak Republic

3. During the Pre-Hearing Conference, the Parties and the Tribunal discussed the draft of this Procedural Order that had been circulated to the Parties on 30 December 2023 and the

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Parties’ comments on the draft.

4. A recording of the Pre-Hearing Conference was deposited in the archives of ICSID. It was made available to the Members of the Tribunal and the Parties on 10 January 2024.

5. In the present Order, the Tribunal sets out the procedural rules on which the Parties have agreed or the Tribunal has ruled to govern the conduct of the Hearing.

II. ORGANIZATION OF THE HEARING

A. DATE AND FORMAT OF THE HEARING

6. The Hearing will be held in person at the International Dispute Resolution Centre (“IDRC”) located at 1 Paternoster Ln, London EC4M 7BQ, United Kingdom, from 1 to 7 February 2024, with 4 February being a day off.

B. ORDER OF PROCEEDINGS AND SCHEDULE

7. The Hearing shall normally commence each day at 9:30 and proceed until approximately 18:00, subject to any adjustment required by the course of the examinations, with a one-hour lunch break and at least two 15-minute breaks.

8. The order of proceedings and structure of the Hearing will follow the schedule set out in Annex A (the “Hearing Schedule”). The Parties are invited to jointly complete the Hearing Schedule following the sequence of examinations set out in paragraph 29 below by 17 January 2024.

9. The Hearing Schedule shall be subject to any modifications the Tribunal may deem necessary or appropriate in the course of the Hearing.

10. The Parties are expected to use the Hearing days efficiently and avoid unnecessary slippage (e.g., delays in returning from breaks). In the event of excess slippage, the Tribunal may revisit the length of the sitting day or, in exceptional circumstances, the time allocated to the Parties, bearing in mind principles of predictability, equal treatment and a fair opportunity for the Parties to be heard.

C. ORAL STATEMENTS

11. The Parties may present opening statements of up to 2.5 hours each. In lieu of oral closing statements, the Parties will have one hour each to answer questions, if any, put by the Tribunal at the close of the previous day or on the spot.

12. The Parties may use slide presentations during their opening statements. They shall send electronic copies of such presentations before the start of each presentation to the opposing Party, the Tribunal Members, the Secretary, the Assistant, interpreter(s) and the court

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reporter.

D. TIME ALLOCATION

13. Each Party will have a total time allocation to be used over the entire Hearing (including opening statements and answers to Tribunal questions at the end of the hearing) of 14.5 hours each.¹ If the circumstances so require and the remaining time until the end of the Hearing so permits, the Tribunal may grant short extensions.

14. Time spent on direct (including expert presentations) and re-direct examination shall be counted toward the time of the Party presenting the witness or expert. Time spent on cross-examination shall be counted toward the time of the Party conducting the cross-examination.

15. Time spent on questions from the Tribunal, answers to those questions, and procedural interventions by the Tribunal shall not be counted against a Party’s time, except for the one-hour time slot allocated to each Party at the end of the Hearing (see paragraph 11). Time spent dealing with objections from a Party shall not be counted against that Party’s time unless the Tribunal determines otherwise. Time used for housekeeping or to resolve technical difficulties shall not be counted against any Party’s time unless the Tribunal determines otherwise.

16. The Secretary of the Tribunal shall keep a record of each Party’s use of time in accordance with the chess clock method and report at the end of each Hearing day about the total daily time used.

E. ATTENDANCE

17. The List of Hearing Participants is reflected in Annex B (the “List of Participants”). Each Party shall provide the Tribunal and the ICSID Secretariat by 17 January 2024 with its List of Participants and may amend it by no later than 25 January 2024.

F. DOCUMENTATION

18. The use of documents during the Hearing is governed by paragraph 17.7 of PO1, subject to any different rule in this Order.

19. The Parties shall jointly prepare a single Electronic Hearing Bundle. The Electronic Hearing Bundle shall contain all pleadings, witness statements, expert reports, exhibits, legal authorities, Tribunal’s orders or decisions, and correspondence, with a consolidated hyperlinked index. It shall not contain any document not previously filed. It shall be

¹ Based on sitting hours from 9:30 to 18:00, total time available for Parties (after deductions of breaks, Tribunal questions, procedural and logistical/technical issues) will be 5 h/d x 6d = 30 h minus 1h reserve time = 29 hours : 2 = 14.5 h each. ↩

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organized as follows:

Electronic Hearing Bundle:

01. Pleadings
A. Claimant
B. Respondent

02. Witness Statements
A. Claimant
B. Respondent

03. Expert Reports
A. Claimant
B. Respondent

04. Exhibits
A. Claimant
B. Respondent

05. Legal Authorities
A. Claimant
B. Respondent

06. Tribunal’s Rulings

07. Correspondence

20. The Electronic Hearing Bundle shall be uploaded to a designated sub-folder in the BOX filesharing platform by 17 January 2024. To ensure operation of the hyperlinked index, the entire Electronic Hearing Bundle shall be housed within one folder and then uploaded to BOX as a single zip file. Should the size of the zip file make the upload to BOX impossible, the Electronic Hearing Bundle shall be uploaded to a designated sub-folder on to the BOX filesharing platform, in a sub-folder using the structure indicated at paragraph 19 supra, including a consolidated (non-hyperlinked) index.

