INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES
Mario Noriega Willars
v.
United Mexican States
(ICSID Case No. ARB/23/29)
Members of the Tribunal
Prof. Bernard Hanotiau, President of the Tribunal
Mr. Andrés Moreno Gutierrez, Arbitrator
Prof. Hélène Ruiz Fabri, Arbitrator
Secretary of the Tribunal
Ms. Jara Mínguez Almeida
Assistant to the President
Mr. Juan Camilo Jiménez-Valencia
22 July 2024
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The first session of the Tribunal was held on 18 July 2024, at 10:00 a.m. Washington D.C. time, by video conference via Zoom. The session was adjourned at 10:38 am at Washington, D.C. time.
A recording of the session was made and deposited in the archives of ICSID. The recording was distributed to the Members of the Tribunal and the Parties.
Participating in the conference were:
Members of the Tribunal:
Prof. Bernard Hanotiau, President of the Tribunal
Prof. Hélène Ruiz Fabri, Arbitrator
Mr. Andrés Moreno, Arbitrator
ICSID Secretariat:
Ms. Jara Mínguez Almeida, Secretary of the Tribunal
Assistant to the President:
Juan Camilo Jiménez-Valencia
On behalf of the Claimant:
Richard C. Lorenzo, Hogan Lovells US LLP
Juliana de Valdenebro Garrido, Hogan Lovells US LLP
Eduardo Lobatón Guzmán, Hogan Lovells US LLP
On behalf of the Respondent:
Alan Bonfiglio Ríos, Secretaría de Economía
Geovanni Hernández Salvador, Secretaría de Economía
Rafael Rodríguez Maldonado, Secretaría de Economía
Jesús Alberto Galván Madrigal, Secretaría de Economía
Alejandro Rebollo Ornelas, Secretaría de Economía
Ellionehit Sabrina Alvarado Sánchez, Secretaria de Economía
Erin Mireille Castro Cruz, Secretaría de Economía
Sergio Alonso Patiño Reyes, Secretaría de Economía
Rosa María Baltazares Gómez, Secretaría de Economía
Stephan E. Becker, Pillsbury Winthrop Shaw Pittman LLP
Gary J. Shaw, Pillsbury Winthrop Shaw Pittman LLP
The Tribunal and the Parties considered the following:
- The Draft Procedural Orders No. 1 and No. 2 circulated by the Tribunal Secretary on 20 June 2024; and
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- The Parties' comments on the Draft Procedural Orders received on 15 July 2024, indicating the items on which they agreed and their respective positions regarding the items on which they did not agree.
Having considered the above documents and the Parties' views, the Tribunal now issues the present Order:
Order
Pursuant to ICSID Arbitration Rules 27 and 29, this Procedural Order sets out the Procedural Rules that govern this arbitration. The timetable is attached as Annex B.
Convention Article 44; Arbitration Rule 1; Article 1120(2) and 1131 of the NAFTA
1.1. These proceedings are conducted in accordance with the ICSID Arbitration Rules in force as of 1 July 2022, except to the extent that they are modified by Section B, Chapter 11 of the NAFTA.
Arbitration Rule 21; Article 1123 of the NAFTA
2.1. The Tribunal was constituted on 14 June 2024, in accordance with the ICSID Convention and the ICSID Arbitration Rules. The Parties confirmed that the Tribunal was properly constituted and that no Party has any objection to the appointment of any Member of the Tribunal.
2.2. The Members of the Tribunal timely submitted their signed declarations in accordance with ICSID Arbitration Rule 19(3)(b). Copies of these declarations were distributed to the Parties by the ICSID Secretariat upon acceptance of each arbitrator's appointment on 26 July 2023, 16 October 2023, and 14 June 2024.
2.3. The Members of the Tribunal confirmed that they have sufficient availability during the next 24 months to dedicate to this case and that they will use best efforts to meet all time limits for orders, decisions and the Award, in accordance with ICSID Arbitration Rule 12(1).
Convention Article 60; Administrative and Financial Regulation 14; ICSID Schedule of Fees; Memorandum on Fees and Expenses
3.1. The fees and expenses of each Tribunal Member shall be determined and paid in accordance with the ICSID Schedule of Fees and the Memorandum on Fees and Expenses in force at the time the fees and expenses are incurred.
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3.2. Each Tribunal Member shall submit his/her claims for fees and expenses to the ICSID Scretariat on a quarterly basis.
3.3. Non-refundable expenses incurred in connection with a hearing as a result of a postponement or cancellation of the hearing shall be reimbursed.
3.4. The Parties shall cover the direct costs of the proceeding in equal parts, without prejudice to the final decision of the Tribunal as to the allocation of costs.
Arbitration Rule 33
4.1. The participation of all the members of the Tribunal by any appropriate means of communications is required at the first session, case management conferences, hearings and deliberations.
Convention Article 48(1); Arbitration Rules 10, 11(4), 12, 27 and 35
5.1. Decisions of the Tribunal shall be taken by a majority of the Members of the Tribunal.
5.2. Orders, decisions and the Award may be made by any appropriate means of communication.
5.3. Orders, decisions and the Award may be signed electronically.
5.4. The President is authorized to sign procedural orders and decisions on behalf of the Tribunal.
5.5. When the matter is urgent, the President may decide procedural matters without consulting the other Members, subject to possible reconsideration of such decision by the full Tribunal.
5.6. The Tribunal's orders and decisions shall indicate the reasons upon which they are made and shall be issued after hearing the Parties. The reasons may be minimal for non-controversial or minor procedural, administrative and organizational matters, e.g., extensions of time.
5.7. The Tribunal will use best offers to issue all rulings, including the Award, within the time limits prescribed by the ICSID Arbitration Rules. If the Tribunal cannot comply with an applicable time limit, it will advise the Parties of the special
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circumstances justifying the delay and the date when it anticipates rendering the ruling, in accordance with ICSID Arbitration Rule 12(2).
5.8. Any ruling of the Tribunal, including the certified copy of the Award, will be dispatched electronically to the Parties. The certified copy of the Award will be dispatched electronically to the Parties and sent via courier to the address designated by each Party.
