PCA Case No. 2020-21
In the matter of an arbitration under the Arbitration Rules of the United Nations
Commission on International Trade Law 1976
and
The Agreement between the Government of the Republic of India and the Republic of
Mozambique for the Reciprocal Promotion and Protection of Investment dated
19 February 2009
-between-
PATEL ENGINEERING LIMITED
(INDIA)
Claimant
-and-
THE REPUBLIC OF MOZAMBIQUE
Respondent
Procedural Timetable and Conduct of
the Arbitration
THE ARBITRAL TRIBUNAL
Prof. Guido Santiago Tawil (Arbitrator)
Mr. Hugo Perezcano Díaz (Arbitrator)
Prof. Juan Fernández-Armesto (Presiding Arbitrator)
REGISTRY
Permanent Court of Arbitration
ADMINISTRATIVE SECRETARY
Sofia de Sampaio Jalles
14 October 2020
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1. This arbitration arises between Patel Engineering Limited [“Patel” or “Claimant”]
and The Republic of Mozambique [“Mozambique” or “Respondent”].
Hereinafter, Claimant and Respondent shall be jointly referred to as the “Parties”.
2. On 10 July 2020 the Parties submitted a summary of their respective claims and of
the relief sought as well as their agreements on the contents of the draft Terms of
Appointment prepared by the Tribunal.
3. On 17 July 2020 the Parties informed the Tribunal that although they had sought to
reach an agreement on the Procedural Timetable, they had been unable to.
Consequently, each of the Parties submitted a proposal for the Procedural
Timetable.
4. On 22 July 2020 the Parties and the Arbitral Tribunal held a conference call, during
which they discussed the Terms of Appointment and the Procedural Timetable.
5. On 10 August 2020 the Parties received the consolidated version of the Terms of
Appointment, which were deemed to have been signed by the Parties and the
Arbitrators on 4 August 2020.
6. On 24 August 2020 the Tribunal sent a draft Procedural Order No. 1 to the Parties,
giving them the opportunity to comment on such draft, which they did on
16 September 2020.
7. The following Procedural Order reflects the Parties’ agreements, and the Tribunal’s
decisions when such agreements were not possible.
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8. The arbitration shall proceed in accordance with the Procedural Timetable attached
hereto as Annex I, except if the Tribunal, at the reasonable request of any Party or
on its own initiative, decides that, for good cause, this Procedural Timetable has to
be amended.
9. Amendments to the Procedural Timetable will be made by reissuing Annex I.
10. At the date established in Annex I, Claimant shall present a Statement of Claim,¹
in which it shall set forth the facts, the legal argumentation and the relief sought.
The Statement of Claim shall also:
(i) include as attachments all documents in possession, custody or control of
Claimant on which it relies (pursuant to the numbering already established in
Communication A-1, i.e. C-[] and CLA-[], followed by the number)²;(ii) identify the fact witnesses Claimant presents, and for each witness attach a
signed witness statement containing the name, address, relation to the Parties
and the full text of the testimony (each witness statement shall be numbered
CWS-[], followed by the number); and(iii) identify expert witnesses on whose opinion Claimant relies, and attach a
signed opinion containing the name and address; a statement of the
qualifications, any present or past relationship to any of the Parties, their
respective counsel or the Members of the Tribunal; a description of the
instructions concerning the preparation of the opinion; and the full text of the
opinion of the expert (each expert report shall be numbered CER-[], followed
by the number).
11. Claimant is required to front-load, and not to withhold, its evidence.
12. At the date established in Annex I, Respondent may submit a Motion to Bifurcate,
explaining the reasons why it believes the proceedings should be bifurcated. This
motion shall be limited to 20 pages not including exhibits and legal authorities.
¹ Art. 18 of the Arbitration Rules of the United Nations Commission on International Trade Law 1976
[“UNCITRAL Rules”].
² See Communication A-1, para. 13.
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13. On the date established in Annex I, Claimant may file a Response to the Motion
to Bifurcate, which shall be no longer than 20 pages not including exhibits and
legal authorities.
14. The Tribunal reserves the right to ask the Parties for a new round of submissions
once it has received Claimant’s Response to the Motion to Bifurcate.
15. If the Tribunal finds that it is sufficiently briefed on the issue of bifurcation, it will
issue its Decision on Bifurcation by the date established in Annex I. Otherwise the
Tribunal, at its sole discretion, will request additional briefing and/or hold a hearing
on bifurcation by videoconference.
