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INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES

Global Telecom Holding S.A.E.

v.

Canada

(ICSID Case No. ARB/16/16)
Annulment Proceedings

PROCEDURAL ORDER NO. 1

Members of the ad hoc Committee
Prof. Mónica Pinto, President of the ad hoc Committee
Prof. Lawrence Boo, Member of the ad hoc Committee
Ms. Dyalá Jiménez, Member of the ad hoc Committee

Secretary of the ad hoc Committee
Ms. Aurélia Antonietti

November 23, 2020

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Introduction

The first session of the ad hoc Committee (the “Committee”) was held on November 6, 2020, at 8 a.m. EDT, by telephone/video conference. The session was adjourned at 8.38 am EDT.

An audio recording of the session was made and deposited in the archives of ICSID. The recording was distributed to the Members of the Committee and the parties.

Participating in the conference were:

Members of the Committee
Prof. Mónica Pinto, President of the Committee
Prof. Lawrence Boo, Member of the Committee
Ms. Dyalá Jiménez, Member of the Committee

ICSID Secretariat:
Ms. Aurélia Antonietti, Secretary of the Committee

Participating on behalf of Global Telecom Holding S.A.E. (“GTH” or the “Claimant”), the Applicant for Partial Annulment:
Ms. Penny Madden QC, Gibson, Dunn & Crutcher LLP
Mr. Rahim Moloo, Gibson, Dunn & Crutcher LLP
Ms. Charline Yim, Gibson, Dunn & Crutcher LLP
Ms. Marryum Kahloon, Gibson, Dunn & Crutcher LLP
Mr. Tim Burke, VEON Ltd.

Participating on behalf of Canada (the “Respondent”), the Applicant for Partial Annulment:
Ms. Sylvie Tabet, Global Affairs Canada
Mr. Jean-Francois Hebert, Global Affairs Canada
Ms. Heather Squires, Global Affairs Canada
Mr. Mark Klaver, Global Affairs Canada
Ms. Darian Bakelaar, Global Affairs Canada
Mr. Benjamin Tait, Global Affairs Canada
Ms. Sylvie Zidan, Global Affairs Canada
Ms. Natacha Guilbault, Innovation, Science and Economic Development Canada
Mr. Cezary Fudali, Innovation, Science and Economic Development Canada

The Committee and the parties considered the following:

• The Draft Procedural Order circulated by the Secretary of the Committee on September 28, 2020; and
• The parties’ comments on the Draft Procedural Order received on [insert date(s)], indicating the items on which they agreed and their respective positions regarding the items on which they did not agree.

Following the session, the Committee now issues the present Order:

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Order

Pursuant to ICSID Arbitration Rules 19, 20 and 53, this first Procedural Order sets out the Procedural Rules that the parties have agreed, and the Committee has determined that shall govern these parallel annulment proceedings. The timetable as agreed by the parties by emails of November 19, 2020, is attached as Annex B.

1. Applicable Arbitration Rules
Convention Article 44 and Arbitration Rule 53

1.1. These proceedings are conducted in accordance with the ICSID Arbitration Rules in force as of April 10, 2006. In accordance with Arbitration Rule 53, the Arbitration Rules apply, mutatis mutandis, to annulment proceedings.

2. Constitution of the Committee and the Committee Members’ Declarations
Convention Article 52(3); Arbitration Rules 6 and 52

2.1. The Committee to hear both Applications was constituted on September 24, 2020 in accordance with the ICSID Convention and the ICSID Arbitration Rules. The parties confirmed that the Committee was properly constituted and that no party has any objection to the appointment of any Member of the Committee.

2.2. The Members of the Committee timely submitted their signed declarations in accordance with ICSID Arbitration Rule 6(2). Copies of these declarations were distributed to the parties by the ICSID Secretariat on September 24, 2020.

2.3. The Members of the Committee confirmed that they have sufficient availability during the next 24 months to dedicate to this case.

3. Fees and Expenses of the Committee Members
Convention Article 60; Administrative and Financial Regulation 14; ICSID Schedule of Fees

3.1. The fees and expenses of each Member of the Committee shall be determined and paid in accordance with the ICSID Schedule of Fees and the Memorandum on Fees and Expenses of ICSID Arbitrators in force at the time the fees and expenses are incurred.

