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INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES

Riverside Coffee, LLC

v.

Republic of Nicaragua

(ICSID Case No. ARB/21/16)

PROCEDURAL ORDER No. 11

on the Organization of the Hearing

Members of the Tribunal
Dr. Veijo Heiskanen, President of the Tribunal
Mr. Philippe Couvreur, Arbitrator
Ms. Lucy Greenwood, Arbitrator

Secretary of the Tribunal
Ms. Ana Constanza Conover Blancas

24 June 2024

Annex A

Annex B

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I. PROCEDURAL BACKGROUND

1. On 27 June 2022, the Tribunal issued Procedural Order No. 1 (“PO1”), setting out the procedural rules that govern this arbitration, in addition to those applicable under the ICSID Convention and ICSID Arbitration Rules.

2. On 1 July 2022, the Tribunal issued Procedural Order No. 2, setting out the Procedural Calendar. According to the Procedural Calendar, a hearing on jurisdiction and the merits is scheduled to take place on 1-12 July 2024 (the “Hearing”). PO1 further confirmed that Washington D.C. would be the place of the proceeding and that the Tribunal could hold in-person hearings at any other place that it considered appropriate if the Parties so agreed.

3. On 6 and 13 October 2023, and 6 and 20 November 2023, the Parties and the Tribunal exchanged communications on the place and modalities of the Hearing. On 12 January 2024, in view of the disagreement between the Parties, the Tribunal held a procedural meeting via videoconference to hear the Parties regarding the possibility of a remote or hybrid hearing, potential alternative hearing venues outside the United States and the availability of the Parties’ witnesses to attend the Hearing if held in person in Washington, D.C.

4. On 16 January 2024, the Tribunal issued Procedural Order No. 8 (“PO8”). In PO8, having considered the Parties' respective positions, the Tribunal ruled that (i) the Hearing would take place in person in Washington D.C. from 1-12 July 2024; (ii) the Parties were to immediately start the visa application process for all Hearing participants based in Nicaragua and inform the Tribunal on the status of such process within four weeks from the date of PO8; and (iii) it would decide on any necessary arrangements to ensure the attendance of Hearing participants and the fair and equal treatment of the Parties upon receipt of the Parties’ reports on the status of the visa application process.¹

¹ PO8, para. 32. ↩

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5. On 27 February 2024, following an extension of the original deadline granted by the Tribunal, the Parties submitted their respective status reports on visa applications for Hearing participants resident in Nicaragua. On 1 March 2024, the Respondent provided an update to its status report. On 4 March 2024, the Tribunal took note of the progress made by the Parties in obtaining the required visas and indicated that the Tribunal did not consider necessary to issue any further directions on the basis of the Parties’ reports.

6. Pursuant to Section 19.1 of Procedural Order No. 1, a pre-hearing conference between the Parties and the Tribunal was held by videoconference on June 10, 2024 (the “Pre-Hearing Conference”), to discuss any outstanding procedural, administrative and logistical matters in preparation for the Hearing. Participating were:

Tribunal:
Dr. Veijo Heiskanen, President of the Tribunal
Mr. Philippe Couvreur, Arbitrator
Ms. Lucy Greenwood, Arbitrator

ICSID Secretariat:
Ms. Ana Conover, Secretary of the Tribunal
Ms. Andrea Clavijo, Paralegal

On behalf of the Claimant:
Mr. Barry Appleton, Appleton & Associates International Lawyers LP
Ms. Cristina Cardenas, Appleton & Associates International Lawyers LP
Ms. Lillian De Pena, Appleton & Associates International Lawyers LP
Mr. William Hill, Gunster
Ms. Melva Jo Winger de Rondón, Riverside Coffee, LLC.
Mr. Carlos Rondón, Riverside Coffee, LLC.