16. If the Tribunal decides that the proceedings should be bifurcated, the proceedings
shall continue as follows:
17. At the date established in Annex I, Respondent shall file its Memorial on Objections
to Jurisdiction and:
(i) include as attachments all documents related to the Objections to Jurisdiction
in its possession, custody or control, on which it relies (pursuant to the
numbering already established in Communication A-1, i.e. R-[] and RLA-[],
followed by the number)³;(ii) identify the fact witnesses related to the Objections to Jurisdiction
Respondent presents, and for each witness attach a signed witness statement
containing the name, address, relation to the Parties and the full text of the
testimony (each witness statement shall be numbered RWS-[], followed by
the number); and(iii) identify expert technical or legal witnesses related to the Objections to
Jurisdiction, on whose opinion Respondent relies, and attach a signed opinion
containing the name, address, qualifications, relationship to Respondent
statement of the qualifications, any present or past relationship to any of the
parties, their respective counsel or the Members of the Tribunal; a description
of the instructions concerning the preparation of the opinion; and the full text
of the opinion of the expert (each expert report shall be numbered RER-[],
followed by the number).
18. At the date established in Annex I, Claimant shall file its Counter-Memorial on
Objections to Jurisdiction. The marshalling of evidence shall follow mutatis
mutandis the rules established in para. 17 supra.
³ See Communication A-1, para. 13.
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19. A hearing on Jurisdictional Objections will be held on the date established in Annex
I. The hearing shall be held either in person at the PCA at The Hague, Netherlands,
or by videoconference, as determined by the Tribunal in its sole discretion after
consultation with the Parties. The Tribunal shall then issue a Procedural Order
determining the time, agenda, and all other technical and ancillary aspects of this
hearing.
20. A pre-hearing organizational teleconference shall be held between the Tribunal (or
its President) and the Parties to resolve any outstanding procedural, administrative,
or logistical matters in preparation for the hearing.
21. The Parties agree that the hearing will be conducted in English, but interpretation
will be provided between English and Portuguese if a Portuguese speaking party
participates and/or if Portuguese speaking experts provide testimony.
22. The hearing shall be recorded and shall be transcribed in English. The hearing
transcripts shall be available in real-time using LiveNote or similar software and
electronic transcripts shall be provided to the Parties and the Tribunal on a same-
day basis.
23. No new evidence may be presented at the hearing except with leave of the Tribunal.
Should the Tribunal grant leave to a Party to present new evidence in the course of
the hearing, it will grant the other Party the opportunity to introduce new evidence
to rebut it.
24. Demonstrative exhibits (such as PowerPoint presentations) may be shown using
documents or information submitted earlier in accordance with this Order. Each
such demonstrative exhibit shall display the number of the document from which
the information was taken. Electronic copies of all such demonstrative exhibits shall
be provided by e-mail to the PCA, each Member of the Tribunal, the Administrative
Secretary and the opposing Party prior to the exhibit being used at the hearing.
25. At the end of the hearing the Arbitral Tribunal and the Parties shall discuss the need
for and scope of any post-hearing submissions, including post-hearing briefs and
statements on costs.
26. If the Tribunal decides that the proceedings will not be bifurcated, the proceedings
shall continue as follows:
27. At the date established in Annex I, Respondent shall present its Statement of
Defence and Objections to Jurisdiction, which shall set forth the facts, the legal
argumentation and the relief sought by Respondent. The marshalling of evidence
with the Statement of Defence and Objections to Jurisdiction shall follow mutatis
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mutandis the rules established in para. 10 supra. Respondent is required to front-
load, and not to withhold, its evidence.
A. Documents
28. The Parties agree to be guided by the International Bar Association Rules on the
Taking of Evidence in International Arbitration (2010) [“IBA Rules”] for the
production of documents in this arbitration.
29. The “Definitions” section of the IBA Rules includes the following definition of
document:
““Document’ means a writing, communication, picture, drawing, program or
data of any kind, whether recorded or maintained on paper or by electronic,
audio, visual or any other means”.
30. This definition applies to this Procedural Order No. 1 and shall apply as well to the
Parties’ respective requests for document production.
B. Request for document production
31. At the date established in Annex I the Parties shall submit a Document Production
Schedule [“DPS”], using the draft model attached hereto as Annex II. For each
Document (or category of Document) a single Document Request shall be
completed. Document Requests shall be numbered sequentially. The Parties are
kindly requested to adhere to the word limit defined for each cell.
32. Each Party will deliver its DPS directly to the counterparty, without copying the
Tribunal.
33. Each Document Request must meet the following cumulative requirements [“R”]:
a. “R1”: Identification of each Document or description of a narrow and
specific category⁴
34. The description must be in sufficient detail to identify the requested Document.
35. If the request is for a category of Documents, the following additional requirements
must be met:
- a clear and well defined characterization of a narrow and specific category
must be provided;- circumstantial evidence of the putative existence of the category must be
provided;
⁴ Art. 3.3(a)(i) and (ii) IBA Rules.
