INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES

Continental Gold Inc.

v.

Republic of Colombia

(ICSID Case No. ARB/24/25)

PROCEDURAL ORDER NO. 1

Members of the Tribunal

Prof. Dr. Klaus Sachs, President of the Tribunal

Ms. Elisabeth Eljuri, Arbitrator

Ms. Loretta Malintoppi, Arbitrator

Secretary of the Tribunal

Ms. Elisa Méndez Bräutigam

14 March 2025

[Page 1]

[Page 3]

Introduction

The first session of the Tribunal was held on 5 March 2025, at 8:00 a.m. (Washington, D.C. time) by video conference. The session was adjourned at 9:00 a.m.

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. Dr. Klaus Sachs, President of the Tribunal
Ms. Elisabeth Eljuri, Arbitrator
Ms. Loretta Malintoppi, Arbitrator

ICSID Secretariat:
Ms. Elisa Méndez Bräutigam, Secretary of the Tribunal

On behalf of the Claimant:
Damien Nyer, White & Case LLP
Estefania San Juan, White & Case LLP
John Dalebroux, White & Case LLP
[Redacted]

On behalf of the Respondent:
Juana Martinez Quintero, Agencia Nacional de Defensa Jurídica del Estado
Maria Lucía Casas Arguello, Agencia Nacional de Defensa Jurídica del Estado
María Valentina Diaz Gómez, Agencia Nacional de Defensa Jurídica del Estado
Andrés Felipe Reina Arango, Agencia Nacional de Defensa Jurídica del Estado
Leiver Darío Palacios Ramos, Agencia Nacional de Defensa Jurídica del Estado

The Tribunal and the Parties considered the following:

• The Draft Procedural Orders Nos. 1 and No. 2 circulated by the Secretary of the Tribunal on 10 February 2025;
• The Parties’ comments on the Draft Procedural Orders received on 3 March 2025, indicating the items on which they agreed and their respective positions regarding the items on which they did not agree;
• The Parties’ respective proposals for a procedural calendar received on 3 March 2025;
• The Tribunal’s proposal for a procedural calendar circulated to the Parties on 5 March 2025; and

[Page 4]

• The Parties’ respective proposals for a procedural calendar received on 13 March 2025.

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 Procedural Calendar is attached as Annex B.

1. Applicable Arbitration Rules

Convention Article 44; Arbitration Rule 1

1.1. These proceedings are conducted in accordance with the ICSID Arbitration Rules in force as of 1 July 2022, except to the extent modified by Section B of Chapter Eight (Investment) of the Free Trade Agreement between Canada and the Republic of Colombia signed on 21 November 2008, and which entered into force on 15 August 2011 (“Treaty” or “FTA”), and supplemented by any rules adopted by the Commission under Articles 822(2), 832, and 2001(3)(a) of the FTA.

2. Constitution of the Tribunal and Tribunal Members’ Declarations

Arbitration Rule 21

2.1. The Tribunal was constituted on 8 January 2025, 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 24 July 2024, 30 September 2024, and 8 January 2025.

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).

3. Fees and Expenses of Tribunal Members

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 Administrative and Financial Regulations, ICSID

[Page 5]

Schedule of Fees, and the ICSID Memorandum on Fees and Expenses in force at the time the fees and expenses are incurred.

4. Presence and Quorum

Arbitration Rule 33

4.1. The participation of all the 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.

4.2. The presence of all Members of the Tribunal constitutes a quorum for its sittings, including by any appropriate means of communication. In situations where the Tribunal must deliberate on a matter that requires urgent directions in order to avoid irreparable harm to a Party or to the integrity of the proceedings, and consultation with all Members of the Tribunal is not possible, the President of the Tribunal may issue any such decisions or directions without consulting the other Members, subject to possible reconsideration of such decision by the full Tribunal.

5. Rulings of the Tribunal

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. 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.

