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INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES

Fernando Paiz Andrade and Anabella Schloesser de León de Paiz

v.

Republic of Honduras

(ICSID Case No. ARB/23/43)

PROCEDURAL ORDER NO. 1

Members of the Tribunal
Prof. Nicolas Angelet, President of the Tribunal
Mr. Stephen L. Drymer, Arbitrator
Prof. Brigitte Stern, Arbitrator

Secretary of the Tribunal
Ms. Gabriela González Giráldez

22 July 2024

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Introduction

The first session of the Tribunal was held on 2 July 2024, starting at 9:11AM (Tegucigalpa)/11:11AM (ET)/5:11PM (Paris, Brussels), by videoconference, via Zoom hosted by Sparq. The session was adjourned at 10:45AM (Tegucigalpa)/12:45PM (ET)/6:45PM (Paris, Brussels).

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 session were:

Members of the Tribunal:
Nicolas Angelet, President of the Tribunal
Stephen L. Drymer, Arbitrator
Brigitte Stern, Arbitrator

ICSID Secretariat:
Gabriela González Giráldez, Secretary of the Tribunal
Ivania Fernandez, Paralegal, ICSID

On behalf of the Claimants:
Silvia M. Marchili, White & Case LLP
Francisco de Rosenzweig, White & Case LLP
Estefanía San Juan, White & Case LLP
Erodita Herrera, White & Case LLP
Melissa Perez, White & Case LLP
Fernando Paiz Andrade, Claimant
David Orantes, Pacific Solar Energy, S.A. de C.V.

On behalf of the Respondent:
Manuel Antonio Díaz Galeas, Procuraduría General de la República de Honduras
Marcio Canaca Curry, Procuraduría General de la República de Honduras
María Daniella Rueda Cárcamo, Procuraduría General de la República de Honduras
Kenneth J. Figueroa, Foley Hoag LLP
Ofilio J. Mayorga, Foley Hoag LLP
Andrés F. Esteban Tovar, Foley Hoag LLP

English/Spanish Interpreters
Luis Eduardo Arango
Claudia Bishopp

Technical Support
Dale Abbott, Sparq

The Tribunal and the parties considered the following:

• The draft Procedural Orders No. 1 and 2 circulated by the Secretary of the Tribunal on 31 May 2024; and

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• The parties’ comments on the draft Procedural Orders No. 1 and 2 received on 24 June 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, including the parties’ additional comments on draft Procedural Order No. 1 and the procedural calendar received on 16 July 2024 in response to the Tribunal’s queries of 12 July 2024, 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 procedural timetable is attached as Annex B.

1. Applicable Arbitration Rules

Convention Article 44; Arbitration Rule 1; CAFTA-DR Article 10.16.5

1.1. This proceeding is conducted in accordance with the ICSID Arbitration Rules in force as of 1 July 2022; except to the extent modified and/or supplemented by the Dominican Republic-Central America-United States of America Free Trade Agreement signed on 5 August 2004 (“CAFTA-DR”), which entered into force for Honduras on 1 April 2006 and for Guatemala on 1 July 2006.

2. Constitution of the Tribunal and Declarations of the Members of the Tribunal

Arbitration Rule 21; CAFTA-DR Article 10.19

2.1. The Tribunal was constituted on 13 May 2024 in accordance with the ICSID Convention, the ICSID Arbitration Rules and CAFTA-DR. 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 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: (i) Mr. Stephen L. Drymer’s declaration and accompanying statement was transmitted to the parties on 6 October 2023 and supplemented on 11 October 2023 and 29 November 2023; (ii) Prof. Brigitte Stern’s declaration and accompanying statement was transmitted to the parties on 2 February 2024; and (iii) Prof. Nicolas Angelet’s declaration and accompanying statement was transmitted to the parties on 13 May 2024 and supplemented on 28 May 2024. The ICSID Secretariat transmitted copies of all the declarations to the parties on 13 May 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 Arbitration Rule 12(1).

2.4. The contact details of the Members of the Tribunal are:

¹ For deliveries to Prof. Angelet by post, if any, use: [Redacted]

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3. Fees and Expenses of the Members of the Tribunal

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 Member of the Tribunal 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.