3.2. Under the current Schedule of Fees, each Member of the Committee receives:

3.2.1 US$3,000 for each day of meetings or each eight hours of other work performed in connection with the proceedings or pro rata; and

3.2.2 subsistence allowances, reimbursement of travel, and other expenses pursuant to ICSID Administrative and Financial Regulation 14.

3.3. Each Member of the Committee shall submit his/her claims for fees and expenses to the ICSID Secretariat on a quarterly basis.

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3.4. Non-refundable expenses incurred by the Members of the Committee in connection with a hearing as a result of a postponement or cancellation of the hearing shall be reimbursed.

4. Presence and Quorum
Arbitration Rules 14(2) and 20(1)(a)

4.1. The presence of all Members of the Committee constitutes a quorum for its sittings, including by any appropriate means of communication.

5. Rulings of the Committee
Convention Article 48(1); Arbitration Rules 16, 19 and 20

5.1. Decisions of the Committee shall be taken by a majority of the Members of the Committee.

5.2. ICSID Arbitration Rule 16(2) applies to decisions taken by correspondence except that where the matter is urgent, the President may decide procedural matters without consulting the other Members, subject to possible reconsideration of such decision by the full Committee.

5.3. The Committee will draft all rulings, including its final Decision on Annulment, within a reasonable time period.

5.3.1 If a ruling, excluding the Decision on Annulment, has not been issued within 14 calendar days after the final submission on a particular matter, the Committee will provide the parties with weekly status updates.

5.3.2 If the Decision on Annulment has not been issued within six months after the Hearing or the Post-Hearing Memorials (if any) (whichever is later), the Committee will provide the parties with status updates every month. The Committee shall provide two weeks’ notice of the issuance of the Decision on Annulment.

5.4. The President is authorized to issue Procedural Orders on behalf of the Committee.

5.5. Procedural ruling shall be made after the parties have been afforded an adequate opportunity to present their views in relation thereto.

5.6. The Committee’s rulings on procedural matters may be communicated to the parties by the Secretary of the Committee in the form of a letter or email.

6. Power to Fix Time Limits
Arbitration Rule 26(1)

6.1. The President may fix and extend time limits for the completion of the various steps in the proceedings.

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6.2. In exercising this power, the President shall consult with the other Members of the Committee. If the matter is urgent, the President may fix or extend time limits without consulting the other Members, subject to possible reconsideration of such decision by the full Committee.

7. Secretary of the Committee
Administrative and Financial Regulation 25

7.1. The Secretary of the Committee is Ms. Aurélia Antonietti, ICSID Senior Legal Adviser, or such other person as ICSID may notify the Committee and the parties from time to time.

7.2. To send copies of communications by email, mail, and courier/parcel deliveries to the ICSID Secretariat, the contact details are:

Ms. Aurélia Antonietti
ICSID
MSN C3-300
1818 H Street, N.W.
Washington, D.C. 20433
USA
Tel.: + 1 (202) 458-7603
Fax: + 1 (202) 522-2615
Email: [email protected]
Paralegal email: [email protected]

7.3. For local messenger deliveries, the contact details are:

Ms. Aurélia Antonietti
ICSID
1225 Connecticut Ave. N.W.
(World Bank C Building)
3rd Floor
Washington, D.C. 20036
USA
Tel. 202-458-1534

8. Representation of the Parties
Arbitration Rule 18

8.1. Each party shall be represented by its respective counsel (below) and may designate additional agents, counsel, or advocates by notifying the Secretary of the Committee promptly of such designation.

For Global Telecom Holding S.A.E. (Applicant for Partial Annulment):	For Canada (Applicant for Partial Annulment):
Ms. Penny Madden QC Gibson, Dunn & Crutcher LLP	Ms. Sylvie Tabet Trade Law Bureau (JLT)

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8.2. Global Telecom Holding S.A.E. will be designated as the Claimant and Canada will be designated as the Respondent, as in the original arbitration proceeding.

