UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW
ARBITRATION RULES (1976)

ABDALLAH ANDRAOUS

Claimant

v.

KINGDOM OF THE NETHERLANDS

Respondent

PROCEDURAL ORDER NO. 4

HEARING PROTOCOL

Arbitral Tribunal
Ms. Claudia Salomon (Presiding Arbitrator)
Prof. Nassib G. Ziadé
Mr. José Emilio Nunes Pinto

Secretary of the Tribunal
Mr. Felipe Aragón

Representative of ICSID
Mr. Alex B. Kaplan

29 December 2024

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1. PROCEDURAL BACKGROUND

1. The Tribunal issues the present Order in view of the forthcoming hearing on jurisdiction scheduled on 20-21 January 2025 in Paris, France [the “hearing”].

2. The Tribunal circulated a proposed draft of Procedural Order No. 4 on 9 December 2024. The Parties submitted their joint comments on 27 December 2024.

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

2. ORGANIZATION OF THE HEARING

A. Date and Modality

4. It is confirmed that the hearing will last two days, taking place on 20-21 January 2025. By email correspondence of 3 June 2024, the parties agreed to hold the hearing in Paris, France, despite that the place of the proceeding is Geneva, Switzerland.

5. The hearing will be held at the Arbitration Centre (Delos), located at 92 rue Réaumur, 75002 Paris, France.

6. The modality of the hearing is “hybrid”. All participants shall be present in the hearing room or join the Zoom session. The Parties shall inform the Tribunal of the persons that will attend the Hearing in person and remotely. A list of participants is attached as Annex A to this Procedural Order.

B. Order of Proceedings and Schedule

7. The Parties and the Tribunal have agreed to the following daily hearing schedule, which is indicative only. The schedule shall account for a morning and afternoon coffee break lasting 15 minutes and a lunch break lasting at least one hour.

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8. The hearing schedule is subject to any changes that the Tribunal may deem necessary or appropriate during the hearing.

C. Time Allocation

9. In accordance with the Parties’ agreed schedule, the Parties are allocated an equal amount of hearing time— 2.5 hours per side (excluding expert examination). The Parties may shift time from one time block to another, as long as they do not exceed the total allocation time of 2.5 hours per side (excluding expert examination). The Tribunal may, however, adjust the time allocation as appropriate in the circumstances.

10. In addition to the time set aside for questions by the Tribunal, the Tribunal may ask questions at any time.

11. Time used for housekeeping or to resolve technical difficulties shall not be counted against the Parties’ time but shall be counted as Tribunal time. Time taken by the Tribunal for its own questions during the Parties’ presentations and the Parties’ answers to those questions shall not be counted against the Parties’ time. The Parties are amenable to the Tribunal taking additional time should it so require.

12. The Secretary of the Tribunal or the ICSID Representative shall keep a chess clock account of time under the direction of the President of the Tribunal.

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D. Documents for Use at the Hearing

13. On 2 January 2025, the Parties shall upload to Box a Mac and PC compatible electronic copy of the entire case file (including all pleadings, exhibits, legal authorities and Tribunal decisions and orders to date) with a consolidated hyperlinked index of all documents.¹

14. Prior to the hearing, the Members of the Tribunal, the Secretary of the Tribunal and the Parties will download the Hearing Bundle from the Box Case Folder onto their own devices to have access to it offline during the hearing. The court reporter will also be provided a copy of the Hearing Bundle via the ICSID Secretariat.

15. Documents that do not form part of the record may not be presented at the hearing.

Ε. Witness Examination

16. Witnesses and experts shall be examined by each Party under the control of the Tribunal.

17. 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. Any witness or expert called for direct examination may be cross-examined by the other Party and questioned by the Tribunal.

18. As a general rule, the scope of cross-examination will be limited to matters within the scope of the respective witness’ knowledge (or expertise, for expert witnesses), defined by reference 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. During cross-examination, the Parties will refer only to documents that already form part of the record of the case.