3.2. In the event of cancellation or postponement of a hearing within three (3) months before the scheduled start date, the Tribunal may charge to the parties 50% of its daily sitting rate, based on an 8-hour day multiplied by the number of days reserved for the hearing. In the event of cancellation or postponement of a hearing within one (1) month before the scheduled start date, the Tribunal may charge to the parties 75% of its daily sitting rate, based on an 8-hour day multiplied by the number of days reserved for the hearing. In the event of cancellation or postponement of a hearing within three (3) days before the scheduled start date, the Tribunal may charge to the parties 100% of its daily sitting rate, based on an 8-hour day multiplied by the number of days reserved for the hearing.

4. Presence and Quorum

Arbitration Rule 33

4.1. The participation of all Members of the Tribunal by any appropriate means of communication is required at the first session, case management conferences, hearings, and deliberations, except as otherwise provided in the Arbitration Rules or unless the parties agree otherwise.

5. Rulings of the Tribunal

Convention Article 48(1); Arbitration Rules 10, 11(4), 12, 27 and 35; CAFTA-DR Article 10.20.5

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.

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5.6. The Tribunal’s orders and decisions shall indicate the reasons upon which they are made. 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 efforts to issue all rulings, including the Award, within the time limits prescribed by the ICSID Arbitration Rules and bearing in mind any applicable provision of CAFTA-DR. If the Tribunal cannot comply with an applicable time limit, it will advise the parties of the special circumstances justifying the delay and the date when it anticipates rendering the ruling, in accordance with Arbitration Rule 12(2). In the case of the Award, the Tribunal will send updates to the parties regarding the status of the ruling every three (3) months.

5.8. Any ruling of the Tribunal, including the certified copy of the Award, will be dispatched electronically to the parties.

6. Power to Fix Time Limits

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 after hearing the parties.

7. Secretary of the Tribunal

Administrative and Financial Regulation 28

7.1. The Secretary of the Tribunal is Ms. Gabriela González Giráldez, 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:

Gabriela González Giráldez
ICSID
1818 H Street, N.W.
Washington, D.C. 20433
U.S.A.
Tel.: +1 (202) 458-7601
Fax: + 1 (202) 522-2615
Email: [email protected]
Paralegal’s name: Ivania Fernandez
Paralegal’s email: [email protected]
ICSID case address: ARB/23/[email protected]

7.3. For local messenger deliveries, the contact details are:

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Gabriela González Giráldez
ICSID
1225 Connecticut Ave. N.W.
(World Bank C Building)
3^rd Floor
Washington, D.C. 20036
U.S.A.
Tel.: +1 (202) 458-1534

8. Representation of the Parties

Arbitration Rule 2

8.1. Each party shall be represented by its counsel infra and may designate additional agents, counsel, or advocates by notifying the Tribunal and the Secretary of the Tribunal promptly of such designation.

8.2. The Tribunal may refuse designation of additional agents, counsel, or advocates if the designation would create a non-waivable conflict of interest with one or more Members of the Tribunal.

9. Apportionment of Costs and Advance Payments to ICSID – Division of Advances

Convention Article 61(2); Administrative and Financial Regulation 15; Arbitration Rule 50; CAFTA-DR Article 10.26.1

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9.1. 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.

9.2. Following registration of the Request for Arbitration, by letter of 14 September 2023, ICSID informed the parties that an initial advance payment by the Claimants of USD 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 such payment from the Claimants. ICSID received the Claimants’ payment on 11 October 2023. Upon the constitution of the Tribunal, by letter of 14 May 2024, ICSID informed the parties that USD 300,000 will be necessary to cover the initial phase of the proceeding through the first session of the Tribunal, as well as the estimated costs of the subsequent phase of the proceeding, including the fees and expenses of the arbitrators and other expenses. The Claimants’ payment of 11 October 2023 satisfies their share of the amount required at this stage. ICSID requested that the Respondent pay USD 150,000. ICSID received the Respondent’s payment on 14 June 2024.

9.3. ICSID shall request further advances as needed. Such requests shall be accompanied by a detailed interim statement of account.

10. Place of Proceeding and Hearings

Convention Articles 62 and 63; Arbitration Rule 32; CAFTA-DR Article 10.20.1

10.1. The seat of ICSID in Washington, D.C. shall be the place of the proceeding.

10.2. The Tribunal may hold in-person hearings at any other place that it considers appropriate if the parties so agree. The method of holding a hearing will be determined in accordance with §23.2.