Arbitration Rules 10 and 11
6.1. The President may exercise the Tribunal's power to fix and extend time limits for the completion of each procedural step in the proceeding under Arbitration Rules 10(1) and 11(3), in accordance with Arbitration Rules 10(3) and 11(4).
6.2. In exercising the power to fix time limits under Arbitration Rule 10(1), the President shall consult with the Parties as far as possible. If the matter is urgent, the President may fix time limits without consulting the Parties, subject to possible reconsideration of such decision by the full Tribunal.
6.3. Short extensions of time may be agreed between the Parties as long as (i) they do not materially affect the overall schedule of the procedure as set out in the procedural schedule established in Annex B (the “Procedural Schedule”) and (ii) the Tribunal is informed.
Administrative and Financial Regulation 28
7.1. The Tribunal Secretary is Ms. Jara Mínguez Almeida, Team Leader / Senior Legal Counsel, ICSID, or such other person as ICSID may notify the Tribunal and the Parties from time to time.
7.2. To send copies of communications by email, mail, and courier/parcel deliveries to the ICSID Secretariat, the contact details are:
Ms. Jara Mínguez Almeida
ICSID
MSN C3-300
1818 H Street, N.W.
Washington, D.C. 20433
U.S.A.
Tel.: + 1 (202) 458-0831
Fax: + 1 (202) 522-2615
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Email: [email protected]
Paralegal name: Paulina Alvarado
Paralegal email: [email protected]
ICSID case address: ARB/23/[email protected]
7.3. For local messenger deliveries, the contact details are:
Ms. Jara Mínguez Almeida
ICSID
1225 Connecticut Ave. N.W.
(World Bank C Building)
3rd Floor
Washington, D.C. 20036
U.S.A.
Tel.: +1 (202) 458-1534
8.1. By letter of 20 June 2024 the President explained to the Parties that he considered that it would benefit the overall cost and time efficiency of the proceedings if the President had an assistant. The President proposed, with the approval of the other members of the Tribunal, that Mr. Juan Camilo Jiménez be appointed as assistant to the President. Mr. Jiménez's curriculum vitae was distributed to the Parties.
8.2. The President further explained that the assistant would (i) undertake only such specific tasks as are assigned to him by the President, such as the marshaling of evidence, research of specific issues of law and organization of case documents; (ii) assist the Tribunal during its deliberations; and (iii) be subject to the same confidentiality obligations as the Members of the Tribunal and sign a declaration to that effect. The assistant will not make decisions on any factual or legal aspects of the case.
8.3. The Parties consented to the appointment of Mr. Juan Camilo Jiménez as Assistant to the President on the terms set out in ICSID’s letter of 20 June 2024.
8.4. The President's Assistant will be subject to the same confidentiality, independence, and impartiality obligations as those applicable to the Tribunal. The Parties received the Assistant's declaration of independence and impartiality on 18 July 2024.
8.5. The Parties also agreed that the Assistant would be reimbursed for expenses as described in the Secretariat's letter of 20 June 2024. In particular, the Assistant's compensation in relation to his participation in the proceedings will be covered by the President of the Tribunal, and he will be reimbursed for expenses incurred in
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relation to his participation in the proceedings, as described in the Secretariat's letter of 20 June 2024.
Arbitration Rule 2
9.1. Each Party shall be represented by its counsel (below) and may designate additional agents, counsel, or advocates by notifying the Tribunal and the Tribunal Secretary promptly of such designation.
|
For the Claimant Mr. Richard C. Lorenzo |
For the Respondent Mr. Alan Bonfiglio Ríos Mr. Stephan E. Becker |
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[email protected];
[email protected];
[email protected]
[email protected];
[email protected];
[email protected];
[email protected];
[email protected];
[email protected];
[email protected]
9.2. Following the date of the signing of this Procedural Order, any modification or addition that the Parties intend to make regarding the aforementioned legal representatives shall be promptly communicated in writing to the other Party, the Tribunal, the President's Assistant and the Tribunal Secretary. Any modification or addition shall only take effect in the arbitration upon approval by the Tribunal. The Tribunal may deny approval of any modification or addition related to the parties' representatives if such change or modification would compromise the composition of the Tribunal or the finality of any decision, ruling, or award (based on a potential conflict or other impediment)..
Convention Article 61(2); Administrative and Financial Regulation 15; Arbitration Rule 50
10.1. The Parties shall cover the direct costs of the proceeding in equal parts, without prejudice to the final decision of the Tribunal as to the allocation of costs.
10.2. Following registration of the Request for arbitration, by letter of 3 August 2023, ICSID informed the Parties that US$ 150,000 would be necessary to cover the estimated costs of the initial phase of the proceeding through the first session of the Tribunal and requested that the Claimant pay US$ 150,000. ICSID received the Claimant's payment on 16 October 2023. Upon the constitution of the Tribunal, by letter of 17 June 2024, ICSID requested that the Respondent pay US$150,000. During the first session, the Respondent indicated that it expected the payment to be made by the end of July 2024.
10.3. ICSID shall request further advances as needed. Such requests shall be accompanied by a detailed interim statement of account.
10.4. After the Award has been made, the ICSID Secretariat will send the Parties a financial statement detailing the deposits received and will reimburse any balance that has not been used to the Parties.
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Convention Articles 62 and 63; Arbitration Rule 32; Article 1130 of the NAFTA
11.1. Washington, D.C., shall be the place of the proceeding.
11.2. The Tribunal may hold in-person hearings at any other place that it considers appropriate after consultation with the Parties. The method of holding a hearing will be determined in accordance with §22.2.
11.3. The Tribunal members may deliberate at any place and by any appropriate means they consider convenient.
11.4. The Award shall be deemed to be made at the place of the arbitration, regardless of where it is signed.
Administrative and Financial Regulation 32; Arbitration Rule 7
12.1. English and Spanish are the procedural languages of the arbitration.
For Documents and Communications
12.2. The Tribunal and the Secretariat may communicate in either procedural language.
12.3. Routine, administrative, or procedural correspondence addressed to or sent by the ICSID Secretariat by itself or on behalf of the Tribunal may be submitted in either procedural language without the need to translate the communications into the other language.
12.4. Any written requests or applications from the Parties may be filed in either procedural language, provided that a translation of such document to the other procedural language is filed within 7 calendar days thereafter. Where the matter is urgent, a translation shall be provided simultaneously.