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- the name of the person, authority or entity which has issued the category of
Documents must be provided;- the initial and the final date of the period, during which the Documents
belonging to the category were issued, must be identified.
36. Any request which does not comply with these requirements shall be rejected in
limine.
37. In order to assist the Parties, the Tribunal gives some examples of what shall not be
considered a narrow and defined category of Documents:
“All documents and any correspondence exchanged internally or externally
between the Claimant and any of the entities in its group structure, in relation
to the construction of the mine”.“All documents concerning Respondent’s decision not to renew Claimant’s
license, including but not limited to internal emails, correspondence, analysis,
memoranda, or other reports, produced between 2006 and 2016”.“Documents establishing the loss of significant future business of Claimant as
a result of Law 4563, created between May 2015 and June 2018”.“All resolutions of the Board of Directors or internal communications between
Board members of Claimant or any entity within its group structure,
discussing the decision to purchase the shares in Company X, created between
January 2016 and January 2018”.
b. “R2”: Relevant and material⁵
38. The requesting Party must prove that the Documents are relevant to the case and
material to its outcome and identify the specific paragraph in the submission for
which evidentiary support by way of document production is requested.
39. Any request which does not comply with this requirement shall be rejected in
limine.
40. Documents
- referred to in other Documents that have already been submitted,
- mentioned in witness statements or in expert reports, or
- relied upon by experts to prepare their expert reports (but excluding working
papers used by experts),
will, as a general rule, be considered relevant.
41. It is not for a Party to disprove, by way of document requests directed to the
counterparty, allegations for which the counterparty bears the burden of proof, since
failure to discharge such burden will by itself lead to dismissal. Production with the
⁵ Arts. 3.3(b) and 9.2(a) IBA Rules.
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purpose of disproving the counterparty’s allegations will only be ordered in
exceptional circumstances.
42. Any analysis by the Tribunal regarding the relevance and materiality of requested
Documents is made prima facie, without prejudging any final decision that the
Tribunal may adopt on the facts alleged and the supporting evidence.
c. “R3”: Not in the possession, custody or control of the requesting Party⁶
43. The requesting Party must aver that the Documents sought are not in its possession,
custody or control, and explain why it assumes that the Documents are in the
possession, custody or control of the counterparty.
44. The request will be rejected if the Documents are located in the premises or under
the control of a third party, to which the requesting Party has access. Similarly, a
Document shall be considered to be in possession of the requesting Party if it is
already on the record of the arbitration or if it is publicly available (and the
counterparty is not in a significantly more favourable position to obtain such
Document).
45. Documents which are located in the premises or under the control of a third party,
to which the requested Party has access, shall generally be considered to be in its
“possession, custody or control”, unless otherwise proven by the requested Party.
C. Objections
46. The IBA Rules provide for a number of objections to the production of Documents.
Further to alleging failure to satisfy any of the previously established requirements
(R1 to R3), a Party may object to a request for production in the following
cases [“O”]:⁷
a. “O1”: Legal or settlement privilege⁸
47. A requested Party may invoke legal privilege with regards to Documents prepared
by or addressed to counsel, containing legal advice, and given or received with the
expectation that such Documents would be kept confidential.
48. In general, a Document needs to meet the following requirements in order to be
granted special protection under legal privilege:⁹
- The Document has to be drafted by or addressed to a lawyer acting in his or
her capacity as lawyer;- A relationship based on trust must exist as between the lawyer (in-house or
external legal advisor) and the client;
⁶ Art. 3.3(c)(i) and (ii) IBA Rules.
⁷ Art. 3.5 IBA Rules.
⁸ Art. 9.2(b) IBA Rules.
⁹ Vito G. Gallo v. The Government of Canada, NAFTA-UNCITRAL, Procedural Order No. 3, April 8,
2009, para. 47.
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- The Document has to be elaborated for the purpose of requesting or giving
legal advice;- The client and the lawyer, when requesting or giving legal advice, must have
acted with the expectation that in a contentious situation the advice would be
kept confidential.
49. A requested Party may also invoke privilege regarding Documents prepared in
connection with settlement negotiations,¹⁰ including:
- Oral or written statements submitted to the other side during negotiations,
- Internal Documents prepared specifically for negotiations, and
- Drafts or final versions of any settlement agreements.
50. If the requested Party raises an objection under O1 and, if challenged, the Tribunal
confirms it, the requested Party shall deliver the requested Documents with the
privileged information redacted.
