italaw16046.pdf

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[Page 1]

BEFORE THE INTERNATIONAL CENTRE FOR THE SETTLEMENT OF
INVESTMENT DISPUTES

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --X

In the Matter of Arbitration	:
Between:	:
GABRIEL RESOURCES LTD. and GABRIEL	:
RESOURCES (JERSEY) LTD.,	:
	:
Claimants,	:	Case No.
	:	ARB/15/31
and	:
	:
ROMANIA,	:
	:
Respondent.	:

HEARING ON THE MERITS

Friday, September 23, 2016

The World Bank Group
1818 H Street, N.W.
MC Building
Conference Room 2-800
Washington, D.C.

The hearing in the above-entitled matter came on

pursuant to notice, at 9:00 a.m. before:

MS. TERESA CHENG, SC, President of the Tribunal
DR. HORACIO A. GRIGERA NAÓN, Co-Arbitrator
PROF. ZACHARY DOUGLAS, Co-Arbitrator

[Page 2]

Also Present:

MS. SARA MARZAL YETANO
Secretary to the Tribunal

Court Reporter:

MR. DAVID A. KASDAN
Registered Diplomate Reporter (RDR)
Certified Realtime Reporter (CRR)
B&B Reporters
529 14th Street, S.E.
Washington, D.C. 20003
(202) 544-1903

[Page 3]

APPEARANCES:

Attending on behalf of the Claimants:

MS. ABBY COHEN SMUTNY
MR. DARRYL LEW
MR. BRODY GREENWALD
MR. MICHAEL ROCHE
MR. ANDREI POPOVICI
MS. SAMANTA FERNÁNDEZ MICONE
White & Case, LLP
701 13th Street, N.W.
Washington, D.C. 20005
United States of America

MS. ANCA PUŞCAŞU
MS. RUXANDRA NIŢĂ
Tuca Zbârcea & Asociaţii
Sos. Nicolae Titulescu nr. 4-8
America House, Aripa de Vest, et. 8
Sector 1, 011141, Bucuresti
Romania

Company Representatives:

MR. JONATHAN HENRY

MR. DAVID KAY

[Page 4]

APPEARANCES: (Continued)

Attending on behalf of the Respondent:

MR. VEIJO HEISKANEN
MS. LORRAINE de GERMINY
MR. CHRISTOPHE GUIBERT de BRUET
Lalive
35, rue de la Mairi
CH 1207 Geneva
Switzerland

MS. CRENGUTA LEAUA
MS. ANDREEA SIMULESCU
MS. LILIANA DEACONESCU
Leaua & Asociatii
10 Zborului Street, sector 3
030595, Bucharest
Romania

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CONTENTS

	PAGE
PRELIMINARY MATTERS	7
OPENING STATEMENTS
ON BEHALF OF THE CLAIMANTS:
By Ms. Cohen Smutny	24
By Mr. Lew	81
ON BEHALF OF THE RESPONDENT:
By Mr. Heiskanen	133
By Ms. de Germiny	172
By Mr. Guibert de Bruet	197
CLOSING ARGUMENTS
ON BEHALF OF THE CLAIMANTS:
By Ms. Cohen Smutny	245
By Mr. Lew	257
ON BEHALF OF THE RESPONDENT:
By Ms. Leaua	274
By Mr. Guibert de Bruet	282
By Mr. Heiskanen	284

[Page 6]

CONTENTS(Continued)

	PAGE
CONFIDENTIAL SESSIONS:
1.	81-132
2.	197-242
3.	245-298

[Page 7]

PROCEEDINGS

1 PRESIDENT CHENG: Good morning. I think we can

2 begin now.

3 This is the ICSID Case Number ARB/15/31,

4 Gabriel Resources and Gabriel Resources (Jersey) versus

5 Romania.

6 This is the hearing whereby we are going to

7 deal with two Provisional Measures Application, and my

8 co-Arbitrators--Professor Douglas and Dr. Grigera

9 Naón--are here, and, of course, the ICSID Secretariat,

10 Ms. Sara Yetano.

11 May I first ask the Claimant to introduce those

12 who are on the Claimants' side, followed by the

13 Respondent as a matter of record, and then there, I

14 believe, are some housekeeping matters we may want to

15 deal with before we proceed any further.

16 MS. COHEN SMUTNY: Thank you very much.

17 For the Claimant, my name is Abby Cohen Smutny.

18 With me are colleagues from White & Case, going down

19 the line, Mr. Michael Roche, Mr. Darryl Lew, Mr. Brody

20 Greenwald, Ms. Samanta Fernández Micone.

21 Representing the Claimants, Mr. Jonathan Henry,

[Page 8]

1 Mr. David Kay.

2 From our co-counsel, the law firm of Tuca

3 Zbârcea & Asociatii, Anca Puşcaşu and Ruxandra Niţa.

4 Also a colleague, Andrei Popovici, from White &

5 Case is with us as well.

6 MR. HEISKANEN: Good morning, Madam President

7 and Members of the Tribunal. My name is Veijo

8 Heiskanen. I'm of Lalive, representing the Respondent.

9 On my left is Lorraine de Germiny of Lalive; and next

10 to her, Dr. Crenguta Leaua of Leaua & Asociatii; and

11 then Christophe Guibert de Bruet of Lalive; and next to

12 him, Andreea Simulescu of Leaua & Asociatii; and in the

13 back we have Liliana Deaconescu, also of Leaua &

14 Asociatii.

15 PRESIDENT CHENG: Thank you.

16 I believe there are some housekeeping matters

17 we need to cover. From our own reading, there is the

18 new authorities that is being put in by the Respondent.

19 There is some issue about the recording from those in

20 the broadcasting room, and obviously also a way we are

21 going to handle the questions of confidentiality as the

22 proceedings arise.

[Page 9]

1 Those are the three that the Tribunal noticed

2 that we have to cover.

3 Would that be right?

4 Claimant?

5 MS. COHEN SMUTNY: Yes.

6 PRESIDENT CHENG: All right. And Respondent?

7 MR. HEISKANEN: And nothing to add on the part

8 of the Respondent. Thank you.

9 PRESIDENT CHENG: Thank you.

10 Then, in that case, perhaps can I just deal

11 with these procedural matters very quickly first so

12 that we will know how we're going to proceed before we

13 go into the two Provisional Measures Application.

14 First, in relation to the new documents--or the

15 new authorities, I should say. And, of course, this is

16 only a provisional view of the Tribunal, and we will be

17 persuaded otherwise if--and give, of course, the

18 Parties a chance to look at that.

19 What the Tribunal is thinking of in terms of

20 the new authorities is this: We are thinking that

21 perhaps we can hear them on a de bene esse basis to see

22 how the Respondent relies on them, and then thereafter

[Page 10]

1 the Claimant will be able to say whether they can deal

2 with it now or whether they want to deal with it at a

3 later stage, and that, I think, will save some time in

4 arguing whether we can now, as it were, without hearing

5 how it is to be put, whether that can be relied upon.

6 That's our provisional view.

7 So may I first hear the Claimant on that,

8 please.

9 MS. COHEN SMUTNY: Yes, that would be

10 acceptable to the Claimant in the circumstances.

11 PRESIDENT CHENG: Thank you.

12 Respondent?

13 MR. HEISKANEN: The Respondent will be happy to

14 proceed on basis that as well.

15 PRESIDENT CHENG: Thank you very much.

16 Now, then we look at the question of the

17 recording, which I think is Claimants' application for

18 primarily the attendees in the broadcasting room to

19 leave all their recording devices, mainly phones and

20 computers, outside. I do not recall the Respondent's

21 observations on that.

22 May I first ask the Respondent's views on that.

[Page 11]

1 MR. HEISKANEN: It's the question of whether

2 the attendees in the hearing room will be able to

3 record the Hearing.

4 PRESIDENT CHENG: In the broadcasting--we call

5 it the broadcasting room?

6 SECRETARY MARZAL YETANO: The broadcasting

7 room.

8 MR. HEISKANEN: Our preliminary view would

9 be--we haven't consulted our client specifically on

10 that, but in terms of PO 1 and the Tribunal's decision

11 on the scope of publicity of this Hearing, we would

12 object to any recording of this Hearing. The Tribunal,

13 first of all, would have to first decide whether, for

14 instance, the recording--or the video recording of the

15 Hearing can be posted on ICSID's Web site, for

16 instance, after the Hearing. I think that's something

17 that should be discussed first between the Parties and

18 with the Tribunal.

19 So, for the time being, we would object to any

20 recording.

21 PRESIDENT CHENG: I don't think we are

22 discussing about whether or not the proceedings can be

[Page 12]

1 posted on the Web site. I think it's just whether

2 those who are sitting in the broadcasting room should

3 be precluded from having their phones.

4 Now, again, we will be persuaded otherwise, but

5 provisional view of the Tribunal is this: Given that

6 there is a delay in the broadcasting, because I think

7 we have agreed--is it one-hour delay in the

8 broadcasting?--anything that is confidential is going

9 to be precluded. It will be--it will not be

10 broadcasted; and, therefore, that will, as it were, be

11 protected from being recorded, if it is to be recorded.

12 The other matters really are matters of

13 principle and arguments on principle, and that is not

14 subject to the question of confidentiality.

15 So, at the moment--and we will be happy to hear

16 Parties to the contrary--we take the view that there is

17 probably not a specific need to direct that the phones

18 and the computers of the attendees in the broadcasting

19 room be left outside the broadcasting room because the

20 concerns of confidentiality would already be dealt with

21 by the way we handle the Hearing itself. And I think

22 that's our provisional view, but again, let's hear the

[Page 13]

1 Parties on that.

2 MS. COHEN SMUTNY: The Claimants' concern is as

3 follows: In the Procedural Order Number 1, the Parties

4 agreed that the manner in which we would make the

5 Hearings open and transparent would be by the

6 closed-circuit television arrangement that we've made,

7 so those who want to attend the Hearing and observe it

8 would be in the room.

9 Our understanding is that no recording

10 equipment is permitted by those attending, and that, I

11 believe, was also a communication from the Secretariat

12 that the Parties received, and we understood that

13 that's also in the spirit of the nature of the

14 transparency, the nature of the open hearings that was

15 agreed by the Parties and reflected in the Procedural

16 Order Number 1.

17 The reality of today's technology, however, is

18 that every phone, every computer is a recording device.

19 And so, if the Rule is "no recording device," then that

20 needs to mean phones and computers because it is

21 impossible to police. Even if there is, you know, a

22 well-meaning person in the room observing that there is

[Page 14]

1 no camera or something obvious, it's perfectly possible

2 and easy. And, in Claimants' experience on this matter

3 and in related matters or matters of a similar nature,

4 there are those who are very eager to record and post

5 online, which is contrary to the spirit of the nature

6 of what we agreed in terms of transparency.

7 And so, in the spirit of having the rule that

8 we understood we had agreed to, this is the precaution

9 that we ask because, unfortunately, just today's

10 technology is such that to say "no recording devices"

11 but then to allow effectively recording devices which

12 are difficult to police, that was the concern. And so,

13 it was that which motivated Claimants' request, and

14 probably the Tribunal understands the nature of the

15 issue.

16 MR. HEISKANEN: Yes, Madam President.

17 The Parties have agreed on the scope of

18 publicity of this Hearing, as it has been recorded in

19 Procedural Order Number 1. It's been defined how

20 transparency is going to be handled in this

21 arbitration.

22 We share the concern that if recording devices

[Page 15]

1 are allowed to be in the hearing room, the publicity or

2 the degree of transparency would go beyond what the

3 Parties have agreed and what the Tribunal has

4 specifically decided in Procedural Order Number 1.

5 PRESIDENT CHENG: One of the matters that the

6 Tribunal was thinking of is it's extremely difficult to

7 police. If someone is going to record, it would not

8 just be the phone, and there could be other recording

9 devices. So, leaving the phones and computers outside

10 may not necessarily be "safe," if I can use that word,

11 to preclude that.

12 So, I don't know whether a pronouncement that

13 "this proceeding is not to be recorded" would be

14 adequate for the purposes of this particular Hearing,

15 given the difficulty of policing and of ensuring that

16 everybody do not have any--any--recording device, not

17 just the mobile phone or the computer.

18 I don't know whether that--I mean, I have to,

19 of course, consult, also, with my colleagues in due

20 course on that, but I'd just like to hear your views on

21 it first.

22 MR. LEW: I don't think that we want to, you

[Page 16]

1 know, let the perfect be the enemy of the good, and I

2 think we should take all reasonable measures to ensure

3 that what is a closed-circuit broadcast doesn't become

4 a global broadcast through a recording.

5 So, I think we would maintain our view that we

6 should do all we reasonably can to ensure that the

7 scope and nature of the publicity agreed to in

8 Procedural Order Number 1 is adhered to, and we think

9 that this measure that we're asking for does that.

10 MR. HEISKANEN: We would be happy with this

11 arrangement, Madam President. No need to have the

12 "obligation of result," as French lawyers would say.

13 (Tribunal conferring.)

14 PRESIDENT CHENG: Thank you very much for both

15 sides on providing your views.

16 On the basis of the agreement of the Parties,

17 the Tribunal felt that we have to grant the order, that

18 is or grant a direction that is sought and ask the

19 attendees in the broadcasting room to leave the

20 recording devices, including phones and laptops outside

21 of the broadcasting room, and that's by the Agreement

22 of the Parties; and the Tribunal, therefore, grants

[Page 17]

1 that particular request.

2 The third housekeeping matter is that of

3 confidentiality, how we're going to deal with it.

4 Again, I hope the Parties don't mind that I pronounce

5 what is the provisional view of the Tribunal. Again,

6 we'll be happy to listen and be persuaded otherwise.

7 We have provided a timetable by which there are

8 opening and closing remarks; but, in the light of the

9 changes and the circumstances that have arisen, we are

10 thinking of the way in which the Hearing can be

11 structured could be this: That we spend time, first,

12 as we've indicated in our letter, to deal with

13 Provisional Measure 1, and that can be dealt with

14 first, and that at the moment we don't think there is

15 anything that would give rise to questions of

16 confidentiality because that's more a matter of

17 principle at the moment, as we see them.

18 Then we move on to Provisional Measure 2, and

19 there I think there are, matters of principle and there

20 are matters of fact. And I'd, therefore, like to hear

21 the Parties on which aspect of it would the Parties

22 consider as being confidential and that the broadcast

[Page 18]

1 would be stopped: That, of course, is quite apart from

2 the fact that we have a delayed broadcasting and ways

3 in which we can cut the broadcast, but I think it would

4 be useful to just roughly have an idea in advance, and

5 that will help us to structure the arguments that would

6 be made in Provisional Measure 2.

7 MS. COHEN SMUTNY: Thank you.

8 For the Claimants, we've worked to structure

9 our argument in such a way that we think it would work

10 to--we will be able to indicate, you know, on again and

11 off again in terms of the broadcast.

12 Given how developments have been progressing, I

13 think we can discuss--I think Claimants agree, we can

14 discuss the issues relating to access to documents, the

15 subject of Provisional Measures Number 1, in a manner

16 that is not confidential. I think we had some concerns

17 about whether we would have to be describing in some

18 detail some of these documents but we think not, and

19 given how we're proceeding.

20 So, we agree that what you propose is fine in

21 terms of the Second Provisional Measures.

22 And we're also fine to--we're agreed to discuss

[Page 19]

1 that matter first, and then, if that's acceptable to

2 Respondent, to discuss that entirely first and then

3 turn afterwards to the Provisional Measures Request

4 Number 2 where the discussion of the facts we've tried

5 to separate that in our presentation so that we can

6 discuss legal principles separately from facts, and so

7 we hope we've achieved what will be a workable

8 separation.