12.5. Pleadings, expert opinions, witness statements, and any other supporting documents shall be filed in either procedural language, provided that a translation of such document to the other procedural language is filed within 25 days thereafter. This does not apply to annexes or appendixes derived from pleadings, witness statements and expert opinion unless the Tribunal requires that a Party translate specific documentation in whole or in part. If there is any inconsistency between the original document and the courtesy translation, the text of the document drafted in the original language will prevail over the courtesy translation.
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12.6. It is sufficient to translate only the relevant part of a supporting document, unless the Tribunal requires a fuller or a complete translation.
12.7. Any document in a language other than those used in the arbitration proceedings, shall be accompanied by a translation into either procedural language, unless the Tribunal orders translation into both procedural languages.
12.8. Translations need not be certified, unless the translation is disputed and the Tribunal orders a Party to provide a certified translation.
12.9. Documents exchanged between the Parties pursuant to §16 below (Production of Documents) may be produced in the original language and need not be translated by the Party producing them.
For Hearing
12.10. The Parties will notify the Tribunal 4 weeks before the hearing, and no later than at the pre-hearing organizational meeting (see §20 below), which witnesses or experts require interpretation.
12.11. All hearings and meetings between the Parties and the Tribunal will be conducted in Spanish and English with simultaneous interpretation from and into each procedural language.
12.12. The testimony of a witness called for examination during the hearing who prefers to give evidence other than in English or Spanish shall be interpreted simultaneously into English and Spanish, unless the Tribunal orders otherwise.
12.13. The costs of interpretation will be paid from the advance payments made by the Parties, without prejudice to the decision of the Tribunal as to which Party shall ultimately bear those costs.
For Tribunal's Documents Except the Award
12.14. The Tribunal may initially make any procedural order or decision in English or Spanish and subsequently shall issue that procedural order or decision in the other procedural language. Both versions of the procedural order or decision shall be equally authentic.
For Tribunal's Award
12.15. The Tribunal shall render the award in English and Spanish simultaneously. Both language versions shall be equally authentic.
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Arbitration Rule 6
13.1. The ICSID Secretariat shall be the channel of written communications between the Parties and the Tribunal and the Assistant.
13.2. Each Party's written communications shall be transmitted by email or other electronic means to the opposing Party and to the Tribunal Secretary, who shall send them to the Tribunal and the Assistant.
13.3. Electronic versions of communications ordered by the Tribunal to be filed simultaneously shall be transmitted to the Tribunal Secretary only, who shall send them to the opposing Party and the Tribunal and the Assistant.
13.4. The Tribunal Secretary or the Assistant shall not be copied on direct communications between the Parties when such communications are not intended to be transmitted to the Tribunal.
13.5. The Parties and their representatives shall not engage in any oral or written communications with any Member of the Tribunal ex parte.
Arbitration Rules 4, 5 and 9
14.1. By the relevant filing date, the Parties shall:
14.1.1. submit by email to the Tribunal Secretary and the opposing Party an electronic version of the pleading with witness statements, expert reports and an index of all supporting documentation¹ submitted with the pleading but without supporting exhibits or legal authorities (“Email Filing”);² and
14.1.2. By the end of the third (3) business day following the Email Filing referred above, the Parties shall upload the pleading with all the supporting documentation and the index to the file sharing platform that has been created by ICSID for purposes of this case.³
¹ The index of supporting documentation will be updated with each filing and submitted with the Email Filing, and the same document will be uploaded to Box. At the end of the case, there should be an index from each side that lists all supporting documentation divided by filing.
² Please note that the World Bank server does not accept emails larger than 25 MB.
³ Supporting documentation shall be uploaded as individual files, not in .zip format.
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For the avoidance of doubt, the electronic filing process indicated in this subparagraph is applicable both to the original language submission and to any subsequent translations agreed by the Parties.
14.2. Within 7 calendar days following the electronic filing, the Parties shall courier the following at the addresses indicated at §14.8 below:
14.2.1. One hard copy in A5 format of the pleading (double-sided), witness statements and expert reports, and the (updated) index to Professor Bernard Hanotiau and Professor Ruiz Fabri;
14.2.2. one USB drive with a full copy of the entire submission, including the pleading, witness statements, expert reports, exhibits, legal authorities and the (updated) index of all the supporting documentation to Professor Bernard Hanotiau and Mr. Andrés Moreno Gutierrez.
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14.3. Electronic files of pleadings, witness statements, expert reports, exhibits and legal authorities shall be text searchable (i.e., OCR PDF or Word). Any spreadsheet or excel table shall be editable and all formulae visible; data used in the creation of spreadsheets and tables should indicate its source.
14.4. All pleadings shall contain consecutively numbered paragraphs and shall be accompanied by a cumulative index of all the supporting documentation that the Party has submitted up to the date of the pleading. The index shall indicate the document number, the pleading with which it was submitted, the language of the document, and shall follow the naming conventions contained in Annex A.
14.5. At the conclusion of the written phase of the proceeding, on a date to be determined by the Tribunal, or at any other time the Tribunal or the Secretariat so requests, the Parties shall upload to the file sharing platform, in a format that can be readily downloaded, an electronic copy of the entire case file (including pleadings, witness statements, expert reports, exhibits, legal authorities and Tribunal decisions and orders to date) with a consolidated hyperlinked index of all documents.⁴ The Parties shall also courier to each Member of the Tribunal at the addresses indicated at §14.8 below, a USB drive (PC and MAC compatible) containing an electronic copy of the entire case file with a consolidated hyperlinked index of all documents.
⁴ To ensure the full operation of the hyperlinked index, the entire folder 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 folder to a designated sub-folder on to the BOX filesharing platform, in a sub-folder and including a consolidated (non-hyperlinked) index.
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14.6. The official date of receipt of a pleading or written communication shall be the day on which the electronic file is sent to the Tribunal Secretary by email.
14.7. A filing shall be deemed timely if sent by a Party by midnight, Mexico City time, on the relevant date. If a filing falls on a Saturday or Sunday, the relevant date is the subsequent business day.