51. In those cases in which the asserted privilege cannot be adequately safeguarded
through redaction, the requested Party, instead of delivery, may choose to disclose
the existence and characteristics of the Document in a “Privilege Log”, drafted in
accordance with Annex III,
- identifying the date, the issuer, the recipient of the Document,
- providing a summary description of the Document, plus
- an explanation of the reasons which justify that the Document be withheld in
full.
52. Any discussion will be settled by the Tribunal.
b. “O2”: Production is unreasonably burdensome¹¹
53. The requested Party may object to the production of Documents on the basis that it
would impose an unreasonable burden. In making its decision, the Tribunal will
weigh time and cost of producing the Documents against their expected evidentiary
value. The Tribunal may also reduce the scope of production to avoid unreasonable
burden.
c. “O3”: Loss, destruction or inexistence¹²
54. The requested Party may object to the production of Documents if it shows, with
reasonable likelihood, that they have been lost or destroyed, or do not exist for other
reasons.
¹⁰ Art. 9.3(b) IBA Rules.
¹¹ Art. 9.2(c) IBA Rules.
¹² Art. 9.2(d) IBA Rules.
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55. In such case, the Tribunal shall take note of the requested Party’s declaration. The
requesting Party may make the inferences it deems appropriate in its following
written submission.
d. “O4”: Technical or commercial confidentiality ¹³
56. A Party may request that a Document should not be produced, alleging compelling
grounds of technical or commercial confidentiality.
57. If the requested Party raises an objection under O4 and, if challenged, the Tribunal
confirms it, the requested Party may request a reasonable confidentiality
undertaking from the counterparty, to protect the confidentiality of the Documents.
Absent such agreement, the requested Party shall deliver the Documents with the
confidential information redacted.
58. In those cases in which the confidential information cannot be adequately
safeguarded by a confidentiality undertaking or through redaction, the requested
Party, instead of delivery, may choose to disclose the existence and characteristics
of the Document in a Privilege Log, drafted in accordance with Annex III,
- identifying the date, the issuer, the recipient of the Document,
- providing a summary description of the Document, plus
- an explanation of the reasons which justify that the Document be withheld in
full.
59. Any discussion will be settled by the Tribunal.
e. “O5”: Special political or institutional sensitivity ¹⁴
60. A Party may request that a Document should not be produced, alleging compelling
grounds of special political or institutional sensitivity (including evidence that has
been classified as secret by a government or a public international institution).
61. If the requested Party raises an objection under O5 and, if challenged, the Tribunal
confirms it, the requested Party may request a reasonable confidentiality
undertaking from the counterparty, to protect the sensitive information. Absent such
agreement, the requested Party shall deliver the Documents with the political or
institutionally sensitive information redacted.
62. In those cases in which sensitive information cannot be adequately safeguarded by
a confidentiality undertaking or through redaction, the requested Party, instead of
delivery, may choose to disclose the existence and characteristics of the Document
in a Privilege Log, drafted in accordance with Annex III,
- identifying the date, the issuer, the recipient of the Document,
¹³ Art. 9.2(e) IBA Rules.
¹⁴ Art. 9.2(f) IBA Rules.
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- providing a summary description of the Document, plus
- an explanation of the reasons which justify that the Document be withheld in
full.
63. Any discussion will be settled by the Tribunal.
f. “O6”: Production would affect the fairness or equality of the
procedure ¹⁵
64. Documents will not be ordered to be produced when the Tribunal finds
considerations of procedural economy, proportionality, fairness or equality of the
Parties that it determines to be compelling, or where there is another compelling
reason for nonproduction.
D. Procedure
a. DPS Response
65. On the date identified in Annex I, each Party shall return directly to the counterparty
the initial DPS (without copying the Tribunal), indicating which requests it will
voluntarily comply with, and which requests it rejects [“DPS Response”],
- Arguing that such requests do not meet any or some of the Requirements R1
through R3; or- Raising one or more of the Objections O1 through O6.
b. Delivery of Non-Contested Documents
66. On the same date, each requested Party shall produce all documents which it has
voluntarily accepted to deliver [the “Non-Contested Documents”]. Non-Contested
Documents shall only be delivered to the requesting Party, without copying the
Tribunal. The requesting Party may submit any of these Non-Contested Documents
as evidence with the following written submissions.
67. The requested Party should not deliver at this stage Documents for which it has
raised an Objection; such Documents shall only be delivered (or a Privilege Log
submitted) once the Tribunal has issued its decision.
c. DPS Response to Objections
68. On the date identified in the Procedural Calendar, the requesting Party shall file a
response to the Objections O1 through O6 raised by the counterparty. The
requesting Party may withdraw or limit its requests on account of the Objections
raised.