5.6. The Tribunal will use best efforts 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 circumstances justifying the delay and the date when it anticipates rendering the ruling, in accordance with ICSID Arbitration Rule 12(2). If the Award has not been issued six months after the final submissions, the Tribunal will provide quarterly status updates to the Parties.

[Page 6]

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

5.8. The Tribunal’s rulings on procedural matters shall be communicated to the Parties and may be informed by the Tribunal Secretary in the form of a letter or e-mail.

6. Power to Fix Time Limits

Arbitration Rules 10 and 11

6.1. The time limits set forth in Annex B shall govern this proceeding.

6.2. The President may exercise the Tribunal’s power to fix and grant reasonable extensions to 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), provided there is no disruption of the hearing date set in Annex B absent extraordinary circumstances.

6.3. In exercising the power to fix time limits under Arbitration Rule 10(1), the President shall consult with other Members of the Tribunal and the Parties as far as possible. If the matter is urgent, the President may fix time limits without consulting the other Tribunal Members or the Parties, subject to possible reconsideration of such decision by the full Tribunal. For the purposes of reconsideration by the full Tribunal, the parties may seek leave to comment on the President’s decision.

6.4. Short extensions of time may be agreed between the Parties without prior approval by the Tribunal as long as (i) they do not affect the hearing dates or otherwise materially affect the overall schedule of the proceeding as set out in Annex B, and (ii) the Tribunal is promptly informed.

6.5. The Parties agree that a time limit shall be satisfied if a procedural step is taken or a document is received by the Tribunal Secretary on the relevant date, or on the subsequent business day at the seat of the Centre if the time limit falls on a Saturday, Sunday or holiday per Annex D. A time limit shall be computed from the date on which the limit is announced, with the day of such announcement being excluded from the calculation.

7. Secretary of the Tribunal

Administrative and Financial Regulation 28

7.1. The Secretary of the Tribunal is Ms. Elisa Méndez Bräutigam, 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:

[Page 7]

Ms. Elisa Méndez Bräutigam
ICSID
MSN C3-300
1818 H Street, N.W.
Washington, D.C. 20433
U.S.A.
Tel.: + 1 (202) 473-2851
Fax: + 1 (202) 522-2615
Email: [email protected]
Paralegal name: Ms. Ana Cecilia Chamorro
Paralegal email: [email protected]
ICSID case address: arb/24/[email protected]

For local messenger deliveries, the contact details are:

Ms. Elisa Méndez Bräutigam
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. Tribunal Assistant

8.1. By communication of 21 February 2025, the Secretary of the Tribunal informed the Parties that the Tribunal considered that it would benefit the overall cost and time efficiency of the proceedings if the Tribunal had an assistant. The President proposed, with the approval of the other members of the Tribunal, that Mr. Marcus Weiler of CMS Hasche Sigle be appointed as Tribunal Assistant. Mr. Weiler’s curriculum vitae and his declaration of independence and impartiality were distributed to the Parties.

8.2. The Tribunal Assistant would (i) undertake only such specific tasks as are assigned to him by the Tribunal, 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.

8.3. The Parties consented to the appointment of Mr. Marcus Weiler as Tribunal Assistant by email of 24 February 2025.

[Page 8]

The Parties also agreed that the Tribunal Assistant would receive: (i) US$ 200 for each hour of work performed in connection with the case and expenses reimbursed as described in the Secretariat’s letter 21 February 2025.

9. Representation of the Parties

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 Secretary of the Tribunal promptly of such designation.

9.2. Respondent shall disclose the identity of the external counsel that will represent it in this proceeding as soon as it is selected. Once it does, the Tribunal Members shall update their disclosures accordingly. If a relationship exists between such external counsel and an arbitrator or Party which in a Party’s or the Tribunal’s reasonable view may create a conflict of interest, the Parties agree that the Tribunal may take appropriate measures to ensure the integrity of the arbitration, including the refusal to designate external counsel as a participant in all or part of the arbitration, as referenced in §9.1. The same process shall apply for any additional agents, counsel or advocates that a Party may designate.