14.8. The addresses of the Members of the Tribunal are:
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Prof. Bernard Hanotiau |
Mr. Andrés Moreno |
Professor Hélène Ruiz |
Arbitration Rule 30
15.1. The arbitration shall proceed in accordance with the Procedural Schedule, except if the Tribunal, upon a showing of good cause by either Party or on its own initiative, or by mutual agreement of the Parties, decides to amend the timetable.
15.2. Any written submission shall be submitted in accordance with ICSID Arbitration Rule 30.
15.3. At or after the closure of any hearing on jurisdiction or on the merits, the Tribunal shall, in consultation with the Parties, determine the content, number, sequence and timing of the Post-Hearing Briefs. The Tribunal may limit the scope and/or length of the Post-Hearing Briefs, and may submit to the Parties a list of questions to be addressed in them. Post-Hearing Briefs shall be limited to matters of fact and law presented in the submission(s) and at the hearing(s), and may not contain new allegations of fact or arguments of law. No evidence may be submitted with Post-Hearing Briefs, unless authorized by the Tribunal.
Convention Article 43(a); Arbitration Rules 5 and 36-40
16.1. The Parties shall follow Articles 3.3, 9.2 and 9.3 of the International Bar Association's Rules on the Taking of Evidence in International Arbitration 2020 in
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making their respective document requests and objections to the other Party's request.
16.2. Within the time limit set in Annex B, each Party may request from the other Party the production of a reasonable number of documents or categories of documents within the other Party's possession, custody or control. Such a request for production shall identify each document or narrow category of documents sought with precision, in the form of a Redfern Schedule as attached in Annex C hereto, in both Word and .pdf format, specifying why the document sought is relevant to the dispute and material to the outcome of the case. Such a request shall not be copied to the Tribunal, the Secretary of the Tribunal or the Assistant.
16.3. Within the time limit set forth in Annex B, the other Party shall either produce the requested documents or, using the Redfern Schedule provided by the first Party, submit its reasons for its failure or refusal to produce responsive documents (objections).
16.4. Within the time limit set forth in Annex B, the requesting Party may seek an order for the production of the documents requested sought and not produced, in which case it shall reply to the other Party's objections in that same Redfern Schedule. At the same time, it shall submit the Word and .pdf copies of the Redfern Schedule to the Tribunal.
16.5. The Parties shall make no submissions in respect of the steps set out in §§ 16.1 to 16.4 above other than those incorporated in the Redfern Schedules.
16.6. On or around the date set forth in Annex B, the Tribunal will, at its discretion, rule upon the production of the documents or categories of documents having regard to the legitimate interests of the Parties and all the relevant circumstances, including applicable privileges and if appropriate the burden of proof.
16.7. The Tribunal may for this purpose refer to the IBA Rules on the Taking of Evidence in International Arbitration 2020 in regard to matters concerning the gathering or taking of evidence, that are not otherwise covered by this procedural order, the Arbitration Rules or NAFTA Chapter 11. Documents ordered by the Tribunal to be disclosed shall be produced within the time limit set forth in the procedural calendar.
16.8. Documents which the Tribunal orders to be produced shall be communicated directly to the requesting Party without copying the Tribunal. Documents so communicated shall not be considered to be on record unless and until a Party subsequently files them as exhibits in accordance with § 17 below.
16.9. In addition, the Tribunal may order a Party to produce documents on its own initiative at any time. In that case, the documents shall be submitted to the other
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Party and to the Tribunal in accordance with § 17 below and shall be considered to be on record.
16.10. If a Party fails to produce documents ordered by the Tribunal, the Tribunal may deem, in light of all circumstances including the reasons advanced by a Party to explain its inability to produce any given document, that the document is adverse to the interests of that Party.
Convention Article 44; Arbitration Rule 5
17.1. The Memorial and Counter-Memorial shall be accompanied by the documentary evidence relied upon by the Parties, including exhibits and legal authorities. Further documentary evidence relied upon by the Parties in rebuttal shall be submitted with the Reply and Rejoinder.
17.2. The documents shall be submitted in the manner and form set forth in §14, above.
17.3. Neither Party shall be permitted to submit additional or responsive documents after the filing of its respective last written submission, unless the Tribunal determines that special circumstances exist based on a timely and reasoned written application followed by observations from the other Party.
17.3.1. 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.
17.3.2. If the Tribunal grants such an application for submission of an additional or responsive document, the Tribunal shall ensure that the other Party is afforded sufficient opportunity to make its observations concerning such document.
17.4. The Tribunal may call upon the Parties to produce documents or other evidence in accordance with ICSID Arbitration Rule 36(3).
17.5. Documents shall be submitted in the following form:
17.5.1. The number of each Exhibit containing a document produced by Claimant shall be preceded by the letter “C-” for factual exhibits and “CL-” for legal exhibits containing authorities etc. The number for each Exhibit containing a document produced by Respondent shall be preceded by the letter “R-” for factual exhibits and “RL-” for legal exhibits containing authorities etc.
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17.5.2. Exhibits and legal authorities shall be numbered consecutively throughout these proceedings, commencing with “C-0001” and “R-0001,” and “CL-001” and “RL-001” respectively. The numbering shall also indicate the language of the document e.g. C-0001-ENG for a document submitted only in English, C-0001-SPA for a document submitted only in Spanish and C-0001-ENG/SPA for a document submitted simultaneously in English and Spanish. The number of the exhibit or legal authority shall appear on the first page of the document, and shall be incorporated into the file name in accordance with §17.5.4.
17.5.3. A Party may produce several documents relating to the same subject matter within one Exhibit, numbering each page of such Exhibit separately and consecutively.
17.5.4. Electronic files and the accompanying indexes shall follow the naming conventions contained in Annex A.
17.6. Copies of documentary evidence shall be assumed to be authentic unless specifically objected to by a Party, in which case the Tribunal will determine whether authentication is necessary.
17.7. The Parties shall file all documents only once by submitting them with their pleadings. Documents need not be resubmitted with witness statements even if referred to in such statements.
17.8. The Parties may use PowerPoint slides and demonstrative exhibits (such as charts, tabulations, etc. compiling information which is on record but not presented in such form), provided that they (i) identify the source in the record from which the information is derived, (ii) do not contain information not in the record.
