INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES
Hydro Energy 1 S.à r.l. and Hydroxana Sweden AB
Respondents on Annulment / Claimants
v.
Kingdom of Spain
Applicant on Annulment / Respondent
(ICSID Case No. ARB/15/42)
Annulment Proceeding
Members of the ad hoc Committee
Ms. Wendy J. Miles, QC, President of the ad hoc Committee
Dr. José Antonio Moreno Rodríguez, Member of the ad hoc Committee
Prof. Dr. Jacomijn J. van Haersolte-van Hof, Member of the ad hoc Committee
Secretary of the ad hoc Committee
Mr. Paul-Jean Le Cannu
20 September 2021
[Page 1]
[Page 2]
1. Annex A to Procedural Order No. 1 (“PO1”) provides that the Hearing in this proceeding will be held in London at the IDRC on 19-20 October 2021, with 20 October 2021 held in reserve and 21 October 2021 being reserved for deliberations.
2. By email of 26 August 2021, considering the persisting uncertainties related to the current COVID-19 pandemic and bearing in mind the provisions of paragraphs 10.2 and 18.2 of PO1, the Committee invited the Parties to confer on the manner in which they wish to proceed in relation to the October Hearing, including the possibility of holding the Hearing remotely by video, in whole or in part, if necessary under the circumstances.
3. By emails of 1 September 2021, the Parties informed the Committee of their agreement that, in light of the ongoing COVID-19 restrictions in place in Europe, the Hearing on annulment should be held virtually (in whole) rather than in-person.
4. By emails of 1 and 3 September 2021, the Committee confirmed that it had no objection to holding the Hearing virtually and it was agreed that the pre-hearing organizational meeting (“PHOM”) would be held on Tuesday, 14 September 2021, at 05:30 pm London / 06:30 pm Madrid / 12:30 pm Washington, D.C.. On 8 September 2021, the Committee through its Secretary circulated a draft procedural order in preparation for the PHOM.
5. Pursuant to paragraph 17.1 of PO1, the PHOM was held between the Parties and the Committee by Zoom on Tuesday, 14 September 2021 to discuss outstanding procedural, administrative, and logistical matters in preparation for the Hearing. The participants in the PHOM were:
Committee:
Ms. Wendy J. Miles, QC, President of the ad hoc Committee
Dr. José Antonio Moreno Rodríguez, Member of the ad hoc Committee
Prof. Dr. Jacomijn J. van Haersolte-van Hof, Member of the ad hoc CommitteeICSID Secretariat:
Mr. Paul Jean Le Cannu, Secretary of the Committee
[Page 3]
On behalf of the Applicant on Annulment / Respondent:
Ms. Gabriela Cerdeiras Megías, Abogacía general del Estado
Ms. Lourdes Martinez de Victoria, Abogacía general del EstadoOn behalf of the Respondents on Annulment / Claimants:
Mr. Jeff Sullivan, QC, Gibson Dunn
Ms. Ceyda Knoebel, Gibson Dunn
Mr. Theo Tyrrell, Gibson Dunn
6. During the PHOM, the Parties and the Committee discussed the draft procedural order circulated to the Parties on 8 September 2021, and the Parties’ joint statement of 13 September 2021 advising the Committee of the agreements reached on the various items, as well as their respective positions where no agreement was reached.
7. An audio recording of the PHOM was made and deposited in the archives of ICSID, and was made available to the Members of the Committee and the Parties on 14 September 2021.
8. The Committee has considered the Parties’ positions on the various items, and in the present Order sets out the procedural rules that the Parties have agreed upon and/or the Committee has determined will govern the conduct of the Hearing.
9. As indicated above in paragraphs 1 and 3-4, and in accordance with Annex A to PO1 and the discussions held at the PHOM, the Hearing in this proceeding shall be held remotely on 19 October 2021, with 20 October 2021 being reserved for deliberations or, in the unlikely event that it is necessary, for an additional two hours for further Committee questions.
10. The Hearing will start on Tuesday, 19 October 2021 at 06:00 am Washington / 07:00 am Asunción / 11:00 am London / 12:00 pm Madrid and will conclude by 12:45 pm
[Page 4]
Washington / 01:45 pm Asunción / 05:45 pm London / 06:45 pm Madrid, on the understanding that (i) hearing time may have to be extended until 08:00 pm if deemed necessary by the Committee and (ii) further time may be needed to address additional questions from the Committee on Wednesday, 20 September 2021, in which case the Hearing will recommence at the same time for a maximum of two hours. The order of proceedings and structure of the Hearing will be as indicated in the agenda incorporated as Annex A.
