COUR PERMANENTE D'ARBITRAGE
PERMANENT COURT OF ARBITRATION
IN THE MATTER OF AN ARBITRATION BEFORE A TRIBUNAL CONSTITUTED IN
ACCORDANCE WITH
THE AGREEMENT BETWEEN THE GOVERNMENT OF THE RUSSIAN FEDERATION
AND THE CABINET OF MINISTERS OF UKRAINE ON THE ENCOURAGEMENT AND
MUTUAL PROTECTION OF INVESTMENTS DATED 27 NOVEMBER 1998
- and -
THE ARBITRATION RULES OF THE UNITED NATIONS COMMISSION ON
INTERNATIONAL TRADE LAW, 1976
PCA CASE NO. 2015-21
- between -
JSC CB PRIVATBANK
The Claimant
- and -
THE RUSSIAN FEDERATION
The Respondent
The Arbitral Tribunal
Professor Pierre-Marie Dupuy (Presiding Arbitrator)
Sir Daniel Bethlehem QC
Dr. Václav Mikulka
Registry
Permanent Court of Arbitration
2 November 2021
[Page 2]
1.1 On 20 July 2021, the Tribunal issued Procedural Order No. 17, setting forth its rulings on the Parties’ respective document production requests and ordering each Party to produce the documents indicated to the other Party by Tuesday, 3 August 2021.
1.2 On 29 July 2021, the Tribunal issued Procedural Order No. 19, partially granting the Claimant’s request for an extension to the deadline for the submission of [Redacted] The Tribunal further indicated as follows:
[T]he Tribunal considers that a minimum of two months between the conclusion of the written phase and the start of the hearing constitutes a fair and reasonable period for the Parties’ preparation for the hearing. The Tribunal could not, therefore, grant the full extension requested by the Claimant without vacating the current hearing dates, which the Claimant has opposed and which may entail a significant delay, likely until the latter part of 2022, taking into account the Tribunal’s current availability.
1.3 By letter dated 11 August 2021, the Tribunal granted a further request from the Claimant for an extension to the deadline for the submission of [Redacted] The Tribunal further indicated as follows:
The Tribunal takes note that this [extension] will reduce the time between the conclusion of the written phase and the start of the hearing to less than the two month period the Tribunal sought to preserve in its Procedural Order No. 19. Accordingly, the Tribunal will be prepared to consider such reasonable accommodation as the Respondent might request in this connection on the basis of demonstrated prejudice.
1.4 [Redacted]
1.5 [Redacted]
1.6 [Redacted]
1.7 On 21 September 2021, the Tribunal issued Procedural Order No. 20, in which it granted the [Redacted] The Tribunal further decided as follows:
With respect to the remaining requests, i.e., [Redacted] the Tribunal prefers to have the Claimant submit [Redacted] and afford the Respondent an opportunity to comment on the situation as it then stands before the Tribunal decides on these applications. In particular, the Tribunal is mindful that both Parties must have a fair and reasonable opportunity to present their case. In the event that new materials raise new issues, the Tribunal may need to consider whether the present procedural calendar, including the hearing dates, can be maintained.
1.8 [Redacted]
[Page 3]
1.9 By letter dated 29 September 2021, the Tribunal invited the Claimant to submit [Redacted] in order for the Respondent to comment on this request along with its comments on the Claimant’s other applications.
1.10 [Redacted]
1.11 [Redacted]
1.12 By letter dated 5 October 2021, the Tribunal invited the Claimant to comment on the Respondent’s request for an extension to the deadline for the submission of its Rejoinder.
1.13 [Redacted]
1.14 By letter dated 8 October 2021, the Tribunal invited the Respondent to comment on the [Redacted]
1.15 [Redacted]
2.1 The Tribunal has carefully considered the comments of the Parties on both the Claimant’s request for the admission of new materials and a revised request for relief and the Respondent’s request for an extension to the deadline for the submission of its Rejoinder.
2.2 In Procedural Order No. 19, the Tribunal had already indicated that it could not grant the full extension [Redacted] without vacating the current hearing dates or impinging on the minimum period required for the Parties’ preparation for the hearing. Nevertheless, [Redacted] the Tribunal granted a further short extension for the [Redacted] reserving the possibility of considering such reasonable accommodation as the Respondent might request in this connection on the basis of demonstrated prejudice.
2.3 Since that time, the Claimant has made numerous, albeit limited, further submissions. Furthermore, the Claimant has only recently completed its production of documents ordered by the Tribunal.
2.4 When viewed individually, the Tribunal does not consider that any of the Claimant’s new materials or submissions, or the delays in fulfilling the Tribunal’s orders on document production, create any significant prejudice to the Respondent. However, the Tribunal does consider that they justify the Respondent’s requested extension when taken collectively. Accordingly, if such new materials and submissions are to be admitted, the Tribunal considers that it must also grant the extension to the deadline for the submission of the Respondent’s Rejoinder, notwithstanding the postponement of the hearing on quantum that is entailed.
[Page 4]
2.5 The Tribunal therefore admits [Redacted] The Tribunal also grants a three-week extension to the deadline for the submission of the Respondent’s Rejoinder, until Tuesday, 16 December 2021.
2.6 The hearing scheduled for 17-21 January 2022 is vacated. The Parties are invited to indicate by no later than Monday, 8 November 2021 their availability for a hearing for all weeks between 25 April and 1 July 2022.
Date: 2 November 2021
Place of Arbitration: The Hague, the Netherlands
Signature
On behalf of the Tribunal
Professor Pierre-Marie Dupuy
(Presiding Arbitrator)