21. At the start of each examination-in-chief, the examiner shall provide paper copies of the witness statements or expert reports to the witness or expert being examined.

22. The Parties may use PowerPoint slides and demonstrative exhibits (such as charts, tabulations, etc. compiling information which is on record but not presented in such form), provided that they (i) identify the source in the record from which the information is derived, (ii) do not contain information not in the record.

23. An electronic copy of each demonstrative exhibit, other than PowerPoint slides, shall be distributed by the Party intending to use it via an electronic mail sent to the entire case email distribution for each Party, the Members of the Tribunal, the Secretary, the Assistant, to the court reporter(s) and to the interpreter(s) as necessary by 20:00 EST on the eve of the day of their use. The PowerPoint slides shall be distributed immediately before their

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use by the Party intending to use them.

24. In addition, promptly after the conclusion of the Hearing day on which a demonstrative exhibit or PowerPoint slide is used, the Parties shall upload such demonstrative exhibit and PowerPoint slide to the case folder in the BOX filesharing platform, designating each with the corresponding CD-___ or RD-___ number for demonstrative exhibits and with CP- or RP- number for PowerPoint slides.

25. Documents that do not form part of the record may not be used at the Hearing, unless otherwise agreed by the Parties or authorized by the Tribunal.

G. WITNESS AND EXPERT EXAMINATION

26. Witness and expert examinations shall be governed by sections 18 and 19 of PO1, subject to any different rule in this Order.

27. According to paragraph 19.6 of PO1, in lieu of direct examination, non-legal experts may make a presentation of no more than 15 minutes to summarize their methodology and conclusions, and for which they may use PowerPoint slides and demonstrative exhibits if useful.

28. During examination, the Parties will refer only to documents that form part of the record of the case.

29. The witnesses and experts shall appear in the following general order:

(i) Fact witnesses: Claimant’s witnesses in the order determined by Claimant, followed by Respondent’s witness in the order determined by Respondent.

(ii) Legal expert: Claimant’s followed by Respondent’s expert.

(iii) Technical and valuation experts: Claimant’s followed by Respondent’s expert.

30. In principle, witnesses and experts shall be available one-half day before and after the time they are scheduled to be examined.

31. In accordance with paragraph 18.16 of PO1, fact witnesses shall not be present in the hearing room (or be connected to the Hearing) during oral testimony and arguments, or read transcripts of oral testimony or argument, prior to his or her examination. This limitation shall not apply to expert witnesses and to one fact witness per Party who is also a party representative, if any. Party representatives appearing as fact witness shall be heard first out of the relevant Party’s witnesses.

32. The legal experts may testify remotely. The following rules shall apply during the

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examination via video conference:

(i) The remote examination of the legal experts will take place on a Zoom Platform (the “Hearing Platform”). The ICSID Secretariat shall serve as administrator of the platform and “host” of the videoconference during the Hearing. The connection details to the Zoom sessions shall be transmitted by the ICSID Secretariat to the legal experts prior to the Hearing.

(ii) Each Party shall be responsible for ensuring that the legal experts connect to the Hearing Platform through a stable internet connection, offering sufficient bandwidth (a minimum bandwidth of 5 Mbps download and 1.5 Mbps upload speed is recommended), and use a camera, microphone, and speaker of good quality (a headset with microphone is recommended). The use of an Ethernet connection rather than a Wifi connection is recommended. The legal experts are required to use good quality microphones and cameras, as tested by the ICSID Secretariat and the Technical Operator before the start of the examination.

(iii) Each Party shall instruct its legal expert to testify from a quiet room, to the extent possible with a white or plain colored background, avoiding light sources (such as windows) behind them. The legal experts shall not use a virtual background, filter, or in any way prevent or limit the recording of them or the remote venue from which they are testifying.

(iv) The legal expert shall give evidence sitting at an empty desk or table, and the face shall be clearly visible on the video. To the extent possible, the camera should be positioned at face level, relatively close to the expert, who shall speak directly to the camera while testifying and avoid making quick movements.