11. Following consultation with the Parties, the Committee may adjust the Agenda in Annex A to account for unexpected disruptions during the Hearing. The order of proceedings and structure of the Hearing is also without prejudice to the Committee’s pending decision on the European Commission’s Second Application for Leave to Intervene as Non-Disputing Party in this proceeding.
12. Considering the start and end times, the Hearing day shall comprise a total of 6 hours 45 minutes. A total of 2 hours shall be reserved for breaks. Thus, excluding the time reserved for breaks, there will be a total of 4 hours 45 minutes of working time on the Hearing day, to be allocated as follows: (i) 30 minutes are reserved for housekeeping matters; (ii) 15 minutes will be reserved for the Committee on the understanding that some flexibility may be needed to accommodate additional question time (see paragraphs 9 and 10 above); and (iii) the remaining time, 4 hours, will be available for use by the Parties.
13. Accordingly, considering the total number of Hearing day(s) (one day), each Party shall have a total of 2 hours working time available to it during the entire Hearing (subject to paragraphs 9 and 10 above).
14. Time shall be kept using the chess-clock method. Each Party may use the time available to it at each stage of the Hearing in the manner it desires, subject to paragraph 18.5 of PO1 and the following:
[Page 5]
(a) Opening Statements. Each Party shall be allowed a maximum of 1 hour 30 minutes for its Opening Statement.
(b) Rebuttal Statements (if any). Each Party shall be allowed a maximum of 30 minutes for its Rebuttal Statement strictly to deal with matters raised by the Parties or the Committee at the Hearing (or matters raised by the Committee in writing in advance of the Hearing, if any).
(c) Committee Questions. Time taken by the Committee for its own questions during the Parties’ presentations and examinations and the succinct answers to those questions shall not be counted against the Parties’ time.
(d) Housekeeping. Time used for housekeeping or to resolve technical difficulties shall be counted against the time reserved for housekeeping or against the Committee’s reserved time, if needed.
15. The Secretary of the Committee shall keep the time, under the direction of the Committee, and will advise the Parties of the total daily time used at the end of each Hearing day.
16. The Parties are expected to use each Hearing day efficiently and to avoid unnecessary slippage (e.g. delays in returning from breaks). In the event of excess slippage time, the Committee 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. Consistent with paragraph 13.7 of PO1, there shall be a single Electronic Hearing Bundle (PC and Mac compatible), to be prepared by Spain, with input from the Claimants. The Electronic Hearing Bundle shall contain all pleadings, exhibits, legal authorities and Committee orders or decisions on file to date, with a consolidated hyperlinked index. It
[Page 6]
shall not contain any document not previously filed. The Parties shall also include a hyperlinked Excel spreadsheet that will allow users to re-arrange documents by date, type, subject, author and/or recipient. The Electronic Hearing Bundle shall be organized as follows:
Electronic Hearing Bundle
01. Pleadings
A. Claimants
B. Respondent
02. Exhibits
A. Claimants
B. Respondent
03. Legal Authorities
A. Claimants
B. Respondent
06. Committee Rulings
18. The Parties shall distribute the Electronic Hearing Bundle in a USB to be sent by courier as soon as possible but no later than Thursday, 14 October 2021 directly to: (i) each Member of the Committee (3 copies); (ii) the Secretary of the Committee; (iii) each court reporter (2 copies); and (iv) each interpreter (3 copies), to addresses to be communicated by the ICSID Secretariat in due course.
19. In addition, on that same day, the Electronic Hearing Bundle shall be uploaded by the Parties to a designated sub-folder in the BOX filesharing platform. To ensure operation of the hyperlinked index in BOX, if feasible, the entire Electronic Hearing Bundle shall be housed within one folder and then uploaded to BOX as a single zip file. Should the size of the single zip file make it unfeasible to upload it to BOX, the Parties may simply upload the Electronic Hearing Bundle to a designated sub-folder in the BOX filesharing platform organized in sub-folders using the structure indicated at paragraph 17 supra, including a consolidated (but non-hyperlinked) index. In any event, the USB to be distributed in accordance with paragraph 18 supra shall contain the hyperlinked version of the index.
[Page 7]
20. Demonstrative exhibits (including a Power Point or other slide presentations) may be used in accordance with paragraph 15.10 of PO1 (reproduced below), with the clarifications indicated in paragraphs 21-22 infra:
“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 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 at a time to be decided at the pre-hearing organizational meeting.”