On behalf of the Respondent:
Ms. Analía González, Baker Hostetler LLP
Mr. Marco Molina, Baker Hostetler LLP
Mr. Carlos Ramos-Mrosovsky, Baker Hostetler LLP
Mr. Diego Zuniga, Baker Hostetler LLP
Mr. Hernaldo Chamorro, Nicaragua Attorney General’s Office

7. During the Pre-Hearing Conference, the Parties and the Tribunal discussed the draft Procedural Order circulated to the Parties on 24 April 2024 and the Parties’ joint

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statements of 3 and 4 June 2024 advising the Tribunal of the agreements reached on the various items, as well as their respective positions where no agreement was reached.

8. A recording of the Pre-Hearing Conference was made and deposited in the archives of ICSID, and made available to the Members of the Tribunal and the Parties on 11 June 2024.

9. The Tribunal has considered the Parties’ positions and, in the present Order, sets out the procedural rules that the Parties have agreed upon and/or the Tribunal has determined will govern the conduct of the Hearing.

I. ORGANIZATION OF THE HEARING

A. DATE AND FORMAT

10. The Hearing will take place in person in Washington DC on 1-12 July 2024, at ICSID’s headquarters located at 1225 Connecticut Ave., NW, Washington, D.C.

11. There will also be a remote connection to facilitate the participation of any attendees connecting to the Hearing remotely via Zoom (“Hearing Platform"). Remote participation may be exceptionally requested by a participant and approved by the Tribunal. The ICSID Secretariat will share the details for joining the Hearing Platform prior to the Hearing.²

B. ORDER OF PROCEEDINGS AND SCHEDULE

12. The Hearing will start each day at 9 am (EDT), except on the first day of the Hearing which will commence at 9:30 am. It is expected to conclude by 6 pm (EDT) at the latest, except on the first day of the Hearing which will conclude after the Parties' opening statements and Day 3 which is provisionally expected to conclude by 6:25 pm.

13. The Hearing will start with opening remarks and housekeeping matters from the Tribunal, followed by the Claimant’s opening statements, the Respondent’s opening statements, the

² Other logistical details (e.g., testing, connectivity, equipment and setup) will be handled by correspondence directly by the Secretary of the Tribunal. ↩

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examination of witnesses and experts, the Claimant’s closing statements, the Respondent’s closing statements, and closing remarks from the Tribunal at the end of the Hearing.

14. The Parties may present one round each of opening statements prior to the examination of witnesses and experts at the Hearing. There will be no reply or rejoinder to opening statements. The entirety of Day 1 of the Hearing shall be reserved for the opening statements and, accordingly, witness and expert examinations shall start no earlier than Day 2.

15. The indicative hearing schedule setting out the order and structure of the Hearing, including the number and length of breaks, is included as Annex A below (the “Tentative Hearing Schedule”). The Parties shall make a good-faith effort to adhere to the Tentative Hearing Schedule, which is based on the indicative hearing schedules filed by the Parties on 17 June 2024. The specific time allocations fixed on the Tentative Hearing Schedule are to be used for indicative purposes only, and do not strictly bind either Party.

16. In the interest of an efficient conduct of the Hearing, the Parties' oral argument should focus on disputed points and should not unnecessarily repeat the entirety of the written pleadings. The Tribunal reserves discretion to adjust the Hearing schedule as required to complete the prescribed Hearing schedule and to accommodate any technical disruptions.

C. TIME ALLOCATION

17. A total number of 9 hours are reserved for each Hearing day. On this basis, each hearing day should include a total of two hours of breaks (including an hour-long lunch break, a 15 minute break in the morning and two 15 minute breaks in the afternoon), 15 minutes reserved housekeeping in the beginning of each day, one hour for Tribunal questions and six hours to be divided equally between the Parties (for a total maximum amount of 24 hours for each Party, plus the time allocated to the Parties for their opening and closing statements). The Parties are allocated a maximum of three hours each for their opening statements and a maximum of two hours each for their closing statements. It will be for

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each Party to manage its time budget in such a way that the total time allocated for each Party (24 + 5 hours) is not exceeded.

18. Each Party shall be free to spend its allocated time in the manner it sees fit, so long as the total amount of time allotted to that Party, the order of presentations and the order of witnesses and experts set out in this order are maintained, and subject to the following:

(a) Opening Statements. Each Party shall be allowed a maximum of 3 hours for its opening statement.