9. Apportionment of Costs and Advance Payments to ICSID
Convention Article 61(2); Administrative and Financial Regulation 14; Arbitration Rule 28

9.1. In accordance with Regulation 14 of the Administrative and Financial Regulations, both parties, as Applicants, shall be responsible for making the advance payments requested by the Secretary-General to cover expenses of the Committee and of ICSID. This is without prejudice to the Committee’s final decision as to the allocation of costs.

9.2. By letters of September 26, 2020, ICSID requested each party to make an advance payment of US$ 150,000, to cover the initial costs of the proceedings. The payments were received from both parties, partially from funds released from the arbitration trust funds.

9.3. ICSID shall request further advances from the parties as needed. Such requests shall be accompanied by a detailed interim statement of account. The final financial statement will include a breakdown of each member of the Committee’s fees and expenses.

9.4. The unused balance held on deposit at the end of the proceedings shall be returned by ICSID to the parties in proportion to the payments that they advanced to ICSID, without prejudice to the final decision of the Committee as to the allocation of costs.

10. Place of Proceedings

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Convention Articles 62 and 63; Administrative and Financial Regulation 26; Arbitration Rule 13(3)

10.1. Washington, D.C. shall be the place of the proceedings.

10.2. The Committee may hold hearings at any other place, including virtually, that it considers appropriate if the parties so agree.

10.3. The Committee may deliberate at any place it considers convenient.

11. Procedural Language, Translation and Interpretation
Administrative and Financial Regulation 30(3) and (4); Arbitration Rule 20(1)(b) and 22

11.1. English is the procedural language of the annulment proceedings.

11.2. Documents filed in any other language must be accompanied by a translation into English.

11.3. If the document is lengthy and relevant only in part, it is sufficient to translate only relevant parts, provided that the Committee may require a fuller or a complete translation at the request of any party or on its own initiative.

11.4. Translations need not be certified unless there is a dispute as to the content of a translation provided and the party disputing the translation specifically requests a certified version.

11.5. The costs of any interpreter(s) will be paid from the advance payments made by the Applicants, without prejudice to the decision of the Committee as to which party shall ultimately bear those costs.

12. Routing of Communications
Administrative and Financial Regulation 24

12.1. The ICSID Secretariat shall be the channel of written communications between the parties and the Committee.

12.2. Each party’s written communications shall be transmitted by email or other electronic means to the opposing party and to the Committee Secretary, who shall send them to the Committee.

12.3. Electronic versions of communications ordered by the Committee to be filed simultaneously shall be transmitted to the Committee Secretary only, who shall send them to the opposing party and the Committee.

12.4. The Committee Secretary shall not be copied on direct communications between the parties when such communications are not intended to be transmitted to the Committee.

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13. Number of Copies and Method of Filing of Parties’ Pleadings
Administrative and Financial Regulation 30; Arbitration Rules 20(1)(d),23 and 53

13.1. By the relevant filing date, the parties shall:

13.1.1 submit by email to the Committee Secretary and the opposing party an electronic version of the pleading with witness statements (if any), expert reports (if any) and an updated index of all the supporting documentation attached to the pleading (including exhibits and legal authorities referenced in the party’s pleadings submitted in this annulment proceeding),¹ and

13.1.2 upload the pleading with all the supporting documentation referenced in the party’s pleadings submitted in this annulment proceeding and the corresponding updated index to the file sharing platform that will be created by ICSID for purposes of this case.

13.2. Electronic versions of submissions shall be text searchable (i.e., OCR PDF or Word).

13.3. Pleadings shall be accompanied by an updated index hyperlinked² to the supporting documentation. The index shall indicate the document number and the pleading with which it was submitted.

13.4. At the conclusion of the written phase of the proceedings, on a date to be determined by the Committee, or at any other time the Committee or the Secretariat so requests, the parties shall courier to the ICSID Secretariat and each Member of the Committee a USB drive containing an electronic copy of the entire case file (including pleadings, witness statements, expert reports, exhibits, legal authorities and Committee decisions and orders to date) with a consolidated hyperlinked index of all documents.

13.5. The official date of receipt of a pleading or communication shall be the day on which the electronic version is submitted to the Secretary of the Committee.