21. In light of the virtual nature of the Hearing and to facilitate offline access to the demonstratives by the Hearing Participants, paragraph 15.10 of PO1 above is amended such that: (i) hard copy submission of demonstratives is not required; and (ii) an electronic copy of each demonstrative exhibit shall be distributed by the Party intending to use it via an electronic mail sent to the opposing Party, the Secretary of the Committee, the Members of the Committee, the court reporters and interpreters, no later than 30 minutes prior to the start of the session in which the demonstrative exhibit will be used.
22. In addition, promptly after the conclusion of the respective Hearing day in which the corresponding demonstrative exhibit is used, the Parties shall upload such demonstrative to the case folder in the BOX filesharing platform, designating it with the corresponding CD-__ or RD-__number. At the conclusion of the Hearing, each Party shall also present a unified index of all the demonstrative exhibits it distributed during the Hearing, with the respective CD-__ or RD-__ designations.
23. Documents that do not form part of the record may not be used at the Hearing.
24. As contemplated in paragraph 15.9 of PO1,
“15.9. Neither Party shall be permitted to submit additional or responsive documents after the filing of its respective last written submission, unless the
[Page 8]
Committee determines that exceptional circumstances exist based on a reasoned written request followed by observations from the other Party.
15.9.1. 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.1
15.9.2. 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.”
25. Any such application must be made no later than 5 October 2021. The Committee will rule on all outstanding requests by 11 October 2021.
26. The provisions of paragraphs 11.7 to 11.10 of PO1 concerning interpretation at the Hearing (reproduced below) apply.
“11.7. Either procedural language may be used at the hearings by the Parties’ counsel and simultaneous interpretation will be available at all times. Transcripts shall be made in both procedural languages.
11.8. The testimony of a witness, if any, called for examination during the hearing, who prefers to give evidence in either English or Spanish shall be interpreted simultaneously into the other language. The testimony of a witness, if any, called for examination during the hearing, who prefers to give evidence other than in the English or Spanish languages, shall be interpreted simultaneously into English and Spanish.
11.9. The Parties will notify the Committee, as soon as possible, and no later than at the pre-hearing organizational meeting (see Section 17 below), which witnesses or experts require interpretation.
11.10. The costs of the interpreter(s) will be paid from the advance payments made to ICSID, without prejudice to the decision of the Committee as to which Party shall ultimately bear those costs.”
1 A numbering error in paragraph 15.9 of PO1 has come to the attention of the Committee and is herby corrected. The following portion of paragraph 15.9 should be subparagraph 15.9.1: “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.” ↩
[Page 9]
27. The provisions of paragraphs 19.2 to 19.3 of PO1 concerning transcription (reproduced below) apply.
“19.2. Verbatim transcript(s) in the procedural language(s) 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 21 days of the later of the dates of 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.”
28. The provisions of paragraph 19.1 of PO1 concerning audio recording (reproduced below) apply.
“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.”
29. ICSID shall make the arrangements for the sound recordings, which will be shared with the Parties and the Members of the Committee at the conclusion of the Hearing. Except for the court reporters, Hearing Participants shall not otherwise record the Hearing or any part thereof.
30. Paragraph 20.1 of PO1 provides that
“20.1. The Parties will discuss any proposed rules regarding post-hearing memorials and statements of costs at a later stage. In principle, the Parties do not expect to submit post-hearing memorials, but remain available to do so should the Committee so require. The Committee shall decide in the event of disagreement.”
[Page 10]
31. In accordance with paragraph 18.6 of PO1, the Hearing shall be closed to the public.
32. The Hearing shall be held by videoconference using the Zoom platform, in order to allow for optimum efficiency with respect to simultaneous interpretation and break out-rooms. The Parties agree that the Hearing may be supported by an external service provider to be retained by ICSID to provide hosting, recording and technical assistance services. Subject to the Parties’ agreement, the Committee shall convene in person in London.
33. Real-time court reporting shall be made available to the Participants via an online link connection to be provided by the court reporters. The Participants will be able to access the streamed transcripts from their own devices.
34. The connectivity details (links and instructions) to join the Hearing videoconference session and to connect to the streamed real-time transcripts in both procedural languages will be shared by ICSID prior to the start of the Hearing.
35. There shall be technical tests with the Committee and all the Participants for each Party in advance of the Hearing, to test connectivity to the videoconference platform and to the online real-time transcriptions. For the efficient conduct of these tests, Participants are advised to replicate the technical conditions in which they will participate in the Hearing (location and equipment).
