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INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES

TECO Guatemala Holdings, LLC
(Claimant)

v.

Republic of Guatemala
(Applicant)

(ICSID Case No. ARB/10/23)
Third Annulment Proceeding

PROCEDURAL ORDER NO. 7
Organization of the Hearing

Members of the Committee

Ms. Deva Villanúa, President of the ad hoc Committee
Prof. Lawrence Boo, Member of the ad hoc Committee
Prof. Doug Jones AO, Member of the ad hoc Committee

Secretary of the ad hoc Committee

Ms. Mercedes Cordido-Freytes de Kurowski

Assistant to the ad hoc Committee

Mr. Felipe Aragón Barrero

14 July 2022

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WHEREAS

1. On 17 May 2021, the Committee issued Procedural Order [“PO”] No. 1, setting jointly with the Parties the hearing dates for this annulment proceeding for 27 and 28 July 2022 (with a third day, on 29 July, held in reserve) [the “Hearing”].

2. On 31 March 2022, pursuant to para. 20.2 of PO No. 1 and after consulting with the Parties, the Committee decided to hold the Hearing in-person in London, with the arrangement for certain passive participants to join remotely.

3. On 5 July 2022, pursuant to para 19 of PO No. 1, the Parties and the Committee held a pre-Hearing videoconference for the preparation of the Hearing.

4. This Procedural Order establishes, in accordance with para 19.2 of Procedural Order No. 1, the organizational details of the Hearing.

1. DATE AND FORMAT OF THE HEARING

5. The Hearing shall take place in-person from 27 and 28 July 2022 (with a third day, on 29 July, held in reserve) at the facilities of the International Dispute Resolution Centre [“IDRC”] in London, 1 Paternoster Lane, St. Paul’s, London EC4M 7BQ.

6. The participants that will attend the Hearing in-person acknowledge the Covid-19 safety measures implemented by the IDRC. While masks are not currently compulsory in the premises of the IDRC, their use is advisable where social distancing may not be possible, for example in some common areas, lifts and toilets¹.

7. The maximum number of persons in the hearing room shall be 30 including Committee Members, the Secretary of the Committee, the Assistant to the Committee, Court Reporters, electronic bundle operator and Counsel and Party Representatives. London attendees unable to be accommodated in the hearing room

¹ https://www.idrc.co.uk/faqs/

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will be allowed to view the proceedings via the Zoom videoconference link from their respective party break out room.

8. Participants shall self-administer RAD COVID tests daily before the hearing and if testing positive (including Committee Members) shall attend the proceeding virtually.

9. The IDRC will arrange for virtual access to the Hearing for passive participants, via Zoom videoconferencing.

10. Access to the videoconference shall be restricted to those passive participants included in the list of participants confirmed pursuant to Section 17 infra. 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 Hearing participants bear an ongoing duty to warn of the presence of any other person on the videoconference.

2. ORDER OF PROCEEDINGS AND SCHEDULE

11. The following schedule shall apply subject to the Committee’s discretion to adjust it as needed to accomplish the prescribed agenda and to accommodate any logistical disruptions:

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3. TIME ALLOCATION

12. The Hearing will proceed on the principle that the Parties should have equal time to present their case within the time allocation agreed upon.

13. Considering the total number of Hearing days (3 days), the projected time gives a total of 17.5 hours, less 5.5 hours for breaks, lunch break and housekeeping, resulting in 12 hours of sitting time. The time distribution is as follows:

• Committee: 3 hours;

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• Respondent: 4.5 hours;
• Claimant: 4.5 hours.

14. The time used by the Committee for its own questions during the Parties’ presentations and the answers to those questions, and time spent dealing with objections from a Party, shall not be counted against any Party’s time, subject to a reasonable adjustment at the discretion of the Committee in the event of unusually protracted answers.

15. The time used for housekeeping matters or to resolve technical difficulties shall be counted against the Committee’s time if needed.

16. Time shall be kept using chess-clock method. The Secretary of the Committee shall keep a chess clock account of time and advise the Parties of the total daily time used at the end of each Hearing day.

