INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES
Glencore International A.G. and C.I. Prodeco S.A.
Respondents on Annulment
v.
Republic of Colombia
Applicant
(ICSID Case No. ARB/16/6) – Annulment Proceeding
PROCEDURAL ORDER NO. 1
Members of the ad hoc Committee
Sir Christopher Greenwood, President of the ad hoc Committee
Ms. Bertha Cooper-Rousseau, Member of the ad hoc Committee
Prof. Doug Jones, Member of the ad hoc Committee
Secretary of the ad hoc Committee
Ms. Alicia Martín Blanco
28 April 2020
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The first session of the ad hoc Committee (“Committee”) was held on 20 April 2020. The preliminary procedural consultation of the President with the Parties (“Consultation”) was held on 27 April 2020 by videoconference. The Consultation was adjourned at 10.40 am EDT.
An audio recording of the Consultation 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 videoconference were:
The following documents were circulated in preparation for the Consultation:
Following the Consultation, the Committee now issues the present order:
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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, shall govern this annulment proceeding. The timetable is attached as Annex A.
1.1. These proceedings are conducted in accordance with the ICSID Arbitration Rules in force as of 10 April 2006. In accordance with Arbitration Rule 53, the Arbitration Rules apply, mutatis mutandis, to annulment proceedings.
2.1. The Committee was constituted on 6 March 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 of its Members.
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 circulated to the Parties by the ICSID Secretariat on 6 March 2020.
2.3. The Members of the Committee confirmed that they have sufficient availability during the next 24 months to dedicate to this case.
3.1. 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.
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3.3. Each Member of the Committee shall submit his/her claims for fees and expenses to the ICSID Secretariat on a quarterly basis.
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.
4.1. The presence of all Members of the Committee constitutes a quorum for its sittings, including by any appropriate means of communication.
5.1. Decisions of the Committee shall be taken by a majority of its Members.
5.2. ICSID Arbitration Rule 16(2) applies to decisions taken by correspondence among its members 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 issue all rulings, including its final decision, within a reasonable time period. If a ruling has not been issued within three months, excluding the decision on annulment, after the final submission on a particular matter, the Committee will provide the Parties with status updates every month. The Committee shall endeavor to issue the decision on annulment no later than six months after the hearing. If the decision on annulment has not been issued within that timeframe, the Committee will provide the Parties with status updates every month.
5.4. The President is authorized to issue Procedural Orders on behalf of the Committee.
5.5. Procedural rulings 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.
6.1. The President may fix and extend time limits for the completion of the various steps in the proceeding.
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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.
6.3. The Parties may also decide between themselves to grant short extensions of time, on the basis of mutual courtesy, as long as they do not materially affect the timetable and the Committee is informed of such extensions.
7.1. The Secretary of the Committee is Ms. Alicia Martín Blanco, Legal Counsel, ICSID, 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. Alicia Martín Blanco
ICSID
MSN C3-300
1818 H Street, N.W.
Washington, D.C. 20433
USA
Tel.: + 1 (202) 473-9105
Fax: + 1 (202) 522-2615
Email: [email protected]
Paralegal email: [email protected]
7.3. For local messenger deliveries, the contact details are:
Ms. Alicia Martín Blanco
ICSID
1225 Connecticut Ave. N.W.
(World Bank C Building)
3rd Floor
Washington, D.C. 20036
Tel.: + 1 (202) 473-9105
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.