17.9. An electronic copy of each demonstrative exhibit, including PowerPoint slides, shall be distributed by the Party intending to use it via an electronic mail sent to the entire case email distribution for each Party, the Members of the Tribunals, the Tribunal Secretary, the Assistant, to the court reporter and to the interpreters as necessary necessary at least one hour prior to the use of the electronic exhibit.
17.10. In addition, promptly after the conclusion of the hearing day on which the corresponding demonstrative exhibit is used, the Parties shall upload such demonstrative to the case folder in the BOX filesharing platform, designating each with the corresponding CD-__ or RD-__ number.
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Convention Article 43(a); Arbitration Rule 38
18.1. Witness statements and expert reports shall be filed together with the Parties' pleadings. The witness statements and expert reports shall be numbered independently from other documents and properly identified. If a party submits two witness statements by the same witness, the subsequent witness statement shall be identified as "Second".
18.2. Neither Party shall be permitted to submit any testimony that has not been filed with the written submissions, unless the Tribunal determines that special circumstances exist based on a reasoned written request followed by observations from the other Party (following the procedure outlined in §0).
18.3. Each witness statement and expert report shall be signed and dated by the witnessand include:
18.3.1. A disclosure statement detailing any past and present relations of the witness with any party, counsel or Member of the Tribunal;
18.3.2. A description of the witness' position and qualifications, if relevant;
18.3.3. A full and detailed description of the facts, and the source of the witness's information as to those facts, sufficient to serve as that witness's evidence in the matter in dispute;
18.3.4. Any documents on which the witness relies that have not already been submitted (which shall be submitted with sequential numbering as documents);
18.3.5. A statement as to the language in which the witness statement was originally prepared and the language in which the witness anticipates giving testimony at the hearing;
18.3.6. A declaration regarding whether the witness received any form of compensation for his or her testimony; and
18.3.7. An affirmation of the truth of the witness statement.
18.4. Witness Statements shall have consecutive numbering on pages, headings and paragraphs.
18.5. It shall be proper for a Party, its officers, employees, legal advisors or other representatives to interview its witnesses or potential witnesses and to discuss their prospective testimony with them.
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18.6. Expert reports shall be dated and signed by the expert or experts and contain:
18.6.1. The full name of the expert;
18.6.2. A disclosure statement detailing any past and present relations of the expert with any party, counsel or Member of the Tribunal;
18.6.3. A brief description of the expert's qualifications;
18.6.4. A brief description of the instructions pursuant to which the expert is providing his or her opinions and conclusions;
18.6.5. A statement of the expert's independence from the parties, their legal advisors and the Tribunal;
18.6.6. A statement of the facts on which the expert is basing his or her expert opinions and conclusions;
18.6.7. An executive summary of the expert's main findings;
18.6.8. The expert's expert opinions and conclusions, including a description of the methods, evidence and information used in arriving at the conclusions;
18.6.9. The documents relied on by the expert in the preparation of his or her report, which shall be provided as annexes to the report (which may have their own sequential numbering); any spreadsheet or table shall be editable and all formulae visible; data used in the creation of spreadsheets and tables should indicate its source;
18.6.10. An affirmation of the expert's genuine belief in the opinions expressed in the report.
18.7. Expert reports shall have consecutive numbering of pages, headings and paragraphs, as well as a detailed table of contents.
Arbitration Rule 38
19.1. Before the hearing and with the time limit to be set by the Tribunal, a Party may be called upon by the opposing Party to produce at the hearing for cross examination any factual or expert witness whose written testimony has been advanced with the Pleadings. Only one fact witness for each Party may be designated as a Party representative. There is no limit on Party representatives who are not fact witnesses. Each Party shall be responsible for securing the appearance of its own witnesses at the hearing.
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19.2. A Party shall notify the opposing Party which witnesses and experts it intends to call for cross-examination on the date specified in the Procedural Schedule. Shortly after the Parties' notifications, the Tribunal will indicate which witnesses or experts, not called by the Parties, it wishes to question, if any.
19.3. The Tribunal may disregard the testimony of a witness or expert called to testify at the hearing who fails to appear at the hearing without justified reasons. Examination by video-conference may be permitted by agreement of the parties, or in absence of the agreement of the parties, at the discretion of the Tribunal.
19.4. The failure to cross-examine a witness or an expert or the partial cross-examination of a witness or an expert shall not imply an acceptance of the content of the corresponding witness statement or expert report. Each Party remains free to challenge the content of the witness statement or expert report by all available means of evidence and the Tribunal remains free to assess the probative value of the witness statement or expert report in its discretion.
19.5. Witnesses and experts shall be examined by each Party under the control of the Tribunal. The Tribunal may examine the witness or expert at any time during the hearing. Witness and experts shall make a declaration of truthfulness.
19.6. Direct examination is given in the form of witness statements and expert reports. However, the Party presenting the witness may conduct a brief direct examination at the hearing. Experts may summarize their reports and findings, either through direct examination or in the form of a brief presentation. In lieu of direct examination, an expert may present his or her report to the Tribunal (potentially aided by a PowerPoint presentation), for the maximum time determined by the Tribunal before the hearing. Any witness or expert called for direct examination may be cross-examined by the other Party and questioned by the Tribunal.
19.7. As a general rule the scope of cross-examination will be limited to the contents of the witness statement or expert report. Re-direct examination shall as a general rule be limited to the subject of cross-examination. At the request of any Party and for good cause, the Tribunal may expand the scope of the cross-examination or the re-direct examination.
19.8. The Tribunal may, after consultation with the Parties, request that witnesses or experts be examined jointly by the Members of the Tribunal during the hearing.
19.9. With the exception of fact witnesses also designated as Party representatives, witnesses shall be allowed in the hearing room after having given their oral evidence. Experts shall be allowed in the hearing room, and shall be permitted access to the hearing transcripts, at any time.
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19.10. Prior to their examination, witnesses shall not be present in the hearing, discuss the examination of any other witness who has already appeared before the Tribunal, read any transcript of oral arguments or oral testimony or listen to or watch any audio or video recording of the oral arguments or of the oral testimony.
19.11. A fact witness, who is not a Party representative, shall not be present in the hearing room during oral testimony and arguments, or read any transcript of any oral testimony or argument, or listen to or watch any audio or video recording of the oral arguments or oral testimony, prior to his or her examination. A fact witness who is a party representative shall be examined first.