[Page 9]

[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]

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

Convention Article 61(2); Administrative and Financial Regulation 15; Arbitration Rule 50

10.1. The Parties shall cover the direct costs of the proceeding through periodic advance payments to be made 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 16 July 2024, ICSID informed the Parties that US$300,000 will be necessary to cover the estimated costs of the initial phase of the proceeding through the first session of the Tribunal, as well as the subsequent phase, and requested that the Claimant pay US$150,000. ICSID received the Claimant’s payment on 20 August 2024. Upon the constitution of the Tribunal, by letter of 9 January 2025, ICSID requested that the Respondent pay US$150,000. ICSID received the Respondent’s payment on 3 February 2025.

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

10.4. In application of Arbitration Rule 14, each Party shall, immediately upon concluding a third-party funding arrangement disclose to the Centre, the Tribunal, and the other Party, that it has third-party funding, provide the name and address of the third-party funder and, if the third-party funder is a juridical person, provide the names of the persons and entities that own and control it. For the purpose of this provision “third-party funder” means “any non-party from which the party, directly or indirectly, has received funds for the pursuit or defense of the proceeding through a donation or grant, or in return for remuneration dependent on the outcome of the proceeding.”

10.5. Each Party shall have a continuing obligation to disclose any changes to the information referred to in the preceding paragraph, occurring after the initial disclosure, including termination of the third-party funding arrangement.

[Page 10]

11. Place of Proceeding and Hearings

Convention Articles 62 and 63; Arbitration Rule 32

11.1. Washington, DC shall be the place of the proceeding.

11.2. The Parties agree that 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.

11.3. For exigent circumstances and after consultation with the Parties, the Tribunal may determine that hearings will be conducted online through an appropriate videoconferencing platform. In such case, the Centre will conduct tests to ensure that all the participants have adequate connections, and the Tribunal will give the necessary directions.

11.4. The Parties agree that the Tribunal Members may deliberate and conduct internal meetings at any place and by any appropriate means they consider convenient, including by video or telephone conference.

12. Procedural Language(s), Translation and Interpretation

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 between the Parties, and addressed to the Tribunal may be submitted in either procedural language. If the submission is made in English, unless the Tribunal directs otherwise, no Spanish translation will be needed. If a request or application is made in Spanish, a translation into English will follow within 3 calendar days.

12.4. Written pleadings, expert opinions, and witness statements (together “Main Documents”) may be submitted in either procedural language. If the Main Documents are submitted in English, unless the Tribunal directs otherwise, no Spanish translation will be needed. If the Main Documents are submitted in Spanish, a translation into English will follow within 21 business days.

12.5. Fact exhibits and legal authorities (together the “Supporting Documents”) in English or Spanish may be submitted in their original language. If the Supporting Documents are submitted in Spanish or in any different language other than English, a translation into English will follow within 21 business days. Translated Supporting Documents shall be submitted as separate electronic documents from

[Page 11]

the original. The original and the translation will bear the same exhibit or legal authority number but additionally indicate the language in the electronic title.

12.6. Translations of long Supporting Documents can be limited to the relevant passages, provided the translated parts are sufficient for the reader to understand the context. The Tribunal may order a Party to provide a fuller or complete translation.

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

12.8. Documents exchanged between the Parties pursuant to §16 below (Production of Documents) may be produced in the original language and need not be translated.

For Hearing

12.9. The Parties will notify the Tribunal, as soon as possible, and no later than at the pre-hearing organizational meeting (see §20 below), which witnesses or experts require interpretation.

12.10. Any hearing (other than procedural hearings or meetings) shall be conducted in Spanish and English with simultaneous interpretation into the other procedural language. Transcripts shall be taken in both languages.