10.3. The Tribunal may deliberate at any place and by any appropriate means it considers convenient.

11. Procedural Language(s), Translation, and Interpretation

Administrative and Financial Regulation 32; Arbitration Rule 7

11.1. English and Spanish are the procedural languages of the arbitration.

For Documents and Communications

11.2. The Tribunal and the ICSID Secretariat may communicate with the parties in either procedural language.

11.3. Any document (e.g., written requests, applications, pleadings, expert reports, witness statements, or supporting documents) submitted by the parties may be filed in either procedural language. The submissions shall be made as follows:

11.3.1. Pleadings, witness statements, and expert reports or opinions (together the “Main Documents”) in either procedural language: either procedural language on the relevant filing date and a translation into English if it was filed in Spanish no later than four (4) weeks thereafter.

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11.3.2. Exhibits, legal authorities, and annexes (together the “Supporting Documents”), and the cumulative index of Supporting Documents, may be submitted in either procedural language. For the convenience of the Tribunal, any Supporting Document provided in a language other than English shall, no later than four (4) weeks after the relevant filing date, be translated into English with respect to the specific relevant part thereof. In the case of excerpts, other portions of the document shall be translated as necessary to provide proper context. In the case of disagreement, the Tribunal will decide which portions of the document shall be translated.

11.3.3. The Tribunal may also, on application by a party or on its own initiative, direct the translation of any other documents or excerpt(s) by the party producing the document. Exhibits and legal authorities in English need not be translated.

11.4. It is sufficient to translate only the relevant part of a Supporting Document, unless the Tribunal orders a party to provide a fuller or a complete translation.

11.5. Translations need not be certified, unless the translation is disputed, and the Tribunal orders a party to provide a certified translation.

11.6. The governing language of pleadings, witness statements, expert reports, and supporting documents shall be the original language of the document.

11.7. Documents in one of the procedural languages that are exchanged between the parties pursuant to §15 below (Production of Documents) may be produced in the original language and need not be translated.

For Hearings

11.8. The parties will notify the Tribunal as soon as possible, and no later than at the Pre-Hearing Organizational Meeting (see §21 below), which witnesses or experts require interpretation.

11.9. Oral pleadings in Spanish shall be interpreted simultaneously into English. At the request of either party, to be made at the latest at the Pre-Hearing Organizational Meeting (see §21), oral pleadings in English shall be interpreted simultaneously into Spanish.

11.10. The testimony of a witness who gives evidence in Spanish shall be interpreted simultaneously into English. At the request of either party, to be made at the latest at the Pre-Hearing Organizational Meeting (see §21), the testimony of a witness who gives evidence in English shall be interpreted simultaneously into Spanish. The testimony of a witness called for examination during the hearing who prefers to give evidence other than in English and Spanish shall be interpreted simultaneously into English, unless the Tribunal orders interpretation into both procedural languages.

11.11. 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

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11.12. The Tribunal may initially make any order or decision in English and subsequently issue that order or decision in Spanish. Both language versions shall be equally authentic.

For Tribunal’s Award

11.13. The Tribunal shall render the Award in English and Spanish simultaneously. Both language versions shall be equally authentic.

11.14. The Tribunal will do its best efforts to minimize any delay due to the drafting of the Award.

12. Routing of Communications

Arbitration Rule 6

12.1. The ICSID Secretariat shall be the channel of written communications between the parties and the Tribunal.

12.2. Each party’s written communications shall be transmitted by email or other electronic means to the opposing party and to the Secretary of the Tribunal, who shall send them to the Tribunal.

12.3. Electronic versions of communications ordered by the Tribunal to be filed simultaneously shall be transmitted to the Secretary of the Tribunal only, who shall send them to the opposing party and the Tribunal upon receiving all communications.

12.4. The Secretary of the Tribunal shall not be copied on direct communications between the parties when such communications are not intended to be transmitted to the Tribunal.

13. Number of Copies and Method of Filing of Parties’ Pleadings

Arbitration Rules 4, 5 and 9

13.1. By the relevant filing date, the relevant party shall:

13.1.1. Submit by email to the Secretary of the Tribunal and the opposing party an electronic version of the Main Documents (“Electronic Email Filing”);² and

13.1.2. Within three (3) business days of the Electronic Email Filing, upload the Main Documents with all Supporting Documents, and cumulative index of all Supporting Documents, as indicated in §13.3, to the file sharing platform that has been created by ICSID for purposes of this case (“Electronic Platform Filing”).³

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.

