INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES
PAWLOWSKI AG AND PROJEKT SEVER S.R.O.
Applicants
v.
CZECH REPUBLIC
Respondent on Annulment
ICSID Case No. ARB/17/11
Annulment Proceeding
Members of the ad hoc Committee
Dr. Jacomijn J. van Haersolte-van Hof, President of the ad hoc Committee
Ms. Yoshimi Ohara, Member of the ad hoc Committee
Mr. David A. Pawlak, Member of the ad hoc Committee
Secretary of the ad hoc Committee
Mr. Alex B. Kaplan
19 July 2024
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1. The Committee issues the present Order in view of the forthcoming hearing, rescheduled for 10 September 2024 in Prague, Czechia.
2. In accordance with Section 16 of PO 1, a pre-hearing organizational conference between the President of the Committee and the Parties was previously scheduled for 27 November 2023 for the then-scheduled January 2024 hearing. These consultations culminated in the issuance of Procedural Order No. 2, also on 27 November 2023.
3. In advance of the rescheduled hearing, the Committee circulated a proposed revision to Procedural Order No. 2 on 12 July 2024. The Parties submitted their joint comments on 24 November 2023.
4. The Committee has considered the Parties’ positions and, in the present Order, sets out the procedural rules that the Parties have agreed upon and the Committee has determined will govern the conduct of the 10 September 2024 Hearing.
5. The Parties and the Committee agree that the rescheduled hearing will last one day only, taking place on 10 September 2024.
6. The Hearing will be held at the Almanac X Alcron Hotel Prague, Štěpánská 623 /40, 110 00 Praha 1, Czechia.
7. The modality of the hearing is “in person”. All participants (speaking and non-speaking) shall be present in the hearing room. The Parties agree there will be no virtual connection to the hearing, such as Zoom.
8. The Parties and the Committee have agreed to the following hearing schedule:
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| 9:00 – 9:15 | Housekeeping |
| 9:15 – 10:45 | Applicants’ Oral Submissions |
| 10:45 – 11:00 | Coffee Break (15 minutes) |
| 11:00 – 12:30 | The Czech Republic’s Oral Submissions |
| 12:30 – 2:00 | Lunch (1.5 hours) |
| 2:00 – 2:30 | The Applicants’ Rebuttal |
| 2:30 – 2:45 | Coffee Break (15 minutes) |
| 2:45 – 3:15 | The Czech Republic’s Rebuttal |
| 3:15 – TBD | The Committee’s Questions |
| Hearing adjourns |
9. The Hearing Schedule is subject to any changes that the Committee may deem necessary or appropriate during the Hearing.
10. In accordance with the Parties’ agreed schedule, the Parties are allocated an equal amount of hearing time—2 hours per side. The Committee may, however, adjust the time allocation as appropriate in the circumstances.
11. In addition to the time set aside for questions by the Committee, the Committee may ask questions at any time.
12. Time used for housekeeping or to resolve technical difficulties shall not be counted against the Parties’ time but shall be counted as Committee time. Time taken by the Committee 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 Committee taking additional time should it so require.
13. The Secretary of the Committee shall keep a chess clock account of time under the direction of the President of the Committee.
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14. Hearing Bundle: In accordance with Section 13.5 of PO 1, by 6 August 2024, 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 Committee decisions and orders to date) with a consolidated hyperlinked index of all documents.1 The Hearing Bundle shall not contain any document not previously submitted, issued, or cited in this annulment proceeding. It shall be organized as follows:
Material from the Annulment Proceeding
15. Prior to the Hearing, the Members of the Committee, the Secretary of the Committee and the Parties shall 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.
16. Documents that do not form part of the record may not be presented at the Hearing.
17. Consolidated Lists of Exhibits and Legal Authorities: The Parties shall jointly prepare and upload by 6 August 2024, two consolidated lists, (i) a list of fact exhibits and (ii) a list of legal authorities. These lists shall be prepared using Excel and must also be Mac and
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 14 above and including a consolidated (non-hyperlinked) index. ↩
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PC compatible. Each list must indicate the date, the exhibit number in the original proceeding, the exhibit number in the annulment proceeding, and the title of each document such that the lists can be sorted by these metrics (e.g., sorted by date to create a chronology). These lists need not be hyperlinked.
