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INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES

Bay View Group LLC and The Spalena Company LLC

v.

Republic of Rwanda

(ICSID Case No. ARB/18/21)

PROCEDURAL ORDER NO. 7
HEARING PROTOCOL

Members of the Tribunal
Rt. Hon. Lord Phillips KG, PC, President of the Tribunal
Mr. J. Truman Bidwell, Jr., Arbitrator
Ms. Barbara Dohmann QC, Arbitrator

Secretary of the Tribunal
Mr. Alex B. Kaplan

9 June 2021

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I. PROCEDURAL BACKGROUND

1. On 14 May 2021, the Secretary of the Tribunal circulated to the Parties, on behalf of the Tribunal, a draft Hearing Protocol. The Secretary of the Tribunal invited the Parties to confer on the items of the draft Hearing Protocol and jointly submit their comments. The Parties duly submitted their comments on 25 May 2021 and 3 June 2021, indicating the items of the draft Hearing Protocol on which they agreed and stating their respective positions on the items on which they disagreed.

2. On 4 June 2021, the Tribunal held a pre-Hearing organizational meeting by Zoom videoconference with the Parties. Participating in the meeting were:

3. During the videoconference, the Members of the Tribunal and the Parties discussed the items of the draft Hearing Protocol on which the Parties disagreed as well as other matters raised by the Parties.

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4. The present Order is made for the purpose of setting out further agreements reached by the Parties during the videoconference and decisions made by the Tribunal thereafter on any remaining items of disagreement.

II. ORGANIZATION OF THE HEARING

A. MODALITY

5. As stated in correspondence of 31 March 2021, the Hearing will take place virtually via Zoom on 21-30 June 2021 (excluding the weekend), and assisted by FTI Consulting who will operate both the technical aspects of Zoom and any additional technical services required by the Parties or the Tribunal. The details to join the Zoom session will be shared by the ICSID Secretariat in advance of the Hearing. Annex A contains a protocol with logistical information specific to the virtual modality.

6. Additionally, the Members of the Tribunal will, subject to any legal embargo, use their best efforts to sit together for the hearing in London, at the International Dispute Resolution Centre, 70 Fleet Street, London EC4Y 1EU, United Kingdom.

7. In light of current travel restriction to the United Kingdom and, in particular, the absence of the United States of America from the “Green List,” Claimants’ counsel and their representative, Mr. Roderick Marshall, are unable to travel to London for the Hearing and therefore Claimants’ counsel will not attend any portion of the Hearing in-person.

8. In these circumstances, counsel teams are not invited to appear in person before the Tribunal but could join the Hearing via Zoom from either (i) a satellite location at the hearing centre or (ii) a location of their choosing.

B. SCHEDULE

9. In order to accommodate the range of time zones in which Hearing participants are located, a typical Hearing day will presumptively start at 7:00 a.m. (Boston) / 12:00 p.m. (London) / 1:00p.m. (Kigali) and is expected to conclude by 3:00p.m. (Boston) / 8:00p.m. (London) / 9:00 p.m. (Kigali). When the Respondent’s witnesses are testifying from Kigali,

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the Hearing shall conclude no later than 2:00 p.m. (Boston) / 7:00 p.m. (London) / 8:00p.m. (Kigali). There will be one longer break of 45 minutes in the middle of each Hearing day, and one shorter break of 15 minutes in each half of the day. The Tribunal reserves discretion to adjust the Hearing schedule, including to start earlier or sit later, as needed to accomplish the prescribed agenda.