(b) Examination of witnesses and experts:

o Direct examination of fact witnesses. The party presenting the witness may conduct a brief direct examination for the purpose of introducing the witness, correcting, if necessary, any errors in the witness statement. Such direct examination of a fact witness shall not exceed 10 minutes.

o Direct presentations by experts. The presentation by an expert shall not exceed 30 minutes.

o Evidence arising out of the Respondent's Rejoinder. The Claimant may request its witnesses of fact and experts to comment in the course of the direct examination on any new evidence produced by the Respondent's witnesses of fact and experts in support of the Respondent's Rejoinder. Any such additional direct examination shall be limited to a maximum of 10 minutes. This time allocation is in addition to the 10 minutes to be allocated to each witness of fact for introduction and correction of errors, and in addition to the 30 minutes allocated to each expert for their presentation. The additional time will be counted towards the total time budget allocated to the Claimant.

(c) Closing Statements. Each Party shall be allowed a maximum of 2 hours for its closing statement.

(d) Post-Hearing Memorials: The schedule of Post-Hearing Submissions, if any, and Statements of Costs will be discussed at the end of the Hearing.

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19. In calculating time used during the Hearing, the Tribunal incorporates the following presumptions:

1. Time spent by a Party on direct and re-direct examination, as well as expert presentations, shall count against the Party bringing the witness or expert. Time spent by a Party on oral argument and on the cross examination of the other Party's witnesses or experts, is counted against that Party's time.
2. Time spent on Tribunal's questions and answers thereto or in addressing any logistical or housekeeping matters, will not be subtracted from the Parties' allotted time. The Parties should prepare on the basis that one hour each day will be consumed by Tribunal questions, procedural matters, technical interruptions, or other contingencies.
3. Lost time attributed to the late arrival of counsel or witnesses, other than for reasons outside of reasonable Party control, will be charged against the Party responsible for the delay.
4. The Parties are expected to seek to use the Hearing days efficiently and to avoid unnecessary slippage. To this end as a general rule, starting on Hearing Day 2, each witness and expert shall be available for examination half a day before and after the time at which his/her examination is scheduled. In the event of excess slippage, the Tribunal may revisit the length of one or more sitting days, 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.
5. The Secretary of the Tribunal will keep a chess clock account of time used and advise the Parties at the end of each Hearing day of the time used.

D. WITNESS AND EXPERT EXAMINATION

20. The provisions of Procedural Order No. 1, Section 18 concerning the examination of witnesses and experts (reproduced below) apply, except as modified by the Tribunal in this Procedural Order.

18.1. On the date set forth in the procedural timetable to be established in a subsequent Procedural Order, each Party shall notify to the Tribunal and the other Party the factual or expert witnesses (including experts) it wishes to call for cross-examination, as well as any factual or expert witnesses for which it waives cross-examination. If a Party waives cross-examination for a factual or expert witness, the witness's statement shall stand as the witness's direct examination, and the factual or expert witness need not be called by the Party that offered it, unless the Tribunal determines that there is good cause to call such factual or expert witness for examination at the

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hearing based on a reasoned written request followed by observations from the other party. Waiver of cross-examination of a factual or expert witness does not mean the witness's statement is conceded, and the Party waiving cross-examination may still challenge the witness's statement in its remaining oral and written submissions.

18.2. If a factual or expert 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. The Tribunal shall not consider the witness statement of a factual or expert witness who fails to appear without a valid reason. If warranted by extraordinary circumstances, the Tribunal may authorize an alternative method of cross-examining a factual or expert witness, such as by live video link.

18.3. 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. However, expert witnesses and a party representative for each party may be present in the hearing room at any time, although any party representative who is also a witness must give evidence first.

18.4. The written witness statement or expert report of each factual or expert witness called for cross-examination shall stand in lieu of the examination by the party producing the witness (“direct examination”). However, the party who presents the factual or expert witness may conduct a brief direct examination for a length to be agreed at the pre-hearing conference for purposes of asking introductory questions, including to confirm the accuracy and completeness of that factual or expert witness's written testimony, to offer any background or clarifications that may be necessary to prevent a potentially avoidable misunderstanding of that witness's written testimony and to briefly summarize the positions set out in the witness statement(s).