*****

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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13.2. Electronic files of pleadings, indexes, witness statements, expert reports, exhibits and legal authorities shall be text searchable, editable and unsecured (i.e., OCR PDF or Word).

13.3. All pleadings shall contain consecutively numbered paragraphs and shall be accompanied by a cumulative index of all Supporting Documents 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, and shall follow the naming conventions contained in Annex A.

13.4. 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 ICSID 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

13.5. The official date of receipt of a pleading or written communication shall be the day on which the electronic file is sent to the Secretary of the Tribunal by email.

13.6. A filing shall be deemed timely if sent by a party by 11:59 PM, Washington, D.C. time, on the relevant date. If a filing falls on a Saturday or Sunday, the relevant date is the subsequent business day.

13.7. Extensions for the submission of pleadings may be agreed between the parties or granted by the Tribunal for justifiable reasons provided that such extensions do not affect the dates fixed for any hearing or other meeting and that the request for an extension is submitted as soon as practicable after a party becomes aware of the circumstances which prevent it from complying with the deadline.

14. Number and Sequence of Pleadings – Procedural Calendar

Arbitration Rule 30; CAFTA-DR Article 10.20

14.1. The parties shall submit their pleadings in accordance with the procedural timetable established in Annex B, depending on whether:

14.1.1. There is no request for bifurcation: Procedural Calendar No. 1;

14.1.2. If the Tribunal decides, upon request of a party, to bifurcate the proceeding: Procedural Calendar No. 2; or

14.1.3. If the Tribunal rejects the request for bifurcation: Procedural Calendar No. 3.

15. Production of Documents

Convention Article 43(a); Arbitration Rules 5 and 36-40

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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15.1. The parties shall exchange requests for production of documents (“Request to Produce”) simultaneously, if any, no later than fourteen (14) days after the date the Respondent files its Counter-Memorial. Such requests shall not be sent to the Tribunal or the ICSID Secretariat.

15.2. A Request to Produce shall be made in the form of a Redfern/Stern Schedule (Annex C) and contain:

15.2.1. A description of each requested document sufficient to identify it, or a description in sufficient detail (including subject matter) of a narrow and specific requested category of documents that are reasonably believed to exist (in the case of documents maintained in electronic form, the requesting party may, or the Tribunal may order that it shall be required to, identify specific files, search terms, individuals or other means of searching for such documents in an efficient and economical manner);

15.2.2. A statement as to how the documents requested are relevant to the case and material to its outcome;

15.2.3. A statement that the documents requested are not in the possession, custody, or control of the requesting party or a statement of the reasons why it would be unreasonably burdensome for the requesting party to produce such documents; and

15.2.4. A statement of the reasons why the requesting party assumes the documents requested are in the possession, custody, or control of another party.

15.3. Unless the requested party objects to production, it shall produce the requested documents within twenty-one (21) days of receiving the Request to Produce. If a party objects only to a certain aspect of the request, it shall produce responsive documents that are responsive to the non-objected portion of the request within twenty-one (21) days of receiving the Request to Produce.

15.4. If the requested party objects to production, the following procedure shall apply:

15.4.1. Each party shall state its objections to any request within twenty-one (21) days after the parties exchange their Requests to Produce. Such responses and objections shall be recorded in column 4 of the Redfern/Stern Schedule (Annex C) provided by the requesting party.

15.4.2. Each party shall reply to the objections referenced in §15.4.1 within seven (7) days of receiving them. Such responses shall be recorded in column 5 of the Redfern/Stern Schedule (Annex C) provided by the requested party.

15.4.3. Within seven (7) days of receiving the replies referenced in §15.4.2, each party shall (i) provide comments to the replies, which shall be recorded in column 6 of the Redfern/Stern Schedule (Annex C) provided by the requesting party; and (ii) the parties shall jointly submit the completed schedules (in both Word and PDF formats) to the Secretary of the Tribunal within one (1) day of exchanging the completed schedules. Upon receipt of both schedules, the Secretary of the Tribunal shall transmit them to the Tribunal.

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15.4.4. The parties and the Tribunal may hold a conference call on the parties’ objections to the Requests to Produce. The Tribunal may also invite the relevant parties to consult with each other with a view to resolving the objections.