12.11. The Tribunal may address the Parties, witnesses and experts in English or Spanish, with simultaneous interpretation into the other 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 either procedural language,

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 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

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

[Page 12]

13. Routing of Communications

Arbitration Rule 6

13.1. Except in case of emergency, the ICSID Secretariat shall be the channel of written communications between the Parties and the Tribunal.

13.2. 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 and the Tribunal Assistant.

13.3. 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, the Tribunal and the Tribunal Assistant, once she has received both Parties’ communications.

13.4. The Secretary of the Tribunal, Tribunal Members and 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 email addresses of the Members of the Tribunal are:

Prof. Dr. Klaus Sachs [email protected]
Ms. Elisabeth Eljuri [email protected]
Ms. Loretta Malintoppi [email protected]

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

Arbitration Rules 4, 5 and 9

14.1. By the relevant filing date, the relevant Party shall submit by email to the Secretary of the Tribunal and the opposing Party an electronic version of the Main Documents (“Electronic Email Filing”);¹ and

14.2. Within 5 business days following the relevant time limit, a Party shall upload the Main Documents and Supporting Documents (without translations, which are addressed at §14.3 below) and the corresponding index to the file sharing platform that has been created by ICSID for purposes of this case (“Electronic Platform Filing”).²

14.3. Within 21 business days after the Electronic Platform Filing, the Parties shall upload any necessary translations to the file sharing platform that has been created by ICSID for purposes of this case (“Electronic Translation Filing”).

¹ Please note that the World Bank server does not accept emails larger than 25 MB. ↩

² Supporting documentation shall be uploaded as individual files, not in .zip format. ↩

[Page 13]

14.4. Within 14 business days of the Electronic Platform Filing or the Electronic Translation Filing (for Spanish-language Main Documents subsequently translated into English), the relevant Party shall courier to the Members of the Tribunal at the addresses indicated at §14.5 below:

14.4.1. a hard copy of the English-language pleading, the witness statements, and expert reports in A5 format; and

14.4.2. a USB drive (PC and Mac compatible) with a full electronic copy of the entire submission, including the pleading, the witness statements, expert reports, exhibits, legal authorities, and a consolidated hyperlinked index of all exhibits and legal authorities attached to the pleading.

14.5. The addresses of the Tribunal Members are as follows:

14.6. Electronic files of pleadings, witness statements, expert reports, exhibits and legal authorities shall be text searchable (i.e., OCR PDF or Word). Exhibits may be submitted in an extension other than .pdf when technically required (e.g., .xls (Excel)).

14.7. 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 and the language of the document, and shall follow the naming conventions contained in Annex A.

14.8. 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.³

³ 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. ↩

[Page 14]

14.9. The official date of receipt of a pleading or written communication shall be the day the Electronic Email Filing is sent to the Secretary of the Tribunal by email.

14.10. Extensions for the submission of pleadings may be agreed between the Parties or granted by the Tribunal for justifiable reasons and pursuant to §6 above, 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.

15. Number and Sequence of Pleadings – Procedural Calendar

Arbitration Rule 30

15.1. The arbitration shall proceed in accordance with the Procedural Calendar attached hereto as Annex B, except if the Tribunal, at the reasonable request of any Party or on its own initiative, decides that, for good cause, this Procedural Calendar should be amended.

15.2. The pleadings shall be successive and responsive in nature and each successive pleading shall be limited in scope to being responsive to the prior pleading. To the extent practicable, the Memorials and Counter-Memorials (whether on the Merits or Jurisdiction) shall set forth all of the arguments of facts and law and all the evidence that a Party may rely on in support of its case such that the other Party shall have an opportunity to respond to such arguments and evidence in writing.

15.3. In the first exchange of submissions on a given matter (in principle Memorial and Counter-Memorial), the Parties shall set forth all the facts and legal arguments and submit all the documentary and written witness and expert evidence on which they intend to rely in support of their respective cases. Allegations of fact and legal arguments shall be presented in a detailed, specified and comprehensive manner, and shall respond to all allegations of fact and legal arguments made by the other Party.