10. The Hearing shall proceed according to the sequence, below.

• Tribunal opening, Party introductions, and logistical matters;
• Opening statements by each Party (the Claimants first, then the Respondent);
• Direct examination of the Claimants’ witnesses, if called by the Respondent or the Tribunal, in an order determined by the Claimants, followed by cross-examination and re-direct examination;
• Direct examination of the Respondent’s witnesses (excluding Mr. Apollo Nkunda, who shall not be called as a witness and Mr. David Bensusan who is deceased), if called by the Claimants or the Tribunal, in an order determined by the Respondent, followed by cross-examination and re-direct examination;
• Direct examination of or presentation from Mr. Rwamasirabo, followed by cross-examination and re-direct examination (whether Mr. Rwamasirabo gives a presentation in lieu of direct examination will be decided on Day 1 of the Hearing);
• Direct examination of the Respondent’s legal expert, followed by cross-examination and re-direct examination;
• The Tribunal may elect to hear certain experts together following completion of their separate examinations; and
• Discussion of further procedural steps, if any, prior to reconvening as below.

11. The order of proceedings and structure of the Hearing will follow a notional schedule in the format of Annex B. The Parties are to endeavour to seek agreement on the

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proposed Hearing schedule and convey such agreement to the Tribunal within one week of the date of this order. The Tribunal notes in this regard that in principle each Party may determine the order in which the witnesses and experts it proffers are to be examined.

12. The Hearing schedule is subject to any changes that the Tribunal may deem necessary or appropriate during the Hearing, including to accommodate logical breaks between witness examinations or due to delays or other interruptions caused by technical problems in the functioning of the videoconference.

13. Prior to the start of the Hearing, by 6:00 p.m. (London) on Thursday, 17 June 2021, the Parties shall file a written pre-hearing brief / skeleton argument with the Tribunal Secretary. The Tribunal Secretary will then share them with the Tribunal and the other Party as soon as they have been received. The pre-hearing brief shall be limited to 25 pages, 1.5 line spaced.

C. TIME ALLOCATION

14. The Hearing will proceed on the principle that the Parties should have equal time to present their case within the total time allocation agreed upon. The Parties are therefore each allocated 24 hours to use between 21-30 June 2021 to be distributed at the Parties’ discretion between the opening, direct, cross-examination, and re-direct, subject to the time limitations below and with the remaining 2 hours allocated to the Tribunal and to cover slippage. Time allocated to the Parties may be used at the Parties’ discretion, subject to a strict maximum of 2 and a half hours per side for opening statements; 15 minutes for the direct examination of witnesses; and 15 minutes for each expert presentation and/or direct examination. Any time not used by a Party during a particular phase may be used during another phase (i.e., any unused time from the phase for opening statements may be used for cross-examination of witnesses and experts), so long as a Party does not exceed its total time.

15. Time used by the Parties in oral argument or in examination of witnesses and experts shall be attributable to the Party making such argument or conducting such

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examination. Time attributable to minor Tribunal questions to counsel, witnesses or experts, to clarify points being made, shall not interrupt the clock for the Party otherwise conducting that argument or examination, but any extended Tribunal questioning (including the answers) lasting 5 minutes or longer will be allocated to reserved Tribunal time, as will time spent on housekeeping, procedural discussions, and the resolution of technical difficulties, including, if necessary any extra breaks to resolve such technical difficulties.

16. The calculation of the Parties’ total allocation of time takes into account the necessary breaks and also presumes certain inevitable slippage in the sitting day (i.e., technical issues, unused time from extra breaks, late returns from breaks, etc.). Nonetheless, the Parties are expected to seek to use the Hearing days efficiently and to avoid unnecessary slippage. In the event of excess slippage, the Tribunal may revisit the length of the sitting day, or in unusual circumstances the time allocations of the Parties, bearing in mind principles of predictability, equal treatment and a fair opportunity for the Parties to be heard.

17. There will be a chess clock account of time used each day, and the Parties will be advised at the end of the Hearing day of the length of time used. The Parties shall ensure that their respective witnesses are available to be called somewhat earlier or later in the Hearing than anticipated.

D. DOCUMENTATION

(1) Electronic Hearing Bundle

18. The Parties shall jointly submit to each Member of the Tribunal, the Tribunal Secretary, and the ICSID Paralegal as soon as possible but no later than 11 June 2021 a single consolidated USB (Mac and PC compatible) at 6:00 p.m. (London) containing a hyperlinked index to all submissions and supporting documentation. The Parties may be asked to send additional copies of the USB to FTI Consulting, the Zoom Operator, and/or the interpreters and court reporter in due course.