15.4.5. Where a party objects to the production of certain documents, the Tribunal shall make its best efforts to rule on the objections within fourteen (14) days following the submission of the completed Redfern/Stern schedules to the Tribunal pursuant to §15.4.3, or within fourteen (14) days following a conference call pursuant to §15.4.4, whichever date is later. Any such document shall be produced to the other party and, if the Tribunal so orders, to it.

15.4.6. A party shall produce the documents ordered by the Tribunal within twenty-one (21) days of the ruling.

15.5. The disclosure of documents under this section shall be made electronically through a file sharing platform which can be accessed by counsel to the parties, in PDF format or some other similar format to which the parties may later agree. Each document shall be produced with a bates number. On the date of the production, each party shall provide the other party with (i) a list indicating the bates numbers of the documents that it is producing and the request number to which the document is responsive; and (ii) a declaration by the party and external counsel affirming that all relevant searches were conducted to identify and produce all responsive documents.

15.6. Documents exchanged in the course of this document production process shall not be copied to the Tribunal, except as set out in this, or any subsequent, Procedural Order.

15.7. Other requests for the production of documents sought by either party, if any, shall be permitted only in exceptional circumstances and at the discretion of the Tribunal. The request must be substantiated with reasons.

15.8. The Tribunal may call upon the parties to produce documents or other evidence in accordance with ICSID Arbitration Rule 36 (3).

15.9. The parties have a continuing obligation to produce responsive documents after the conclusion of the Document Production phase.

15.10. The Tribunal may use as a guideline, but not be bound by, the International Bar Association Rules on the Taking of Evidence in International Arbitration (2020 version).

16. Submission of Documents

Convention Article 44; Arbitration Rule 5

16.1. 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.

16.2. The documents shall be submitted in the manner and form set forth in §13 above.

16.3. Neither party shall be permitted to submit additional or responsive documents after the

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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.

16.3.1. 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.

16.3.2. 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.

16.3.3. The party may only produce the evidence to the Tribunal once it grants leave for the admission of the evidence or if the Tribunal otherwise orders it.

16.4. Documents shall be submitted in the following form:

16.4.1. The number of each exhibit containing a document submitted by the Claimants shall be preceded by the letter “C-” for factual exhibits and “CL-” for legal authorities. The number for each exhibit containing a document submitted by the Respondent shall be preceded by the letter “R-” for factual exhibits and “RL-” for legal authorities.

16.4.2. Exhibits and legal authorities shall be numbered consecutively throughout this proceeding, commencing with “C-001” and “R-001,” and “CL-001” and “RL-001” respectively. 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 §16.4.4.

16.4.3. A party may produce several documents relating to the same subject matter within one exhibit, numbering each page of such exhibit separately and consecutively.

16.4.4. Electronic files and the accompanying indexes shall follow the naming conventions contained in Annex A.

16.5. 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.

16.6. 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.

16.7. 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, and (ii) do not contain information that is not in the record.

16.8. 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 Tribunal, the Secretary of the

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Tribunal, the court reporter(s), and the interpreter(s) as necessary at a time to be decided at the Pre-Hearing Organizational Meeting.

16.9. 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.

17. Witness Statements and Expert Reports

Convention Article 43(a); Arbitration Rules 38 and 39; CAFTA-DR Article 10.24

17.1. Witness statements and expert reports shall be filed together with the parties’ pleadings.

17.2. 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 §16.3).

17.3. Each witness statement and expert report shall be signed and dated by the witness.

17.4. The Tribunal may, on its own initiative or at the request of a disputing party, appoint one or more experts. This includes, but is not limited to, the appointment of experts pursuant to CAFTA-DR Article 10.24.

18. Examination of Witnesses and Experts

Arbitration Rule 38

18.1. In accordance with Annex B, each party shall provide to the opposing party and Secretary of the Tribunal a request to produce at the hearing for examination and cross-examination any witness or expert whose written testimony has been submitted with the pleadings. Shortly after the parties’ notifications, the Tribunal will indicate the witnesses or experts not called by the parties whom it wishes to question, if any.

18.2. A party may present up to two of its own witnesses or experts for examination at the hearing that have not been called by the Tribunal or other party.