9 PRESIDENT CHENG: Can I just understand, your

10 position is that all the facts--you would argue that

11 they are all confidential and should not be

12 broadcasted; am I right?

13 MS. COHEN SMUTNY: Yes, you know, because all

14 of the facts--there may be certain facts that are in

15 the public domain, but it's so intertwined when one

16 starts talking about it with details that are not in

17 the public domain, our concern is that it's really

18 difficult to talk about the facts, separating the

19 public facts from the nonpublic facts.

20 So, again, we've tried to organize our argument

21 so that we can discuss legal principles that are

22 debated between the Parties separately from factual

[Page 20]

1 issues, and we hope we've achieved a good separation.

2 PRESIDENT CHENG: Okay, thank you.

3 MR. HEISKANEN: We share the Tribunal's initial

4 thinking. It's also our view that the first request

5 can be addressed. There seems to be no confidential

6 information or privileged information or classified

7 information--that's the very subject matter of the

8 request--that would require interrupting the

9 broadcasting. And, for instance, in our presentation,

10 we have also organized the presentation in such a way

11 that the discussion on Provisional Request Number 1 is

12 discussed separately, and there should be no need to

13 interrupt the broadcasting for that purpose.

14 Then the issues surrounding the second request

15 are a bit more complicated. The existence of the two

16 investigations to which the request relates are

17 actually in the public domain. The Claimants have

18 reported on those investigations in their corporate

19 recordings, and those documents are on record of this

20 arbitration.

21 It gets a bit more complicated when we are

22 moving to the facts. Much of the information--perhaps

[Page 21]

1 almost all of the information relating to the second

2 request is covered by fiscal secret under Article 11 of

3 the Romanian Tax Procedure Code. It would be

4 obviously--which effectively requires Romanian public

5 officials and the Romanian State in this case not to

6 disclose any of that information in the public domain.

7 The provision protects the interests of the

8 taxpayer, in this case RMGC. It would be for the

9 Claimants and for RMGC to waive their right to fiscal

10 secret or fiscal secrecy if they so wish. We

11 understand that they are not prepared to waive fiscal

12 secret, so it seems that it will be difficult to

13 discuss the second request, any of the facts, publicly.

14 As to the other aspects of the--as to the

15 second leg or the second investigation that forms the

16 subject matter of the second request, the existence of

17 that investigation is also in the public domain, but

18 the facts are not, and they cannot be, in the public

19 domain until the investigations are completed. So, we

20 have also reviewed the evidence on file, and our view

21 is that the documents that relate to the second

22 investigation are also confidential and nonpublic under

[Page 22]

1 Romanian law.

2 As to how we plan to organize our presentation,

3 we would probably have to suspend the broadcasting when

4 we discuss the facts of the second request, but when we

5 then come to the legal argument, that should be

6 something that can be broadcast.

7 PRESIDENT CHENG: Thank you very much.

8 It seems there's a broad agreement on how we

9 are to approach the matter, and I think if it can

10 be--and, of course, it will be a matter of counsel, how

11 they wish to organize their submissions--but if it can

12 be done in a way that the cessation of the broadcasting

13 can be in one slot rather than bit-by-bit, that will,

14 of course, be easier, but I leave it to counsel to see

15 how best to deal with it. And I believe that Parties

16 have had a chance to discuss with the Secretariat about

17 how they are going to indicate, roughly, when that

18 confidentiality arguments are going to--or factual

19 submissions are going to be made so that there would be

20 signs given for the broadcasting to be stopped.

21 So, I think those are the three housekeeping

22 matters that we have thought of that we thought need to

[Page 23]

1 be dealt with.

2 Is there anything else from the Claimants' side

3 on housekeeping?

4 MS. COHEN SMUTNY: No, we're ready to proceed.

5 PRESIDENT CHENG: All right. And I think the

6 Respondent confirmed those are the only matters,

7 anyway?

8 MR. HEISKANEN: Yes, indeed.

9 PRESIDENT CHENG: Thank you.

10 So, we now would like to hear the Parties on

11 the Provisional Measure Number 1, and we've had some

12 updates yesterday, and so thank you very much.

13 MS. COHEN SMUTNY: I wonder if we could get the

14 screen live. Yes, thank you.

15 PRESIDENT CHENG: Just again for managing the

16 time for today, we indicated in our letter that we

17 would like very much that the Provisional Measure

18 Number 1 be dealt with in total by arguments from both

19 sides to be 1.5 hours. If it can be shorter, it would

20 be better.

21 So, can I just roughly estimate the time or ask

22 the Parties to indicate the time that they need for the

[Page 24]

1 opening and the reply, and the same for the Respondent,

2 just so that we roughly can plan ahead. You're not

3 going to be held to it as if cast in stone, but I think

4 an indication for everybody's benefit would be useful.

5 MS. COHEN SMUTNY: For the Claimant, I'm

6 reasonably confident that one--60 to 90 minutes all in

7 for both Parties should be sufficient to cover the

8 ground.

9 MR. HEISKANEN: We agree with this.

10 PRESIDENT CHENG: Good.

11 So, I'll roughly gauge the time, approximately

12 half-half, again as I said not cast in stone so that

13 Sara can keep track.

14 Thank you.

15 OPENING STATEMENT BY COUNSEL FOR CLAIMANTS

16 MS. COHEN SMUTNY: Well, then, if we're ready

17 to proceed, let's begin.

18 Just as a way of introduction just to orient

19 the discussion, the subject of this arbitration is the

20 Claimants' investment in the Rosia Montana Gold

21 Corporation, which the Parties refer to as RMGC. RMGC

22 is a sort of joint venture enterprise. It is a

[Page 25]

1 Romanian company that is owned approximately 80 percent

2 by the Claimants and 20 percent by the Romanian State

3 through a State Enterprise that is called Minvest.

4 RMGC is a titleholder of two Mining Licenses

5 that relate to the subject of the claims presented in

6 this case. They are referred to as the Bucium License

7 and the Rosia Montana License, and this is relevant

8 because one can see this discussed in the documents

9 relating to Confidential and Classified Documents.

10 RMGC has been principally developing the Rosia

11 Montana Mine Project, but also the adjacent Bucium

12 property.

13 Romanian law provides that Mineral Resources

14 located within Romania are the property of the State,

15 and also that all data and information acquired or

16 developed relating to the State's Mineral Resources is

17 also the property of the State. So, mineral

18 Concession, or License concessionholders such as RMGC

19 are permitted to use the data that they require for

20 mining activities during the term of their License.

21 So, RMGC, as it worked to develop the mining properties

22 at issue, did acquire such data and information.

[Page 26]

1 Documents containing such information are held by RMGC

2 pursuant to a Custody Agreement that it concluded with

3 the Romanian Mining Authority. This is referred to in

4 English as the National Agency for Mineral Resources,

5 or NAMR.

6 Romanian law provides that that data and

7 information is also confidential. That's a requirement

8 that's set forth in the Mining Law, Article 5. The

9 documents that RMGC maintains in its possession,

10 subject to the Custody Agreement within NAMR, are thus

11 subject to two restrictions arising from the law and

12 also the terms of that Custody Agreement and that are

13 relevant here.

14 First, RMGC is obligated to keep those

15 documents confidential. And although RMGC is permitted

16 to use the documents for--and the information contained

17 in the documents--for purposes of its mining

18 activities, it is required--it requires--RMGC

19 requires--NAMR's consent to provide any third-party

20 access to those documents, including to its

21 Shareholders, including to Gabriel for purposes of this

22 arbitration.

[Page 27]

1 Romanian law also contemplates that certain

2 categories of information that are managed by public

3 institutions are to be classified and, as such, treated

4 in accordance with the highly restrictive

5 confidentiality regime. The law establishes at least

6 two categories of classification. One is referred to

7 as "State secret," in English, and that category

8 implicates national-security issues; and there is

9 another category referred to as, in the English, as

10 "work secret" classification, and this is for

11 information the disclosure of which could be

12 detrimental to the public institution, and also for the

13 protection of commercially sensitive information.

14 NAMR, accordingly, in accordance with that

15 legal regime, issued a number of orders over the years

16 applicable to the mining sector as a whole designating

17 certain categories of documentation relating to the

18 State's Mineral Resources as requiring work secret

19 classification, and examples of those orders--I'm

20 sorry, you just saw on the screen there, there are two,

21 C-13 and Exhibit C-18, are these orders which set out

22 the categories of documents that were to be work secret

[Page 28]

1 classified.

2 So, in connection with its mining activities in

3 which it conducted within the perimeter of the two

4 Licenses, Rosia Montana License and Bucium, RMGC

5 obviously obtained and acquired information in the

6 categories designated as work secret classified by

7 those NAMR orders, and RMGC, therefore, was obligated

8 to, and did, classify that information, those

9 documents, accordingly, and maintained documents in

10 accordance with the classification regime requirements.

11 So, those classified documents constitute a

12 subset, albeit the majority when we started here, of

13 the documents that RMGC maintains in accordance with

14 its Custody Agreement with NAMR.

15 So, just to make that clear, there's all of the

16 documents subject to the Custody Agreement are

17 confidential by law, a subset of those were classified.

18 And when we started this process, that subset was the

19 majority of those documents, but nevertheless it was a

20 subset. So, I wanted that point to be understood.

21 So, the classified documents were to be treated

22 not only confidentially but also additionally subject

[Page 29]

1 to restrictive regime of an extra-confidential, if you

2 will, the classified document regime.

3 ARBITRATOR GRIGERA NAÓN: May I ask a question.

4 So, under the Custody Agreement--

5 (Sound interference.)

6 ARBITRATOR GRIGERA NAÓN: So the Custody

7 Agreement covers both documents; that is to say what

8 you have referred to as the work secret and this inner

9 confidential and classified documents. They are all

10 covered by the Custody Agreement?

11 MS. COHEN SMUTNY: Correct.

12 Let me just state it again. All of the

13 documents that are subject to the Custody Agreement

14 are, by definition, including information

15 belonging--relating to the Mineral Resources of the

16 State, so that is why they are subject to the Custody

17 Agreement with NAMR. All of those documents by law are

18 confidential. That's an attribute of these, this type

19 of information under Romanian law.

20 A subset of those documents have been

21 designated as classified by NAMR orders, and so a

22 subset, albeit a large subset when we started, were not

[Page 30]

1 only confidential and subject to this Custody

2 Agreement, but also classified. So, subject to special

3 restrictive confidentiality regime.

4 And so, just to jump ahead, as documents are

5 declassified, they remain confidential and subject to

6 the Custody Agreement.

7 ARBITRATOR DOUGLAS: Let's complete the

8 intervention for interruption.

9 If they're still subject to the Custody

10 Agreement, and I know there are amendments being made

11 to that Agreement in the context of the arbitration,

12 but what needs to happen then in order for you to have

13 access to them and be able to use them for the purposes

14 of the arbitration?

15 MS. COHEN SMUTNY: Yes, jumping ahead, the

16 Parties have proposed that maybe there are any number

17 of ways that could have been achieved, and as I'll walk

18 through, I'll just jump ahead to where the Parties are

19 now on that.

20 One approach which we thought was

21 straightforward and perhaps is agreed with the other

22 side--I'm hopeful that we are, in fact, close to

[Page 31]

1 agreement--is a simple amendment to that Custody

2 Agreement whereby the Parties to the Custody Agreement

3 would agree to provide access to the Parties to this

4 arbitration, copies of these documents for purposes of

5 the arbitration.

6 In particular, only NAMR could give access for

7 purposes of this arbitration because RMGC cannot grant

8 more than it has. RMGC only enjoys access for purposes

9 of its mining activities. And so, for purposes of

10 using--so, for example, during the course of Project

11 development, Gabriel as a Majority Shareholder had,

12 certainly, access to those documents as necessary for

13 mining activities with NAMR's consent.

14 But for purposes here--so, it's not here to

15 question--not just of additional third parties having

16 access, but for a different purpose. And so this is

17 why we've proposed, and perhaps we are close to

18 agreement--at least I'm hopeful that we are--that an

19 amendment to the Custody Agreement that is agreed by

20 both NAMR and RMGC could achieve what's needed in terms

21 of access subject to obligations of confidentiality,

22 which remain in the law as we understand. So, that's

[Page 32]

1 where we hope we were going with this, and I believe

2 that's where we are going.

3 So, let me proceed.

4 For the reasons--obviously--maybe let me jump

5 ahead on a couple of these slides and try to get to the

6 main points of where we are now. Give me a moment, and

7 I will catch up here.

8 (Pause.)

9 MS. COHEN SMUTNY: So, go to Slide 6.

10 To clarify for the Tribunal, I just wanted to

11 walk through, so the Tribunal would understand, the

12 documents we had put in before.

13 This Exhibit C-20, which had also been updated,

14 the Tribunal may recall.

15 So, when this process started, the documents

16 that were in this annex were those classified documents

17 that were subject to the Custody Agreement. This

18 Exhibit C-20 was an annex, is an annex, to the Custody

19 Agreement which set forth those documents that were

20 classified. At some point, NAMR asked RMGC to please

21 update that annex, which RMGC then did, because, from

22 the last time that annex had been updated at NAMR's

[Page 33]

1 request, certain categories of documents had been

2 declassified, and so that list became smaller. And I

3 just wanted to clarify what that document was.

4 So, following the Provisional Measures Request,

5 as the Tribunal knows, in fact, NAMR did begin to

6 progressively declassify documents; and, as of the

7 Parties' last submissions, approximately 130 documents

8 that were classified in RMGC's--and are in RMGC's

9 possession, about 130 remained to be declassified.

10 Respondent had requested copies to assist it in the

11 declassification process. RMGC agreed to do that and

12 has been arranging to send such copies.

13 Just so the Tribunal understands, while the

14 document is classified, there is actually a whole

15 process even to copy it, and there are requirements to

16 maintain Registries, and only certain individuals can

17 copy and have access. So, it's a bit of a process, as

18 I understand, and so the process of just providing even

19 copies takes some time, and then it needs to be

20 transported specially, arrangements made by the State.

21 So, even that process is taking a while.

22 The fact is the Parties had agreed--because

[Page 34]

1 this set of documents was getting smaller, it became

2 more practical for RMGC to agree to go through the

3 process of making these copies. And, also, the

4 Tribunal may recall there was a dispute between the

5 Parties as to whether RMGC should need to turn over the

6 originals of it, but when Respondent said, "Well, we

7 could work with copies," and the list of documents had

8 become smaller, it became feasible. And so RMGC is in

9 the process of arranging to provide copies to

10 facilitate remaining declassification, but, in the

11 meantime, additional documents have been declassified,

12 and this reflects even the most recent update. So, as

13 we're sitting here today, it's not 130 anymore. I'm

14 not sure I can give a precise number--

15 PRESIDENT CHENG: You let us at 75, I think.

16 MS. COHEN SMUTNY: Yes, it's about half of

17 that. About 75, exactly.

18 So, that's what remains. And so where we are--

19 PRESIDENT CHENG: Can I just interrupt you a

20 little bit?

21 MS. COHEN SMUTNY: Yes, I'm sorry.

22 PRESIDENT CHENG: Just so we can, again, look

[Page 35]

1 ahead, what sort of time frame do you think that would

2 be for the provision of copies to be completed for the

3 outstanding 75 or maybe 75 minus 13? I think 13 were

4 maps which are not urgent, I think you said.

5 MS. COHEN SMUTNY: Yes. I think the 13 was

6 taken out before we got to 130, so it is still about

7 75. So on this slide, we tried to summarize where we

8 are, as Claimants understand.