Arbitration Rule 31
20.1. A pre-hearing organizational meeting shall be held at a date determined by the Tribunal after consultation with the Parties. It shall comprise a teleconference or videoconference between the Tribunal, or its President, and the Parties and should address any outstanding procedural, administrative, and logistical matters (including modality of interpretation and transcription) in preparation for the hearing.
20.2. At a date to be determined by the Tribunal, and in any event no later than the date of the pre-hearing conference, the Parties shall submit to the Tribunal jointly – or, where they are unable to agree, separately – a proposal regarding a daily schedule for the hearing. Following the pre-hearing organizational meeting, a procedural order will be issued by the Tribunal reflecting the decisions made in preparation for the hearing.
Arbitration Rule 31
21.1. The Tribunal may convene case management conferences with the Parties in accordance with ICSID Arbitration Rule 31 in order to (i) put in place a process to identify uncontested facts (e.g., through the submission of a joint chronology of facts); (ii) clarify and narrow the issues in dispute (e.g., by addressing tribunal questions, or submitting a decision tree, road map, matrix(es) and/or skeleton arguments); or (iii) address any other procedural or substantive issue related to the resolution of the dispute (e.g., the appointment of a Tribunal-appointed expert, or the production of evidence).
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Arbitration Rule 32
22.1. The oral procedure shall consist of a hearing for examination of witnesses and experts, if any, and for oral arguments.
22.2. The hearing may be held in-person or by any other means of communication as determined by the Tribunal after consultation with the Parties. An in-person hearing shall be held at a place to be determined in accordance with §11 above.
22.3. Having due regard to the views of the Parties and the specific circumstances of the case, the Tribunal may decide to hold a hearing remotely or in a hybrid form.
22.4. The hearing shall take place on the dates set forth in Annex B, or as otherwise confirmed by the tribunal having due regard to the views of the parties.
22.5. The Members of the Tribunal shall reserve at least one day after the hearing to determine the next steps and to hold deliberations.
22.6. Allocation of time and other procedural issues related to the hearing will be discussed by the parties and the Tribunal during the pre-hearing conference call.
22.7. Hearings shall be closed to the public. Provisions shall be made for representatives of the other NAFTA Parties to attend the hearing upon request.
22.8. At a date to be determined by the Tribunal, and in any event no later than two weeks prior to the hearing, the parties shall submit to the Tribunal jointly – or, where they are unable to agree, separately:
22.8.1. A chronology of relevant facts in tabular form;
22.8.2. A list and brief description of the individuals and entities who/which are part of the relevant factual background (“dramatis personae"); and
22.8.3. A list of the substantive issues required to be determined by the Tribunal.
Arbitration Rule 29(4)(i)
23.1. Recordings shall be made of all hearings and sessions. The recordings shall be provided to the Parties and the Tribunal Members.
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23.2. 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 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.
23.3. The Parties shall agree on any corrections to the transcripts within 45 days of the later of the dates of the receipt of the sound recordings and transcripts. The agreed corrections may be entered by the court reporter 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.
Convention Article 44; Arbitration Rules 51
24.1. In consultation with the Parties, the Tribunal will determine at or after the closure of any hearing on jurisdiction or on the merits, the content, number, sequence and timing of the Post-Hearing Briefs. The Tribunal may limit the scope and/or length of the Post-Hearing Briefs, and may submit to the Parties a list of questions to be addressed in them. Post-Hearing Briefs shall be limited to matters of fact and law presented in the submission(s) and at the hearing(s), and may not contain new allegations of fact or arguments of law. No evidence may be submitted with Post-Hearing Briefs, unless authorized by the Tribunal.
24.2. The Tribunal will issue directions on the Parties' statements of costs at the end of the hearing.
Convention Article 48(5), Arbitration Rules 62-66, FTC Note of Interpretation of 31 July 2001, Section A: Access to Documents
25.1. The Parties agree that the transparency regime governing these proceedings is dealt with in Procedural Order No. 2.
26.1. The Members of the Tribunal, the Parties and their representatives acknowledge that the processing of their personal data is necessary for the purposes of this arbitration proceeding.
26.2. The Members of the Tribunal, the Parties and their representatives agree to comply with all applicable data protection and privacy regulations, including providing
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appropriate notice to data subjects whose personal data will be processed in the arbitration proceeding, where necessary. Should compliance with applicable law require action from another participant in the arbitration proceeding, the Parties are invited to bring that to the attention of that other participant and/or to apply to the Tribunal for specific data protection measures to be put in place.
26.3. The Parties and their representatives shall ensure that the storage and exchange of the personal data processed in this arbitration is protected by way of appropriate technical and organizational safeguards.
27.1. The Tribunal notes that the Parties may seek to reach an amicable settlement of all or part of the dispute, including through mediation under the ICSID Mediation Rules, at any time in the proceeding. If the Parties settle the dispute in full, they may request that the Tribunal record their settlement in its Award, pursuant to ICSID Arbitration Rule 55(2). Any agreement pursuant to ICSID Arbitration Rule 54(1), made in order to pursue amicable settlement discussions, should be communicated to the Tribunal.
NAFTA Articles 1127, 1128 and 1129
28.1. Non-Disputing NAFTA Parties may make submissions to the Tribunal within the meaning of NAFTA Article 1128 by the date indicated in the Procedural Timetable.
28.2. Pursuant to NAFTA Articles 1127, 1128 and 1129, Non-Disputing NAFTA Parties may attend oral hearings and are entitled to receive a copy of confidential versions of transcripts, written submissions and exhibits, including witness statements and expert reports. Non-Disputing NAFTA Parties shall be made aware of any confidentially measures, and pursuant to Article 1129 of the NAFTA, shall treat all information received from the Respondent as if they were a disputing party, notably in respect of protection of confidential information.
28.3. The Disputing Parties shall have the opportunity to comment on any Article 1128 submission only by the date set forth in Procedural Schedule.
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FTC Statement on Non-Disputing Party Participation dated 7 October 2003; Arbitration Rule 67
29.1. If a request for the submission of an amicus curiae brief is filed by the date indicated in Annex B, the Tribunal will give the appropriate directions in the exercise of its powers under Arbitration Rule 67 and take into consideration the recommendation of the North American Free Trade Commission on Non-Disputing Party participation of 7 October 2003.