18.5. If during the direct examination of factual or expert witnesses the parties wish to address facts or evidence of which the witness or expert became aware after the filing of their last respective statement or report, the relevant party shall so inform the Tribunal and the other party, at the latest, at the pre-hearing conference. The Tribunal will determine, after hearing the parties, whether a party shall be allocated additional time for direct examination at the hearing for such purpose.

18.6. The adverse party may then cross-examine the factual or expert witness within the scope of that factual or expert witness's statement or report, or his or her testimony. The party who has presented the factual or expert witness may then conduct re-direct examination. Re-direct examination shall be limited to the subjects properly raised by the questions asked during the cross-examination.

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18.7. The Tribunal may examine factual and expert witnesses at any time during a hearing.

18.8. The rules set forth below apply exclusively to expert witnesses:

18.8.1. An expert witness may give a presentation summarizing their methodology and conclusions in lieu of or in addition to direct examination.

18.8.2. Subject to the Tribunal's approval, the Parties may agree to examine experts of similar discipline, if any, by way of expert conferencing.

18.8.3. Further decisions about the modalities of expert testimony shall be decided at the pre-hearing conference.

21. Expert witnesses are to be examined in two stages, such that the Tribunal first hears Parties' expert witnesses on Nicaraguan law and history and later hears both Parties' expert witnesses on the subject of quantum (first the Claimant's experts, then the Respondent's experts).

22. The witness or expert shall have a hard copy of their witness statement or expert report before them during their examination and electronic copies of all exhibits thereto. The Party that offered the witness or expert is responsible for providing the electronic and/or hard copy of his or her witness statement or expert report, including electronic copies of all exhibits thereto. Further, the Party that offered each expert witness shall provide such expert copies of the expert reports of his or her counterpart. Fact witnesses shall not have notes or other material that is not in the record before them during their examination. Experts may have a copy of their presentation to be shown at the hearing, if applicable.

23. In addition, the Party conducting the cross-examination may provide a cross-examination bundle (i.e., a bundle of exhibits or legal authorities on the record to which the witness or expert is to be referred, including an index identifying the relevant tab and exhibit / legal authority number) immediately before the cross-examination. The Party conducting the cross-examination may provide hard copies to be distributed among the witness or expert being cross-examined (one copy), the Tribunal (three copies) and the other Party (one copy). The Tribunal may instruct the Parties to provide the court reporters and interpreters

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with an electronic copy of a cross-examination bundle before the start of a cross-examination, should they so require it.

24. Witnesses and experts shall have access to the real-time live transcripts during their examination.

25. If the cross-examination of a fact or expert witness is interrupted and must continue in the following session, they will be instructed that they may not speak with anyone about case or the subject of the dispute until the examination is completed. To avoid potential disputes, the fact or expert witness shall minimize contact even on other subjects with the Parties, their representatives or counsel until the examination is completed. The Parties will use their best efforts to try to complete the examination of a given fact or expert witness on the same day.

26. With regard to witnesses or experts who will testify by videoconference, each such witness and expert shall be admonished with respect to giving evidence remotely and shall be asked to display their surroundings using their camera. They shall further give the following affirmations at the start of the examination:

(a) That he or she will not receive or provide communications of any sort during the course of his or her examination.

(b) For witnesses subject to sequestration, that they have not attended, watched a recording, or read the transcripts of the Hearing prior to their examination.

27. The witness or expert shall not use a “virtual background" or in any way prevent or limit the recording of the remote venue from which he or she is testifying, including by using filters that blur or distort the background of the room.

28. The Tribunal shall have the authority at any time during the examination of a witness to request the witness to reorient their camera, whether to provide a better angle, lighting, or to verify the surroundings or any materials available to the witness.

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29. Witnesses or experts testifying remotely may be accompanied by a technician, and up to one representative from the party who produced the witness or expert who may assist them in the identification of the documents from the record to which they may be directed as part of their examination. They shall only have in the room a hard copy of their respective testimony or report. Other case documents from the record are to be shown to them electronically.