36. Each Party shall provide its respective List of Participants for the Hearing (“List of Participants”) no later than Friday, 15 October 2021, using the format provided in Annex B.
[Page 11]
37. In the List of Participants, each Party shall designate the Participants who will have an active speaking role as “Active Participants”, and those who will be passive attendees as “Passive Participants”, as indicted in footnote 4 in Annex B.
38. For ease of identification, Participants shall join the videoconference using the naming convention in the format indicated in Annex B, namely, first and last name preceded by [C] (for Participants for the Claimants), [R] (for Participants for the Respondent). Should there be Participants joining from a common conference room, the conference room connection may be identified as “[C] [R] Conference Room #” as appropriate.
39. Participants will join the videoconference through a “waiting room” to be managed by the external service provider retained for the hosting and technical support of the remote Hearing.
40. 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 Committee, and the Committee will promptly address the matter with the Parties. All Participants in the Hearing bear an ongoing duty to warn of the presence of any non-listed Participant in the videoconference.
41. Participants shall join the videoconference 30 minutes in advance of the start on each day to facilitate the identification and to address any technical contingencies.
42. The Parties shall ensure that each of their representatives, witnesses and experts will connect to the videoconference through a stable internet connection offering sufficient bandwidth, and using a camera and microphone/headset of adequate quality.
43. If available, Participants are advised to use a wired Ethernet connection instead of Wi-Fi. Participants are also encouraged to keep a smartphone or tablet with a 4G data
[Page 12]
connection and mobile hotspot functionality available as a backup internet connection at all times during the Hearing.
44. The videoconference platform will also offer a dial-in telephone audio connection as a backup option should a Participant experience a temporary technical difficulty with a computer online connection. The Parties are advised that the dial-in back up telephone connection provides access to the “floor” audio channel only, not to the interpretation channels.
45. For optimum sound quality, which is especially important for the audio recording, the transcription and the interpretation, Active Participants are encouraged to use a headset equipped with a microphone.
46. While not indispensable, Participants are also encouraged to have at least two screens, and preferably three (it can be one device with multiple screens or a combination of devices including tablets) to facilitate simultaneous viewing of: (i) the video connection; (ii) the online real time transcripts; and (iii) documents.
47. Each Party shall have the ability to display documents (e.g., PowerPoint presentations, demonstrative exhibits, exhibits and authorities) through the screen-sharing function of the videoconference Zoom platform, which allows the speaker and the relevant document to be seen simultaneously. Each Party will designate a person(s) in its own team (“Party Document Manager”) to manage the document display during the respective Party’s interventions at the Hearing.
48. For optimum operation of the videoconference platform, the Parties are advised to use the screen-sharing function selectively and only when necessary, to minimize pressure on the internet bandwidth and stability of the connection.
[Page 13]
49. Participants are also advised to have the Electronic Hearing Bundle and any demonstrative exhibit previously distributed downloaded onto their own devices and available for access offline, if necessary.
50. Once admitted to the videoconference, and barring technical issues or other exceptional circumstances, lead counsel and Party representatives should remain connected throughout the Hearing day.
51. For optimum operation of the videoconference platform, the Parties are advised to limit the number of video connections to Active Participants only. Passive Participants should preferably join the meeting through their computer but turning their video off.
52. Participants shall use the “mute microphone” function when not speaking to reduce background noise and to avoid interference with the audio recording. The service provider serving as host of the videoconference shall have the ability to mute Participants if needed to avoid background noise, under the Committee’s control.
53. To facilitate the accurate transcription and interpretation, speakers are advised to speak at a reasonable speed.
54. Participants are advised to join the Hearing from a location without background noise and with adequate lighting. Participants joining via video shall avoid sitting with a window or source of light behind them.
55. During the designated Hearing breaks, the Parties will be assigned to breakout rooms within the videoconference platform to enable all Participants to promptly reconvene following breaks.
[Page 14]
56. The List of Participants (Annex B) shall indicate the break-out room to which Participants shall be assigned, with [C] for the Claimants’ break out room, [R] for the Respondent’s break out room, and [T] for the Committee and its Secretary.
57. Each Party will make its own separate arrangements for private communication within its team during the Hearing by instant messenger or other appropriate means.
58. In the List of Participants, each Party shall designate one of its representatives as the contact person for purposes of addressing any technical incidents that may arise during the videoconference (“VC Emergency Contact Person”). The VC Emergency Contact Person shall be responsible for advising the Committee and ICSID if an essential participant on his/her side is temporarily disconnected from the remote Hearing room.