4. PARTICIPANTS

17. Each Party shall provide its respective list of Hearing participants, by 11 July 2022, using the format provided in Annex A. Each Party shall designate those participants that will be physically present in London, those who will be in the hearing room, those who will watch the proceedings remotely in London, and those who will join the proceedings remotely from other locations.

18. The List of Participants shall: (i) include their name, e-mail and/or telephone number; that each participant will use in the videoconference; (ii) for participants joining remotely through videoconference, they shall designate the “Active Participants” for each party, and identify the others as “Passive Participants”; (iii) indicate the location from which each of their participants (including counsel and party representatives) will join the videoconference; and (iv) indicate if several participants will use one and the same camera/connection.

19. Participants joining by videoconference shall identify themselves in the following format: [C] [first name and last name] (for participants on behalf of Claimant) and [R] [first name and last name] (for participants on behalf of Respondent). As regards

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participants joining collectively from a conference room, the connection of the relevant room shall be identified as “[C] / [R] – Room [Name],” as applicable.

20. Participants shall join the videoconference 30 minutes in advance of the start of the relevant Hearing day, to facilitate their identification and deal with any technical contingencies.

21. Each party shall identify its representatives at the beginning of the first day of the Hearing.

22. Participants will join the videoconference through a “waiting room” managed by IDRC. After having been identified, participants will be assigned to the appropriate “breakout room” until the Hearing commences.

23. The virtual platform will offer participants a dial-in telephone audio option, which shall be used as a default connection mechanism in the event that any participant experiences difficulties with computer connection.

5. DOCUMENTS FOR USE AT THE HEARING

A. Electronic Hearing Bundle

24. There shall be a single Electronic Hearing Bundle (PC and Mac compatible), to be prepared jointly by the Parties.

25. The Parties shall provide on 15 July 2022, the Electronic Hearing Bundle containing all pleadings, expert reports, exhibits, legal authorities and Committee’s orders or decisions on file to date, with a consolidated hyperlinked index. It shall not contain any document not previously filed or relied upon in this proceeding and shall be organized as follows:

Electronic Hearing Bundle:

1. Pleadings (including from the underlying proceedings)
   1. TECO
   2. Guatemala

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2. Witness Statements from the underlying proceedings
   1. TECO
   2. Guatemala
3. Expert Reports from the underlying proceedings
   1. TECO
   2. Guatemala
4. Awards and Decisions from the underlying proceedings
5. Transcripts And Hearing Presentations from the underlying proceedings
6. Factual Exhibits
   1. TECO
   2. Guatemala
7. Legal Authorities
   1. TECO
   2. Guatemala
8. Procedural Correspondence Relied Upon By The Parties
9. Committee’s Rulings

26. 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, 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 zip file make the upload to BOX impossible, the Parties shall upload the organized Electronic Hearing Bundle to a designated sub-folder on to the BOX filesharing platform, in a sub-folder using the structure indicated at paragraph 25 supra, including a consolidated (non-hyperlinked) index.

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27. Prior to the Hearing, the Members of the Committee, the Secretary of the Committee, the Assistant to the Committee and the Parties shall download the Electronic Hearing Bundle from the BOX Case Folder into their own devices to have access to it offline during the Hearing. The court reporters and the interpreters will also be provided a copy of the Electronic Hearing Bundle via the ICSID Secretariat.

28. A hard copy of the following documents of the file shall be made available to Prof. Doug Jones:

• the Parties’ pleading of the annulment proceeding in English, without exhibits or legal authorities;
• the consolidated indices of factual exhibits and legal authorities, in English.
• The bundle shall be printed in A5 format, double sided and wire bound.

29. Documents that do not form part of the record or have not been relied upon by a Party in its written submissions in this proceeding may not be presented at the Hearing.

B. Power Point presentations and demonstrative exhibits

30. The Parties may use at the Hearing to assist their oral arguments, provided they contain no new evidence:

• Power Point presentations; and
• Demonstrative exhibits (slides, charts, tabulations, etc.) derived from documents that form part of the record or have been relied upon by a Party in its written submissions. Pursuant to para. 16.10 of PO No. 1, the Parties shall indicate on each demonstrative exhibit the number or provide a reference of the documents(s) from which it is derived.