¹ To ensure operation of the hyperlinked index, the entire Electronic Hearing Bundle 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 Electronic Hearing Bundle to a designated sub-folder on the BOX filesharing platform, in a sub-folder using the structure indicated at paragraph Error! Reference source not found. above and including a consolidated (non-hyperlinked) index. ↩

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F. Demonstrative Exhibits:

20. 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.

21. An electronic copy of each demonstrative exhibit 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 Tribunal, the ICSID Representative, and the court reporter 3 hours before the start of proceedings on the day of their use.

22. Hard copies of the demonstrative exhibits shall also be provided to the Tribunal, the Secretary of the Tribunal, the ICSID Representative and to the other Party’s legal team (up to 2 copies), and the court reporter prior to the start of the presentation.

23. 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 as applicable.

G. Recordings of the Hearing

24. An audio recording of the hearing will be shared with the Parties and the Tribunal via Box as soon as possible after the conclusion of the hearing.

25. Except for the court reporters, who will make their own audio recording of the hearing for the purposes of preparing the transcript, the Tribunal and the Parties agree that the attendees will not otherwise record the hearing or any part of it, including via audio, video or screenshot methods of recording.

H. Transcription

26. Real time court reporting services are to be provided by Ms. Yvonne Vanvi with same day transcript delivery to the Tribunal and the Parties via email. The verbatim transcripts will be available in real-time using LiveNote or similar software.

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27. In accordance with the Procedural Calendar at Annex I of Procedural Order No. 1, the parties shall agree on any corrections to the transcripts within three weeks 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”).

28. The Tribunal may 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.

29. The Parties will indicate whether any portions of the revised transcripts require redaction prior to publication. A deadline for redaction of the revised transcripts will be set once the revised transcripts are available.

I. Interpretation

30. No interpretation is required during the hearing.

J. Post-Hearing Submissions and Statements of Costs

31. Whether the parties submit Post-Hearing Memorials, and the format and the deadline(s) for their submission, shall be discussed at the conclusion of the hearing and decided by the Tribunal.

32. The parties shall exchange Statements of Costs after the hearing. The format of the Statement of Costs and the deadline for their submission shall be discussed at the conclusion of the hearing.

K. Logistical Items

33. The logistical details (e.g., confirmation of room number assignments, list of participants, set-up details, details on court reporting and technical support services, internet access, audio-visual equipment and catering orders) will be handled through correspondence directly by the ICSID Secretariat.

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3. GENERAL PROVISIONS

A. Public Hearing

34. Section 25 of Procedural Order No. 1 provides for the possibility of a public hearing. “Pursuant to Article 6 of the UNCITRAL Transparency Rules hearings shall be public except as otherwise decided by the Tribunal.”

35. The parties agree that the hearing shall be public, in accordance with the next paragraph.

36. Publication of the hearing will take place via a Zoom recording that will be posted on the ICSID website after the parties have agreed on the portions of the recording requiring redaction. The publication of the hearing will be indefinite.

B. COVID/Illness Precautions

37. The Tribunal finds that it is not necessary to impose a COVID testing requirement on the hearing participants. It is nevertheless prudent to call upon on all participants to monitor for symptoms of COVID, influenza and other contagious conditions. Any participant experiencing such symptoms undertakes not to attend the hearing.

38. Attendees who cannot attend the hearing due to illness may attend via Zoom.

C. Accommodations Required for Those with Disability

39. Sections 44 and 45 of Procedural Order No. 1 state as follows:

“At any point in the proceedings, but ideally as soon as practicable, either Party may advise the Arbitral Tribunal of a person who, by reason of disability requires reasonable accommodation to facilitate their full participation in the arbitration, including site visits and oral hearings. In considering such requests, the Arbitral Tribunal will take account of the privacy rights of such persons against the unnecessary disclosure of their disability.

For the purposes of this provision, disability means any physical or mental health condition that – without accommodation – would impair a person’s ability to participate in work related to an arbitration”.

40. The Parties shall inform the Tribunal at their earliest conveniences if any of the attendees requires special accommodations for its participation in the hearing.

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On behalf of the Tribunal

Signature

Claudia Salomon
Presiding Arbitrator
Date: 29 December 2024

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ANNEX A – LIST OF PARTICIPANTS

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