15.4. In the second exchange of submissions (in principle Replies and Rejoinders), if any, the Parties shall limit themselves to responding to fact allegations, legal arguments, and evidence put forward by the other Party in its preceding submission, subject to new facts arisen after the filing of a Party’s last submission.

15.5. Following each factual allegation, the Parties shall, whenever possible, identify the evidence adduced or to be adduced in support of that allegation. Following each legal argument, the Parties shall, whenever possible, identify the legal authority adduced or to be adduced in support of that argument.

15.6. All written submissions shall be divided into consecutively numbered paragraphs.

[Page 15]

15.7. The Parties shall include in their submissions a list of abbreviations. Each Party shall strive to use the same abbreviations as the other Party and the Parties shall update their list of abbreviations in subsequent submissions.

16. Production of Documents

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

16.1. Requests for document production shall be made between the Parties in accordance with the Procedural Calendar established in Annex B and in the form of a Stern Schedule (Annex C).

16.2. For the purposes of document production, the Tribunal shall be guided but not bound by the 2020 IBA Rules on the Taking of Evidence in International Arbitration (“IBA Rules”) and the International Bar Association’s Guidelines on Party Representation in International Arbitration.

16.3. Requests for document production shall meet the standards in the IBA Rules. Every request for document production shall precisely identify each document, or category of documents, sought and establish its relevance and materiality to the outcome of the dispute. Each request must also explain why the requesting Party assumes the documents are in the possession, custody, or control of the other Party. Such a request shall not be copied to the Tribunal, the Tribunal Assistant, or the Secretary of the Tribunal.

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

16.5. The Parties shall endeavor to limit the number of document production requests, including sub-requests, to 30. If a Party wishes to exceed the number of the document production requests stipulated in this provision, it shall provide a reasoned explanation to the Tribunal and the other Party two weeks before the date for submission of the Stern Schedule.

16.6. The Parties shall seek to agree on document production requests to the greatest extent possible, bearing in mind their duty to act in good faith in the taking of evidence. This requires the Parties not only to formulate narrow and specific document requests in the first instance, but also to cooperate in the process of achieving such formulations with respect to each other’s requests. Accordingly, a Party objecting to a request on grounds that it is overbroad or excessively burdensome should indicate whether there is a narrower formulation with which it would be willing to comply. In reply, the requesting Party should likewise indicate, in addition to any comments on the other Party’s objection to its original formulation, whether there is a narrower formulation that it would be willing to accept.

[Page 16]

16.7. Any objection that the requested documents do not exist, are not under the control of the requested Party, are not relevant or material, are covered by confidentiality or protected by privilege, or that the request is overbroad or overly burdensome should be particularized in each answer to each request.

16.8. Each Party that wishes to exclude the production of any document in full or in part on the grounds of privilege under the applicable rules shall provide, on the date of production, a privilege log listing the documents for which privilege is invoked, indicating date, author(s), recipient(s), brief subject matter description, and a document-by-document justification of the asserted privilege (including the applicable legal basis and the reason why the privilege applies to the document at issue).

16.9. If no agreement between the Parties on inter partes document production requests can be reached, the Tribunal may, upon the filing of a completed Stern Schedule, order a Party to produce any documentary evidence within its custody, power, or control, which the Tribunal deems relevant to the case and material for its outcome. The Tribunal shall have full discretion to decide on requests for production.

16.10. If documents which a Party is requested to produce contain confidential, highly sensitive, or privileged information, that Party shall so indicate and, if possible, suggest to the Tribunal and to the other Party appropriate arrangements to preserve the confidential or sensitive nature of the information. The Tribunal shall, in its discretion and after consultation with the Parties, order the appropriate arrangements in order to protect the confidential or sensitive nature of the documents.

16.11. Documents the production of which is ordered by the Tribunal shall be communicated directly to the requesting Party without copying the Tribunal, the Tribunal Assistant, or the Secretary of the Tribunal, and shall not be considered as part of the evidentiary record unless and until a Party subsequently introduces them in the record.