E. DOCUMENTS FOR USE AT THE HEARING

i. Electronic Hearing Bundle

30. There shall be (i) an Electronic Hearing Bundle with a chronological hyperlinked index (PC and Mac compatible), to be prepared by the Parties to facilitate references to the main documents on which the Parties intend to rely at the Hearing; and (ii) a full chronological hyperlinked index (PC and Mac compatible), containing the entirety of the record. Neither bundle shall contain any document not previously filed.

31. The Electronic Hearing Bundle chronological hyperlinked index shall identify with RED material that has been designated as “protected information”, in accordance with Article 10.21(4) of the Treaty and Section 23.2 of Procedural Order No. 1.

32. The Tribunal notes that the Electronic Hearing Bundle (with a chronological hyperlinked index) and the full chronological hyperlinked index containing the entirety of the record were uploaded by the Parties to a designated sub-folder in the BOX filesharing platform on 17 June 2024, as two single zip files. To the extent that any updates are necessary, these may be provided no later than Thursday, 27 June 2024.

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

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34. On 20 June 2024, the Parties delivered to the ICSID Secretariat a hard copy of the Electronic Hearing Bundle, which will be provided to Mr. Couvreur. For the avoidance of doubt, the President of the Tribunal and Ms. Greenwood do not require hard copies of any Hearing material, nor will the Tribunal Members require USB devices with a copy of the Electronic Hearing Bundle or of the entirety of the record.

ii. Demonstrative Exhibits

35. Demonstrative exhibits shall be used in accordance with Section 16.9 of Procedural Order No. 1 (reproduced below) with certain adjustments indicated in paragraph 36 infra:

16.9. Demonstrative exhibits (such as PowerPoint slides, charts, tabulations, etc.) may be used at any hearing, provided they contain no new evidence nor new calculations. Each party shall number its demonstrative exhibits consecutively, and indicate on each demonstrative exhibit the document(s) on the record (e.g., exhibit, legal authority, expert report, etc.) from which it is derived. The party submitting such exhibits shall provide them in electronic and hard copy to the other party, the Tribunal Members, the Tribunal Secretary, the court reporters and interpreters at the hearing at a time to be decided at the pre-hearing conference.

36. Section 16.9 of Procedural Order No. 1 above is amended such that: (i) a hard copy submission of demonstratives is not required; and (ii) an electronic copy of each demonstrative shall be distributed by the Party intending to use it via email sent to the entire case email distribution for each Party, the Members of the Tribunal, the Secretary of the Tribunal, the interpreters and court reporters, no later than 30 minutes prior to its use.

37. In addition, no later than the end of the Hearing day in which the corresponding demonstrative exhibit is used, the Parties shall upload such demonstrative exhibit to the case folder in the BOX filesharing platform, designating each with the corresponding number: “CD-___” for Claimant’s demonstrative exhibits, and “RD-___” for Respondent’s demonstrative exhibits.

38. Documents that do not form part of the record may not be displayed at the Hearing.

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F. AUDIO/VIDEO RECORDING

39. The provisions of Procedural Order No. 1, Section 21.1 concerning audio recording (reproduced below) apply.

21.1. Sound recordings shall be made of all hearings and sessions. The sound recordings shall be provided to the parties and the Tribunal Members.

40. Further to Procedural Order No. 1 Section 22.1, video recordings shall also be made. The audio and video recording shall be made by the ICSID Secretariat, and it will be shared with the Parties and the Members of the Tribunal at the conclusion of the Hearing. Except for the court reporters, Hearing Participants shall not otherwise record, via audio, video or otherwise the Hearing or any part of it.

G. TRANSCRIPTION

41. The provisions of Procedural Order No. 1, Sections 11.8, 21.2 and 21.3 concerning transcription (reproduced below) apply, with the adjustments indicated infra.

11.8. The Hearing shall be conducted in English and Spanish with simultaneous interpretation into the other procedural language. Transcripts shall be taken in both languages.

[...]