9 So, the process of declassification needs to be

10 completed. And in Claimants' understanding, this

11 really requires NAMR to make the decisions to issue

12 orders or directions, as it has been, up until now,

13 doing that. It needs to indicate to the Parties that

14 may hold these documents "please declassify." So,

15 there are a group of documents for which NAMR has not

16 yet, as far as we know, issued that direction. That

17 process needs to be completed.

18 Whether NAMR needs to wait for RMGC to give it

19 copies is a question they've asked. We've disputed

20 that. RMGC understands that the documents that remain

21 are NAMR's own documents, documents that it issued,

22 but, whatever the reason, the Parties now have agreed

[Page 36]

1 to work--to try to get to a solution here. So, I'm not

2 sure how long that's going to take, but let me go

3 through the other points.

4 You will see our submission at the bottom

5 there. We think all that remains to be done can be

6 achieved in 30 days. We will see here what Respondent

7 has to say about that, but it seems, when one reviews

8 the progress, once focus was turned to this issue,

9 progress happened pretty quickly. So, we were hopeful

10 that everything could be achieved now within 30 days.

11 So, in addition to completing declassification

12 of this remaining group of documents, the Parties need

13 to agree on those terms of access. Basically, I

14 believe we may reach an agreement on an amendment to

15 the Custody Agreement, which would provide access to

16 the Parties, and then in terms of a confidentiality

17 order--pardon me, because all of these documents--and

18 there may be other documents in the arbitration outside

19 of this category that may be subject to confidentiality

20 restrictions. So, we need to agree on terms of a draft

21 Confidentiality Order. And there, too, the Parties

22 have exchanged drafts, and I'm hopeful that we are very

[Page 37]

1 close.

2 So, in Claimants' view, this whole process

3 should be able to be completed within 30 days. It

4 seems to us that the record shows, once there was an

5 attention focused on this, that the matters proceeded

6 rather promptly.

7 PRESIDENT CHENG: Can I just clarify, first of

8 all, the copies from RMGC have already been delivered

9 for the outstanding 75 documents, have they?

10 MS. COHEN SMUTNY: No, they have not. That is

11 something that is, in my understanding, in the works.

12 Again, it's hard to maybe appreciate the documents.

13 Some of them are large, some of them are oversized,

14 making the copies by the one individual with the

15 Registry. It's a tedious process, from my

16 understanding.

17 PRESIDENT CHENG: It's a process.

18 MS. COHEN SMUTNY: And then it can only be

19 delivered during certain transport times.

20 So, it would take a while but not that long.

21 PRESIDENT CHENG: Roughly, can you give me an

22 indication?

[Page 38]

1 MS. COHEN SMUTNY: Yeah, my understanding is

2 maybe within a week it could be sent to NAMR, assuming

3 NAMR really required it, which is still, in Claimants'

4 understanding, a serious question whether it really is

5 necessary for NAMR to have these copies.

6 PRESIDENT CHENG: Can I then ask a second

7 question. From the documents that have been

8 declassified, roughly, are you able--as it were, one

9 learns from the experience. How long does NAMR take,

10 from your point of view, for them to declassify a

11 document or sets of documents?

12 MS. COHEN SMUTNY: It seems that decisions as

13 to whether to declassify or not seem to be taken

14 promptly. In fact, I will come to that.

15 What Claimants have not heard from Respondent

16 is that Respondent commits to declassifying these

17 documents, so what Claimants understand Respondent to

18 be saying is that a declassification decision will be

19 taken, not indicating what that decision will be. Up

20 until now, it seems that there's not ultimately been an

21 issue; documents have been declassified, but Claimants

22 observed this point, were not given assurance that, in

[Page 39]

1 fact, these documents will be declassified, so that's a

2 point we note. But assuming that it progresses in the

3 same direction, it seems to happen fairly quickly--

4 PRESIDENT CHENG: Yeah, it is really just a

5 time for the decision.

6 MS. COHEN SMUTNY: --and once something is

7 declassified, then the Parties have a little procedure,

8 too. There's literally a process of taking it off a

9 Registry and removing certain markings, and then they

10 are declassified, and then ordinary confidentiality

11 attaches to them, which I don't think poses any

12 particular problem for either Party.

13 So, my understanding is that this whole process

14 should not take more than a week or two, at most, to

15 just complete. It seems as if the progress, once this

16 started, took about that long. It was a matter of a

17 couple of weeks, and we got declassification of a lot

18 of documents.

19 PRESIDENT CHENG: So, the decision to be taken

20 by NAMR from the past experience would be two, three

21 weeks? One or two weeks? Or what?

22 MS. COHEN SMUTNY: Well, I have to say, in

[Page 40]

1 fairness, we don't know when they started contemplating

2 the question.

3 PRESIDENT CHENG: Right.

4 MS. COHEN SMUTNY: But it does seem that, from

5 what we could tell--and, no doubt, Respondent could

6 speak to this better--it does seem to us, from what we

7 have observed, that from the time that they focused on

8 this--it was a very fast, a matter of days--a decision

9 was taken, and letters and orders, directions were

10 circulated to the Parties, including RMGC.

11 PRESIDENT CHENG: Thank you.

12 ARBITRATOR GRIGERA NAÓN: If I may, for me to

13 really understand who has to decide what--because one

14 thing is the declassification, which, according to your

15 presentation, is NAMR, the one who really has to take

16 the major decision--and then it's the modification of

17 the Custody Agreement for the documents to be released

18 to the Parties, which has to be decided by RMGC and

19 NAMR, which, according to what I understand, has to be

20 combined with the Confidentiality Agreement between the

21 Parties.

22 Is that the path to be followed? And all that

[Page 41]

has to happen in 30 days? That's my question.

MS. COHEN SMUTNY: Yes.

The Parties have--even while this declassification process is unfolding, the Parties have exchanged drafts of an amendment to the Custody Agreement and exchanged drafts of a Confidentiality Order. My sense is that we, the Parties, are very close to agreeing on the terms of those two documents, and so this process--those agreements can be put in place, I suspect, very quickly. So, these things are not necessarily sequential, but a certain number of these things are happening at the same time so that everything can converge and be done.

So, it's our sense that there is enough time within 30 days to achieve those steps. As I say, I think basically Step 2 and Step 3, so to speak, on this slide are, I think, very close to being done, and I would expect are, for example, possible to be achieved within a week, and at the same time, NAMR can complete its decision-making in respect of declassification.

And we can certainly--all these steps can be completed, in Claimants' sense of where we've gone and

[Page 42]

where we are now, within 30 days.

ARBITRATOR DOUGLAS: A little follow-up. You may well be getting to this, but at what point can time start running in terms of the formal steps in the pleading process? How long would you need for your Memorial? Do you need all the documents before you can realistically--the time can start running or are the 75 remaining not critical to the preparation of the first round?

MS. COHEN SMUTNY: A core set of these classified documents, these Custody Agreement documents, Claimants do not now have a copy of. These documents include some of the most central documents in the case. The most obvious central documents, the Licenses themselves, we do not have a copy of and cannot work with. So, we really need to have--perhaps not all of those documents to begin meaningfully working on the Memorial, but a large group of them are absolutely critical for us to be able to meaningfully advance the Memorial in a sensible way.

I cannot say that all of the documents that are subject to that Custody Agreement are equally relevant

[Page 43]

and important, but such an important segment of them are, that it's critical that we get a copy of those things--which, again, I think we're very close to being able to have a copy of them--and then we could start--the time clock should start to run at that point.

Please bear in mind that, as counsel, we have not laid eyes on these documents, so I hope that answers the question.

So, assuming we had completed this process within 30 days from today and that the Parties were at liberty to receive copies of these things, the time clock could start to run 30 days from today. That would be, in Claimants' position, about how the timing might work.

ARBITRATOR DOUGLAS: I guess it's just the scenario whereby Steps 2 and 3 on your slide are done relatively quickly because it just depends on counsel in this room, to a large extent; whereas, the declassification, for whatever reason, takes a bit longer, and so you're still without the 75 documents that remain. Whether that changes anything, or I seem

[Page 44]

to--my understanding of what you're saying is that some of the documents remaining are so critical that, really, time couldn't start running until you had all 75 or most of them; is that correct?

MS. COHEN SMUTNY: We certainly want, at least, a certain core of those documents which are really extremely critical. But, again, our sense is that that should happen quickly. I mean, in principle, I can imagine a scenario is, if the Parties agree to, let's say, Step 2 and Step 3 and get that in place and those documents that are already declassified--if they can start being distributed in tranches to the Parties, I suspect a good number of the documents we do require have been declassified now. I mean, again, that's another reason why we thought certainly within 30 days we should be far enough along in this process that we could get going.

And so, even if there were some--I don't know--a dozen or 20 documents that we don't yet have, they would be coming soon enough thereafter, especially if there was a time period, a commitment--we can get this process this far by 30 days and no later than 60

[Page 45]

days for the remainder as long as documents already declassified were in the possession of the Parties.

Something like that, I think, would work, but we do want to actually have possession of, at least, all of the documents that have been declassified to date within 30 days. And as long as that's the case, if there were for any reason a few--I don't know--15 or 20 that for some reason was taking a little bit longer, I think we would feel especially more comfortable if we actually had a commitment that these documents are intended to be declassified, and we're not in this position where we are waiting for a "declassification decision," and we're not quite sure what that is, that would be especially comforting.

Obviously, if the decision is taken not to declassify any of these documents, it won't surprise the Tribunal to know that we would reserve the right to apply to the Tribunal and ask for some action in relation to that.

I hope that answers.

(Tribunal conferring.)

PRESIDENT CHENG: I believe there is some

[Page 46]

person who has walked into the room. Is that someone from the Claimants' side? Or Respondent's side?

(Off microphone.)

(Pause.)

PRESIDENT CHENG: I think we could continue.

ARBITRATOR GRIGERA NAÓN: I think so.

MS. COHEN SMUTNY: Okay. Thank you.

If there are not further questions on where we are in the process, there are a few more points--and I'm mindful of the time, but there are a few more points that we wish to make.

I do wish, on the Claimants' side, to just walk through very briefly why we are where we are here, in particular, because the Tribunal is, no doubt, conscious of the fact that both Parties have sought costs in relation to this exercise. And I do want to just walk briefly, very briefly--mindful of the time--through a number of points I just want to make sure that are well-understood.

As we've been saying--and I think the Tribunal does appreciate--these documents are absolutely centrally relevant to the Claimants, and the Claimants

[Page 47]

cannot reasonably put on its case without these documents. The Tribunal knows very well from the pleadings that Claimants were, frankly, both surprised and frustrated by the time and were really very hopeful that there was going to be earlier engagement on this issue than there was. These dates were reflected in our pleadings--and I think the Tribunal knows very well how this unfolded--but the Claimants did not hear anything from the Respondent until it responded on the Provisional Measures Request itself, and that was a frustrating process for the Claimant, and the Claimants' view is that this could have been dealt with earlier.

Again, bearing in mind, the Claimants, not having heard anything, did not even know whether or not Respondents were even agreed that they were going to work towards some sort of process of access. So, really, Claimants were in the complete dark about what was happening here.

The Respondent has taken the position that the absolute only way that these documents could be used is with declassification. There's some nuance of Romanian

[Page 48]

law here, but, in Respondent's understanding, although this is a practical approach--and certainly, perhaps, even the most direct approach--it is not the only means. And so Claimants were absolutely unclear at the start of this process, whether the Respondent wished to declassify or was going to look for another way. The classification of these documents was done via NAMR order and government decision, so it was not an act of Parliament, for example, that caused these documents to be classified. So, the Government could have, for example--the State being a Party--they could have issued a government decision to provide some sort of special means of access. There were other ways of doing this.

And so, truly, Claimants did not know anything about whether they had any degree of cooperation here and reject the argument that this is absolutely the only way to achieve the access necessary for this international arbitration.

Claimants sought Provisional Measures because access to these documents was absolutely necessary to preserve procedural integrity of this arbitration. And

[Page 49]

the fact that, once we got started, Respondent was taking a position that would have added practically another year before we even knew whether we were going to get access to the documents was really a very frustrating exercise for the Claimants.

It is amply pleaded in the documents, I believe, the dispute between the Parties about what the Canada BIT--the Romania-Canada BIT restrictions have to say about this. In the Claimants' submission, the restriction that relates to so-called "Cabinet confidences" or classified information that is contained in the Canada BIT is absolutely not a restriction to the access required by the Claimants.

I just want to point the Tribunal to a few of the provisions of the Canada BIT that make the point.

These various Articles of the Canada-Romania Bilateral Investment Treaty are the ones that refer to the fact that the Contracting Parties to that investment treaty are not to be required to furnish information, the disclosure of which is contrary to essential security interests. And, in Claimants' submission, looking at the Treaty as a whole in

[Page 50]

context--and let me just point out to the next slide as well--bearing in mind there is more than one official language to this Bilateral Investment Treaty.

When the Tribunal considers all of these Articles together, the different languages, in Claimants' submission, it's very clear that what this Treaty provides is that, when there are documents that disclosure of which would compromise what the State considers to be its essential security interest, those documents the Respondent cannot be obligated to disclose.

This, again, is what I was just saying here. There are different languages in the Romanian, in the English. The Tribunal can appreciate looking at these various Articles, Claimants' point about how to interpret all of these Articles together and in the different languages what is really meant by this.

The classification as "work secret" is not a classification that relates to essential-security interests. Claimants invite the Tribunal to look at the definitions that both Parties were citing to about what "work-secret information" means, what "classified

[Page 51]

information" means, and so on.

The BIT--the bilateral investment treaty's reference to classified information--the disclosure of which should not be required--is not a reference to a specific statute of either of the Contracting Parties. So, it is a reference to this notion of documents that are essential to the security interests of the State.

So, in Claimants' submission, not only was it not necessary to declassify and that there was another approach to doing this, but this type of document, this category of documents, in Claimants' submission, is absolutely not covered by what the Canadian BIT has in mind when it says that a State should not be obligated to disclose, whether it's called "classified information" in the Romanian, but interpreted in a way that is understood consistent with the English and the French, which refers to "Cabinet confidences," understood all in context.

So, Claimants dispute this interpretation of the Canadian BIT.

There is no dispute that the United Kingdom-Romania BIT does not contain any such

[Page 52]

restrictions, and I just want to say briefly the point--and we will talk about this more, no doubt, when we talk about second measures, but the fact is that the UK BIT is a separate source of authority for the Tribunal, and this Tribunal acts pursuant to authority that it exercises under both Treaties.

The Respondent is relying on procedural decisions in EuroGas versus Slovakia, and no doubt the Tribunal will look at these two Procedural Orders that the Respondent has referred to. The first is Procedural Order Number 2. It's a very short Order, and then there is a Redfern Schedule that they put in.

ARBITRATOR DOUGLAS: Do we actually really need to decide these issues now? I thought it was water under the bridge, to some extent. I'm not protesting, but--

MS. COHEN SMUTNY: Yeah, you know, I hesitate to walk too much through this point now. I suspect we may come to it later.

For purposes of addressing access to documents, I think the main point that Claimants wish the Tribunal to appreciate, just given the nature of the

[Page 53]

applications made by the Parties to the Tribunal, is that the Claimants proceeded in the way that was absolutely required, and there was not some sort of fatal flaw in the Treaties to the request made by the Claimants, and so we dispute that point.

I'm very confident we're going to come back to these EuroGas procedural orders and discuss their relevance at a later junction. So, let's maybe stop at that point and say I think that is what we need to say about the access to documents, and we will end there.

PRESIDENT CHENG: Just to clarify one further point with you.

The documents that have been declassified, I think a number of them, you have not been able--you, meaning counsel--have not been able to have access to it because of the lack of agreement on the confidentiality arrangements; is that right?