16.12. All documents produced by a Party shall be produced electronically, in their original language and, where possible, in their native format (e.g., Word, Excel, Outlook, PDF, .jpg), each in a separate file, directly to the requesting Party, without copying the Tribunal, the Tribunal’s Assistant, or the Secretary of the Tribunal. Documents so produced shall not be incorporated into the record unless and until they are filed as exhibits to the corresponding pleadings.

16.13. Each Party shall produce all documents as ordered by the Tribunal on the date established in the Procedural Calendar. Each Party must also certify that: (i) it has made a reasonable search for each such document or category of documents so ordered by the Tribunal; and (ii) has produced all such documents.

[Page 17]

16.14. Should a Party fail to produce documents as ordered by the Tribunal without good cause, the Tribunal may draw adverse inferences for such failure, either on its own motion or upon a reasoned application setting out the nature of the requested inference and its consequences on the relief sought.

16.15. Other requests for the production of documents sought by either Party outside of the Procedural Calendar provided by Annex B shall be permitted only in exceptional circumstances and at the discretion of the Tribunal. Such request must be substantiated. In making such requests, the Parties shall endeavor not to disrupt the Procedural Calendar.

16.16. The Tribunal may at any time request the production of documents on its own motion in accordance with ICSID Arbitration Rule 36(3). In making such requests, the Tribunal shall endeavor not to disrupt the Procedural Calendar.

17. Submission of Documents

Convention Article 44; Arbitration Rule 5

17.1. Supporting Documents shall be submitted together with the memorial or written submissions that refers to them in conformity with §§15.3 and 15.4 above. All Supporting Documents submitted must be listed in an index.

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 request, the Tribunal shall ensure that the other Party is afforded sufficient opportunity to make its observations concerning such document. Barring extraordinary circumstances, any requests for leave to file additional or responsive documents shall be filed no later than 30 days before the hearing, with any observations on such request to be filed no later than 7 days thereafter.

17.3.3. For the avoidance of doubt, for the purposes of this Procedural Order, “special circumstances” shall include the filing by a Party of evidence responsive to evidence or arguments adduced or raised by the other Party for the first time after the submission by the first Party of its last pre-hearing written submission.

[Page 18]

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 the Claimant shall be preceded by the letter “C-” for factual exhibits and “CL-” for legal exhibits containing authorities. The number for each Exhibit containing a document produced by the Respondent shall be preceded by the letter “R-” for factual exhibits and “RL-” for legal exhibits containing authorities.

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 §17.5.5.

17.5.3. The Parties will avoid producing Supporting Documents in duplicate (i.e., a Supporting Document should not be produced on the record using different exhibit or legal authority numbers). In the event that a Party produces a more complete excerpt or translation of a Supporting Document already on the record in excerpted form, it shall file that more complete excerpt or translation using the same exhibit or legal authority number, adding “bis”, “ter”, etc., as appropriate, at the end of the name of the Supporting Document.

17.5.4. A Party may produce several documents relating to the same subject matter within one Exhibit, numbering each page of such Exhibit separately and consecutively.

17.5.5. 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. Documentary evidence, including factual exhibits, should be submitted in full (i.e., no excerpts). With respect to legal authorities, the Parties may submit an excerpt, which should, generally speaking, be at least the relevant chapter of the source. If

[Page 19]

only a part of the document is submitted, the Party shall so indicate by adding the word “(excerpt)" on its updated index. In the event that a Party submits an excerpt only for a legal authority, the other Party and the Tribunal may request that it submit the entire document and it is required to undertake reasonable efforts to do so in a timely fashion.

17.8. The Parties shall file all documents only once by submitting them with their pleadings. Documents submitted with the pleadings need not be resubmitted with witness statements even if referred to in such statements.