19. In order to achieve this deadline, the Parties shall consult in advance as to the contents

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and order of the indexed joint hyperlinked USB.

20. The Claimants shall be responsible for sending the USBs and shall consult the Secretariat for the appropriate addresses to send them via courier.

21. A copy of the Electronic Hearing Bundle shall also be uploaded by the Parties to a designated sub-folder in the Box filesharing platform. To ensure operation of the hyperlinked index, the entire Electronic Hearing Bundle shall be housed within one folder and then uploaded to Box as a single zip file. This zip file will then be available for download and use by participants in case there are any issues with receipt of, or access to, USBs.

(2) Electronic Hearing Bundle for Cross-Examination

22. During cross-examination, the Parties will presumptively only refer to exhibits and legal authorities that already form part of the record of the case. If a Party wishes to refer to an exhibit or legal authority not already part of the record of the case, such Party must notify the other Party and the Tribunal of its intent do so, in writing, no later than Thursday, 17 June 2021. The other Party may oppose, in writing, the use of an exhibit or legal authority not already part of the record of the case. The Tribunal shall have the ultimate authority to permit or deny the use of any exhibit or legal authority not already part of the record of the case.

23. Witnesses and experts are entitled to be shown a full copy of any exhibit or authority on which they will be questioned (i.e., they are not to be restricted to reviewing excerpts of documents). Each Party shall be responsible for making such exhibits or authorities available to each witness/expert for purposes of that Party’s examinations.

(3) Demonstrative Exhibits

24. The Parties and experts may use PowerPoint or other slide presentations for their oral statements or direct presentations, respectively, subject to the rule below on demonstrative exhibits. Any PowerPoint presentations shall be sent to the Tribunal (via the Tribunal Secretary) in PDF editable format at least 30 minutes prior to the

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beginning of the statement. The Tribunal Secretary and/or ICSID paralegal shall then share it with the Tribunal, the opposing Party, the court reporter, the zoom operator, and the interpreters.

25. Demonstrative exhibits shall be used in accordance with Section 16.8 of Procedural Order No. 1, which states:

16.8 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 Exhibit(s) from which it is derived. The Party submitting such exhibits shall provide them in hard copy to the other Party, the Tribunal Members, the Tribunal Secretary, the court reporter(s) and interpreter(s) at or before the hearing when they are to be used or at such other time to be decided at the pre-hearing organizational meeting.

26. Demonstratives shall likewise be provided to the opposing party and the Tribunal, in a PDF editable format, at least 30 minutes prior to the session in which they will be used.

27. Given the remote modality for the Hearing, hard copies of demonstrative exhibits need not be provided, but electronic copies shall be submitted via BOX at the conclusion of the Hearing day.

(4) Electronic Presentation of Evidence

28. Demonstrative exhibits and clean, unannotated electronic copies of documents on the record shall be presented to the participants in the Hearing via Zoom by the Party presenting the evidence.

29. Hearing participants are advised to have the Electronic Hearing Bundle and any demonstrative exhibit previously distributed accessible via the USB drive or downloaded into their own devices and available for access offline.

E. WITNESSES & EXPERTS

30. The examination of witnesses and experts will proceed in accordance with Section 18

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of Procedural Order No. 1, the relevant parts of which read as follows:

18.7 If a witness fails to appear when first summoned to a hearing, the Tribunal may in its discretion determine the weight, if any, to give his or her witness statement.

18.8 Subject to a different agreement by the parties or a different ruling by the Tribunal, a fact witness shall not be present in the hearing room during oral testimony and arguments or read the transcript of any oral testimony or argument prior to his or her examination. Expert witnesses shall not be sequestered.

18.9 The Tribunal shall, at all times, have complete control over the procedure for hearing a witness, and may examine the witness or expert.