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| For Glencore International A.G. and C.I. Prodeco S.A. | For the Republic of Colombia |
| Mr. Nigel Blackaby QC Ms. Caroline Richard Ms. Jessica Moscoso Freshfields Bruckhaus Deringer US LLP 700 13th Street NW 10th Floor Washington, D.C. 20005-3960 USA Tel: +1 202 777 4500 Fax: +1 202 777 4555 E-mail: [email protected] [email protected] [email protected] |
Dr. Camilo Gómez Alzate Ms. Ana María Ordóñez Puentes Ms. Elizabeth Prado López Agencia Nacional de Defensa Jurídica del Estado Carrera 7 No. 75-66, pisos 2 y 3 Bogotá D.C. Colombia E-mail: [email protected] [email protected] |
| Mr. Elliot Friedman Ms. Paige von Mehren Freshfields Bruckhaus Deringer US LLP 601 Lexington Avenue, 31st Floor New York, NY 10022 USA Tel: +1 212 277 4000 Fax: +1 212 277 4001 Email: [email protected] [email protected] |
Prof. Eduardo Silva Romero Mr. José Manuel García Represa Ms. Audrey Caminades DECHERT (PARIS) LLP 32 rue de Monceau Paris, 75008 France Tel.: +33 1 57 57 80 14 Fax: +33 1 57 57 80 81 E-mail: [email protected] [email protected] [email protected] [email protected] |
| Gustavo Topalian Dechamps International Law Juncal 802 6° N Buenos Aires - Argentina C1062ABF Tel: +54 11 3986 8202 Email: [email protected] |
Mr. Juan Felipe Merizalde Urdaneta Mr. Amir Ardelan Farhadi DECHERT LLP 1900 K Street, NW Washington, D.C. 20006 United States of America Tel.: +1 202 261 3396 Fax: +1 202 261 3333 E-mail: [email protected] [email protected] |
| Mr. José Manuel Álvarez Álvarez Zárate & Asociados Calle 82 No. 11-37 Of 501 Bogotá D.C. Colombia Tel: +57 316915110 Fax: +57 1 316170299 E-mail: [email protected] |
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9.1. In accordance with Administrative and Financial Regulation 14(3)(e), the Applicant – in this case, the Republic of Colombia, shall be solely responsible for making the advance payments requested by the ICSID Secretariat to cover the costs in the annulment proceeding following the Committee's constitution.
9.2. The above provision is without prejudice to the power of the Committee to determine, pursuant to Article 61 of the Convention and Arbitration Rule 28, how and by whom the expenses incurred in connection with the annulment proceedings shall finally be borne.
9.3. By letter of 16 March 2020, the Centre requested the Applicant to make an advance payment of US$200,000, to cover the initial costs of the proceeding.
9.4. ICSID shall request the Applicant to make further advances 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.
10.1. Washington D.C. shall be the place of the proceeding.
10.2. The Committee may hold hearings at any place that it considers appropriate, including by telephone and video conference, if the Parties so agree or circumstances (such as government restrictions on social distancing or travel) render that necessary.
10.3. The Committee may deliberate at any place it considers convenient.
11.1. English and Spanish are the procedural languages of the arbitration.
11.2. Routine, administrative, or procedural correspondence sent by or addressed to the ICSID Secretariat shall be in English.
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11.3. Written requests, applications and pleadings shall be submitted in English. Any references to portions of the Award that exist only in Spanish shall be accompanied by a courtesy translation into English to be agreed between the Parties, if possible. The Parties will also try to agree on an English glossary of frequently used terms that appear in Spanish in the Award. Any accompanying documentation may be submitted in either procedural language, provided that for documentation submitted in Spanish, a courtesy translation into English shall be submitted within 10 business days of the original submission. Where a Spanish language exhibit on the record of the underlying arbitration has an existing English language translation that was submitted on the record, that translation shall be submitted in the annulment proceedings.
11.4. Documents filed in any language other than English or Spanish must be accompanied by a translation into English within 10 business days of the original submission.
11.5. If a 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.
11.6. Translations need not be certified. Should there be a dispute as to the content of a translation, the Parties shall work jointly and in good faith to arrive at an agreed wording. Failing agreement, the Party submitting the initial “unofficial” translation shall provide a certified translation of the relevant parts to be translated.
11.7. Oral arguments before the Committee shall be made in either procedural language. If in Spanish, simultaneous interpretation into English shall be available.
11.8. The testimony of a witness called for examination during the hearing who prefers to give evidence other than in the English language shall be interpreted simultaneously.
11.9. Simultaneous interpretation shall be arranged by the ICSID Secretariat. The Parties shall inform the ICSID Secretariat of interpretation requirements as soon as possible and at least five weeks in advance of the hearing.
11.10. The costs of the interpreters will be paid from the advance payments made to the Centre, without prejudice to the decision of the Committee as to which Party shall ultimately bear those costs.
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11.11. The Committee may make any order or decision in either procedural language.
11.12. The Committee shall issue its Decision on Annulment in English and Spanish. The Committee will undertake its best efforts to avoid delays in the issuance of the Decision on Annulment on account of the preparation of the Spanish version, including by taking steps to prepare the Spanish version on a rolling basis as the drafting of the Decision progresses.