17.9. 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) are numbered consecutively in the format “CD-” for Claimant and “RD-" for Respondent; (ii) identify the source in the record from which the information is derived, (iii) do not contain information not in the record.

17.10. An electronic copy of demonstrative exhibits and PowerPoint slides that a Party intends to use at the hearing shall be distributed via an electronic mail sent to the entire case email distribution for each Party, the Members of the Tribunals, the Secretary of the Tribunal, the Tribunal Assistant, to the court reporter and to the interpreters as necessary at the time when such demonstrative exhibits are used at the hearing. unless otherwise decided at the Pre-Hearing Organizational Meeting.

17.11. 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 file sharing platform that has been created by ICSID for purposes of this case.

17.12. The Tribunal shall not be required to consider any evidence on the record that has not been specifically referred to, and the relevance of which has not been analyzed and discussed, in any type of written or oral submissions of the Party seeking to rely on it.

18. Witness Statements and Expert Reports

Convention Article 43(a); Arbitration Rule 38

18.1. Witness statements and expert reports shall be filed together with the Parties’ pleadings. They shall be consecutively numbered “CWS-” and CER-” for Claimant and “RWS-” and “RER-” for Respondent.

18.2. In accordance with §§15.3 and 15.4 above, each Party will submit its witness statements and expert reports together with its written submissions. Neither Party shall be permitted to submit any testimony or expert report that has not been filed with the written submissions, unless the Tribunal determines that compelling

[Page 20]

circumstances exist based on a reasoned written request followed by observations from the other Party.

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

Witness statements

18.4. Any person may present evidence as a witness, including a Party or a Party’s officer, employee, or other representative. Each witness statement shall be in writing, dated and signed. Witness statements shall include:

18.4.1. a photograph of the witness on the cover page of his or her witness statement;

18.4.2. a curriculum vitae of the witness;

18.4.3. the full name of the witness and his or her date of birth;

18.4.4. a description of the witness’s position and qualifications, if relevant to the dispute or to the contents of the statement;

18.4.5. a description of any past and present relationship between the witness and the parties, if any;

18.4.6. a description of the facts on which the witness’s testimony is offered and, if applicable, the source of the witness’s knowledge; this should be done in a narrative form containing the full substance of the witness’s testimony;

18.4.7. 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;

18.4.8. the witness’s confirmation of her or his availability to attend the hearing if called to testify;

18.4.9. the signature (physical or electronic) of the witness, with an indication of the date and place of signature; and

18.4.10. an affirmation of the truth of the statement.

18.5. Witness statements shall be submitted in a searchable PDF format and have consecutive numbering on pages, headings and paragraphs.

[Page 21]

18.6. The witness statements 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".

18.7. It shall not be improper for counsel to meet or interact with witnesses for the purpose of discussing and preparing their respective witness statement, or to assist witnesses in the preparation of their oral testimony. Counsel shall ensure that witness statements reflect the witness’s version of the relevant facts, events, and circumstances.

18.8. Each Party shall be responsible for summoning its own witnesses to the hearing, except when the other Party has waived cross-examination of a witness and the Tribunal does not direct his or her appearance.

Experts

18.9. Unless inconsistent with this Section, all the rules set forth in §§18.4-18.8 above shall apply by analogy to experts.

18.10. Each Party may retain and submit the evidence of one or more experts to the Tribunal. Expert reports shall include:

18.10.1. a photograph of the expert on the cover page of his or her expert report;

18.10.2. a curriculum vitae of the expert;

18.10.3. the full name of the expert;

18.10.4. a description of the expert’s background, qualifications, training and experience;

18.10.5. a description of any past and present relationship between the expert and the parties, if any;

18.10.6. a description of the instructions pursuant to which he or she is providing his or her opinions and conclusions;

18.10.7. his or her expert opinions and conclusions, including a description of the methods, evidence and information used in arriving at the conclusions;

18.10.8. any documents on which the expert relies that have not already been submitted;

18.10.9. an affirmation of his or her genuine belief in the opinions expressed in the report; and

[Page 22]

18.10.10. if the report is signed by more than one person, an attribution of the entirety or specific parts of the report to each author.