(v) The legal expert shall use a computer set-up on which no programs other than the Hearing Platform and the real-time transcript are open and running. Except for an unannotated copy of his expert reports and the documents which will be shown on the screen during the examination, the experts shall not be aided by any other documents, notes or otherwise, unless permitted by the Tribunal upon application by a Party.

(vi) During testimony, the legal expert shall switch his mobile phone to flight mode and shall have no access to emails, chat programs, or other means of communication.

(vii) The cross-examining Party and the legal expert shall strive to speak one after the other and not to interrupt the person actively speaking.

(viii) The Party cross-examining the legal expert may project on the screen (by using the screen sharing function) the exhibits used during the cross-examination.

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(ix) Except for one lawyer per Party, if the Parties so wish, and one technician, if needed, the legal expert shall be alone in the room from where he participates. At any time, the Tribunal may ask the expert to orient his camera to provide a 360-degree view of the room in which he is sitting. At the start of the examination, each expert shall identify the lawyer(s) and technician, if any, present in the room and affirm that there are no other persons present and will not receive or establish communications of any sort during the course of his examination.

(x) The legal expert to be examined will be connected to the virtual waiting room of the Hearing Platform 30 minutes before his examination to ensure that he is available in time to be brought into the virtual Hearing Room. During the breaks, the expert will be placed in a virtual waiting room.

(xi) Any communication with the legal expert during his examination or during breaks in his examination is prohibited.

(xii) Each Party shall (i) provide its legal expert with the contact details of the Secretary and the Technical Operator to be contacted (off Platform) in the event of a disconnection or other technical failure, and (ii) instruct its expert that it is impermissible to record the examination and to allow unauthorized observers to attend.

(xiii) The Hearing Platform will also offer a dial-in telephone audio connection as a backup option should an expert experience a temporary technical difficulty with a computer online connection. The Parties will discuss with the Technical Operator whether the dial-in backup telephone connection should provide access to the “floor” audio channel only, or also the interpretation channels.

(xiv) The legal experts are encouraged to have two screens to facilitate simultaneous viewing of the video connection and documents.

(xv) The ICSID Secretariat will conduct technical trials with the legal experts to test the connectivity to the Hearing Platform. For the efficient conduct of these tests, the legal experts are advised to replicate the technical conditions in which they will participate in the Hearing (location and equipment). The date of the test will be communicated in due course in consultation with the Parties.

III. LOGISTICS

A. INTERPRETATION

33. The Parties informed ICSID on 22 December 2023 which witnesses and experts require

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interpretation.

34. The World Bank’s Interpretation Division has identified qualified interpreters and the Parties have confirmed their approval of the candidates’ curricula vitae shared with the Parties in advance of the Hearing.

35. The interpretation will be simultaneous rather than sequential. The Hearing Participants being interpreted should speak slowly, one person at a time, and should pause briefly when handing the floor to another Hearing Participant.

B. TRANSCRIPTS AND SOUND RECORDING

36. Transcripts and sound recording shall be governed by section 22 of PO1.

37. Subject to paragraph 31 above, the Hearing Participants shall have real-time access to the transcripts through an online connection provided by the court reporter(s). The court reporter(s) shall, to the extent possible, attend the Hearing in person.

38. The ICSID Secretariat shall arrange for sound recording and for court reporting services and shall liaise with the Parties accordingly.

39. Except for the court reporter(s), who will make their own recording of the Hearing for purposes of preparing the transcript, Hearing Participants will not record the Hearing or any part of it, including via audio, video or screenshot methods of recording.

C. TRANSPARENCY AND VIDEO RECORDINGS

40. In accordance with Procedural Order No. 2, the Hearing shall be public. To facilitate public access to the Hearing:

(i) An audio-video recording will be made of the Hearing and uploaded onto the ICSID website after the Hearing.

(ii) To the extent possible, a Party shall inform the Tribunal before addressing a topic involving confidential or protected information, allowing for the transcript and recording to be marked “confidential”. In case of disagreement, the Tribunal will decide whether the information in question shall be protected from disclosure.

(iii) The ICSID Secretariat will make the necessary technical arrangements to record the Hearing and upload the recording onto the ICSID website as set out above.

D. OTHER LOGISTICAL ASPECTS

41. The ICSID Secretariat will make a proposal on a suitable provider for the electronic

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presentation of evidence to be engaged jointly by the Parties.

42. The ICSID Secretariat will liaise with the Parties on other logistical aspects (set up, catering, etc.).

E. POST-HEARING MEMORIALS AND STATEMENTS OF COSTS

43. Pursuant to section 23 of PO1, the need and time limits for, the length, format, and content of the post-hearing briefs shall be determined by the Tribunal at the end of the Hearing, after consulting with the Parties.