29.2. By the relevant dates indicated in Annex B, the Disputing Parties shall have the opportunity to: (1) make submissions on any request for the submission of an amicus curiae brief; and (2) file simultaneous observations on issues raised in any amicus curiae brief submitted pursuant to a decision of the Tribunal.
29.3. If either Party intends to rely at any hearing on a document referenced in an amicus curiae submission which is not already part of the record, that party must notify the other Party and the Tribunal at least 10 days in advance of the intended use. The notice shall specify the reference number to be given to the document. If the notice is provided by email, an electronic copy of the relevant document shall be attached to the email, and a hard copy of the document shall be submitted in advance of its use at the hearing.
On behalf of the Tribunal,
[signed]
Prof. Bernard Hanotiau
President of the Tribunal
Date: 22 July 2024
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Please follow these guidelines when naming electronic files and for the accompanying Consolidated Hyperlinked Index. The examples provided (in italics) are for demonstration purposes only and should be adapted to the relevant phase of the case.
All pleadings and accompanying documentation shall indicate the LANGUAGE in which they are submitted (e.g. SPA=Spanish; FR=French; ENG= English). Such indication should be reflected both i) in the name used to identify each individual electronic file and ii) in the Consolidated Hyperlinked Index (which shall be attached to each submission).
For cases with a single procedural language, the “LANGUAGE” designation may be omitted, except for documents in a language other than the procedural language and the corresponding translations.
| SUBMISSION TYPE | ELECTRONIC FILE NAMING GUIDELINES |
|---|---|
| MAIN PLEADINGS | Title of Pleading–LANGUAGE |
| Memorial on Jurisdiction-FR | |
| Counter-Memorial on the Merits and Memorial on Jurisdiction-SPA | |
| SUPPORTING DOCUMENTATION Exhibits |
Reply on Annulment-FR |
| Rejoinder on Quantum-ENG | |
| C-####-LANGUAGE | |
| R-####-LANGUAGE | |
| To be produced sequentially throughout the case. | |
| CLAIMANT'S FACTUAL EXHIBITS | |
| C-0001-ENG | |
| C-0002-SPA | |
| RESPONDENT'S FACTUAL EXHIBITS | |
| R-0001-FR | |
| R-0002-SPA | |
| CL-####-LANGUAGE | |
| RL-####-LANGUAGE | |
| To be produced sequentially throughout the case. | |
| CLAIMANT'S LEGAL AUTHORITIES | |
| CL-0001-ENG | |
| CL-0002-FR | |
| RESPONDENT'S LEGAL AUTHORITIES | |
| Legal Authorities | RL-0001-SPA |
| RL-0002-ENG | |
| Witness Statements | Witness Statement-Name of Witness-Name of Submission-LANGUAGE |
| Witness Statement-Maria Jones-Memorial on Jurisdiction-SPA | |
| Witness Statement-Maria Jones-Reply on Jurisdiction-[Second Statement]-ENG | |
| Expert Reports | Expert Report-Name of Expert-Type-Name of Submission-LANGUAGE |
| Expert Report-Lucia Smith-Valuation-Memorial on Quantum-ENG | |
| Expert Report-Lucia Smith-Valuation-Reply on Quantum-[Second Report]-ENG | |
| Legal Opinions | Legal Opinion-Name of Expert-Name of Submission-LANGUAGE |
| Legal Opinion-Tom Kaine-Counter-Memorial on the Merits-FR | |
| Legal Opinion-Tom Kaine-Rejoinder on the Merits-[Second Opinion]-FR | |
| Exhibits to Witness Statements, Expert Reports, | WITNESS/EXPERT INITIALS-### |
| For exhibits filed with the Witness Statement of [Maria Jones] MJ-0001 |
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| Legal Opinions | MJ-0002 |
| For exhibits filed with the Legal Opinion of [Tom Kaine] | |
| TK-0001 | |
| TK-0002 | |
| For exhibits filed with the Expert Report of [Lucia Smith] | |
| INDICES | LS-0001 |
| LS-0002 | |
| Consolidated Hyperlinked Index | |
| Index of Exhibits-C-#### to C-#### | |
| Index of Exhibits-C-0001 to C-0023 | |
| Index of Legal Authorities-RLA-### to RLA-### | |
| OTHER APPLICATIONS | Index of Legal Authorities-RLA-0001 to RLA-0023 |
| Name of Application–[Party]-LANGUAGE | |
| Preliminary Objections under Rule 41(5)-SPA | |
| Request for Bifurcation-ENG | |
| Request for Provisional Measures-[Respondent]-SPA | |
| Request for Production of Documents-[Claimant]-SPA | |
| Request for Stay of Enforcement-FR | |
| Request for Discontinuance-[Claimant]-ENG | |
| Post-Hearing Brief-[Claimant]-SPA | |
| Costs Submissions-[Respondent]-ENG | |
| Observations to Request for [XX]-[Claimant]-SPA |
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| Procedural Step | By | Time Interval from previous step | Date |
|---|---|---|---|
| First Session | All | July 18, 2024 | |
| Memorial | Claimant | 120 days from the First Sessions | November 15, 2024 |
| Identification of Preliminary Objections and Request for Bifurcation | Respondent | 42 days from Memorial | December 27, 2024 |
| Response to the Request for Bifurcation | Claimant | 42 days from Request for Bifurcation | February 7, 2025 |
| Decision on Bifurcation with reasons | Tribunal | 31 days from Response to the Request for Bifurcation | March 10, 2025 |
| Memorial on Jurisdiction | Respondent | 60 days from Decision on Bifurcation | May 9, 2025 |
| Counter-Memorial on Jurisdiction | Claimant | 60 days from Memorial on Jurisdiction | July 8, 2025 |
| Reply on Jurisdiction | Respondent | 30 days from Counter-Memorial | August 7, 2025 |
| Rejoinder on Jurisdiction | Claimant | 30 days from Reply | September 6, 2025 |
| Applications for leave to file non-disputing party (amicus) submissions, if any | TBD | 16 days from Rejoinder on jurisdiction | September 22, 2025 |
| Submissions under NAFTA Article 1128, if any | TBD | 16 days from Rejoinder on jurisdiction | September 22, 2025 |
| Comments on applications for leave to file non-disputing party (amicus) submissions, if any | Parties | 15 days from application for leave to file non-disputing party submissions | October 7, 2025 |
| Comments on NAFTA Article 1128 submissions | Parties | 21 days from submission of NAFTA Article 1128 | October 13, 2025 |
| Decision on applications for leave to file non-disputing party (amicus) submissions, if any | Tribunal | 15 days from comments on NAFTA Article 1128 submissions | October 28, 2025 |