21.2. Verbatim transcripts in the procedural languages shall be made of any hearing and session other than sessions on procedural issues. Unless otherwise agreed by the parties or ordered by the Tribunal, the verbatim transcripts shall, if possible, be available in real-time and electronic transcripts shall be provided to the parties and the Tribunal on a same-day basis.

21.3 The parties shall agree on any corrections to the transcripts within 30 days of the later of the dates of the receipt of the sound recordings and transcripts. The agreed corrections may be entered by the parties in the transcripts (“revised transcripts"). The Tribunal shall decide upon any disagreement between the parties and any correction adopted by the Tribunal shall be entered by the court reporter in the revised transcripts.

42. The Parties shall exchange their corrections to the transcripts within forty-five (45) days of the later of the dates of the receipt of the complete sound recordings and transcripts.

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The Parties shall exchange comments to the other Party’s transcripts and submit any disagreements to the Tribunal 14 days after the Parties exchange their corrections to the transcripts. The agreed corrections may be entered by the court reporter in the transcripts. The Tribunal shall rule on any disagreements within five (5) days.

43. The court reporter shall finalize the revised transcripts within seven (7) days of either (i) the Parties’ submission of their joint corrections, if there are no disagreements, or (ii) the Tribunal’s ruling, if the Parties have submitted any disagreement to the Tribunal.

H. INTERPRETATION

44. ICSID will make the required arrangements for simultaneous interpretation into English and Spanish and communicate them to the Parties and Tribunal in due course.

45. Participants should speak clearly, one person at a time, and should pause briefly when handing the floor to another participant.

46. The main speakers for each Party should, insofar as possible, circulate any speaking notes to the interpreters prior to the start of each intervention. These notes should be emailed directly to the interpreters and are to be treated as confidential information.

I. TRANSPARENCY

47. In accordance with Section 20.6 of Procedural Order No. 1 and Article 10.21(2) of the Treaty, the Hearing shall be open to the public.

48. Pursuant to paragraphs 19 and 21 of Procedural Order No. 10, the Hearing shall be made open to the public by way of live-streaming, and appropriate logistical arrangements will be made to protect protected information from disclosure during the Hearing.

49. The live streaming of the Hearing will be announced publicly via the ICSID website in English and Spanish.

50. Pursuant to Section 23.1 of Procedural Order No. 1 and Article 10.21 of the Treaty, the transcripts of the hearing shall be publicly available, subject to the deletion of protected

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information. To this end, the transcript of the Hearing will be edited by the Parties to exclude protected information, within fifty (50) calendar days after the conclusion of the Hearing. Once the Parties have submitted their proposed redactions of protected information from the transcript of the Hearing and the Tribunal has decided upon any disagreement between the Parties concerning such redactions (should there be any disagreement), the Centre shall publish the revised transcripts on the ICSID website.

J. PARTICIPANTS

51. The list of Hearing participants is incorporated as Annex B below.

52. The ICSID Secretariat has reserved a hearing room and break out rooms for each Party and the Tribunal.

On behalf of the Tribunal,

Signature

Dr. Veijo Heiskanen
President of the Tribunal
Date: 24 June 2024

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ANNEX A

Riverside Coffee, LLC

v.

Republic of Nicaragua

(ICSID Case No. ARB/21/16)

TENTATIVE HEARING SCHEDULE

Hearing on Jurisdiction and Merits

1-12 July 2024

Day 1: Monday, 1 July 2024

Day 2: Tuesday, 2 July 2024

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Day 3: Wednesday, 3 July 2024

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Day 4: Thursday, 4 July 2024

Day 5: Friday, 5 July 2024

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Day 6: Monday, 8 July 2024

Day 7: Tuesday, 9 July 2024

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Day 8: Wednesday, 10 July 2024

Day 9: Thursday, 11 July 2024

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Day 10: Friday, 12 July 2024

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ANNEX B

Riverside Coffee, LLC

v.

Republic of Nicaragua

(ICSID Case No. ARB/21/16)

LIST OF PARTICIPANTS

Hearing on Jurisdiction and Merits

1-12 July 2024

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