31. The Power Point presentations and demonstrative exhibits shall contain no new evidence. Each Party shall number its Power Point presentations and demonstrative

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exhibits consecutively, designating each with the corresponding CH- or RH- number.

32. The Parties shall provide the Power Point presentations and demonstrative exhibits in electronic (text-searchable PDF format) and hard copy to the other Party, the Committee Members, the Secretary, the Assistant, the court reporter(s) and interpreter(s), as follows:

• On Day 1 – for Opening Statements – the Power Point presentations shall be submitted five minutes before the presentation; and the demonstrative exhibits shall be submitted 30 minutes before the presentation.
• On Day 2 – for Closing Statements – the Power Point presentations and demonstrative exhibits shall be submitted five minutes before the presentation.

33. In addition, promptly after the conclusion of the Hearing day in which the corresponding Power Point presentation or demonstrative exhibit is used, the Parties shall upload such exhibits to the case folder in the BOX filesharing platform.

6. LANGUAGE AND INTERPRETATION

34. The Parties’ counsel may use either procedural language at the Hearings and simultaneous interpretation will be available at all times. Transcripts shall be prepared in both procedural languages.

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

7. RECORDS OF THE HEARING

A. Sound and video recording

36. Sound and video recording shall be made of the Hearing, which shall be provided to the Parties and the Committee.

B. Transcription

37. Verbatim transcripts in both procedural languages shall be made of the Hearing.

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38. 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.

39. Transcription services in English will be provided by Mr. Trevor McGowan, and in Spanish by DR-Steno. The Court Reporters may seek to clarify the record from time to time during the course of the Hearing.

40. The Parties shall agree on any corrections to the transcripts within 20 days of the later of the dates of the receipt of the video recordings and transcripts. The agreed corrections may 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 shall be entered by the Court Reporter in the revised transcripts.

8. POST-HEARING SUBMISSIONS

41. On the last day of the Hearing the Committee will consult with the Parties and issue directions with respect to Post-Hearing Briefs and Statement of Costs.

9. PUBLIC ACCESS TO THE HEARING

42. Pursuant to Section 20.6 of PO No. 1 and DR-CAFTA Article 10.21.2, the Committee shall conduct the Hearing open to the public. In order to comply with this requirement, the Hearing will be recorded and within 30 days posted on ICSID’s website for public access and will be available for viewing for 30 days.

43. Prior to its publication the Parties shall designate any content deemed protected information, pursuant to DR-CAFTA Article 10.21.4, that will be redacted from the published recordings.

44. The availability of the Hearing recordings will be announced publicly via the ICSID website in English and Spanish.

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10. GENERAL PROVISIONS

A. Reservation of immunities

45. Nothing in this Order shall constitute or be considered to be a limitation upon or a waiver of the privileges and immunities provided in Section 6 of the ICSID Convention, which privileges and immunities are specifically reserved.

B. Data Privacy

46. The List of Participants for the Hearing will contain personal data provided to ICSID in the context of the remote Hearing, including names and contact information, such as business email addresses and telephone numbers. This data is processed for the purpose of the legitimate interests of the Parties in resolving efficiently their dispute and, in particular, to ensure that procedural documents and Hearing arrangements are properly communicated to the Parties, their legal representatives, the Members of the Committee and other participants providing services for the Hearing.

[signed]

Ms. Deva Villanúa
President of the Committee
Date: 14 July 2022

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ANNEX A – LIST OF PARTICIPANTS

HEARING ON ANNULMENT
27 and 28 July 2022 (with a third day, on 29 July, held in reserve)
LIST OF PARTICIPANTS²

COMMITTEE/TRIBUNAL

SECRETARY OF THE COMMITTEE

ASSISTANT TO THE COMMITTEE

² Use “A” (Active Participants) / “P” (Passive Participants).

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ICSID

CLAIMANT-TECO

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RESPONDENT/APPLICANT- REPUBLIC OF GUATEMALA

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INTERPRETERS

COURT REPORTER