MS. COHEN SMUTNY: Yes, both because there is not yet an amendment to the Custody Agreement, so the Parties don't have access to the documents. And access will be on condition of confidentiality, and so also the terms of the Confidentiality Agreement needs to be

[Page 54]

put in place as well.

PRESIDENT CHENG: Thank you.

I hand over to the Respondent.

MR. HEISKANEN: Madam President, our understanding of how the Hearing would be organized is that the Claimants would make an Opening Statement covering the first request and the second request, and then we would respond. That is how we read the timetable, which provides the Claimants with two hours for the Opening Statement and then two hours for the Respondent covering both requests, and we have organized our submission in such a way that in the beginning we cover issues that are common to both requests. So, it would not be, in our view, convenient for us to address now only the first request because there are common issues. So, our preference would be to follow what the Tribunal has instructed the Parties to do, which is to cover both requests, and then go for the rebuttals in the afternoon.

PRESIDENT CHENG: I think I believe I mentioned this morning--and I thought--we might have misunderstood it--that there is broad agreement that we

[Page 55]

deal with and dispose of PM 1, Provisional Measure 1 first, and then look at Provisional Measure 2 in that way. I think that's also the intent of the letter that we wrote, I believe, a few days ago.

MR. HEISKANEN: Then there's, perhaps, a misunderstanding.

PRESIDENT CHENG: Yes.

MR. HEISKANEN: There is a timetable that was attached to that letter which still followed the same timetable that was initially proposed by the Tribunal.

PRESIDENT CHENG: Yes, right.

MR. HEISKANEN: So, in our view, it's inconvenient for the Respondent now to make a statement that will effectively cover both requests initially. At some point we will cover, address separately both requests, but it would be inconvenient.

PRESIDENT CHENG: So, what are you proposing? Maybe you just tell us.

MR. HEISKANEN: We are proposing that the Claimants continue with their argument on the second request--if necessary, then the broadcast has to be interrupted--and complete their Opening Statement.

[Page 56]

Then we will come back with our Opening Statement, which will be organized in such a way that it needs to be interrupted only once at some point in our presentation, and then we will revert to a public hearing towards the end of our argument.

PRESIDENT CHENG: You're not in a position to deal with just PM 1 for the moment?

MR. HEISKANEN: We are not because we have not organized our presentation in such a way that it addresses exclusively one or the other. There is an Initial Statement that covers both because there are issues raised by the requests that are common to both requests, in particular, the question of the consolidation and the impact of consolidation on these proceedings.

ARBITRATOR DOUGLAS: Could I just ask on that, is this really a live issue now? We're dealing with whether 75--the timetable mechanics for declassifying 75 remaining documents and the Confidentiality Order or agreement that you're currently discussing?

MR. HEISKANEN: Yes. It is not a live issue for the first request, but it is a live issue for the

[Page 57]

second request, certainly.

ARBITRATOR DOUGLAS: But can we then just discuss the mechanics of how we declassify the rest of the documents and agree to a confidentiality regime in relation to the first and leave all the more interesting topics about consolidation and so on for the second request?

MR. HEISKANEN: We would have to reengineer our presentation and argument and our slides, which, unfortunately, have been printed at 7:30 this morning. So, it would be inconvenient. And our understanding, certainly, from the timetable, was that this is how the presentation would be organized. So, that would be our strong preference, in particular, because the two requests cannot be entirely separated on certain issues.

(Tribunal conferring.)

PRESIDENT CHENG: We will move on--could the Claimants move on to Provisional Measure 2.

MS. COHEN SMUTNY: Yes. Claimants can do that. I apologize; may I ask just for a five-minute break.

[Page 58]

PRESIDENT CHENG: Yes. Let's do that.

MS. COHEN SMUTNY: Thank you.

(Brief recess.)

PRESIDENT CHENG: Ms. Cohen Smutny.

MS. COHEN SMUTNY: Thank you.

Turning to Claimants' Second Request for Provisional Measures, we are going to talk about just legal standards and legal issues first so that we can keep the live feed--the feed on.

The Tribunal's authority to issue Provisional Measures is as set forth in Article 47 of the ICSID Convention, and that provision provides that if the Tribunal considers circumstances so require, it may recommend any Provisional Measure to preserve the respective rights of the Parties. This is a broad authority for the Tribunal to proceed as it considers is warranted in the circumstances. The jurisprudence of international tribunals show that a tribunal has authority to issue Provisional Measures in the following circumstances:

First, the Tribunal must be properly seized of the dispute submitted. This is so when the Tribunal's

[Page 59]

jurisdiction is established prima facie.

Second, there must be a right that is the subject of the request. When the existence of the right is disputed, the Tribunal need only establish that the existence of the right is plausible.

Third, there must be a material risk of harm to the right.

And, finally, the requested measure must be proportional to the risk of harm.

This Tribunal's jurisdiction over the dispute submitted is established prima facie. It is established and not disputed that the Tribunal has the authority to issue Provisional Measures to protect both procedural and substantive rights in relation to a dispute over which its jurisdiction has been established prima facie.

This Tribunal's jurisdiction over the dispute presented in the Request for Arbitration is established prima facie. Respondent has not raised any jurisdictional objections in relation to the claims presented in the request. When jurisdiction is so established prima facie, the Tribunal has authority to

[Page 60]

issue Provisional Measures even in the face of a jurisdictional objection, and that's seen in a number of cases; Helnan is one. There are many such cases, a few were cited. Millicom versus Senegal is another example.

The rights that are the subject of Claimants' requests are procedural rights relating to the integrity of the arbitration, and rights to the status quo and non-aggravation or extension of the dispute.

In Claimants' understanding, there is no dispute that the Tribunal has authority to issue Provisional Measures to ensure procedural integrity of the dispute, and a number of cases, of which there are many, are cited as an example.

The Tribunal also has the power to issue Provisional Measures to preserve the status quo and to prevent aggregation or extension of the dispute. Respondent, in Claimants' understanding, does not dispute those observations as such but rather argues that Provisional Measures may be ordered to protect only the rights in dispute--that is to say, in relation to claims already submitted.

[Page 61]

Numerous tribunals, however, have rejected that narrow view of the Tribunal's authority. For example, the cases before the International Court of Justice cited by Respondent only refer to a link between the requested measures and the claims presented. Numerous ICSID tribunals and other investment treaty tribunals have specifically recognized that the Tribunal may issue provisional measures not only to protect rights already in dispute, but also to prevent the enlargement of the dispute or to make its eventual resolution more difficult, and there are a number of cases. These are taken out of the pleadings. You can go through several--this is--however many we have. There are a number that are cited.

Respondent argues that Claimants' complaints regarding the ANAF measures--ANAF refers to the--I confess I forget the words that refer to the acronym ANAF, but I think the Tribunal recalls this is the body that falls onto the authority of the Ministry of Finance that has jurisdiction over a number of matters, including as to tax measures, and the Parties are referring to the acronym ANAF. No doubt someone will

[Page 62]

remind me what ANAF stands for.

The Respondent argues that Claimants' complaints regarding the ANAF measures cannot justify an order of Provisional Measures, that they cannot form the basis of a protected right because, in Respondent's submission, they cannot form the basis of treaty claims in this case.

As the International Court of Justice as well as numerous investment treaty tribunals have held, the requesting Party need not prove the existence of rights for which it seeks protection. It only needs to show that such rights are plausible, and here a number of authorities from the pleadings are cited for that point.

ARBITRATOR DOUGLAS: What do you say is the disputed right in this particular instance?

MS. COHEN SMUTNY: The two rights or, let's say, two-and-a-half rights--if you want to call it that--procedural integrity of the dispute and the non-aggregation or extension of the dispute.

ARBITRATOR DOUGLAS: But how do the--I can see how that--

[Page 63]

MS. COHEN SMUTNY: It's going to be difficult to discuss how those rights are interfered with without talking about the facts. But those are--

ARBITRATOR DOUGLAS: Oh, I see.

MS. COHEN SMUTNY: Those are the rights, and I'm sorry, it's a little frustrating in this respect to separate-- the natural response to your question.

ARBITRATOR DOUGLAS: I won't anymore-- ask any more case-specific questions--

MS. COHEN SMUTNY: I appreciate it.

I'm eager to answer, but it will come.

Respondent's argument is that, in Claimants' understanding, that the ANAF actions cannot be the subject of Provisional Measures Requests because any claim regarding such measures would fall outside the scope of the Romania-Canadian Bilateral Investment Treaty's protections; that is to say, in Respondent's submission, any such complaint would fall afoul of the so-called "tax carve-out" that is contained in the Canadian BIT.

In Claimants' submission, this argument fails for several reasons. The first is that whether or not

[Page 64]

the Claimants could ever raise a treaty claim about the ANAF measures, those measures are jeopardizing the procedural integrity of the arbitration and are aggravating the dispute, making its resolution potentially more difficult. And, in Claimants' submission, this is a sufficient basis to order Provisional Measures, even if a claim of treaty violation is never ultimately presented.

Respondent's position that the ANAF measures could not form the subject of treaty claims, in any event, is incorrect in Claimants' submission; but, at a minimum, it is plausible that Claimants are correct that the ANAF measures are not actually so-called "taxation measures" within the meaning of the Canadian BIT's exclusion. And in any event--and we'll turn to this as well--there is no basis to conclude that Gabriel Jersey could not present such claims under the UK-Romania Bilateral Investment Treaty, the UK BIT.

Turning to whether the ANAF measures are taxation measures within the meaning of the Canadian BIT. I just want to make sure the slides are caught up with me. Yes?

[Page 65]

ARBITRATOR DOUGLAS: I will try rephrasing my question not to delve into the facts, which is going to be slightly difficult, but I will try. In relation to the rights that need to be protected and you say the threshold is--that you plausibly have those rights, one can see how that makes sense in relation to the substantive rights in issue because you're asserting a breach of a treaty. For example, you're making a claim on that basis, and so the test is whether or not plausibly you would succeed in that claim.

The problem when we get to procedural rights, and I certainly don't question the fact that they exist, but it's undisputed, I think, that there is a right to procedural fairness, for example.

So, is it enough simply to say that you plausibly have that right, which is, if you ask that question, you're answering it straightaway, of course you have that right, but is that enough then to simply justify the imposition of Provisional Measures?

In other words, there must be--it seems for me, for procedural rights, there must be something else which is required because if the test was simply do you

[Page 66]

plausibly have the right to procedural fairness, the answer in every case is going to be of course you do. So, what connection, then, is needed between that alleged right and the particular scenario that requires the Provisional Measure?

MS. COHEN SMUTNY: Yes, and maybe one can go back to Slide Number 3 for a moment, and I'm not sure if this is answering your question, but of course not only must there be a right, but there must be a material risk that that right is harmed or is interfered with in some way. And I don't know if that was basically your question, but that certainly is an element. So one has to have a right, and there needs to be some threat to that right. I'm not sure if that's what you were asking, but certainly, yes, there must be one way to refer to it is a material risk of harm to that right.

So, certainly when we talk about the facts, we're going to be talking about what is that material risk of harm to these rights.

Does that answer the question?

ARBITRATOR DOUGLAS: I think it's probably best

[Page 67]

if we park it until we get into the facts, because it's true in the abstract, it's quite difficult, but let's wait until we get to the facts.

MS. COHEN SMUTNY: Okay.

I'm sorry, the separation is a little--perhaps a little artificial between facts and law.

ARBITRATOR DOUGLAS: For the benefit of the crowd of the people out there watching.

MS. COHEN SMUTNY: Yes.

So, going back to where we were, I want to speak to the question which is presented whether ANAF measures are taxation measures within the meaning of the BIT, whether that should be assumed to be the case. Respondent refers to Article 12(1) of the BIT, which refers to the so-called "tax carve-out."

Numerous Tribunals, however, have recognized that analogous so-called "carve-out provisions" do not bar claims of abuse of authority, and a number of examples here are shown. And so again, bearing in mind the question, does Claimant have a plausible right potentially to complain about tax measures--assuming that was even relevant--Claimants' submission is yes,

[Page 68]

it certainly does.

When we speak about the ANAF investigations, Claimants' submission is that they cannot, in any event, be fairly considered as a tax measure. That will be seen more when we discuss the facts. It is an exercise of investigative authority relating to matters more broadly, which we will discuss shortly.

Respondent's argument that the ANAF measures fall within the so-called "carve-out provision," in Claimants' submission, is unlikely to be accepted but, in any event, it's certainly plausible that Claimant is correct on this issue. Whether or not the ANAF measures are taxation measures within the meaning of the Canadian BIT also has no bearing on Gabriel Jersey's protections under the UK BIT. In other words, even if it were relevant, which it is not, Gabriel Jersey could assert claims in relation to the ANAF measures.

Claimants note that Respondent indicated in its submissions that, even Gabriel Jersey would not be able to raise a claim regarding ANAF measures as the arbitration progresses because any such claim would

[Page 69]

fall afoul of notice provisions under the UK BIT, but, in Claimants' submission, that, too, is not necessarily the case. There are many examples of tribunals which find that an ancillary claim may be made under the ICSID Arbitration Rules without having to start a new arbitration, even when the Treaty refers to notice.

And so, again, the issue of the plausibility of Claimants' position is, in Claimants' submission, clear.

The next point is--I'm sorry.

PRESIDENT CHENG: You might want to speak closer to the mike.

MS. COHEN SMUTNY: Oh, sorry. Respondent also argues with respect to the Provisional Measures that Article XIII(8) of the Canada BIT, bars the Tribunal from issuing requested measures, and this is the Article in the Canadian BIT which refers to limitations on the Tribunal's powers in relation to Provisional Measures, and there is a first sentence and a second sentence, and the first sentence clearly confirms that the Tribunal's power to order Provisional Measures to preserve the integrity of the proceeding is

[Page 70]

established, and it is the second sentence that may have relevance for the argument. It refers to substantive rights in dispute, and it basically limits what the Tribunal can do under the Canadian BIT. It cannot order an attachment or enjoin the application of a measure alleged to be in breach.

Now, Claimants' Request for Information and Documents--well, I'm going to delve into the facts just a little bit in a way that I think is safe. Claimants' request that information and documents obtained through ANAF's investigation not be used for purposes of this arbitration, which relates to preserving the procedural integrity of this arbitration, is the type of measure, in Claimants' submission, plainly permitted by Article XIII(8). So, there is no basis to conclude that anything in the Canadian BIT prevents the Tribunal for recommending that type of measure to safeguard the integrity of these proceedings.

With respect to the other requests, it's probably better to save that when we're talking about the facts, and so I'll come back to that.

In any event, there is no restriction--to the

[Page 71]

extent--let me just say this: To the extent that Claimants' request is that Respondent--actually, let me just say this: Originally Claimants requested that Respondent join in seeking a stay of enforcement of a certain assessment. In Claimants' submission, that would have been consistent even under the Canadian BIT. We'll come back to that because there are some important developments that we need to discuss with the Tribunal.

But, just going back to the legal rules.

In any event, whatever the restrictions are under the Canadian BIT under Article XIII(8), there is no restriction on the Tribunal's authority to issue Provisional Measures in response to Gabriel Jersey's requests under the UK BIT. The Tribunal cannot disregard that this arbitration also proceeds under the UK BIT, and Gabriel Jersey has standing to present requests and has done so. There is no dispute that the Tribunal has authority under the UK BIT to recommend the requested measures that Gabriel seeks, Gabriel Jersey seeks, assuming that the conditions were met. There is no issue of the Tribunal's authority, at least

[Page 72]

under the UK BIT.

Let me turn to the interplay of the two BITs that is at issue here.