59. The Committee may temporarily or permanently suspend the Hearing if it deems the functioning of the videoconference system to be inadequate or likely to prejudice the due process rights of either of the Parties or the integrity of the proceeding. Full recordings and real-time streamed transcripts will also be available to mitigate any prejudice arising from the temporary failure of a given Participant to be able to follow the entire Hearing on the videoconference platform.
60. The above provisions on videoconference protocols may be adjusted or supplemented by the Committee, in consultation with the Parties, in the course of the Hearing.
For and on behalf of the Committee,
Signature
Ms. Wendy J. Miles, QC
President of the Committee
Date: 20 September 2021
[Page 15]
Day 1: Tuesday, 19 October 2021
| Hour2 00:00 AM/PM |
Duration (# hours/min.) |
PROCEDURAL STEP |
|---|---|---|
| 11:00 to 11:15 | 15 minutes | Introduction and Housekeeping by the Committee |
| 11:15 to 12:45 | 1 hour 30 minutes | Kingdom of Spain’s Opening Statement |
| 12:45 to 13:15 | 30 minutes | Break |
| 13:15 to 14:45 | 1 hour 30 minutes | Claimants’ Opening Statement |
| 14:45 to 15:15 | 30 minutes | Break |
| 15:15 to 15:30 | 15 minutes | Questions from the Committee |
| 15:30 to 16:00 | 30 minutes | Break |
| 16:00 to 16:30 | 30 minutes | Kingdom of Spain’s Rebuttal and Answers to the Committee’s questions |
| 16:30 to 17:00 | 30 minutes | Break |
| 17:00 to 17:30 | 30 minutes | Claimants’ Sur-Rebuttal and Answers to the Committee’s questions |
| 17:30 to 17:45 | 15 minutes | Housekeeping / Discussion on Next/Post-Hearing Steps End |
Day 2: Wednesday, 20 October 2021: currently in reserve (see above paragraphs 9 and 10)
2 For ease of reference, times are shown in London time. ↩
[Page 16]
| Committee | ||||
|---|---|---|---|---|
| (1) Break Out Room |
(2) Name |
(3) Type |
(4) Affiliation |
(5) Place of Connection |
| T | [T] - Wendy J. Miles, QC | A | President | |
| T | [T] - Jacomijn J. van Haersolte-van Hof | A | Member | |
| T | [T] - José Antonio Moreno Rodríguez | A | Member | |
| ICSID SECRETARIAT | ||||
|---|---|---|---|---|
| Break Out Room |
Name | Type | Affiliation | Place of Connection |
| T | [T] – Mr. Paul Jean Le Cannu | A | Secretary of the Committee | |
| CLAIMANTS | ||||
|---|---|---|---|---|
| Break Out Room |
Name | Type | Affiliation | Place of Connection |
| Counsel: | ||||
| C | [C] - Name and Last name [Email] |
[C] Conference Room # 1 [City] |
||
| C | [R] Office / Home [City] |
|||
| Party Representatives: | ||||
| C | [C] - Name and Last name [Email] |
|||
| C | ||||
3 Note: Columns (1) (3) and (5) only applicable if remote modality. ↩
4 “A” (Active Participant) / “P” (Passive Participant). ↩
[Page 17]
| RESPONDENT | ||||
|---|---|---|---|---|
| Break Out Room |
Name | Type | Affiliation | Place of Connection |
| Counsel: | ||||
| R | [R] - Name and Last name [Email] |
[R] Conference Room # 1 [City] |
||
| R | [R] Office / Home [City] |
|||
| Party Representatives: | ||||
| R | [R] - Name and Last name [Email] |
|||
| R | ||||
| COURT REPORTERS | ||||
|---|---|---|---|---|
| Break Out Room |
Name | Type | Affiliation | Place of Connection |
| N/A | [CR] - Name and Last name [Email] |
P | ||
| N/A | P | |||
| N/A | P | |||
| N/A | P | |||
| INTERPRETERS | ||||
|---|---|---|---|---|
| Break Out Room |
Name | Type | Affiliation | Place of Connection |
| N/A | [INT] - Name and Last name [Email] |
P | ||
| N/A | P | |||
| N/A | P | |||
| N/A | P | |||
[Page 18]
| TECHNICAL SUPPORT | ||||
|---|---|---|---|---|
| Break Out Room |
Name | Type | Affiliation | Place of Connection |
| N/A | [TECH] – Name and Last name [Email] |
P | Sparq | |
| N/A | P | |||
| N/A | P | |||
| N/A | P | |||