69. The requesting Party shall formalize its response in the DPS [“DPS Response to
Objections”].
¹⁵ Art. 9.2 (g) IBA Rules.
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70. For the avoidance of doubt, the requesting Party shall refrain from replying to the
arguments raised by the requested Party regarding Requirements R1 to R3.
71. On that same date, each Party shall submit its DPS (including its own requests, the
objections of the counterparty and its own responses to the objections) to the
Tribunal.
72. When submitting the DPS to the Tribunal, the Parties are kindly requested to refrain
from making additional submissions. Parties are expected to strictly adhere to the
rules set out in the present Procedural Order.
d. Decision on DPS
73. The Tribunal will endeavour to issue its decision by the date established in the
Procedural Calendar. Such decision will be formalized in the requesting Party’s
DPS.
e. Production of Contested Documents or Privilege Log
74. Each Party shall produce all “Contested Documents”, in compliance with the
decision adopted by the Tribunal, 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 submit any of such Contested
Documents as evidence with its written submissions.
75. The same rule shall apply, if the requested Party has raised, and the Tribunal has
accepted, Objections O4 or O5 with regard to certain Documents, and the Parties
have reached a confidentiality agreement.
76. Absent such agreement, or if Objection O1 has been pleaded and accepted, the
requested Party shall deliver the Documents with the privileged information
redacted.
77. In those cases in which the privileged information cannot be adequately
safeguarded through redaction, the requested Party shall produce to the
counterparty (without copying the Tribunal) a Privilege Log, drafted in accordance
with Annex III,
- identifying the date, the issuer, the recipient of the Document,
- providing a summary description of the Document, plus
- an explanation of the reasons which justify that the Document be withheld in
full.
f. Delivery of Affidavits
78. On the same date, each Party will deliver to its counterparty and to the Tribunal, the
following “Affidavits”:
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- A first Affidavit signed by the chief legal officer of such Party drafted in
accordance with Annex IV, and- A second Affidavit signed by the head external legal counsel to such Party
drafted in accordance with Annex V.
79. 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.
E. Allocation of costs
80. In its decision on costs, the Tribunal will make a special allocation of costs with
regard to the Document production exercise, taking into consideration the
reasonableness of the Requests and Objections, each Party’s willingness to produce
the Documents under its control and the relative success of each Party.
81. Parties shall identify separately in their statements of costs, the costs incurred in
preparing their DPS Requests and DPS Responses, and the costs incurred in the
search and delivery of the requested Documents.
82. At the date established in Annex I, Claimant shall present its Reply on the Merits
and Response to Objections to Jurisdiction which shall be limited to replying to
the facts and legal argumentation set forth by Respondent regarding the Claim in
its Statement of Defence and Objections to Jurisdictions. Claimant may also set
forth the legal argumentation and the relief it is seeking with regards to the
Objections to Jurisdiction.
83. Absent leave from the Tribunal for good cause shown, no new argument shall be
presented, and no new evidence shall be attached to the Reply on the Merits and
Response to Objections to Jurisdiction regarding the Claim, except if required to
rebut arguments and evidence submitted with the Statement of Defence and
Objections to Jurisdictions and/or if evidence has arisen from the document
production.
84. The marshalling of evidence regarding the Reply on the Merits and Response to
Objections to Jurisdiction shall follow mutatis mutandis the rules established in
para. 10 supra.
85. At the date established in Annex I, Respondent shall present its Rejoinder on the
Merits and Reply to Objections to Jurisdiction, which shall be limited to replying
to the facts and legal argumentation set forth by Claimant in its Reply on the Merits
and Response to Objections to Jurisdiction.
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86. Absent leave from the Tribunal for good cause shown, no new argument shall be
presented, and no new evidence shall be attached to the Rejoinder on the Merits and
Reply to Objections to Jurisdiction, except if required to rebut arguments and
evidence submitted with the Reply on the Merits and Response to Objections to
Jurisdiction and/or if evidence has arisen from the document production.
87. The marshalling of evidence shall follow mutatis mutandis the rules established in
para. 10 supra.
88. The Claimant shall present its Rejoinder on Objections to Jurisdiction, which shall
be strictly limited to replying to the argumentation regarding the Objections to
Jurisdiction set forth by the Respondent in the Rejoinder on the Merits and Reply
to Objections to Jurisdiction.
89. The marshalling of evidence shall follow mutatis mutandis the rules established in
para. 10 supra.
90. In due course, the Tribunal shall issue a Procedural Order establishing the specific
details of the evidentiary hearing [the “Hearing”] to be held in this case. This
notwithstanding, this Procedural Order No. 1 establishes some basic principles.