13.6. A filing shall be deemed timely if sent by a party by midnight, Washington, D.C. time, on the relevant date.

14. Number and Sequence of Pleadings
Arbitration Rules 20(1)(c), 29, 31 and 53

14.1. The proceedings shall proceed in accordance with the Procedural Timetable attached hereto as Annex B, except if the Committee, upon a showing of good cause by either party or on its own initiative, decides that this Procedural Timetable has to be amended, or both parties agree to such an amendment.

14.2. In the first exchange of submissions (simultaneous Memorials and Counter-Memorials), the parties shall set forth all the facts and legal arguments on which they intend to rely in support of their respective cases. Allegations of fact and legal arguments shall be presented

¹ Please note that the World Bank server does not accept emails larger than 25 MB.
² The parties can upload a hyperlinked index in zip file format to the platform to preserve the hyperlinks.

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in a detailed, specific and comprehensive manner, and shall respond to all allegations of fact and legal arguments made by the other party.

14.3. In their second exchange of submissions (simultaneous Replies and Rejoinders), the parties shall limit themselves to responding to allegations of fact and legal arguments made by the other party in the first exchange of submissions, unless new facts have arisen after the first exchange of submissions which justify new allegations of fact and/or legal arguments.

14.4. Following each factual allegation, the parties shall, whenever possible, identify the evidence adduced or to be adduced in support of that allegation. Following each legal argument, the parties shall, whenever possible, identify the legal authority adduced or to be adduced in support of that argument.

14.5. All written submissions shall be divided into consecutively numbered paragraphs.

15. Submission of documents
Convention Article 44; Administrative and Financial Regulation 30; Arbitration Rule 24

15.1. Given the nature of an annulment proceeding, in principle, no evidence outside of the original arbitration proceeding shall be admitted in these proceedings. Should either party wish to introduce new documents or other evidence, other than legal authorities or expert reports, that party shall file a request to the Committee to that effect. The Committee will promptly decide on the admissibility of these new documents and/or evidence, after hearing from the other party.

15.2. The simultaneous Memorials and Counter-Memorials shall be accompanied by the documentary evidence relied upon by the parties, including exhibits and legal authorities. Further documentary evidence relied upon by the parties in rebuttal shall be submitted with the simultaneous Replies and Rejoinders.

15.3. Any documents introduced as exhibits in these annulment proceedings shall be labelled with numbers, and shall be organized in a clear order:

15.3.1 Exhibits and legal authorities already included in the evidentiary record of the arbitration proceeding shall be labelled and referred to using the same numbering as in the arbitration proceeding. The parties shall include with their submissions in these proceedings any submission or supporting documents from the underlying arbitration proceeding that they wish to rely on.

15.3.2 New exhibit and legal authority numbering shall continue from the numbering used in the underlying arbitration. Each party shall number the accompanying documentation consecutively throughout the entire annulment proceedings and shall number the paragraphs of each of its written pleadings.

15.3.3 Electronic files and the accompanying indexes shall follow the naming conventions contained in Annex A.

15.3.4 Duly certified copies of documents are not required unless the authenticity of the copy is contested and the Committee deems the certification necessary.

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15.4. Demonstrative exhibits (such as PowerPoint slides, charts, tabulations, etc.) may be used at any hearing, provided they contain no new evidence. Each party shall number its demonstrative exhibits consecutively and indicate on each demonstrative exhibit the number of the document(s) from which it is derived. The party subming such exhibits shall provide them in electronic and hard copy to the other party, the Committee Members, the Secretary, the court reporter(s) and interpreter(s) at the hearing at a time to be decided at the pre-hearing organizational meeting.

16. Witnesses and Experts
Arbitration Rules 35, 36

16.1. In principle, no witness statements outside of the original arbitration proceeding shall be admitted in these proceedings. Should a party wish to introduce new witness statements, such party shall request leave from the Committee. In accordance with Arbitration Rule 53, the Committee shall promptly determine the admissibility of the new witness statements after hearing both parties.

16.2. Neither party shall be permitted to submit any testimony that has not been filed with the written submissions, unless the Committee determines that special circumstances exist based on a reasoned written request followed by observations from the other party.

16.3. Each witness statement and expert report shall be signed and dated by the person writing it.

16.4. Expert reports shall be accompanied by any documents or information upon which they rely, unless such documents or information have already been submitted as exhibits with the parties’ submissions, in which case reference to such exhibits shall be sufficient.