12.1. Written communications in the case shall be transmitted by email or other electronic means to the Parties, the Committee Secretary, and the Committee.
12.2. 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.
12.3. 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.
12.4. The email addresses of the Members of the Committee are:
| Christopher Greenwood [email protected] |
Bertha Cooper-Rousseau [email protected] |
Doug Jones [email protected] |
13.1. By the relevant filing date, the relevant Party/ies shall:
13.1.1. Submit by email to the Members of the Committee, the Committee Secretary and the opposing Party an electronic version of the pleading with an updated index of all the documents filed in support of the pleading,¹ and
13.2. Within three business days of the relevant filing date, the relevant Party/ies shall:
¹ Please note that the World Bank server does not accept emails larger than 25 MB.
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13.2.1. Upload the pleading with all its supporting documentation, including all the exhibits and legal authorities, and the updated index to the file sharing platform that will be created by ICSID for purposes of this case.
13.3. Within 10 business days of the relevant filing date, the relevant Party/ies shall upload all translations (if any) to the file sharing platform.
13.4. Electronic versions of submissions shall be text searchable (i.e., OCR PDF or Word).
13.5. All pleadings shall be accompanied by a cumulative index hyperlinked to all the supporting documentation that the Party has submitted in this proceeding up to the date of the pleading. The index shall indicate the document number and the pleading with which it was submitted.
13.6. At the conclusion of the written phase of the proceeding, 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 annulment case file (including pleadings, witness statements, expert reports, exhibits, legal authorities and Committee decisions and orders to date) with a consolidated and hyperlinked index of all documents. The USB drive shall be readable both on PC and Mac and hyperlinking should be organized so as to be usable on both platforms.
13.7. 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 by email.
13.8. A filing shall be deemed timely if sent by a Party by midnight, Washington, D.C. time, on the relevant date.
14.1. The Parties have agreed to the schedule of submissions in Annex A.
15.1. The Memorial and Counter-Memorial shall be accompanied by the supporting documentation relied upon by the Parties, including exhibits and legal authorities. Further supporting documentation relied upon by the Parties in rebuttal shall be submitted with the Reply and Rejoinder.
15.2. Given the nature of the grounds for annulment raised in this annulment proceeding,
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the Committee expects that the Parties will primarily refer to the documents and evidentiary record of the underlying arbitration and it does not expect to receive evidence that does not consist of documents that form part of the record of the underlying arbitration (“New Evidence”). Any documents from the underlying arbitration on which the Parties seek to rely shall be expressly resubmitted and referred to in the Parties' written submissions.
15.3. In principle, no New Evidence shall be admitted in this proceeding. Should either Party wish to introduce New Evidence, that Party shall file a request to the Committee to that effect. The Party may not annex to its request the documents which it seeks leave to introduce. The Committee will promptly decide on the admissibility of the New Evidence after hearing from the other Party. For the sake of clarity, new legal authorities shall not be considered New Evidence.
15.4. Any supporting documents introduced in this annulment proceeding shall be labelled as follows:
15.4.1 Any documents submitted from the underlying arbitration that were not exhibits or legal authorities shall be identified as factual exhibits in this proceeding and labelled pursuant to section 15.4.2 below, i.e., “AAE-0001” or “RAE-0001". Exhibits and legal authorities from the underlying arbitration that are resubmitted in this proceeding shall maintain the same nomenclature as in the underlying arbitration regardless of the Party submitting them in the annulment proceeding. The Parties shall include with their submissions in this proceeding any materials from the underlying arbitration proceeding on which they wish to rely. Pursuant to section 13.3 above, these materials shall be included in the cumulative index to accompany every pleading, and they shall be uploaded to Box pursuant to section 13.2 above.
15.4.2 New Evidence, if admitted, and new legal authorities shall be identified as follows:
15.4.2.1 Exhibits and legal authorities filed by the Applicant shall be labelled "AAE-0001" for factual exhibits and "AAL-0001" for legal exhibits containing authorities. Witness statements and expert reports shall be labelled AA-WS-[name] for witness statements and AA-ER-[name] for expert reports.