91. A pre-hearing organizational teleconference shall be held between the Tribunal (or
its President) and the Parties to resolve any outstanding procedural, administrative,
or logistical matters in preparation for the Hearing.
92. The Hearing will be held either in person at the PCA in The Hague, Netherlands,
unless otherwise ordered by the Tribunal, or by videoconference, subject to
appropriate arrangements to be discussed between the Tribunal and the Parties in
due course.
93. The Parties agree that the Hearing will be conducted in English, but interpretation
will be provided between English and Portuguese if Portuguese speaking parties
participate and/or if Portuguese speaking witnesses and/or experts provide
testimony.
94. No new evidence or calculations may be presented at the Hearing except with leave
of the Tribunal. Should the Tribunal grant leave to a Party to present new evidence
in the course of the Hearing, it will grant the other Party the opportunity to introduce
new evidence to rebut it.
95. Demonstrative exhibits (such as PowerPoint presentations) may be shown using
documents or information submitted earlier in accordance with this Order. Each
such demonstrative exhibit shall display the number of the document from which it
was taken. Hard copies (if the Hearing is held in person) and electronic copies (by
e-mail) of all such exhibits shall be provided to the PCA, each Member of the
Tribunal, the Administrative Secretary and the opposing Party prior to the exhibit
being used at the hearing.
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96. To facilitate references to the main documents on which the parties intend to rely
at the Hearing, the Parties shall use their best efforts to agree on and prepare a joint
physical hearing bundle containing only a set of essential factual/legal documents
on which the Parties are most likely to rely, together with a table of contents for
such bundle. In the event that the Parties are unable to agree on a joint Hearing
bundle, each party shall provide a separate hearing bundle of essential factual and
legal documents. The documents in the bundle referenced in this paragraph shall be
identified by using the exhibit or legal authority numbers recorded over the course
of the arbitration. Such binder shall be produced in A5 format, spiral-bound and be
provided to Prof. Juan Fernández-Armesto, Prof. Guido Santiago Tawil and the
PCA at the beginning of the Hearing.
97. The Parties should also provide a full copy of the record in electronic format to the
PCA and each member of the Tribunal at the beginning of the Hearing, which
should be compatible with Macintosh format.
A. Witnesses
98. Any person who has produced a witness statement, expert opinion or report
[“Witness”] may be called to the Hearing for cross-examination at the dates
established in Annex I. The witness statement, expert opinion and/or report
produced by any Witness shall be considered that person’s direct evidence and there
shall be no additional need for the Party submitting said Witness to engage in direct
examination of the Witness at the Hearing (other than a brief introductory
examination as provided herein and/or to address any new points that have arisen).
Notwithstanding this, the Parties recognize it may be helpful for the Parties’
respective quantum experts to provide a short presentation prior to engaging in
cross-examination and, accordingly, this may be permitted.
99. At the dates established in Annex I, each Party shall communicate to the other Party
and the Tribunal whom of such Witnesses it intends to cross-examine.
100. The Tribunal may call for examination any Witness, even if not proposed by the
Parties.
101. Each Party shall be responsible for summoning those of its own Witnesses who
have been called to the Hearing, except when the other Party has waived
cross-examination of a Witness and the Tribunal does not insist on his or her
appearance. Each Party shall advance the costs of appearance of its own Witnesses.
The Tribunal will decide upon the appropriate allocation of such costs in accordance
with Arts. 38 to 40 of the UNCITRAL Rules.
102. If the Hearing is held in person and the Witness cannot attend the Hearing for a
valid reason, such Witness may be heard by videoconference, or by any other means
the Tribunal deems appropriate. Counsel of both Parties may be present at the place
where the witness will make his or her video deposition.
103. The examination of Witnesses shall proceed as follows:
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- The Presiding Arbitrator shall invite the Witness to make a solemn
declaration that his or her testimony will be truthful;- The Party presenting the Witness may conduct a brief direct examination
lasting no more than 15 minutes; in the case of Expert Witnesses, the Witness
may make a presentation in lieu of direct examination, limited to 30 minutes;- The adverse Party may then cross-examine the Witness on relevant matters
that either were addressed or presented by that witness in his or her statement
or direct examination, which otherwise form part of the record before the
Tribunal or that the Witness should reasonably have knowledge of;- The Party summoning the Witness may then re-examine the witness with
respect to any matters or issues arising out of the cross-examination;- The Tribunal may examine the Witness at any time, either before, during or
after examination by one of the Parties.