Respondent argues that, having agreed to an arbitration in which claims under both the Canadian BIT and UK BIT would be heard, that there has been what the Claimant calls the so-called "consolidation" of claims with the effect, in its submission, that the most restrictive provisions set forth in the Canadian BIT must be applied also in relation to Gabriel Jersey and its claims. There is nothing in the text of either BIT that suggests this result, however.

The notion of consolidation of claims, for example, which one sees in the NAFTA, where there are references to concepts of consolidation, there are no analogous provisions in the Treaties that are at issue here.

To the extent that the Respondent seeks to attach consequential meaning to its proposed label that the claims have been "consolidated" in a single proceeding, there really is just no basis for that. In the pleadings, there was an example of another tribunal

[Page 73]

referring to this notion of consolidation that is cited here.

I think there is no dispute that there have been many cases in which different Claimants present claims under different instruments in the same arbitration. Tribunals in such cases confirm that the claims under each must be considered under the respective treaty, and a number of examples and paragraph numbers are cited.

In Claimants' understanding, Respondent does not dispute that the two Claimants must--that the two Claimants' claims must be addressed on the merits under each applicable BIT. Our understanding is that that point is not disputed. Claimants understand that it's Respondent's position, however, that there are consequences to the procedures that are to be followed in this arbitration, and it relies on the Procedural Order issued in--and now we'll come back to it--the EuroGas versus Slovakia Case, which it claims demonstrates that for so-called "procedural matters," the restrictions contained in the Canada BIT must be applied also vis-à-vis the arbitration of Gabriel

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Jersey's UK BIT claims.

I should point out, of course, the point that even if Respondent were correct, which Claimants insist they are not, as to the nature of the EuroGas' Tribunal's decision, of course, this Tribunal is not bound to follow that decision. But, in fact, the EuroGas Tribunal's decision is not precedent for the position that Respondent takes here.

The EuroGas decision is a Procedural Order in which one issue was disputed and addressed, and that issue was only whether there would be "open" hearings as was set forth in the annex to the Canadian BIT that happened to be at issue there. There were two Claimants in that case, a Canadian Claimant and a U.S. Claimant, and that Canadian BIT had a transparency annex, which required open hearings.

The Claimants in that case had presented an argument to that Tribunal that, although the Canadian BIT referred to open hearings, the Canadian Claimant had an argument that it was entitled, pursuant to another provision of that BIT, it was entitled to a so-called "more favorable regime," which it argued

[Page 75]

existed under the ICSID Arbitration Rules, which gave an option as to whether or not there would be an open hearing. So, in that case, the Canadian Claimant came to the Tribunal and said open hearings are an option under the ICSID Rules. That's a more favorable regime, that Claimant should be excluded from the obligation to have an open hearing. And, of course, the U.S. Claimant had no obligation to have open hearings, and that was the question presented to the Tribunal.

The Tribunal rejected this interpretation of the so-called "more favorable regime" provision of the Canadian BIT and concluded that the Canadian Claimant was obligated by the Canadian Treaty to have open hearings, and the U.S. Claimant participating in the same arbitration--obviously, it's a binary choice, the Parties are pleading their cases together. One could not plead--and I don't believe it was even suggested--that the U.S. Claimant would proceed separately in a closed hearing while the Canadian Claimant proceeded in an open hearing. The argument was simply presented in that case that there was either to be open hearings or not, and the Tribunal concluded

[Page 76]

that there was to be open hearings.

The remainder of Procedural Order Number 2 does include a repetition in the order of other provisions of the Canadian BIT annex, but there is no indication that any of those other issues were disputed between the Parties, and that was just repeated.

So, this result, deciding that there must be open hearings in the circumstance like that, and that the U.S. Claimant--it wasn't even clear the U.S. Claimant was proposing somehow to get a separate treatment from the Canadian Claimant, this is not precedent for what the Respondent is arguing here.

And, in any event, that result is not analogous to the requests being made here.

Just as each of the two Claimants in this case may be entitled to present somewhat different claims on the merits, they may also be entitled to different relief, depending upon the different provisions of the two treaties. They may be entitled to different forms of provisional relief. Respondent's argument that Gabriel Canada cannot be a free-rider on any Provisional Measure that Gabriel Jersey may be entitled

[Page 77]

to is misguided because the restrictions in the Canadian BIT do not reflect prohibited benefits to the Canadian Claimant. It is not that the Canadian Claimant is prohibited to have some sort of relief. It is simply a function of a restriction on the Tribunal's authority as it emanates from the Canadian BIT to do certain actions.

But the Tribunal's authority flows from not one but two BITS. So, the Tribunal's authority is limited with respect to one of the Treaties, but it is not restricted with respect to the other. So, this is not a prohibition on the benefit that a claimant, the Canadian Claimant, can get. Rather, it is a limitation on the Tribunal's authority as it emanates from one of the two instruments.

The Tribunal's authority derives equally in this arbitration from the UK BIT. Nothing in the Canadian BIT detracts from that authority. Romania is a Party to the United Kingdom-Romania BIT. And, moreover, it consented for this Tribunal to conduct an arbitration in which the Tribunal exercises power under both treaties. While certain procedural matters

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obviously have to, from a practical point of view, have to be coordinated so as to satisfy affirmative requirements of the BIT with respect to procedures, such as an open hearing, nothing limits the Tribunal's authority to exercise its full power under each of the two BITS. Nor is there anything about the Canadian BIT that requires the Tribunal to refrain from exercising authority that it has under the UK BIT. The Canadian BIT does not have effects on the UK BIT. It does not operate to limit it.

I just want to point, before I end on this segment, to this Redfern Schedule, which is another example that the Respondent refers to as reflecting what the EuroGas-Slovakia Tribunal was dealing with, and the Respondents have asserted that this Redfern Schedule shows that there was an acceptance also of limitations on confidentiality and so on. I invite this Tribunal to look at this particular back and forth reflected on the Redfern Schedule. It has nothing to do with any restriction relating to confidential/classified information restrictions in the Canadian BIT, so this other example of authority is

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not.

Let me break here because we are about to turn to facts, so I would mark this place.

Sorry, we're going to just reshuffle a little bit here.

(End of open session. Confidential business information redacted.)

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[Page 133]

1 OPEN SESSION

2 MR. HEISKANEN: Thank you, Madam President,

3 Members of the Tribunal.

4 OPENING STATEMENT BY COUNSEL FOR RESPONDENT

5 MR. HEISKANEN: You have two requests for

6 interim relief before you today. Let me just start by

7 making clear what the Respondent's position is on these

8 requests.

9 PRESIDENT CHENG: Do we have a copy of your

10 PowerPoint?

11 MR. HEISKANEN: Excuse me?

12 PRESIDENT CHENG: Do we have a copy of the

13 PowerPoint, please?

14 MR. HEISKANEN: Yes, it's coming.

15 PRESIDENT CHENG: Thank you.

16 (Pause.)

17 MR. HEISKANEN: So, just to summarize, the

18 exhibits that were sent by e-mail yesterday are in the

19 process of being distributed.

20 Everything is all right with the Tribunal? You

21 are comfortable? Okay.

22 So, the Respondent's position, very briefly, on

[Page 134]

1 these two requests is that the first request is not a

2 matter of interim relief at all, and the second is

3 outside the jurisdiction of this Tribunal, so they both

4 fail on a preliminary basis. And, in any event, they

5 don't meet the substantive requirements for interim

6 relief under the ICSID Convention and the applicable

7 law.

8 Let me start by first looking at the Claimants'

9 first request. The Claimants' first request for

10 Provisional Measures is effectively an opening bid in

11 the discussions between the Parties as to how to

12 organize the process, access to and the use of

13 classified documents in this arbitration, a process and

14 discussions that are now taking place before this

15 Tribunal and through submissions to this Tribunal. The

16 Claimants did not have the patience to wait for the

17 process to be agreed. They rushed to file the

18 Application for Interim Relief as soon as the Tribunal

19 was in place, so there were never proper discussions.

20 Just to clarify the record, the allegation that

21 the Respondent did not engage in these discussions is

22 not correct. We informed the Claimants' counsel that

[Page 135]

1 we were looking into this matter. You will hear more

2 in detail when we go through the facts what was going

3 on in the first six months of this year. After our

4 engagement, there was a detailed assessment as to

5 whether there was any other way to deal with this issue

6 except by way of a process of declassification, and the

7 conclusion was that there wasn't any.

8 In effect, the Parties' submissions that are

9 now before you and the developments over the last few

10 weeks showed that progress, substantial progress, has

11 been made in the declassification process, and there

12 are only a very limited number of issues to be decided

13 by the Tribunal in a Procedural Order.

14 There are effectively two outstanding issues.

15 One of them is to ensure that the Respondent has

16 sufficient time to go through the process of

17 declassification, and the other is to ensure that both

18 Parties will have access to these documents and not

19 only the Claimants.

20 In addition, as the Claimants' counsel

21 explained earlier this morning, before the classified

22 and confidential documents can, in fact, be made

[Page 136]

1 available to the Parties, and the Tribunal and others

2 involved in this arbitration, the Tribunal must issue a

3 confidentiality order to regulate the use of these and

4 any other confidential documents that may become part

5 of the record in these proceedings.

6 As you also heard, the Parties are currently in

7 the process of discussing a draft Confidentiality

8 Order, and we hope to reach an agreement on it in the

9 coming days; or, if there is no agreement on all

10 points, the Parties will identify the disputed points

11 for the Tribunal to decide. There will also be an

12 amendment to the Custody Agreement or the Storage

13 Agreement at the same time, which the Parties and their

14 counsel are negotiating on behalf of RMGC and NAMR.

15 These are obviously not issues for interim

16 relief. They are procedural issues that should, in the

17 first place, be discussed and agreed between the

18 Parties; or, if the Parties are not able to agree, then

19 they must be referred to the Tribunal for decision.

20 And we understand from the communications from the

21 Tribunal earlier this week that this is what the

22 Tribunal, in fact, intends to do.

[Page 137]

1 So, this entire process of approaching this

2 issue as a matter of Provisional Measures is not only

3 an improper way to deal with it. It has also been a

4 waste of the Tribunal's and the Parties' time and

5 money, and the Tribunal and the Respondent must be

6 entitled to an award on costs, which we are claiming.

7 It is worth recalling here that the Respondent

8 would be entitled to decline access to classified

9 documents altogether under the Canada-Romania BIT. The

10 Claimants, therefore, have no legal right, procedural

11 or otherwise--procedural or substantive--to obtain

12 these documents.

13 The fact that Romania has agreed to review the

14 classified documents for purposes of their

15 declassification and use in this arbitration does not

16 change this. Romania has not waived any of its rights

17 under the BIT. It is simply that Romania's position is

18 that these documents can be declassified for purposes

19 of arbitration. In fact, a few years ago,

20 NAMR--National Agency for Mineral Resources--sought

21 RMGC's consent for the declassification of these

22 documents but RMGC declined. This is a very strange

[Page 138]

1 background for an application for Provisional Measures.

2 Just to clarify the legal position, let's look

3 at Article 17(7) of the Canada BIT, which you already

4 saw earlier today: "Nothing in this Agreement should

5 be construed to allow or require a Contracting Party to

6 allow access to information the disclosure of which

7 would be contrary to a Contracting Party's law

8 protecting Cabinet confidences. The Romanian version

9 uses the term "informatiilor clasificate" instead of

10 "Cabinet confidences." That is classified information.

11 Section 1 of Annex C of the BIT is even more

12 specific. It says clearly that: "The Tribunal shall

13 not require a Contracting Party to allow access to

14 information the disclosure of which would be contrary

15 to the Contracting Party's law protecting Cabinet

16 confidences."

17 Again, the Romanian version is the same,

18 "classified information." The Claimants' position

19 appears to be that the Tribunal should focus only on

20 the English version of the BIT and disregard

21 effectively the Romanian version, even if the BIT makes

22 it clear that English, Romanian and also the French

[Page 139]

1 version are equally authentic.

2 ARBITRATOR DOUGLAS: Out of fairness to the

3 Claimant, because I cut short Claimants' counsel on

4 this point, but are we still required to make a ruling

5 on this now, given the position that we've got just in

6 terms of your formal application whether or not you're

7 expecting us to decide it?

8 MR. HEISKANEN: It is relevant to the question

9 of costs. There was no legal basis for this request in

10 the first place, so we invite the Tribunal to consider

11 whether a request that is certainly not a matter for

12 interim relief in the first place should have been made

13 in this form to this Tribunal, and whether the Tribunal

14 should consider the lack of legal basis when making a

15 decision on costs.

16 PRESIDENT CHENG: There would, however, be a

17 need for some sort of Procedural Order in any event?

18 MR. HEISKANEN: Yes, indeed. And the

19 Respondent, in its Request for Relief, is proposing how

20 that Procedural Order should look like, and we will

21 come back to that in a moment.

22 PRESIDENT CHENG: Okay.

[Page 140]

1 MR. HEISKANEN: But the issue here is whether

2 it's prima facie clear under the BIT that this kind of

3 request could not have been made, and should not have

4 been made as a Request for Provisional Measures, but I

5 take the point, and I will keep this short.

6 What is important in the language of the BIT is

7 that in determining what is classified information,

8 reference is to be made to the Contracting Parties'

9 law, "mesahagua," (phonetic) and under Article 15(b) of

10 the Law of Classified Information of Romania,

11 classified information is defined as any information of

12 interest to national or for the national security. The

13 entire term "Cabinet confidences" is unknown in

14 Romanian law, and it was obviously introduced for the

15 purpose of Canadian law, where it is a known concept,

16 including in the French version of the BIT.

17 So, Romania, therefore, has no obligation under

18 the BIT to allow access to classified documents until

19 after they have been declassified. Romania has a fair

20 request that it be given sufficient time to declassify

21 the documents, to go through the process that is

22 required under Romanian law. There is no other way.

[Page 141]

1 There can be no government decision because a

2 government decision cannot bypass a law, can't set

3 aside a Law on Confidential Information.

4 There is a more serious issue of the

5 consequences of not complying with the Romanian law.

6 We submit that the Tribunal cannot expose Romanian

7 Government officials or indeed the employees of RMGC or

8 any other entities who have classified these documents

9 to the strict civil and criminal sanctions that

10 Romanian law imposes for noncompliance with Law on

11 Classified Information.

12 And finally, on this first request, it is

13 important to keep in mind that the Parties are here in

14 the same situation. Neither Party can use the

15 classified documents in this arbitration in that they

16 have been classified. This is not a matter for the

17 Claimants only. Both Parties need access, and there is

18 no dispute between the Parties that these documents are

19 likely to be relevant to this arbitration. Hence the

20 Request for Relief that the Respondent is making and to

21 which, in part, the Claimants have already agreed.

22 They have agreed to hand over copies of the

[Page 142]

1 classified documents held by RMGC to NAMR for purposes

2 of declassification. What is less clear is whether

3 they have also agreed--and this is on the next

4 slide--whether they have also agreed that Romania will

5 also get access at the same time to these documents.

6 On this issue, we therefore request an order from the

7 Tribunal that once the documents are declassified, RMGC

8 or the Claimants cause RMGC to share these documents

9 with the Respondent.

10 Now, going to the Second Request.

11 ARBITRATOR DOUGLAS: Sorry, just to interrupt,

12 you haven't had any confirmation, one way or another,

13 from Claimants' counsel on that? I mean, couldn't that

14 be something that--

15 MR. HEISKANEN: That is perhaps something to be

16 clarified by the Claimants' counsel. We understand

17 there is no firm position whether or not they agreed

18 with this. This is one of the issues that is, in fact,

19 we proposed should be covered by the amendment to the

20 Custody Agreement or the Storage Agreement. We have

21 made proposals to this effect, but we have no feedback

22 yet whether the Claimants are agreeable to this

[Page 143]

1 amendment.