18.3. A party that does not call a witness or expert proffered by the other party for cross-examination shall not be deemed to have agreed to the content of the corresponding witness statement or expert report. The Tribunal will assess the weight of the written statement taking into account the entire record and all relevant circumstances.

18.4. If a witness or expert is unable to appear personally at a hearing for a valid cause, the Tribunal may permit alternative arrangements (such as videoconference facilities) upon consultation with the parties.

18.5. If a witness or expert who has been called to testify by the Tribunal or other party fails without a valid reason to appear to testify at the hearing, the Tribunal shall assess the weight of the written statement taking into account the entire record and all the relevant circumstances.

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18.6. Each party shall be responsible for the practical arrangements, cost and availability of its own witnesses and experts. The Tribunal will decide upon the appropriate allocation of such costs in its Award.

18.7. The procedure for the examination of witnesses or experts shall be as follows:

18.7.1. The witness or expert shall make a declaration of truthfulness before giving evidence pursuant to ICSID Arbitration Rule 38(6) or ICSID Arbitration Rule 38(8), respectively;

18.7.2. The witness’ direct testimony shall consist of the witness statement. Direct examination shall be limited to 15 minutes for an introduction of the examination and whether the witness desires to correct any portion of his or her written testimony or complement it to address previously unavailable information. The direct examination of an expert shall consist of a presentation lasting up to 45 minutes. Such presentation shall be limited to the scope of his or her expert report(s), subject to addressing previously unavailable information.

18.7.3. The adverse party may then cross-examine the witness or expert on relevant matters that were addressed or presented in the witness statement or expert report. The scope of the cross-examination shall be limited to (i) the issues addressed by the witness or expert in his or her direct testimony, report or presentation; (ii) impeachment of the witness, unless for good cause shown the Tribunal agrees to a broader cross-examination; and/or (iii) documents or facts about which the witness or expert has personal knowledge, provided that they are relevant to the dispute.

18.7.4. The party summoning the witness may then re-examine the witness, which shall be limited to the subject of the cross-examination; and

18.7.5. The Tribunal may examine the witness or expert at any time, either before, during or after examination of any of the parties.

18.8. Prior to his or her examination, all fact witnesses shall not:

18.8.1. Be present in the hearing room during the hearing of oral testimony or be part of any discussion regarding oral testimony;

18.8.2. Discuss the testimony of any other witness; or

18.8.3. Read any transcript of any oral testimony given by other witnesses.

18.9. Experts shall be allowed to be present in the hearing room at any time.

18.10. Counsel may meet with witnesses, experts, potential witnesses and experts to establish the facts, prepare the written statements and oral examinations.

18.11. In the event that a fact witness is also a party representative, that witness may designate another individual to serve as party representative until that witness has testified.

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19. Submissions by Non-Disputing CAFTA-DR Parties

CAFTA-DR Articles 10.20.2 and 10.21

19.1. Pursuant to CAFTA-DR Article 10.20.2, a non-disputing CAFTA-DR party may make oral and written submissions to the Tribunal regarding the interpretation of CAFTA-DR.

19.2. In accordance with CAFTA-DR Article 10.21, neither the disputing parties nor the Tribunal shall disclose to any non-disputing party or to the public any protected information.

19.3. The Tribunal shall set the schedule for any submission from a non-disputing CAFTA-DR party and the disputing parties shall have the opportunity to comment on such submission, including the opportunity to comment in writing on any non-disputing party submission received in writing.

20. Submissions by amicus curiae

CAFTA-DR Article 10.20.3

20.1. Pursuant to CAFTA-DR Article 10.20.3, the Tribunal has the authority to accept and consider amicus curiae submissions from a person or entity that is not a disputing party.

20.2. The Tribunal shall set the schedule for any submission from an amicus curiae. In the event the Tribunal decides to receive amicus curiae submissions, it shall set the schedule and establish an appropriate page limit for such submissions. It may give the amicus directions on the topic or topics it may address in its submissions. It shall provide the parties with an opportunity to comment on such submissions.

21. Pre-Hearing Organizational Meetings

Arbitration Rule 31

21.1. A Pre-Hearing Organizational Meeting shall be held in accordance with Annex B. It shall comprise a teleconference or videoconference between the Tribunal, or its President, the parties, and the Secretary of the Tribunal and should address any outstanding procedural, administrative, and logistical matters (including modality of interpretation and transcription) in preparation for the hearing. After the Pre-Hearing Organizational Meeting, the Tribunal shall issue a procedural order convening the meeting, establishing its place, time, agenda, and all other technical and ancillary aspects.