44. In consultation with the Parties, the Tribunal will give appropriate directions in respect of the statement of costs.

F. DATA PRIVACY

45. The List of Participants will contain personal data provided to ICSID, including names and contact information, such as business email addresses and telephone numbers. This data will be processed for the legitimate interests of the Parties in resolving efficiently their dispute and, in particular, to ensure that procedural documents and Hearing arrangements are properly communicated to the Hearing Participants.

[signed]

Gabrielle Kaufmann-Kohler
President of the Tribunal
Date: 12 January 2024

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ANNEX A

Hearing Agenda

NB: This is an indicative timetable based on the times each Party has indicated it will take. The assumption is that, save where indicated otherwise, each day, (i) the Parties will have 5 hours to present their case, (ii) the Tribunal will have 2 hours for questions and any procedural matters and/or technical issues, and (iii) the Tribunal and the Parties will allocate 1 hour and 30 minutes for lunch and two comfort breaks. For indicative purposes, we have assumed an equal split of 2 hours and 30 minutes in each of the morning and afternoon for the time allocated to the Parties, but appreciate that this will need to be flexible depending on the use by the Tribunal of its time and the precise timings of lunch and other breaks throughout the day. We have also not specifically included in the Hearing Agenda below the morning and afternoon breaks as we anticipate that the timing of these breaks will need to be flexible.

Day 1: Thursday, 1 February 2024

Day 2: Friday, 2 February 2024

* The Parties consider it is appropriate to try to finish Mr. Lewis by the end of Day 2 to try to finish all factual witnesses by the end of Day 3. As such, the Parties suggest allocating 30min of the time for questions by the Tribunal and any procedural matters and/or technical issues to the completion of the examination of Mr. Lewis on Day 2. This also means that Mr. Lewis is not required to be in purdah overnight between Days 2 and 3 for just 30min the next day.

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Day 3: Saturday, 3 February 2024

** The Parties consider it is appropriate to try to finish all factual witnesses by the end of Day 3. As such, the Parties suggest allocating 15min of the time for questions by the Tribunal and any procedural matters and/or technical issues to the completion of the examination of factual witnesses on Day 3.

Day 4: Monday, 5 February 2024

*** The Respondent is not yet in a position to state how long it will need for cross-examination of each of the Claimant’s non-legal experts and, therefore, the time has been consolidated across all three non-legal experts engaged by the Claimant for current purposes. The total time of 3h25min comprises the following steps: 30min of opening presentations (10min of presentation from each non-legal expert); 2h55min of cross-examination, and 30min of re-examination (10min for each non-legal expert).

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Day 5: Tuesday, 6 February 2024

**** The Claimant is not yet in a position to state how long it will need for cross-examination of each of the Respondent’s non-legal experts and, therefore, the time has been consolidated across both non-legal experts engaged by the Respondent (although there are three individuals, two experts will deliver their presentation and be cross-examined together as one team). The total time of 4h20min comprises the following steps: 30min of opening presentations (15min of presentation from each team of non-legal expert); 3h30 of cross-examination; and 20min of re-examination (10min for each team of non-legal experts).

Day 6: Wednesday, 7 February 2024

***** Lunch is proposed to take place slightly earlier on Day 7 so that it takes place after the conclusion of the examination of the Respondent’s non-legal experts and before the Claimant’s answers to the questions from the Tribunal.

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ANNEX B

List of Participants

TRIBUNAL

SECRETARY OF THE TRIBUNAL

ASSISTANT TO THE TRIBUNAL

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CLAIMANT

¹ Witnesses [W] and Experts [E] called to testify will be assigned to the waiting room W/E during their cross-examination. Experts [E] will be assigned to Waiting Room [C] if they are present during any other time. ↩

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RESPONDENT

² Witnesses [W] and Experts [E] called to testify will be assigned to Waiting Room W/E during their cross-examination. Experts [E] will be assigned to Waiting Room [R] if they are present during any other time. ↩
³ Ms. Pavlovičová is an associate at Squire Patton Boggs in Bratislava and will be the Squire Patton Boggs attorney who sits with Prof. Števček during his examination at our Bratislava offices. ↩

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COURT REPORTER

⁴ Ms. Jordan will only attend the hearing on select days. As the calendar now stands, she expects to attend on Days 1, 2, 4, 5, and 6. ↩
⁵ Mr. Whyte will only attend the hearing on select days. As the calendar now stands, he expects to attend on Days 1, 2, 4, 5, and 6. ↩

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INTERPRETERS

TECHNICAL SUPPORT STAFF