2 ARBITRATOR DOUGLAS: We would need to await

3 that process before drafting an order, presumably?

4 MR. HEISKANEN: Well, the amendment actually

5 says that RMGC will make these documents available at

6 the Tribunal's request or at the request--and/or the

7 request of counsel, so the Tribunal's order need not

8 wait until that process has been completed. If the

9 Tribunal now decides to issue the Procedural Order,

10 setting a deadline--I will come back to what the

11 appropriate deadline should be, setting a deadline for

12 RMGC to complete--NAMR to complete the process of

13 declassification during the period of two months, which

14 they have assessed is a reasonable period, count it as

15 of the date when they have received the copies of these

16 documents from RMGC.

17 After that order has been issued and the

18 Parties have agreed on the Confidentiality Order and

19 the amendment to the Storage Agreement, the legal

20 framework is ready for the Parties to move ahead with

21 the process.

22 ARBITRATOR DOUGLAS: Is it possible that the

[Page 144]

1 amendment to the Custody Agreement and the Agreement

2 regulating the confidentiality could be in place

3 quicker than that so that the Claimant has access to

4 the documents which have been declassified as soon as

5 possible and then the process takes the course with the

6 declassification of the other 75-odd documents? Do we

7 have to wait for the latter before the former can be in

8 place?

9 MR. HEISKANEN: Either one can be completed

10 first. Either the Tribunal issues its Decision on the

11 First Request for Provisional Measures--logically, that

12 should come first because that would facilitate the

13 finalization of the Confidentiality Order and the

14 Storage Agreement or may facilitate--we don't know what

15 the Claimants' position is on the amendments that we

16 have proposed to their draft, but certainly the

17 Tribunal's decision on the first request would open up

18 the process for finalizing the remaining steps.

19 PRESIDENT CHENG: I believe you're coming to

20 that after you deal with this jurisdictional ground

21 more specifically; is that right? Is it possible to

22 jump to that now so we finish the first application?

[Page 145]

1 MR. HEISKANEN: Going now to the Request for

2 Relief?

3 PRESIDENT CHENG: Yes, if that's all right.

4 MR. HEISKANEN: That is fine.

5 PRESIDENT CHENG: That, I believe, is on your

6 Slide 20. That's where you begin.

7 And I think there are a few questions that we

8 have asked the Claimant, and perhaps we can ask the

9 Respondent in terms of the timing just so that we focus

10 on the matter that perhaps we have to think about.

11 One of the questions I think my colleague has

12 asked and that is whether the progress or finalizing

13 the Confidentiality Agreement and the amendment to the

14 Custodian Agreement can be done at the same time whilst

15 declassifying the remaining 75 documents, and I think

16 the answer, I understand it to be yes, in principle.

17 MR. HEISKANEN: That is certainly yes.

18 PRESIDENT CHENG: And if that is doable, and if

19 that is what the Tribunal ultimately ordered--now I'm

20 trying to explore the various avenues--would it mean

21 that as soon as the Confidentiality Agreement and the

22 amendments to the Custody Agreement is made, what has

[Page 146]

1 been declassified can then be provided to both Parties?

2 I understand, of course, you want to make sure that

3 RMGC is directed to provide the Respondent copies, so

4 therefore I say "both Parties." Would that

5 understanding be correct?

6 MR. HEISKANEN: The confidentiality order would

7 cover documents that are classified independently of

8 the declassification or that have been declassified?

9 PRESIDENT CHENG: Those that have been

10 declassified.

11 MR. HEISKANEN: Yes, it would mean that those

12 documents could then be shared, and perhaps it could be

13 done on a rolling basis by the Parties.

14 PRESIDENT CHENG: "On a rolling basis" is a

15 great term. I was short of words, but that's exactly

16 what I was thinking of in terms of ensuring a good

17 progress of this matter.

18 Then I think the only issue, really, is the

19 time which I believe in the submissions Claimants said

20 30 days and the Respondent said 60 days for the

21 declassification exercise, and I think the Claimant has

22 given their reasons for why they say 30 days is

[Page 147]

1 adequate. I think, very specifically, I'd like to

2 hear, and I believe we'd like to hear how and why do

3 you say 60 days is required. I think those are the

4 first main questions, and then you take us to other

5 points you want to make as well.

6 MR. HEISKANEN: Thank you. Yes, first of all,

7 it's important to clarify when the 60 days starts

8 running. We heard this morning that the Claimants have

9 agreed, and we knew earlier that they have agreed, to

10 provide copies of these classified documents to NAMR

11 for declassification. This was one of the two

12 alternative Requests for Relief that we made.

13 Now, we also heard this morning that it has now

14 taken--it's now a week since this Agreement was

15 reached. We also heard that it's going to be another

16 week before these documents will actually be

17 transmitted to NAMR, which would effectively--then, if

18 the 30 days is counted from today, it would leave NAMR

19 with three weeks to declassify.

20 We don't know where the 30 days come from. It

21 seems to be something that the Claimants' counsel

22 thinks is reasonable. The Claimants think it's

[Page 148]

1 reasonable. Sixty days or the two months comes from

2 NAMR, which is the entity that is performing the

3 declassification process. It is their estimate of how

4 long it takes, reasonably, to go through this process

5 of declassification.

6 There is an issue of how many documents

7 actually need to be declassified. We don't quite agree

8 with the numbers that the Claimants provided earlier

9 today. We're not sure where the differences come from,

10 but we will come back to that in the factual part of

11 our argument.

12 But, certainly, the Respondent's position is

13 that the 60 days should be counted from the day NAMR

14 receives copies of the classified documents from RMGC.

15 Now, the reason--and again, the question was

16 raised, why doesn't NAMR simply declassify the

17 documents that it already has? The answer is simple:

18 There are plenty of documents that relate to other

19 Projects other than the Rosia Montana Project. And

20 going through and trying to identify the archives,

21 trying to identify the documents that relate to this

22 particular Project is a much more time-consuming

[Page 149]

1 process than if RMGC simply sends the documents that it

2 wants to have declassified to NAMR for

3 declassification.

4 Sixty days is the professional estimate of what

5 is required.

6 PRESIDENT CHENG: Then one other question I

7 asked the Claimant--I'd like also to hear your

8 response--is the documents that have been declassified,

9 that has actually taken place, how long did the process

10 take?

11 MR. HEISKANEN: This process has been going on,

12 I believe, since--

13 PRESIDENT CHENG: I think one would have to

14 talk about each document. I know it would be a rolling

15 exercise.

16 MR. HEISKANEN: This has been done in batches.

17 The declassification will take different time for

18 different types of documents, depending on who is

19 holding them.

20 ARBITRATOR DOUGLAS: The impression from afar

21 is that it's been relatively quick in the last month or

22 so, at least.

[Page 150]

1 MR. HEISKANEN: It's been done in batches, the

2 documents that have been available. Obviously what you

3 do is declassify the documents that can be most easily

4 declassified, so it's an expedited process, but let's

5 keep in mind that the entity that is most competent and

6 in the best position to assess how long it takes to go

7 through this process is NAMR. This is the entity that

8 has been doing this before. And let's keep in mind

9 that they initially suggested six months because of the

10 number of documents. Now, because of the reduced

11 number of these documents, we have come down to two

12 months, but this is an assessment coming from a

13 professional organization.

14 PRESIDENT CHENG: Do we know the previous

15 documents that have been declassified in batches, how

16 long, roughly? What ranges are the timeframe so that,

17 from the Tribunal's angle, you will have to appreciate

18 that we, of course, take on board NAMR’s estimates, but

19 we also have heard the Claimants' suggestions that it

20 could be done quickly.

21 So, one of the very good measures, I would have

22 thought, would be to see how long has it been for this

[Page 151]

1 particular Project, for the past declassification, just

2 as a ruler, just to see what it is. Do you have some

3 information about that?

4 MR. HEISKANEN: I'm afraid we don't have that

5 kind of information. It's probably more an art than a

6 science, because it depends on what kind of documents

7 you're reviewing, how long they are, how complicated

8 they are, and the nature of the documents themselves.

9 PRESIDENT CHENG: We have taken you out of your

10 stride. You can now either go to Slide 20 or you

11 continue from where you are on the jurisdiction. Up to

12 you.

13 MR. HEISKANEN: We are happy to address your

14 questions, Madam President.

15 PRESIDENT CHENG: Thank you.

16 MR. HEISKANEN: This would be actually in the

17 part of our presentation that would be covered by my

18 colleague, so it might be actually more convenient if

19 she's answering this question.

20 So, what we have tried to do is to divide up

21 the works so that more factual presentation is handled

22 in a different part in case there are any

[Page 152]

1 confidentiality issues, which we don't believe there

2 will be in relation to these documents.

3 If there are no questions on these issues of

4 principle, we're happy to move ahead and go back to the

5 Second Request.

6 SECRETARY MARZAL YETANO: So, just to confirm,

7 we will stop the feed now?

8 MR. HEISKANEN: No, not yet. We are still

9 covering the legal aspects. So once we get to the

10 facts, we will, I'm afraid, we have to suspend the

11 feed.

12 Now, the Second Request, the Claimants' Second

13 Request is based on the allegation that the VAT

14 Assessment issued by ANAF--and that stands for National

15 Authority for Fiscal Administration--Romania's Tax

16 Authority which is separate from the Ministry of

17 Finance, and the antifraud investigation conducted by

18 DGAF, the Antifraud Directorate of ANAF, which is a

19 separate entity within ANAF, that these investigations

20 and the assessment of retaliatory measures undertaken

21 because the Claimants filed this arbitration against

22 Romania.

[Page 153]

1 And being retaliatory measures, they create an

2 imminent harm or the risk of an imminent harm or

3 irreparable harm to the Claimants' procedural rights in

4 this arbitration.

5 Now, the Claimants' Second Request fails on the

6 preliminary threshold issue of applicable law. The

7 request relates to tax measures which, under the Canada

8 BIT Article XII, are specifically carved out of the

9 scope of the BIT.

10 Quite bluntly, nothing in this Agreement shall

11 apply to taxation measures. The Claimants appear to

12 argue that the BIT only excludes substantive claims

13 based on taxation measures, but that it does not

14 exclude interim relief in relation to taxation

15 measures. This position is based on a misreading of

16 the Canada BIT.

17 The Canada BIT also deals specifically with

18 Provisional Measures. Article XIII(8) confirms that

19 the Tribunal may order interim relief to preserve the

20 rights of a disputing party and ensure that the

21 Tribunal's jurisdiction is made effective. It's,

22 therefore, clear that the phrase "nothing in this

[Page 154]

1 Agreement in Article 12" also applies to interim

2 relief. That's the natural reading of these two

3 provisions. Nothing in this agreement includes the

4 provisions of the Treaty dealing with taxation, with

5 interim relief in relation to taxation measures.

6 There were some references to case law under

7 the ECT. Let's keep in mind that the ECT tax carve-out

8 provides a specific exception to mala fide, tax

9 measures, hence the claims and cases involving Yukos

10 deal with this issue. And the other point that the ECT

11 exception also applies only to substantive claims,

12 claims for expropriation. Under the ECT, one cannot

13 claim that the exception would allow interim relief

14 relating to tax measures.

15 The Claimants' position appears to be that

16 there is an exception to the tax carve-out if they can

17 show that the tax measures are clearly abusive. If

18 it's manifest from the evidence that the measures in

19 question are not really tax measures in substance but

20 measures taken for the sole purpose of disrupting or

21 interfering with this arbitration, the tax carve-out

22 does not apply. The Claimants have not come even close

[Page 155]

1 to showing this. In fact, there is no evidence

2 whatsoever on the record to support the case that

3 either the VAT Assessment or the antifraud

4 investigation are not tax measures undertaken by the

5 Romanian State in the ordinary course of its business.

6 ARBITRATOR DOUGLAS: Could I just ask you a

7 hypothetical question. Suppose a Tax Authority seized

8 all the documents relevant to a particular arbitration

9 and the Claimant came before the Tribunal and said,

10 "Well, we can't possibly proceed in this arbitration

11 without the core documents that we need to rely upon."

12 Is that still a measure that would be covered by the

13 tax exemption?

14 I mean, one can certainly see if it's a right

15 in dispute, and it can't be a right in dispute if

16 there's a tax carve-out. But if we're talking about

17 procedural integrity or procedural-fairness-type

18 considerations, isn't there any scope for Provisional

19 Measures in relation to that type of scenario where

20 it's simply the case that Claimant couldn't proceed or

21 couldn't have access to the evidence unless the Tax

22 Authority agreed to relinquish documents that exist?

[Page 156]

1 It does seems strange, if the Tax Authority did

2 that, there would be no possible relief, whereas if the

3 Sanitary Authority did that, then there might be.

4 MR. HEISKANEN: The question arises under the

5 Canadian BIT, I assume.

6 Our position is that this question is academic

7 in the sense that in this case there isn't even

8 evidence that would justify or establish that there is

9 any risk to the procedural integrity of the

10 arbitration. So we have not taken a view on that issue

11 because it's an issue that the Tribunal does need to

12 decide.

13 ARBITRATOR DOUGLAS: It's your case in terms of

14 things we have to decide that narrowed significantly

15 over the past 24 hours. But is it your position that

16 the antifraud investigation is also covered by the tax

17 carve-out?

18 MR. HEISKANEN: Yes, it is certainly.

19 There was an assertion made that the antifraud

20 investigation is not a tax measure. It certainly is.

21 First of all, it's an investigation conducted by the

22 Antifraud Directorate of ANAF, the Tax Authority, the

[Page 157]

1 national Tax Authority. And, to the extent that there

2 is any evidence on record--and we will come back to

3 this why there cannot be any evidence on record of the

4 purpose of those investigations or why they are being

5 conducted.

6 We know from the Witness Statement of Mr.

7 Voinescu and the correspondence that the Claimants have

8 put on record that the investigations relate, inter

9 alia, to [Redacted] If antifraud

10 investigations conducted by National Tax Authority

11 Antifraud Directorate related to [Redacted] are not

12 tax measures, what are?

13 PRESIDENT CHENG: Sorry, can I just further

14 test the proposition so that we can understand the

15 case.

16 The antifraud measures relate to [Redacted]

17 [Redacted] and, therefore, it would be

18 within the taxation measures, as I understand your

19 position.

20 What if the ANAF or its offices--and, of

21 course, I know it is hypothetical, but in order to

22 fully understand what you mean by "taxation measures,"

[Page 158]

1 we'd like to know your position--went into RMGC and

2 just seized documents that are unrelated to tax, the

3 employment records, for example, and it's nothing to do

4 with tax, and it is assumed it is pure outright

5 abusive? Now, the mere fact that it was conducted by a

6 taxation authority, do you say it still falls within

7 the carve-outs?

8 MR. HEISKANEN: Yes, it does.

9 First of all, let's clarify the facts in this

10 case--

11 PRESIDENT CHENG: Sorry, let me just say I'm

12 not saying the facts in this case establish that or

13 anything of that sort for the moment. I'm just trying

14 to understand how far do you say the words "taxation

15 measures" cover.

16 MR. HEISKANEN: First of all, just to clarify

17 the assumption, [Redacted]

18 [Redacted]

19 [Redacted]

20 Tax measures are not defined in the BIT. Tax

21 measures are of a different kind. They are

22 assessments, tax assessments. They are investigations

[Page 159]

1 into [Redacted], they are tax audits. These are all

2 tax measures to the extent that they are being

3 conducted by a Tax Authority and to the extent they

4 relate to tax avoidance or tax liabilities.