104. The Tribunal shall, at all times, have complete control over the procedure for
hearing a Witness. The Tribunal may, in its discretion:
- Refuse to hear a witness if it considers that the facts with respect to which the
witness will testify are either proven by other evidence or are irrelevant or
immaterial to the outcome of the dispute;- Limit or refuse the right of counsel to examine a witness when it appears that
a question has been addressed by other evidence or is irrelevant or immaterial
to the outcome of the dispute; or- Direct that a witness be recalled for further examination at any time.
105. It shall not be improper for counsel to meet witnesses and potential witnesses to
establish the facts, prepare witness statements, and prepare for examination.
106. Unless the Parties agree, or the Tribunal decides otherwise, a Factual Witness, other
than a representative of the Party concerned, shall not be present in the Hearing
room during the hearing of oral testimony, discuss the testimony of any other
Witness, or read any transcript of any oral testimony, prior to his or her
examination. Unless the Parties agree otherwise, Expert Witnesses shall be allowed
to be present in the hearing room at any time.
107. If a Witness testifies in a language other than English, the Parties shall organise
simultaneous interpretation.
B. Recording and transcripts
108. The Hearing shall be recorded and transcribed in English.
109. The hearing transcripts shall be available in real-time using LiveNote or similar
software and electronic transcripts shall be provided to the Parties and the Tribunal
on a same-day basis.
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110. The Parties may review and propose corrections to the written transcripts. In the
event of disagreement with the written transcript, the audio recording in the original
spoken language controls. In case of disagreement between the Parties with respect
to the audio, the Tribunal shall decide upon such disagreement.
111. Post-Hearing briefs shall be filed simultaneously, on a date to be agreed by the
Tribunal with the Parties at the end of the Hearing.
112. Statements of costs shall be filed simultaneously, on a date to be agreed by the
Tribunal with the Parties at the end of the Hearing.
113. No submissions regarding jurisdiction or the merits of the dispute shall be presented
outside of the submissions provided in the above sections. Similarly, no new
evidence shall be submitted outside of the provisions of the above sections.
114. If, under exceptional circumstances, a Party wishes to raise a new argument or
present new evidence, it shall submit a reasoned request to the Tribunal. The other
Party will have the opportunity to comment on such request, after which the
Tribunal will make its decision whether to grant leave. Should such leave be granted
to one side, the other side shall have an opportunity to submit a response.
115. The Tribunal understands that time periods fixed in Annex I are ample and
sufficient for the preparation of the submissions. Consequently, the Tribunal will
not accept motions for the extension of time periods, save in exceptional and well
proven circumstances.
116. The Tribunal is especially reluctant to grant extensions of time periods which result
in a postponement of the Hearing dates.
A. Transmission of communications and submissions
117. All communications and written submissions shall be sent to all members of the
Arbitral Tribunal, to the PCA Registry, to the Administrative Secretary and to the
counterparty by e-mail only.
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118. For any simultaneous communications or written submissions, each side will
submit an electronic copy to the PCA Registry only. The Registry will then
distribute copies to the members of the Tribunal, the Administrative Secretary and
the opposing party once all submissions have been received.
119. The Parties’ written submissions identified in Chapter I supra will be sent by e-mail
on their due date, together with a list of exhibits, any witness statements and expert
reports (without documentary evidence or case law). Within the next two business
days the Parties are to make available through an electronic platform (e.g. Dropbox,
Box or similar) the written submission in question, together with all witness
statements, expert reports and all other documents (documentary evidence and case
law) attached to the Parties’ submissions. The Parties should confer and decide on
the appropriate platform.
120. For the avoidance of doubt, the Tribunal dispenses any paper copies of
communications, submissions or evidence (except for the joint physical hearing
bundle referred to in para. 96 supra).
B. Rules for communications and submissions
121. The Parties shall number all communications (including any e-mails) and written
submissions, pursuant to para. 13 of communication A-1. All communications and
written submissions shall have paragraphs numbered consecutively. All written
submissions shall include a table of contents.
122. To facilitate filing, citations, and word processing, all written submissions, witness
statements and expert reports, shall be provided in a non-scanned, editable Word or
PDF format without restrictions so that they can be searched, annotated and the
contents copied. Factual evidence and legal authorities shall also be submitted in
text searchable format (i.e., OCR PDF) without restrictions.
123. Any spreadsheet or table shall be editable and all formulae visible. Data used in the
creation of spreadsheets and tables should indicate its source.
