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BREDIN PRAT

BY E-MAIL

Professor Rüdiger Wolfrum
Professor W. Michael Reisman
Professor Francisco Orrego Vicuña

Permanent Court of Arbitration
Attn: Ms. Judith Levine
Peace Palace
Carnegieplein 2
2517 KJ The Hague
The Netherlands
Tel.: +31 70 302 4268
Fax: +31 70 302 4167
E-mail: [email protected]

Paris, 11 January 2018

Re: PCA Case No 2012-07 / Mohamed Abdel Raouf Bahgat (Egypt) v. The Arab
Republic of Egypt (Egypt)

Dear Members of the Tribunal,

We refer to the Tribunal's invitation to the Parties to confer regarding the procedural
calendar for the merits phase of the arbitration contained in its Decision on Jurisdiction of 30
November 2017 and to Claimant's letter of 10 January 2018 setting forth his proposal and
position on the procedural calendar.

Respondent confirms the Parties' agreement on the three points set out in Claimant's letter,
namely that (i) the procedural stages for the merits phase of the arbitration should, with the two
exceptions that follow, replicate those set out by the Tribunal at paragraphs 2.20 to 2.36 of
Procedural Order No. 1 (“PO 1"); (ii) in contrast to PO 1, the document production process
shall run in parallel with the Claimant's preparation of his Reply; and (iii) the document
production process shall also be streamlined by removing the step anticipated by paragraph 2.24
of PO 1.

The Parties have otherwise been unable to reach an agreement on the timing of the various
procedural steps for the merits phase of the arbitration. Therefore, Respondent respectfully
submits its proposal for the procedural calendar below:

Association d'Avocats à Responsabilité Professionnelle Individuelle

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Respondent's proposed procedural calendar is not “yet another attempt to delay or derail the
present proceedings"¹ nor does it "bear[] no relation to Po 1"² as Claimant wrongly alleges.
Rather, it is a realistic and reasonable calendar that is based on PO No 1 and that ensures – in
light of the complexity and particular circumstances of the case - that the Parties' due process
rights are adequately protected.

Contrary to Claimant's baseless insinuation, Respondent has not started work on its Statement of
Defense “during the previous six years of this arbitration”,³ as no State – indeed, no reasonable
party – would run up costs on legal work that may subsequently become moot. Therefore, and
given that the disputed facts of the case date back to almost 20 years ago (and several key
individuals present at the time of the events have since passed away), that Egypt has undergone
several changes in regime since the disputed facts of the case and that Respondent as a State
party will be required to work with a number of different State authorities and officials, the five
months from today proposed in Respondent's calendar for the filing of its Statement of Defense
(i.e. 8 June 2018) will be necessary for Respondent to be able to collect its evidence and prepare
its defense. This timeframe is also justified by Respondent's need to select and officially appoint
its experts and complete the different administrative procedures that are required to authorize the
process, and in order to allow Respondent's experts, once appointed, to prepare their reports, as
well as Respondent to present its arguments in its Statement of Defense on the basis of these
reports. For the same reasons, in line with PO 1 which, as Claimant points out, envisaged five
months for Claimant's Reply,⁴ Respondent's calendar foresees five months for the preparation of
the Reply and three months for the Rejoinder.⁵

In light of the above, it is Respondent's position that Claimant's proposed timetable is neither
"reasonable [nor] appropriate".⁶ Claimant's proposed calendar is also not "faithful to the
framework and timings put in place by PO 1”, nor does it contain only “minor ... reductions".⁷
Rather, Claimant's proposed calendar fundamentally departs from the spirit of PO No 1 and aims
to dispose of the merits and the quantum of Claimant's case in their entirety within less than 7
months. That is wholly unreasonable given the complexity and particular circumstances of the
case and cannot be justified on the basis that the Parties' submissions “will now relate to merits

¹ Claimant's letter of 10 January 2018, p. 4.
² Claimant's letter of 10 January 2018, p. 1.
³ Claimant's letter of 10 January 2018, p. 2.
⁴ Claimant's letter of 10 January 2018, p. 1.
⁵ Claimant's letter of 10 January 2018, p. 3.
⁶ Claimant's letter of 10 January 2018, p. 3.
⁷ Claimant's letter of 10 January 2018, p. 1.

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issues only”.⁸ If adopted by the Tribunal, Claimant's calendar would seriously jeopardize Egypt's
right of defense and result in an unfair advantage in Claimant's favour. In particular, the 14
February 2018 deadline proposed by Claimant for Respondent's Statement of Defense would not
allow Respondent to collect its evidence and prepare its Statement of Defense. In the same vein,
the mere 7 weeks foreseen in Claimant's proposed calendar for the Rejoinder would be
insufficient for Respondent to respond to Claimant's Reply. Claimant's proposed calendar is
inadequate to guarantee the Parties a fair and proper proceeding and fails to ensure that the
Tribunal has a full record before it on which to determine the Parties' dispute.

Respondent reaffirms its willingness to work with the Tribunal and Claimant towards a timely
resolution of the Parties' dispute, albeit not at the expense of its ability to fully present its case
and its fundamental right to a fair trial. Respondent readily acknowledges that the proceedings
have already been running for more than six years,⁹ but wishes to point out that, contrary to
Claimant's allegations, such delays are not Respondent's fault – Claimant voluntarily agreed to the
bifurcation of the proceedings¹⁰ and the idea of the suspension of the proceedings for the
duration of the Finnish court proceedings in fact originated with Claimant.¹¹

In sum, Respondent respectfully submits that in light of the particularities of the present
proceedings its proposed calendar adequately reconciles the need for expediency with that for
due process and should therefore be adopted by the Tribunal.

Respondent reserves its rights with respect to the proceedings, including with regards to the
Decision on Jurisdiction dated 30 November 2017.

Yours sincerely,

Cc:
Fietta International Law
Stephen Fietta
[email protected]
Jiries Saadeh
[email protected]

⁸ Claimant's letter of 10 January 2018, p. 1.
⁹ Claimant's letter of 10 January 2018, p. 3.
¹⁰ Claimant's letter of 23 February 2013.
¹¹ Claimant's letter of 30 August 2013. See also Claimant's letter of 24 September 2013.

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Laura Rees-Evans
[email protected]
Zsófia Young
[email protected]

Prof. Andrew Newcombe
[email protected]

Mr. Samuel Wordsworth
[email protected]