5 It would be extremely difficult to draw a line

6 between documents that are relevant and that are not

7 relevant for an investigation relating to [Redacted]

8 Employment documents might well be relevant, [Redacted]

9 [Redacted]

10 PRESIDENT CHENG: Thank you.

11 MR. HEISKANEN: Now, before we move to the

12 factual issues, let me start by looking for a few

13 minutes at the procedural rules that apply to this

14 arbitration. This is a relevant issue for two reasons:

15 First of all, because interim relief/Provisional

16 Measures are a matter of procedure, a procedural device

17 designed to protect the rights of a Party during the

18 pendency of the proceedings; and, second, because the

19 Claimants in this case, are seeking to take improper

20 advantage of the differences between the two BITs under

21 which the claims have been brought.

22 The question of the effect of consolidation on

[Page 160]

1 the procedural rules, we heard the Claimants' position

2 on this this morning. It's an overarching question in

3 the sense that it relates to both requests, the First

4 Request and the Second Request, and it is also an issue

5 of principle, in the Respondent's view, because it will

6 have an impact on how the remaining proceedings in this

7 arbitration will be organized.

8 The issue here is whether the more specific

9 provisions in the Canada BIT apply to both Claimants or

10 whether Gabriel Jersey is entitled to rely on the UK

11 BIT which is silent on certain issues, these same

12 issues that are now relevant for the Second Request in

13 particular.

14 Now, this arbitration involves consolidation of

15 proceedings relating to two claims of two different

16 Claimants under two different BITS. This is,

17 therefore, in substance, a consolidated proceeding even

18 if this Tribunal has not taken any specific decisions

19 on consolidation. The Claimants chose to submit the

20 claims in a consolidated fashion, in one Request for

21 Arbitration, and the Respondent has not objected to

22 this and has not requested de-consolidation, at least

[Page 161]

for the time being. We'll come back to this.

Now, consolidation, like interim relief, is a matter of procedure. It is a procedural mechanism.

This is not on record, but I suspect Black's Law Dictionary doesn't count as a legal authority.

Consolidation is a procedural mechanism that allows two or more claims to be united into one single procedure concerning all Parties and all disputes. Since consolidation is a procedural device, it has no impact.

It cannot have any impact on the jurisdiction of the Tribunal and it cannot have any impact on the merits of the law applicable to the merits of the Claimants' claims. Whether this Tribunal has jurisdiction over Gabriel Canada's claims, depends solely on the Canadian BIT. Whether these claims have any merit depends solely on the Canada BIT, and the same applies to Gabriel Jersey's claims. Jurisdiction over these claims and their merits are assessed exclusively under the UK BIT. This much we all seem to agree.

But consolidation, therefore, only applies to procedure, not to Jurisdiction Decisions or substantive decisions. Consolidation means that the claims are

[Page 162]

processed together in the same manner under the same procedural rules. And consolidation, as a procedural mechanism, can be available only if the two BITs allow for arbitration under the same procedural rules. And if there are no additional rules, procedural rules, in the two BITs, that would be in any way conflicting or incompatible as to procedure.

We have no issue here about the Rules of Procedure that apply. Both claims have been submitted under the ICSID Convention, under the ICSID Arbitration Rules. The question, therefore, is whether there are Rules in the two BITs' Procedural Rules that are, in any way, incompatible.

Neither Party has argued there are incompatible or conflicting Procedural Rules in the two BITs, and, in Respondent's view, they are not; there are no incompatible or conflicting rules, and this is the very reason why the Respondent has, so far, not objected to the consolidated submission of the Claimants' claims.

However, as we heard again this morning, Claimants argue that Gabriel Jersey is entitled to interim relief, a procedural relief, in relation to tax

[Page 163]

measures under the UK BIT because this Treaty is silent on taxation. This is the argument apparently even if the Tribunal were to decide that the tax carve-out in the Canada BIT would preclude any requests for interim relief by Gabriel Canada.

Now, this is not possible in a consolidated arbitration. The Tribunal cannot apply different procedural rules and create different procedural rights for the two Parties. The fact that the UK BIT is silent on these issues, such as interim relief and tax measures and what kind of interim relief can be granted, is the very reason why the proceedings can be consolidated because it's silent. The two BITs are not incompatible.

Now, this Tribunal is not the first tribunal that has dealt with this issue and that has faced this issue. The Claimants have looked at the EuroGas Decision this morning, and it's worth looking at it again because there was a very misleading presentation of what that case was about.

In that case, very quickly, the two Claimants, EuroGas and Belmont, brought their claims under two

[Page 164]

different BITs: Canada-Slovakia BIT and U.S.-Slovakia BIT. One of the Claimants--regardless, the subject matter of the request doesn't matter. One of the Claimants, EuroGas, argued that Canadian-Slovakia BIT did not apply to it because its claims were based on the other Treaty.

The Tribunal was not impressed by this argument, and they said, and I quote: "We are not convinced by Respondent's argument that if EuroGas did not wish to be impacted by the Canada BIT, then it should not have filed this arbitration with Belmont as jointly as Claimants."

The Tribunal then decided in a lengthy Procedural Order--and it covered a number of items very similar to the items that are covered by the specific provisions of the Canada BIT in this arbitration, but which are not included in the UK BIT. The Tribunal decided that the provisions, these more restrictive provisions, in the Canada BIT regarding access to hearings and documents, classified documents and so on, applied in the arbitration, even if they were only provided for in the Canada-Slovakia BIT but not in the

[Page 165]

U.S.-Slovakia BIT.

This is exactly the same situation as we have here. One could simply substitute the names of the Claimants in the EuroGas Tribunal's conclusion. This Tribunal should also conclude and not be convinced--or be convinced by Romania's argument that, if Gabriel Jersey did not wish to be impacted by the Canada BIT, then it should not have filed this arbitration with Gabriel Canada as Claimants. That is the relevant holding of the EuroGas Tribunal.

The Claimants simply cannot pick and choose; Gabriel Canada cannot get a free ride on the back of the UK BIT, an interim relief that it would get for free effectively if it's granted for Gabriel Jersey.

Now, if the Tribunal decides, contrary to the Respondent's position, that Gabriel Jersey is entitled to rely on the silence of the UK BIT on tax measures, then the Respondent must reserve its right to request a de-consolidation of these proceedings.

I have spent some time on this because this is a major issue of principle for the Respondent. It will have an impact, not only on this issue; it will have an

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impact on how the remaining proceedings in this arbitration will be organized and conducted.

Now, Ms. de Germiny will now continue here and will look at in more detail the factual side of the Claimants' First Request for Provisional Measures. Mr. Guibert will then address the Second Request on the facts, and I'm afraid at that point we have to suspend the feed, and I'll come back at the end to address in more detail the legal argument on the Claimants' Second Request because that is effectively--particularly the issue relating to the antifraud investigation--it's the only live issue now before this Tribunal in terms of interim relief. Thank you.

PRESIDENT CHENG: So far as the First Request is concerned, you do not need it to be--to stop the broadcasting?

MR. HEISKANEN: No, we don't.

PRESIDENT CHENG: Okay. Thank you.

MS. de GERMINY: Madam President and Members of the Tribunal, since I know this presentation is all that separates us from lunch, I think I can say that I should take just about 20 minutes to go through the

[Page 167]

points, come back to some points we've already discussed, and maybe clarify a few additional items.

As you will have understood, the Parties do essentially agree on what remains to be done in terms of declassification. I would like, though, to start by first coming back to what has happened to date in terms of declassification, including the steps taken by Romania since our last written submissions, and come to where we really stand precisely in terms of the documents that are still outstanding.

Second, I will go through very briefly why the Claimants' Request for Provisional Measures is improper, in our submission. This part will be brief, given the Tribunal's recent indications that it is inclined to deny that request and to, indeed, issue a Procedural Order.

Third, and, finally, I will go through our Request for Relief and, thus, what we respectfully submit should be contained in this Procedural Order.

So, the Claimants seek access to what they call the "confidential and classified documents," and I do want to come back to, really, what are the documents

[Page 168]

that are at issue because I think this is important.

On the screen is the definition that they provide of the documents that they seek to access and use.

One might also say, though, that they're seeking access to the confidential and/or classified documents. Since they seek access to documents in RMGC's custody, which benefit from one or more levels of protection--and I will explain what I mean.

First, they seek access to the documents listed in this Registry, the RMGC Registry, which they have submitted twice, as was explained again this morning as Exhibit C-20. They provided an updated version following their First Request for Provisional Measures, and they also submitted a color-coded version as Exhibit C-80 with their last submission. So, that is the list of classified documents.

Those documents were classified in accordance with Romanian laws: The 2002 Romanian Classified Information Law and the National Standards for the Protection of Classified Information. Those laws are based on the NATO criteria and categories for

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classified documents.

As Ms. Cohen Smutny explained this morning, and as we have explained in our submissions, the original version of Exhibit C-80 comprised 785 documents. In July, one of the things that the NAMR did was to write to RMGC and to meet with RMGC to check whether that really was the most up-to-date version of that list, and RMGC came back with this much-reduced list of 491 documents.

The current status right now is that the vast majority of those documents have been declassified or are in the process of being declassified, but I will come back to the exact figures in a moment.

Now, all of the documents in the Registry are classified. Some of them are also confidential, confidential by virtue of the terms of the Licenses.

Although the Licenses are not on the record, we understand that the Licenses should contain confidentiality provisions that come from the Romanian Mining Law, and these documents are also confidential by virtue of the Custody Contract itself.

Finally, as the Claimants confirmed in their

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last submission, they also seek access to other unidentified what we would call "purely confidential documents" held by RMGC, so documents that are in confidential--that are not classified and, therefore, are not in this list that you have as Exhibit C-20.

The Claimants have only referred to these documents, sort of in passing, in their submissions. We don't know exactly what the documents are. We do not have an objection to the Claimants' accessing and using these purely confidential documents held by RMGC, as long as the Respondent also obtains those documents simultaneously and as long as those documents are used in accordance with this Confidentiality Order that we're currently discussing.

ARBITRATOR DOUGLAS: Could I just ask a question, then. If that's possible in relation to confidential documents that weren't previously classified, then why do we need changes to the Custody Agreement if declassified documents--which are now just simply confidential--need to be used by the Parties?

In other words, if they've got a right now to use confidential documents, the declassified documents

[Page 171]

become simply confidential documents.

So, why do certain additional procedures need to be put in place for the use of those?

MS. de GERMINY: The confidential documents, indeed, all that needs to be done for purely confidential documents is to agree to the terms of this Confidentiality Order. Once that is done, these purely confidential documents, they could, indeed, access them, and we would want access at the same time.

ARBITRATOR DOUGLAS: We don't need to worry about the Custody Agreement then?

I mean, to be frank, this is something--there seems to be a bit of a difference between the Parties, at least in their written cases, as to whether or not these amendments to the Custody Agreement are actually necessary for each Party to have access to purely confidential documents.

MS. de GERMINY: I think the two items have to come together; the RMGC and NAMR will only allow the release of these documents to third parties in accordance with the Confidentiality Order.

So, there are two things again: There is the

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amendments to the Storage Contract, but then there will be the need to assure RMGC and NAMR with the Confidentiality Order as to how these documents will be used. I don't know if that--

(Off microphone.)

Right. The two go hand in hand. The amendments to the Storage Contract will allow NAMR and RMGC to release these documents for this arbitration since there will be the Confidentiality Order in place.

ARBITRATOR DOUGLAS: When you say "release these documents," you're talking about the full spectrum of confidential documents, not just the declassified documents?

MS. de GERMINY: Everything that's confidential, yeah, yeah.

So, I would like to come back, then, at this stage to simply what happened since the Request for Arbitration and what Romania has done and how we've gotten to where we are today. The Claimants have argued that the Respondent has been dragging its feet with respect to this issue of access to documents.

And, with all due respect, we simply do not accept that

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position.

The Claimants filed their Request for Arbitration in July 2015. At the time they did flag the issue of what they called the "confidentiality secrecy regime" covering documents at issue in the case. At the time, although they did not give specific information as to what documents were at issue, Romania, nevertheless, started to actively study how to address this issue.

We have put up on the next two slides the meetings that Romania has held to discuss this issue.

And as we've heard--and Dr. Heiskanen came back to this a moment ago--the Claimants again said this morning that there were many options and that Romania could have issued a government decision. That is something that was considered, along with many options. All options were considered and thought through, and that was not one of the options since, as we've explained, it is not possible to issue a government decision sort of overriding these classified information laws.

Now, as I said, with the Claimants' First Request for Provisional Measures of 16 June, that's

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actually when we got the Registry, the Registry--and we understood that there were 785 documents and that that was the aim of their request. It's shortly thereafter, then, that NAMR met with RMGC that it actually got the clarification regarding the number of documents in the Registry, which was, in fact, 491 documents.

Now, as we've explained in our pleadings, in order to declassify a document, a person from the entity that classified that document has to physically review it. So that means that NAMR can declassify documents that someone from NAMR classified.

Conversely, NAMR cannot declassify documents that a third party classified. So, there are several entities, as the Tribunal will have understood, that are working on these issues.

If you look at the Registry, you will see that the main entities that classify documents are NAMR itself, of course, RMGC, as well as Minvest, but also some private companies such as Cepromin and Ipromin.

ARBITRATOR GRIGERA NAÓN: Sorry, I have another question.

Some of these documents, according to what I

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understood from reading your papers--sorry.

Some of these documents, as I understood from reviewing your papers, have been classified by private entities.

Now, how can a private entity classify a document that's State-secret? How can--quite frankly, I don't understand that.

MS. de GERMINY: Well, first of all, just a slight clarification. So, these do appear to be work-secret documents versus State-secret, but it does appear that, because of the nature of the documents, these are documents that are part of what the Romanian Mining Law calls the National Geological Fund and the National Fund for Mineral Resources, based on the nature of the documents and the orders issued in the past by NAMR. Actually, these third parties do need to classify documents via the orders previously issued by NAMR.

So, technically, we are in a situation where we have third parties that have prepared and issued documents that directly relate to Mineral Resources and mining activities and that are de facto classified

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according to the laws in place.

ARBITRATOR GRIGERA NAÓN: But, if I understand what you have just said, NAMR couldn't override that classification. However, I read some other part of your or the other Party's papers--and it seems that, in fact, NAMR can override those classifications. So, I must confess, I'm very confused. Maybe it's something I don't understand or the law is strange.

MS. de GERMINY: NAMR can issue, and has issued, directions--some of which even this week--to third parties instructing them to declassify these documents based on its own declassification now of the two main documents at issue, which are the Rosia Montana License and the Bucium License. In principle, these third parties should, therefore, declassify the documents. We see no reason why they would not. In theory, if they were to indicate that they would not declassify documents, then there could be applications made to challenge that resistance.

PRESIDENT CHENG: So, the power of classification by these third parties really emanate from NAMR, and, therefore, NAMR can direct them to

[Page 177]

declassify?

MS. de GERMINY: Exactly. It comes from NAMR and by the very nature of the documents at issue, as I say, which pertain--you will see references in these orders to documents that are part of the National Geological Fund and the National Fund for Mineral Resources and Reserves. That's actually a reference to the type of documents that are at issue and that are essentially Mineral Reserves documents and mining documents and that, therefore, are classified.

Okay, just to come back to where we were as at our last written submissions in August, August 31, essentially, already by that point, NAMR had declassified the Rosia Montana License. It had issued directions to other entities to declassify documents, including RMGC, which had declassified a number of documents. Minvest and Cepromin had also declassified documents.

There has been further progress made, indeed, since our last written submission. As of the Parties' last submissions, of the 490 documents--and, actually, here just one clarification. It seems that one of the

[Page 178]

491 documents has actually been struck through because it pertains to a different License, so actually that's why this slide refers to 490 documents.