124. Each written submission shall be accompanied of a consolidated chronological list
of factual exhibits, identifying the exhibit date, number and description, as follows:
| DATE | NUMBER | DESCRIPTION |
|---|---|---|
| 2 April 1949 | C-1 | Certificate of Incorporation No. 7089 |
| 9 December 1999 | C-2 | Certificate of Incorporation No. 7039 |
| Etc. |
125. Electronic documents shall be named according to the following format: document
number, followed by the date in yyyy-mm-dd format, followed by the document
description, as follows:
“C-1 1949-04-02 Certificate of Incorporation No 7089.pdf”
126. This list shall be updated with each written submission.
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127. Similarly, a list of the legal authorities relied upon by a Party shall accompany each
submission.
128. In addition to the provisions on document production above, the Tribunal may be
guided by the IBA Rules when considering matters of evidence.
Documents
129. All documents (documentary evidence and case law), including both originals and
copies, submitted to the Tribunal shall be deemed to be authentic, unless a Party
disputes, within a reasonable time, a document’s authenticity or completeness, or
the Party submitting the evidence indicates aspects in which the document is
incomplete.
130. All documents shall either be submitted to the Tribunal in complete form or the
Parties shall indicate the aspects in which any document is incomplete.
Witness statements
131. Any person may present evidence as a witness, including a Party or a Party’s officer,
employee, or other representative.
132. For each witness, a written and signed witness statement shall be submitted to the
Tribunal. Where in exceptional circumstances a Party is unable to obtain such a
statement from a witness, the evidence of that witness shall be admitted only with
leave of the Tribunal and, if the Tribunal grants such leave, in accordance with its
directions.
133. Any document to which a witness refers shall be exhibited (unless such document
has already been submitted with the Parties’ written submissions), form part of the
documentary exhibits submitted by the Party calling that witness and be numbered
in accordance with para. 13 of communication A-1 (and identified accordingly in
the witness statement).
Expert reports
134. Each Party may retain and submit the evidence of one or more experts to the
Tribunal.
135. Expert reports shall be accompanied by any documents or information upon which
they rely, unless such documents or information have already been submitted with
the Parties’ written submissions. Any new document to which an expert refers shall
be exhibited, form part of the documentary exhibits submitted by the Party calling
that expert and shall be numbered in accordance with para. 13 of communication
A-1 (and identified accordingly in the expert report).
136. The Tribunal may, on its own initiative or at the request of a Party, appoint one or
more experts. The Tribunal shall consult with the Parties on the selection, terms of
reference (including expert fees), and conclusions of any such expert.
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137. As per Section VIII of the Terms of Appointment, the language of the Arbitration
will be English.
138. However, documents which are originally in Portuguese (such as agreements,
exhibits, correspondence, laws, etc.) may be submitted and cited in Portuguese,
with full or partial translations at the option of the submitting party. If a party desires
to submit any full or partial translations, it may do so without the need of a certified
translation.
139. Informal translations will be accepted as accurate unless contested by the other
party, in which case, the Parties shall attempt to reach agreement on the translation
(including, if needed, through the introduction of certified translations). If no
agreement is reached, the Tribunal shall take any appropriate decision.
140. The Tribunal may request full or partial translations of specific written materials it
may deem necessary.
141. Any procedural orders, partial awards and/or the final award shall be in English.
That notwithstanding, the Tribunal may cite evidence in Portuguese in any
decisions, procedural orders and awards, without the need for translation.
142. Documents produced in response to requests or orders for document production
may be produced in their original language. If a Party wishes to submit any such
documents as exhibits, para. 138 supra shall apply.
143. The Parties must always provide a list with the names of the people attending any
meetings or hearings that might be held, in person, by phone or videoconference.
144. The Arbitral Tribunal, or the President of the Tribunal by himself, shall have the
power to extend for good cause any time period set forth in Annex I, upon reasoned
request by any Party or sua sponte in exceptional circumstances.
145. Pursuant to the agreement of the Parties,¹⁶ the arbitration shall be conducted in
accordance with the UNCITRAL Rules on Transparency in Treaty-Based Investor-
State Arbitration, as adopted in 2013 [“UNCITRAL Rules on Transparency”], in
accordance with Art. 1(2)(a) thereof.
146. The PCA shall assume the role of the “repository” foreseen under the UNCITRAL
Rules on Transparency with respect to this arbitration.
¹⁶ Terms of Appointment, Section X.
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147. The PCA shall make information and documents regarding the arbitration available
to the public in accordance with the UNCITRAL Rules on Transparency, except as
otherwise decided by the Tribunal pursuant to the UNCITRAL Rules on
Transparency.
148. Hearings shall be public except as otherwise decided by the Tribunal in accordance
with the UNCITRAL Rules on Transparency.
Place of Arbitration: The Hague, Netherlands
Date: 14 October 2020
Signature
Juan Fernández-Armesto
President of the Arbitral Tribunal