18.10 During the hearing, the party presenting the witness may conduct a brief direct examination. Re-direct examination shall be limited to the subject of the cross-examination.

18.11 The rules above governing witness evidence shall apply equally to experts and their evidence. Expert reports shall be accompanied by any document 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 exhibit shall be sufficient.

18.12 Each party shall be responsible for securing the appearance of its own witnesses to the hearing, except when the opposing party has waived cross-examination of a witness and the Tribunal does not order or request his or her appearance.

18.13 Examination by video-conference may be permitted by the Tribunal if determined by it to be fair.

18.14 To the extent that further directions may be required governing the examination of witness and experts at a hearing, they may be made at the pre-hearing organizational meeting.

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31. Each witness and expert shall affirm at the start of the examination that he or she is the only person present in the room, save for one additional person permitted in the room at the request of a witness or expert for the sole purpose of assisting with technical or logistical issues. Witnesses and experts may not receive or make communications of any sort, other than on the record and audible to all, during the course of his or her examination.

32. The witness or expert shall remain visible at all times during the examination (as shall any person assisting the witness or expert with technical or logistical issues). An additional camera shall be set up at the location of their examination, with the assistance of the Zoom operator as needed, to enable a 360-degree view of the room during their examination. A 360-degree camera need not be set up for a testifying expert.

33. The Parties will ensure that witnesses and experts are available to testify without delay. Thus, witnesses and experts should be available the morning before the examination, if they are scheduled for the afternoon, and the prior afternoon if they are scheduled for the morning. Witnesses and experts should connect to the virtual Hearing Waiting Room 30 minutes before the examination and during breaks.

34. The witness or expert shall not use a “virtual background” or in any way prevent or limit the visibility of the remote venue from which he or she is testifying.

35. The witness or expert shall be able to view the Tribunal Members, the attorneys conducting the examination, and documents presented by the examining attorney. The witness or expert may bring into the room only a clean, unannotated hard copy of his or her witness statement(s) or expert report(s). Experts will additionally be allowed to bring into the room a hard copy of any PowerPoint or other slide presentation used in their expert presentation and/or direct examination, as well as any notes they may have taken over the course of the Hearing. The witness or expert shall not have access to any other documents, notes, information, or materials of any kind (whether in hard copy or electronic form).

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III. TRANSPARENCY

36. As stated in Section 24 of Procedural Order No. 1, both the hearing and the transcripts of the hearing shall be public, subject to a procedure to ensure that “non-disclosure information” is not disclosed to the public.

37. As to the Hearing: The precise modalities for the publication of the Hearing will be determined in consultation with the Zoom operator. However, in principle, the following protocols will be observed.

38. At any time during the Hearing, a Party may request that a part of the Hearing be held in private to shield non-disclosure information from publication. To this effect, a Party shall inform the Tribunal before the non-disclosure information is discussed, addressed or shown at the Hearing.

39. To minimize the number of interruptions, the Parties are invited to organize the topics addressed during their oral statements so that those which involve non-disclosure information are grouped together, wherever possible.

40. Each Party shall designate one member of its legal team who shall be responsible for alerting the Tribunal to a discussion regarding non-disclosure information.

41. If a Party has an objection to such a request made by the other Party, it shall immediately alert the Tribunal, which shall hear the Parties and decide on the matter. The discussion between the Parties and the Tribunal shall be held “in private” (i.e., excluded from the public video recordings of the Hearing).

42. Resumption of the video feed shall be requested either by the Party initiating the non-disclosure information protocol or the Tribunal. Resumption may also be requested by the other Party if it deems it necessary. The Tribunal shall rule on any dispute between the Parties in that respect.

43. As to the Hearing transcripts: The procedure set out in Section 24.5.3 of Procedural Order No. 1 shall apply. It states:

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24.5.3 The parties shall within 14 days of dispatch by the ICSID Secretariat submit redacted versions that do not contain any "non-disclosure information". Within 14 days of the date that the redacted versions are submitted to the Tribunal, each party shall notify the other party and the Tribunal whether it objects to any of the redactions. If there are objections, the parties shall undertake their best efforts to resolve these objections. If the parties cannot resolve the objections within 14 days and on the request of either party, then the Tribunal will decide the issue.