So, of the 490 documents in the RMGC Registry, 274 had been declassified as of August 31. We've provided the breakdown there with the references to the exhibits. This shows, indeed, the documents declassified by NAMR, which was essentially the Rosia Montana License and certain addenda, and 216 documents were then outstanding.

Now, since our last submission, NAMR has taken further steps. This week, it issued two orders. These orders are in the papers you received yesterday. This is Order 223 and 224. By Order 223, NAMR declassified the Bucium License and its addenda. This is significant because that permits the declassification of all the documents relating to the Bucium License which could not, then, be declassified until that License was first declassified.

Separately, by Order 224, NAMR declassified 29 documents, 29 further documents, relating to both Licenses. NAMR then communicated these orders to the

[Page 179]

various third parties, saying "Please, again, take note of these orders and declassify the documents that you have in the Registry that relate to these Licenses," and it did ask them to revert quickly and actually within 30 days.

Those are the other exhibits that we present that we filed yesterday, so you have the two orders and the correspondence by which NAMR sent these instructions to third parties.

Where does this bring us? Of the 216 documents that were outstanding at the time of the Parties' last submissions, 37 have now been declassified. Those are the 29 documents from Order 224 and the 8 documents from Order 223, so 37 documents. That means 179 are outstanding, and this is where clearly there is some differences in the numbers and how we come to our numbers, but I think when the Claimants have provided this lower number, that's, I think, because they're considering documents where an instruction has been given but that has not actually been declassified, but our position is there are 179 documents that have not been declassified yet. Instructions have been given,

[Page 180]

but they have not yet been declassified.

And more specifically, 13 of those 179 documents are maps where the Claimants have said, "Actually we don't need these right now." 121, then, are these documents issued by third parties, and then 45 are actually NAMR documents.

PRESIDENT CHENG: When you say 45 documents were issued by NAMR, you mean that it would be NAMR who could declassify?

MS. de GERMINY: Exactly.

PRESIDENT CHENG: Instead of issuing instructions?

MS. de GERMINY: Exactly.

PRESIDENT CHENG: So, on your analysis, on your figures, there are only 45, plus 13 maps, because the others you have already directed that they be declassified?

MS. de GERMINY: Correct.

PRESIDENT CHENG: And these third parties ought to comply?

MS. de GERMINY: They ought to comply. We've asked them to comply within 30 days, but those

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documents are outstanding. We don't know--

PRESIDENT CHENG: I see.

MS. de GERMINY: --yet when they will be declassified, but that is correct. 45 documents are NAMR documents.

PRESIDENT CHENG: I understand. Thank you.

MS. de GERMINY: Okay.

ARBITRATOR DOUGLAS: Just to clarify as well, these are the photocopies that need to be provided?

MS. de GERMINY: Exactly.

ARBITRATOR DOUGLAS: So we're talking about 45 documents?

MS. de GERMINY: Yes, we're talking about 45 documents. That has been one of the issues, as the Tribunal will have understood, is how NAMR could see these documents. NAMR does have original counterparts and copies of some of these documents.

PRESIDENT CHENG: But the Claimants said that they would be able to provide copies within a week. I asked specifically.

MS. de GERMINY: Yes.

PRESIDENT CHENG: So, whatever those 45

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documents, we are not going to get into here.

MS. de GERMINY: That's fine. We agree.

Just for the record, one of the other letters we submitted yesterday--and that's why I was planning to come back to this--is simply that RMGC agreed to provide the copies a week ago. NAMR accepted that agreement. And, actually, two days ago, RMGC sent a letter to NAMR saying, "Actually we would rather wait to see what Tribunal says before we give you the copies."

So, I will very briefly, then, just for Provisional Measures, this was the second part of our presentation. We do understand that the Tribunal is inclined to denying.

PRESIDENT CHENG: I think probably you can leave us to read whatever there is because I believe it totally goes to a question of costs. Am I right?

MS. de GERMINY: Yes. Right.

PRESIDENT CHENG: So, you could leave that to us to read, unless there is anything specific.

MS. de GERMINY: Then I will go straight to our Request for Relief and simply make a few conclusions

[Page 183]

about the Claimants' Requests for Relief.

As previously explained, Claimants and RMGC have tentatively--

PRESIDENT CHENG: Is that Slide 37?

MS. de GERMINY: Slide 31.

PRESIDENT CHENG: 31. Thank you.

MS. de GERMINY: Actually, I think I can even take you further if you give me a moment. I think we can skip through this. Actually, I will take you to 36.

As we have said, although the Claimants acknowledge that both Parties are entitled to these documents, their Prayer for Relief does not reflect that, so that's what we sought to show on this slide.

And it's for that reason--that's one of the reasons why we've indicated that their Request for Provisional Relief should be denied.

As previously explained, Claimants and RMGC have tentatively agreed to the second part of our request, which was for the copies, and we have heard, now, today that we'll get it within a week.

I did want to come back to the question of

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timing, which we discussed just a moment ago. The Claimants did indicate that they would like--that they would like that the remaining documents be declassified within 30 days from the date of the order. We do submit that that is too short a time frame based on NAMR's professional assessment. There again, what needs to take place is for NAMR to review the documents, these 45 documents, but we do also still need to see what happens with respect to these third parties.

So, there are over 100 documents--121 documents outstanding, so there are actually two items that need to take place for this declassification process to be completed: It's both NAMR to review the documents that RMGC will provide and, also, for the third parties to hopefully quickly declassify their documents, but that is why we have requested up to two months.

ARBITRATOR GRIGERA NAÓN: Excuse me.

MS. de GERMINY: Yes.

ARBITRATOR GRIGERA NAÓN: All of these third parties are private, or they are also public?

MS. de GERMINY: There is one public entity,

[Page 185]

which is only, I think, responsible for--well, there is also Minvest. Yes, there is Minvest, and there is the Geological Department. There is a Geological Department which is also responsible for very few documents. The vast majority of the outstanding documents are in the hands of private parties.

Finally, we have discussed this, but we have requested that the Tribunal order the Claimants to cause RMGC to provide, once the declassification process is completed and within 30 days of the issuance of the confidential order, the Parties with simultaneous access to the documents. We talked about that a moment ago and the notion of, perhaps, getting documents on a rolling basis. In any event, just to confirm, this request is designed to avoid the situation where RMGC might provide certain documents only to the Claimants and not to the Respondent. So, we have asked that RMGC provide simultaneously to both Parties all classified documents in the Registry, once they're declassified, and all confidential documents relating to the Project once we have the Confidentiality Order in place.

[Page 186]

I think this would conclude our presentation on the First Request for Provisional Measures.

MR. HEISKANEN: Perhaps, if I could, I could just come back to Professor Grigera Naón's question about why private companies are classifying these documents. The answer is simple: It's the question of the nature of the information. The information relates to the Mineral Resources of Romania. National Authority on Mineral Resources, NAMR, has classified certain documents that relate to those resources, but NAMR is not involved in the exploitation of these resources. It's private companies, like RMGC, that are involved in that process. RMGC itself has classified a number of documents because, in the course of its exploration process, in the course of the project, it has discovered additional information about the nature of those resources. So, under the law, it has to classify documents that relate to Natural Resources and information that has been previously classified. That is why, also, other private companies that are involved, like consultancies, geological consultancies and others who are involved in that process, they have

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to classify those documents to the extent that they relate to Natural Resources and Mineral Resources of Romania.

ARBITRATOR GRIGERA NAÓN: This is a blunt question to you: What are they protecting? Are they protecting the geological knowledge that they gain after their own efforts, or are they really protecting a public interest? I am a former oil-and-gas lawyer.

MR. HEISKANEN: Yes. Mineral Resources are considered a strategic resource of the country.

ARBITRATOR DOUGLAS: Could I just ask the Parties whether it would be possible over the lunch break to provide--it's more for the Claimants' position--as to whether or not the fourth point here on Slide 41 is agreed; in other words, whether or not we need to order the Claimants or whether or not it is, in fact, agreed they will provide--or cause RMGC to provide the documents once the process is finished.

PRESIDENT CHENG: That was what I was going to suggest, too, so thank you.

Before we break for lunch, I think it would be convenient because I believe the next session you would

[Page 188]

want it to be not broadcasted, as I understand it. So, it might be convenient we break for now, but as a matter of planning, may I turn to Sara? And just indicate to the Parties the time that the Claimants have used, including the questioning that we have had, and the time that the Respondent has used so far so that we try and have a balance.

SECRETARY MARZAL YETANO: So, Claimants, in total, was 2 hours and 12 minutes; and Respondent so far has used 1 hour and 16 minutes.

MS. COHEN SMUTNY: I'm sorry; one question. If Claimants are invited to consider the point on Slide 41 over the break, relatedly, we have pointed out that it's not yet been indicated whether Respondent is undertaking actually to declassify the remaining documents. There is the talk about the time it takes to make a declassification decision, suggesting that the possibility exists that the declassification decision would be "No, we are not declassifying."

So, we are still theoretically in uncertainty. It's not been made clear, at least in our understanding, that we are just talking about how much

[Page 189]

time does it takes to actually declassify. We're understanding that we're waiting for a declassification decision.

And this is a material point for Claimants and, perhaps, related to the point that--and we can also wait for a reply here, but I think both Parties, ironically have--or at least I understood--have expressed the concern that maybe this all--at least from our point of view--that this all could have and should have been something agreed between the Parties.

And this is an example of something that, as we sit here today, we still don't know.

Are we going to actually have--do we have Respondent's undertaking that these documents will be declassified--and it's just a function of how long it's going to take us to do it--or are we talking about a time period to make a decision about whether or not there will be declassification of these documents?

This is a fundamental uncertainty that we still have.

MR. HEISKANEN: The declassification decisions will be taken by the entities--public and private--who

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classified the documents initially. The Respondent has no control over private parties who will be taking these decisions and how long it will take. The review process is underway. Most of these documents, the documents that have been reviewed, have been declassified. The Respondent is not in a position to take--make an undertaking; otherwise, the whole entire review process would serve no purpose.

It's not excluded, although it seems now unlikely that there are among these documents, State-secret documents, which would require a different review and possibly different decisions.

We have been informed by the Claimants, or by RMGC through the Claimants, that there are no State-secret documents among these documents to be declassified. It may be a theoretical possibility, but we are not in a position to provide undertaking, but I think what has happened so far speaks for itself.

ARBITRATOR DOUGLAS: Just one more thing to reflect on over lunch was the possibility of an undertaking in relation to documents procured by the antifraud investigation, just to give you forewarning

[Page 191]

that I'm probably going to ask you a question about whether or not Respondent's counsel would be prepared to give such an undertaking.

MR. HEISKANEN: We will come back to this entire issue of the Second Request for Relief and whether there is, indeed, any need for this order in the second part of our argument today.

PRESIDENT CHENG: But also to consider the points raised by Professor Douglas about whether or not an undertaking may be given, can be given. All right?

I think I'm sure the question will be asked.

MR. HEISKANEN: We will consider that.

PRESIDENT CHENG: Thank you.

So, we will come back from lunch, one-hour lunch.

Now, I think in the light of the questions that we have asked, we hope the reply might be a little bit shorter, but you might have to--I don't know how our timing would be. How would the timing be from here?

If we have to finish at 5:00, that is.

I think most of our questions have been asked as the submissions are made.

[Page 192]

SECRETARY MARZAL YETANO: We have 15 minutes for questions from the Tribunal at the end of the day.

PRESIDENT CHENG: Yes. So, we're allowing one hour each for the reply or rejoinder. You might have to think how to deal with that time with the view to finishing as close to 5:00. Of course, we can sit a little bit longer. All right? All right.

We will come back in one hour's time. Thank you.

(Whereupon, at 1:28 p.m., the Hearing was adjourned until 2:30 p.m., the same day.)

[Page 193]

AFTERNOON SESSION

PRESIDENT CHENG: Good afternoon.

I believe we are ready to continue with the Respondent's opening, but before the Respondent continues, the Tribunal wished to share our current view in terms of costs so that the Parties can take that into account.

We are provisionally of the view that costs of both applications should be reserved. In other words, we'll deal with that later. If we are to change our mind after, at the end of the hearing when we come to deal with it, I believe the arguments primarily relate to whether or not the Applicants--that is, the Claimants--have the right and should have brought the application or otherwise. Those matters are all dealt with fully in writing, so I'm indicating that to the Parties so that their time and effort could perhaps be focused more on the substantive arguments that will be more relevant. But of course, we haven't finally made up our minds but we indicate that, so do highlight to us what you think is necessary in terms of the request because I noticed that both sides are asking for costs

[Page 194]

for different reasons, but we will, of course, hear you, but we just felt--we wished to indicate that--indicate our provisional views.

The second point is that looking at the timeframe and bearing in mind we have had a lot of questions that we raised with the Parties already, and given the time of the Hearing, we wonder whether the Parties could agree to a shorter closing and then a very short break, then we will finish very much soon after 5:00 p.m., if not at 5:00 p.m. Is that something that would be doable and acceptable in the light of what has transpired over the day?

Ms. Smutny.

MS. COHEN SMUTNY: Claimants do anticipate that any reply points would be quite limited and certainly not a full hour. So, yes.

PRESIDENT CHENG: Good, thank you.

I hope the Respondent can--

MR. HEISKANEN: Yes, we don't expect to spend more than, perhaps, 20-30 minutes max on the closing.

PRESIDENT CHENG: Thank you.

I think that probably would be about right.

[Page 195]

And our questions have been asked, and we will continue to be asking questions as the Parties are making their submissions so that the points are clarified.

So, I believe that the Respondent would still have about one hour for their openings. So I believe now we also go into a stop of the broadcasting. Am I right?

MR. HEISKANEN: Yes, that's correct. So, it will be Mr. Guibert de Bruet, and he will be discussing the facts underlying the Claimants' Second Request, so it will be a bit more sensitive information.

PRESIDENT CHENG: Thank you.

(End of open session. Confidential business information redacted.)

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(End of confidential session.)

[Page 244]

OPEN SESSION

PRESIDENT CHENG: Before the reply, we noticed that we have just over an hour to 5:00. You will no doubt bear that in mind in utilizing the time. We'll try and give equal time to the two Parties as much as we can.

However, I'd like to ask both Parties how they wish to deal with the questions of confidentiality in the Reply. Will you be providing it--or will you be having it mixed so that you would like it kept confidential, or are you still pricking it into parts?

I'll start with the Claimants first.

MR. LEW: I think it's going to be too hard to unscramble the egg at this point given the interrelated nature of this issue, so I think Claimants believe that this session should be confidential.

PRESIDENT CHENG: Respondent?

MR. HEISKANEN: That is probably the best approach. We expect to focus on some of the factual allegations, and it will be difficult to discuss those without suspending the broadcast.

PRESIDENT CHENG: All right. Well, in that

[Page 245]

case, I think we will from here on stop the broadcasting again for the Reply.

All right.

(End of open session. Confidential business information redacted.)

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14 (Whereupon, at 5:12 p.m., the Hearing was

15 concluded.)

[Page 300]

CERTIFICATE OF REPORTER

I, David A. Kasdan, RDR, CRR, CRC, Court Reporter, do hereby certify that the foregoing proceedings were stenographically recorded by me and thereafter reduced to typewritten form by computer-assisted transcription under my direction and supervision; and that the foregoing transcript is a true and accurate record of the proceedings.

I further certify that I am neither counsel for, related to, nor employed by any of the parties to this action in this proceeding, nor financially or otherwise interested in the outcome of this litigation.

Signature

DAVID A. KASDAN