18. Demonstrative Exhibits: These shall be used in accordance with Section 15.10 of PO 1, bearing in mind that a PowerPoint Presentation constitutes a demonstrative exhibit only to the extent that it contains charts, tabulations or other representations of data that compile information present in the record. Section 15.10 of PO 1 states:
Demonstrative exhibits (such as PowerPoint slides, charts, tabulations, etc.) may be used at any hearing, provided they do not contain new evidence. Each party shall number its demonstrative exhibits consecutively and indicate on each demonstrative exhibit the number of the document(s) from which it is derived. The party submitting such exhibits shall provide them in electronic and, if requested, hard copy format to the other party, the Committee Members, the Secretary, the court reporter(s) and interpreter(s) prior to their use at the hearing at a time to be decided at the pre-hearing organizational meeting.
19. Such demonstrative exhibits, including all PowerPoint slides, shall be provided electronically to the opposing Party, the Committee, the Secretary of the Committee, and the court reporter 30 minutes in advance of their use at the Hearing. In addition, the Party submitting such exhibits shall provide a hard copy (2 copies) to the other Party and the Committee Members immediately before their use at the Hearing.
20. Each Party will ensure that electronic copies of PowerPoint presentations and demonstrative exhibits are uploaded to Box by the end of the Hearing day, designating each with the corresponding CD- or RD- number.
21. Section 18.1 of PO 1 concerning audio recording (reproduced below) continues to apply.
Sound recordings shall be made of all hearings and sessions. The sound recordings shall be provided to the Parties and the Committee Members.
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22. The audio recording will be shared with the Parties and the Committee via Box as soon as possible after the conclusion of the Hearing.
23. Except for the court reporters, who will make their own audio recording of the Hearing for the purposes of preparing the transcript, the Committee 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.
24. Real time court reporting services are to be provided by the court reporter to be determined and communicated separately, with same day transcript delivery to the Committee and the Parties via email. The verbatim transcripts will be available in real-time using LiveNote or similar software.
25. Following the Hearing, the Committee Secretary will endeavor to provide the Parties and the Committee with access to the audio recording made by the court reporters.
26. Section 18.3 of PO 1 shall govern the process of correcting the Hearing transcript:
The Committee will consult with the parties at the end of the hearing, and issue directions in relation to whether, and if so by which date, the parties shall agree on any corrections to the transcripts. The agreed corrections may be entered by the court reporter in the transcripts (“revised transcripts”). The Committee shall decide upon any disagreement between the parties and any correction adopted by the Committee shall be entered by the court reporter in the revised transcripts.
27. No interpretation is required during the Hearing.
28. The provisions of PO 1, Section 19 apply:
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19.1. The Committee will determine the need for and modalities of any post-hearing memorials at the hearing, taking into account the views of the parties and issues presented.
19.2. The Committee will also determine at the hearing the sequence of and modalities of the statements of costs in consultation with the parties.
29. 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.
30. Pursuant to Section 17.6 of PO 1, the Hearing shall be closed to the public.
31. The Committee 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.
32. The Parties do not consider that a Zoom back-up connection is required.
33. Section 21 of PO 1 states as follows:
21.1 The Members of the Committee, the parties and their representatives acknowledge that the processing of their personal data is necessary for the purposes of this annulment proceeding.
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21.2 The Members of the Committee, 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 annulment proceeding, where necessary. Should compliance with applicable law require action from another participant in the annulment proceeding, the parties are invited to bring that to the attention of that other participant and/or to apply to the Committee for specific data protection measures to be put in place.
On behalf of the Committee,
Signature
Prof. Dr. Jacomijn J. van Haersolte-van Hof
President of the Committee
Date: 19 July 2024