44. The aforementioned 14-day deadline shall run from the date that final, corrected transcripts are confirmed by the Tribunal.

45. The Parties shall track those portions of the Hearing transcript that reflect portions of the Hearing containing non-disclosure information, as they shall be redacted from the publicly available transcripts.

IV. POST-HEARING BRIEFS AND COST SUBMISSIONS

46. The provision of Section 22 of Procedural Order No. 1 (reproduced below) is confirmed:

22. Before the end of the hearing, the Tribunal shall consult with the parties as to whether they shall submit Post-Hearing Briefs and shall determine the additional details regarding such briefs. The Tribunal shall also issue directions on the Parties’ statements of costs at the end of the hearing.

47. The Parties agree that post-Hearing briefs, shall be restricted to issues and evidence already on the record and whose length will be established at the conclusion of the hearing. They shall be filed simultaneously through the Tribunal Secretary 6 weeks after the last day of the Hearing. The schedule for any statements of costs will be decided at the conclusion of the Hearing.

V. PROPOSED DECISION OR AWARD ON LIABILITY

48. The Tribunal recalls Section 25 of Procedural Order No. 1, which provides a procedure

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for the transmission of its proposed decision or award on liability to the Parties and the United States of America. Such procedure is confirmed, and a party must make a request for the proposed decision “either 14 days after any hearing on liability or 14 days after the party’s last post-Hearing memorial, whichever is later.”

49. Such provisions to do not apply to any ruling on jurisdiction.

For the Tribunal:

[signed]

Rt. Hon. Lord Phillips KG, PC
President of the Tribunal
Date: 9 June 2021

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ANNEX A

PROTOCOL FOR REMOTE HEARING MATTERS

I. TESTING

1. The Secretariat and the Zoom operator will conduct technical tests with the Tribunal and each Party in advance of the Hearing to test connectivity to Zoom and to real-time transcription. All hearing participants are urged to attend and to use the equipment to be used for the hearing. The date of each test and the access details will be communicated in due course.

II. JOINING THE HEARING

2. Joining the Hearing Room: The host of the Zoom platform or the Secretary of the Tribunal will circulate a portal link and password to the individuals in the official email distribution list of this proceeding, the interpreters and the court reporter.

3. The Parties will make sure to transmit the information to the rest of their teams and to the witnesses and experts.

4. Participants: Each Party shall provide its respective List of Hearing Participants as the hearing approaches using the format to be provided by ICSID. Each Party shall designate those participants who will appear in-person at the London hub, if any, and will have an active speaking role and those who will be passive attendees.

5. Access to the videoconference shall be restricted to those included in the List of Participants. Should any non-listed Participant attempt to connect to the videoconference, the technical operator hosting the meeting will alert the Secretary of the Tribunal, and the Tribunal will promptly address the matter with the Parties. All Participants in the Hearing bear an ongoing duty to warn of the presence of any other person on the videoconference.

6. Each participant should have his or her display name on Zoom as it appears on the List of Participants. Participants should identify themselves as belonging to the Category “Claimant” or “Respondent” or “Tribunal” or “ICSID.” The category should appear as

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a capital letter in front of the Participant’s name, e.g., “T – John Smith.” If multiple participants are joining from a single hub, such that each individual attendee cannot be identified, the technical operator shall verify that each attendee participating from the hub is identified in the List of Participants. Multiple participants joining from a single hub shall use a collective username, e.g., “C-Duane Morris Boston.”

7. Connection time: All participants should connect 30 minutes prior to the scheduled starting time on each day to allow timely access to the Hearing Room. This will also allow to facilitate identification and address any set-up, connectivity and other IT issues before the starting time.

8. Witness / Expert Declarations: The witnesses and experts will be prompted by the President to read the corresponding ICSID Arbitration Rule 35 declaration, which will be projected on the screen in English or the language in which the witness or expert will testify.