15.4.2.2 Exhibits and legal authorities filed by the Respondents on Annulment shall be labelled “RAE-0001" for factual exhibits and “RAL-0001" for legal exhibits containing authorities. Witness statements and expert reports shall be labelled RA-WS-[name] for witness statements and RA-ER-[name] for expert
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reports.
15.4.3 Every updated and hyperlinked index submitted by a Party shall clearly identify each document with its corresponding identification and indicate the submission with which it is being filed in the annulment proceeding.
15.4.4 Copies of documentary evidence shall be assumed to be authentic unless specifically objected to by a party, in which case the Tribunal will determine whether authentication is necessary.
15.5. The Parties shall include all of the documents on which they intend to rely with their written submissions.
15.6. Neither Party shall be permitted to submit additional or responsive documents after the filing of its respective last written submission, unless the Committee determines that exceptional circumstances exist based on a reasoned written request followed by observations from the other Party.
15.6.1 Should a Party request leave to file additional or responsive documents, that Party may not annex the documents that it seeks to file to its request.
15.6.2 If the Committee grants such an application for submission of an additional or responsive document, the Committee shall ensure that the other Party is afforded sufficient opportunity to make its observations concerning such a document.
15.7. Demonstrative exhibits (such as PowerPoint slides, charts, tabulations, etc.) may be used at any hearing, provided they contain no New Evidence and no documents from the underlying arbitration that have not been resubmitted in the annulment proceeding. 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 submitting 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 in advance of their use.
16.1. If admitted, witness statements and expert reports shall be filed together with the relevant Party's pleading.
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 exceptional circumstances exist based on a reasoned written request followed by observations
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from the other Party (following the procedure outlined in section 15.6).
16.3. Each witness statement and expert report shall be signed and dated by the witness.
17.1. A pre-hearing organizational meeting shall be held on a date determined by the Committee, after consultation with the Parties, by telephone 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.
18.1. The oral procedure shall consist of oral arguments and include the examination of witness and experts, if any.
18.2. The hearing shall be held at a place to be determined in accordance with section10 above.
18.3. The hearing shall take place in accordance with the timetable established in Annex A.
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.
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. All necessary arrangements for the audio recordings and verbatim transcription shall be made by ICSID.
19.3. The Parties shall agree on any corrections to the transcripts within one week from the hearing, or within such period as shall be agreed between them and approved by the Committee. The agreed corrections shall be entered by the Parties in the transcripts ("Revised Transcripts"). The Committee shall decide upon any disagreement between the Parties and any correction adopted by the Committee
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shall be entered by the Parties in the revised transcripts.
20.1. All matters concerning post-hearing memorials and statements of costs shall be discussed by the Committee and the Parties at the close of the oral hearing(s).
21.1. The Parties consent to the publication by ICSID of the decision on annulment and any order or decision issued in the present proceeding.
22.1. The Parties agreed that the Respondents on Annulment would not oppose the Applicant's request for a stay of enforcement of the Award in exchange for the accelerated timetable in Annex A. The Committee finds that these circumstances require that enforcement be stayed in accordance with Article 52(5) of the ICSID Convention, and therefore decides to continue the stay of enforcement that had been provisionally in place pursuant to the second sentence of Article 52(5).
For and on behalf of the ad hoc Committee,
Signature
Christopher Greenwood
President of the Committee
Date: 28 April 2020
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Annex A – Procedural Calendar
| Procedural Step | By | Date |
|---|---|---|
| First Session | Committee | 20 April 2020 |
| Consultation | President and Parties | 27 April 2020 |
| Memorial on Annulment | Republic of Colombia | 10 April 2020 |
| Counter-Memorial on Annulment | Glencore International A.G. and C.I. Prodeco S.A. |
12 June 2020 |
| Reply on Annulment | Republic of Colombia | 7 August 2020 |
| Rejoinder on Annulment | Glencore International A.G. and C.I. Prodeco S.A. |
9 October 2020 |
| Pre-Hearing Organizational Meeting | All | TBD |
| Hearing on Annulment | All | 6 November 2020, London |
| Agreed Corrections to the Transcript | [Both Parties] | 13 November 2020 |
| Post-Hearing Submissions (if any) | [Both Parties] | TBD |
| Costs Submissions | [Both Parties] | TBD |
| Decision on Annulment | Committee | TBD |