21.2. At a date to be determined by the Tribunal and, in any event, no later than the date of the Pre-Hearing Organizational Meeting, 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.

22. Case Management Conferences

Arbitration Rule 31

22.1. The Tribunal shall 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,

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road map, matrix(ces) 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). It is expected that a case management conference will be held in accordance with Annex B.

23. Hearings

Arbitration Rule 32; CAFTA-DR Article 10.21.2

23.1. The oral procedure shall consist of a hearing for examination of witnesses and experts, if any, and for oral arguments.

23.2. 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 §10 above.

23.3. 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.

23.4. The Hearing(s) shall take place as provided in Annex B.

23.5. The Members of the Tribunal shall reserve at least two days after the hearing to determine the next steps and to hold deliberations.

23.6. The Tribunal shall reserve at least three business days for a potential hearing on jurisdiction in a bifurcated scenario, and at least five business days for a hearing on the merits if no bifurcation is granted. Time shall be divided equally between the parties, who may decide how to allocate the use of such time according to a chess-clock system to be monitored by the Secretary to the Tribunal. The parties shall not ask for more time once they have used up their allocated time.

23.7. The sequencing of the hearing shall be discussed at the Pre-Hearing Organizational Meeting referenced in § 21 above.

23.8. Pursuant to CAFTA-DR Article 10.21.2, the Tribunal shall conduct hearings open to the public by providing a live stream of the proceeding on a video sharing platform. The live stream of the proceeding shall not be made available for on-demand viewing by the public. The parties shall give the Tribunal advance notice prior to referencing protected information at the hearing. The Tribunal shall make appropriate arrangements to protect the information from disclosure.

24. Recordings of Hearings and Sessions

Arbitration Rule 29(4)(i)

24.1. Recordings shall be made of all hearings and sessions. The recordings shall be provided to the parties and the Tribunal.

24.2. Verbatim transcripts 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.

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24.3. 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 shall 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 parties in the Revised Transcripts.

24.4. Recordings of Hearings and Sessions will be subject to the provisions detailed on §26 (Transparency Matters)/Procedural Order No. 2.

25. Post-Hearing Memorials and Statements of Costs

Convention Article 44; Arbitration Rules 51

25.1. All matters concerning post-hearing memorials and statements of costs shall be discussed at the close of the hearing.

26. Transparency Matters

Convention Article 48(5), CAFTA-DR Articles 10.21 and 10.28

26.1. The parties agree that the transparency regime governing this proceeding is dealt with in Procedural Order No. 2.

27. Data Privacy and Cybersecurity

27.1. 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.

27.2. The Members of the Tribunal, the parties and their representatives agree to comply with all applicable data protection and privacy regulations, including providing 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.

27.3. 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.

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28. Amicable Dispute Settlement

28.1. 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 embody their settlement in its Award, pursuant to ICSID Arbitration Rule 55(2).

On behalf of the Tribunal,

[signed]

Prof. Nicolas Angelet
President of the Tribunal
Date: 22 July 2024

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Annex A – Electronic File Naming Guidelines

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.

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Annex B – Procedural Timetable

1. PROCEDURAL CALENDAR No. 1

The following timetable shall apply in the event that objections to jurisdiction (if any) are made with the Counter-Memorial, and there is no request for bifurcation.

⁵ Two days were added for filing to fall on next business day.

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2. PROCEDURAL CALENDAR No. 2

The following timetable shall apply in the event that objections to jurisdiction are made in response to the Memorial on the Merits, and there is a request for bifurcation which is granted.

⁶ One day was added for filing to fall on next business day.
⁷ Two days were added for filing to fall on next business day.

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If the Tribunal decides that it has jurisdiction, the parties will negotiate in good faith a procedural calendar for the remainder of the proceeding with the Tribunal ruling on any disagreements between the parties.

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3. PROCEDURAL CALENDAR No. 3

The following timetable shall apply in the event that objections to jurisdiction are made in response to the Memorial on the Merits, and there is a request for bifurcation which is refused.

⁸ One day was added for filing to fall on next business day.

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Annex C – Redfern/Stern Schedule