9. Starting on Time: The Tribunal will start promptly on time unless a key participant (Member of the Tribunal, lead counsel expected to speak, or a witness or expert) is unable to join the Hearing Room. If a participant has any doubt or questions concerning their connectivity or the functionality of any of the platforms, they should contact the Zoom host directly.

10. Upon joining Zoom on the first day of the Hearing, those using their computer should turn both their audio and video on. The President will invite each party to introduce its team. After each party has introduced all of its participants, the participants who are not expected to speak will turn off their videos and mute their microphones.

11. Only participants who will be speaking and the Members of the Tribunal shall appear on video. They shall ensure that they have adequate front lighting and avoid a light source behind them (e.g., a window).

12. All participants shall keep their microphones muted when they are not speaking, whether or not they appear on video.

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13. Participants who will be speaking shall have headsets with microphones or a high-quality external microphone close to their head and keep their phones and other devices on silent mode. A microphone internal to a computer is not of sufficient quality for transcription and interpretation; an external microphone is required.

III. DURING THE HEARING

14. Technical Issues: If a participant experiences any technical issue during the Hearing, they may use the chat function in Zoom to communicate with the dedicated technician or send an email to the technician with copy to the ICSID Secretariat. If a testifying witness or expert is accompanied by an individual permitted to be in the same room as the witness or expert for the sole purpose of assisting with technical or logistical issues, he or she should indicate the nature of the technical issue to the Tribunal and then confer with the individual.

15. Chat Function: The Zoom chat function is reserved for communications dealing with technical matters with the Zoom technician. The Parties will use their own arrangements for any internal communications.

16. Connectivity Issues: If a participant experiences connectivity issues, Zoom will automatically prioritize the audio feed and may disconnect the video feed. For best connectivity, it is recommended that participants (i) use a hard-wired connection if available; (ii) avoid streaming during the Hearing; and (iii) close all unnecessary browser tabs/windows. Download speed should ideally be higher than 15 Mbps, at a minimum (for testing, go to www.speedtest.net).

17. Sound recording and transcript: Real-time court reporting in English shall be made available to the relevant Hearing participants via an online link connection to be provided by the court reporter.

18. The court reporter will send the transcript of each Hearing day by email to the individuals in the official distribution list. The Secretariat or Zoom host will upload video/sound recordings onto BOX during the course of the hearing on a rolling basis.

19. Interpretation: The use of headsets (or external high-quality microphones) will help to

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ensure a good quality of the audio for the interpreters and for all participants more generally. The participants are asked to be mindful of the interpreters when speaking, just as in an in-person hearing.

20. Presentation of Evidence: During the Hearing, documents referred to by the participants will be displayed and managed on the Zoom platform by the Zoom operator or the respective persons in charge of evidence presentation for each Party. A maximum of two documents may be presented at the same time, side-by-side. This includes foreign language documents. The hearing participant displaying the document—who need not be an active speaker—will be the only one with the ability to scroll through the document being displayed. The Parties are advised to limit their use of this scrolling function, to minimize pressure on the internet bandwidth and on the stability of the connection.

21. Break-Out Rooms: The Zoom host will arrange for Zoom break-out rooms for each Party and the Tribunal, which shall be separate from the Zoom virtual Hearing Room.

22. Dress Code: The Tribunal reminds the participants that recordings of the Hearing will be broadcast publicly. Business professional dress code shall apply to participants who are expected to speak and appear on video. Participants may exceptionally dispense with jackets, and if applicable, ties in the case of extreme weather or participation from locations without air conditioning.

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ANNEX B

HEARING AGENDA

Day 1: [June 21, 2021]

Day 2: [June 22, 2021]

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Day 3: [June 23, 2022]

Day 4: [June 24, 2021]

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Day 5: [June 25, 2021]

Day 6: [June 28, 2021]

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Day 7: [June 29, 2021]

Day 8: [June 30, 2021]