16.5. Examination of witnesses and experts will be decided by the parties once submissions have been filed.

17. Pre-Hearing Organizational Meetings
Arbitration Rule 13

17.1. A pre-hearing organizational meeting shall be held at a date determined by the Committee after consultation with the parties by telephone/video-conference between the Committee, or its President, and the parties in order to resolve any outstanding procedural, administrative, and logistical matters in preparation for the hearing.

17.2. At a date to be determined by the Committee, and in any event no later than the date of the pre-hearing organizational meeting, the parties shall submit to the Committee jointly – or, where they are unable to agree, separately – a proposal regarding a daily schedule for the hearing.

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18. Hearings
Arbitration Rules 20(1)(e), 32 and 53

18.1. The oral procedure shall consist of oral arguments and exceptionally, include the examination of witnesses and experts, if any.

18.2. The hearing may be held in-person or by any other means of communication as determined by the Committee after consultation with the parties. An in-person hearing shall be held at a place to be determined in accordance with § 10 above.

18.3. The hearing will take place on February 7-8, 2022.

18.4. The Members of the Committee shall endeavor to reserve at least one day after the hearing to determine the next steps and to hold deliberations.

18.5. Allocation of time at the hearing shall be agreed upon by the parties or, alternatively, decided by the Committee in consultation with the parties after the pre-hearing organizational meeting.

18.6. According to Rule 32(2), the hearing will be closed to the public, and there will be no publication of the transcripts.

19. Records of Hearings and Sessions
Arbitration Rules 13 20(1)(g) and 53

19.1. Sound recordings shall be made of all hearings and sessions. The sound recordings shall be provided to the parties and the Committee Members.

19.2. Verbatim transcripts in the procedural language shall be made of any hearing and session other than sessions on procedural issues. Unless otherwise agreed by the parties or ordered by the Committee, the verbatim transcripts shall be available in real-time using LiveNote or similar software and electronic transcripts shall be provided to the parties and the Committee on a same-day basis.

19.3. The parties shall agree on any corrections to the transcripts within 15 days of the later of the dates of the receipt of the sound recordings and transcripts. The agreed corrections may be entered by the court reporter in the transcripts (“revised transcripts”). The Committee shall decide upon any disagreement between the parties and any correction adopted by the Committee shall be entered by the court reporter in the revised transcripts.

20. Post-Hearing Memorials and Statements of Costs
Convention Article 44; Arbitration Rule 28(2)

20.1. At the hearing, after consulting with the parties and taking into account their views, the Committee shall decide whether it believes it to be necessary for the parties to file Post-Hearing Memorials.

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20.2. Each party will submit its Statement of Costs within 3 weeks after the hearing or the final exchange of Post-Hearing Memorials (if any) (whichever is later).

21. Confidentiality and Publication
Convention Article 48(5), Administrative and Financial Regulation 22, Arbitration Rule 48(4) and 53

21.1. The Confidentiality Order in the underlying arbitration, dated October 30, 2017, agreed by the parties remains in effect during these annulment proceedings. The Committee will assume the function of the Tribunal under the Confidentiality Order.

21.2. The parties’ written submissions referenced in paragraph 14, the Committee’s Decision on Annulment and any order or decision shall be published on the ICSID website, subject to the redaction of confidential information pursuant to the Confidentiality Order.

21.3. All other documents shall not be published, and will be subject to redaction in accordance with the Confidentiality Order.

[Signed]
_________________________
Prof. Mónica Pinto
President of the Committee
Date: November 23, 2020

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Annex A - Electronic File Naming Guidelines

Please follow these guidelines when naming electronic files and for the accompanying Consolidated Hyperlinked Index. The examples provided (in italics) are for demonstration purposes only and should be adapted to the relevant phase of the case.

All pleadings and accompanying documentation shall indicate the LANGUAGE in which they are submitted. Such indication should be reflected both i) in the name used to identify each individual electronic file and ii) in the Consolidated Hyperlinked Index (which shall be attached to each submission).

For cases with a single procedural language, the “-LANGUAGE” designation may be omitted, except for documents in a language other than the procedural language and the corresponding translations.

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Annex B – Procedural Calendar