INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES
Pawlowski AG and Projekt Sever s.r.o.
v.
Czech Republic
(ICSID Case No. ARB/17/11)
Members of the Tribunal
Prof. Juan Fernández-Armesto, President of the Tribunal
Mr. John Beechey, CBE, Arbitrator
Prof. Vaughan Lowe, QC, Arbitrator
Secretary of the Tribunal
Ms. Lindsay Gastrell
Assistant to the Tribunal
Ms. Mélanie Riofrio Piché
13 March 2019
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1. This arbitration arises between Pawlowski AG and Projekt Sever s.r.o. [“Claimants”]
and the Czech Republic [“Respondent”] under the Agreement between the Czech and
Slovak Federal Republic and the Swiss Confederation on the Promotion and Reciprocal
Protection of Investments, which entered into force on August 7, 1991. Claimants and
Respondent shall be jointly referred to as the Parties.
2. On August 14, 2018 the Arbitral Tribunal issued Procedural Order [“PO"] no. 2 with
specific instructions for the production of documents phase.
3. On February 21, 2019 the Tribunal received each Party's Document Production Schedule
[“DPS”].
4. The following Procedural Order sets out the Tribunal’s decisions on each Party’s DPS.
5. The Tribunal has drafted this PO guided by the International Bar Association Rules on
the Taking of Evidence in International Arbitration (2010) [“IBA Rules”]¹ and pursuant
to PO no. 2. The reasons for the Tribunal’s decision are contained in the attached Annex
A (for Claimants’ DPS) and Annex B (for Respondent’s DPS).
6. The Tribunal notes that Claimants’ DPS contains several requests invoking specific
allegations made by Respondent in certain paragraphs of its Counter-memorial on the
merits. Respondent has objected to the production of the corresponding Document,
alleging that these requests breach para. 19 of PO no. 1 and the principle that document
production phase should not be used to put the other party to proof.
7. Accepting this principle, the Tribunal has only admitted Claimants’ requests whenever it
considered that they were prima facie relevant and material to prove their own case.
8. Each Party shall produce all Documents, in compliance with the decisions adopted by
the Tribunal in the Annexes A and B, on the date established in the Procedural Calendar.
Contested Documents shall only be delivered to the counterparty, without copying the
Tribunal. The receiving Party may marshal any of such Documents as evidence with the
following written submissions.
9. On the date established in the Procedural Calendar, each Party will deliver to its
counterparty and to the Tribunal, the following “Affidavits”:
- a first Affidavit signed by the chief legal officer of such Party drafted in accordance
with Annex III of PO no. 2 and
¹ According to para. 7 of PO no. 2 the Parties have agreed to be guided by the IBA Rules for the production of
documents in this arbitration.
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- a second Affidavit signed by the head external legal counsel to such Party drafted
in accordance with Annex IV of PO no. 2.
10. If a Party, without satisfactory explanation, and in contravention of the Tribunal’s
instructions, fails to produce a Document, the Tribunal may infer that such Document is
adverse to the interest of that Party. Likewise, if a Party absent satisfactory explanation
fails to deliver any of the Affidavits, the Tribunal will make appropriate inferences.
[signed]
Juan Fernández-Armesto
President of the Tribunal
Date: 13 March 2019