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| Parties to identify witnesses and experts for cross-examination | Parties | 15 days from decision on applications for leave to file non-disputing party submissions | November 12, 2025 |
| Pre-hearing Conference | Parties and Tribunal | TBD | TBD |
| Hearing on Jurisdiction | Parties and Tribunal | TBD | Week of February 9 to 13, 2026 – exact days to be confirmed |
| Post-Hearing Submissions | Parties | TBD | TBD |
| Cost Statements | Parties | TBD | TBD |
| Procedural Step | By | Time Interval from previous step | Date |
|---|---|---|---|
| First Session | All | July 18, 2024 | |
| Memorial | Claimant | 120 days from First Session | November 15, 2024 |
| Identification of Preliminary Objections and Request for Bifurcation | Respondent | 42 days from Memorial | December 27, 2024 |
| Response to the Request for Bifurcation | Claimant | 42 days from Request for Bifurcation | February 7, 2025 |
| Decision on Bifurcation with reasons | Tribunal | 31 days from Response to Request for Bifurcation | March 10, 2025 |
| Counter-Memorial | Respondent | 120 days from Decision on Bifurcation | July 8, 2025 |
| Requests for Production of Documents | Parties | 21 days from Counter-Memorial | July 29, 2025 |
| Responses and/or Objections to Requests for Production of Documents | Parties | 14 days from Requests for Production of Documents | August 12, 2025 |
| Replies to Objections to Requests for Production of Documents | Parties | 10 days from Responses to Requests for Production of Documents | August 22, 2025 |
| Production of Documents which are not subject to Objections | Parties | 28 days from Replies to Objections | September 19, 2025 |
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| Decision on Objections to Requests for Production of Documents | Tribunal | 28 days from Replies to Objections | October 17, 2025 |
| Production of Documents ordered by Tribunal | Parties | 14 days from Decision on Objections | October 31, 2025 |
| Reply | Claimant | 87 days from Decision on Production of Documents | January 26, 2026 |
| Rejoinder | Respondent | 87 days from Reply | April 23, 2026 |
| Applications for leave to file non-disputing party (amicus) submissions, if any | TBD | 15 days from Rejoinder | May 8, 2026 |
| Submissions under NAFTA Article 1128, if any | TBD | 15 days from Rejoinder | May 8, 2026 |
| Comments on applications for leave to file non-disputing party (amicus) submissions, if any | Parties | 15 days from application for leave to file non-disputing party submissions | May 23, 2026 |
| Comments on NAFTA Article 1128 submissions | Parties | 21 days from submission of NAFTA Article 1128 | May 29, 2026 |
| Decision on applications for leave to file non-disputing party (amicus) submissions, if any | Tribunal | 17 days from on applications for leave to file non-disputing party (amicus) submissions, if any | May 25, 2026 |
| Parties to identify witnesses and experts for cross-examination | Parties | 14 days from decision on applications for leave to file non-disputing party submissions | June 8, 2026 |
| Pre-hearing Conference | Parties and Tribunal | TBD | TBD |
| Hearing | Parties and Tribunal | TBD | TBD |
| Post-Hearing Submissions | Parties | TBD | TBD |
| Cost Statements | Parties | TBD | TBD |
| Procedural Step | By | Time Interval from previous step | Date |
|---|---|---|---|
| First Session | All | July 18, 2024 |
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| Memorial | Claimant | 123 days from First Session | November 18, 2024 |
| Counter-Memorial | Respondent | 123 days from Memorial | March 21, 2025 |
| Requests for Production of Documents | Parties | 20 days from Counter-Memorial | April 10, 2025 |
| Responses and/or Objections to Requests for Production of Documents | Parties | 14 days from Requests for Production of Documents | April 24, 2025 |
| Replies to Objections to Requests for Production of Documents | Parties | 14 days from Responses | May 8, 2025 |
| Production of Documents which are not subject to Objections | Parties | 28 days from Replies to Objections | June 5, 2025 |
| Decision on Objections to Requests for Production of Documents | Tribunal | 28 days from Replies to Objections | July 3, 2025 |
| Production of Documents ordered by Tribunal | Parties | 14 days from Decision on Objections | July 17, 2025 |
| Reply | Claimant | 95 days from Decision on Production of Documents | October 6, 2025 |
| Rejoinder | Respondent | 95 days from Reply | January 9, 2026 |
| Applications for leave to file non-disputing party (amicus) submissions, if any | TBD | 14 days from Rejoinder | January 23, 2026 |
| Submissions under NAFTA Article 1128, if any | TBD | 14 days from Rejoinder | February 6, 2026 |
| Comments on applications for leave to file non-disputing party (amicus) submissions, if any | Parties | 14 days from application for leave to file non-disputing party submissions | February 20, 2026 |
| Comments on NAFTA Article 1128 submissions | Parties | 21 days from submission of NAFTA Article 1128 | February 27, 2026 |
| Decision on applications for leave to file non-disputing party (amicus) submissions, if any | Tribunal | 14 days from comments on NAFTA Article 1128 submissions | March 13, 2026 |
| Parties to identify witnesses and experts for cross-examination | Parties | 14 days from decision on applications for leave to file non-disputing party submissions | March 27, 2026 |
| Pre-hearing Conference | Parties and Tribunal | TBD | TBD |
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| Hearing | Parties and Tribunal | TBD | TBD |
| Post-Hearing Submissions | Parties | TBD | TBD |
| Cost Statements | Parties | TBD | TBD |
[Page 33]
| Document Request No. | |
|---|---|
| Identification of documents or category of documents requested | |
| Relevance and materiality according to requesting party, including reference to submissions | |
| Responses and/or Objections by disputing party to production of requested documents | |
| Reply to objections | |
| Decision of the Tribunal |