18.11. Expert reports shall be accompanied by the documents or information on which they are based, unless such documents or information are already in the record, in which case the reference to such documents shall be sufficient. These documents shall be submitted in the manner set out in Section 19 and Annex A. The experts shall use their best efforts to ensure that the electronic documents have short names and paths (avoiding sub-folders), in order to facilitate their filing.

18.12. In accordance with Article 833 of the Treaty, the Tribunal, at the request of a disputing Party, or on its own initiative unless the disputing Parties disapprove, may appoint experts to report in writing on any factual issue concerning environmental, health, safety or other scientific matters raised by a disputing Party, subject to such terms and conditions as the disputing Parties may agree.

19. Examination of Witnesses and Experts

Arbitration Rule 38

19.1. On the date indicated in Annex B, each Party shall submit to the opposing Party, the Tribunal, the Secretary of the Tribunal, and the Tribunal Assistant a request to call at the hearing for examination and cross-examination any witness or expert presented by the other Party whose written testimony has been submitted with the pleadings.

19.2. The Tribunal may, on its own initiative, identify and call for examination any person connected with the dispute, whether or not identified or called by the Parties as a witness. Within one week of the Party’s notifications pursuant to §19.1 above, the Tribunal will communicate to the Parties the persons not called by the Parties whom it wishes to question, if any.

19.3. If a Party does not call a witness or expert proffered by the other Party for cross-examination, within one week of the Parties’ notifications the Party proffering the witness or expert may file a reasoned application to the Tribunal for permission to call the witness or expert for examination. The Tribunal will rule on the application taking into account all the relevant circumstances, including whether the examination is likely to serve a valid purpose.

19.4. 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.

[Page 23]

19.5. 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.

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

19.7. 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 the Award.

19.8. The procedure for the examination of witnesses or experts shall be agreed upon by the Parties at a later stage and in advance of the hearing, or, failing such agreement, decided by the Tribunal after consultation with the Parties during a pre-hearing organizational meeting held pursuant to §20.

20. Pre-Hearing Organizational Meetings

Arbitration Rule 31

20.1. A pre-hearing organizational meeting shall be held in accordance with the Procedural Calendar (Annex B). It shall be held by a videoconference between the Tribunal, the Secretary of the Tribunal, the Tribunal Assistant, and the Parties and should address any outstanding procedural, administrative, and logistical matters (including modality of interpretation and transcription) in preparation for the hearing. Following the pre-hearing organizational meeting, the Tribunal shall issue a procedural order recording any outstanding procedural matters and the arrangements for the hearing, including the venue, time, agenda, and all other technical and ancillary aspects.

20.2. At least three weeks prior to the hearing, 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.

21. Case Management Conferences

Arbitration Rule 31

21.1. 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, road map, matrix(es) and/or skeleton arguments); or (iii) address any other procedural or substantive issue related to the

[Page 24]

resolution of the dispute (e.g., the appointment of a Tribunal-appointed expert, or the production of evidence).

21.2. The Tribunal may schedule a case management conference at its discretion, after consultation with the Parties.

21.3. The Parties agree to be guided by the Tribunal with respect to the case management conference, including its timing.

22. Hearings

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 will be held in-person. Should special circumstances arise, the Parties may agree or the Tribunal may decide – upon consultation with the Parties – to conduct the hearing by other means of communication.

22.3. Having due regard to the views of the Parties and the specific circumstances of the case, including any relevant travel or public health/security restrictions the Tribunal may decide to hold a hearing remotely or in a hybrid form.

22.4. The hearing shall take place on the dates indicated in Annex B.

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

22.6. The Tribunal shall reserve at least seven business days for the hearing. Subject to any gross disparity in the number of witnesses and experts, time shall be divided equally between the Parties, subject to adjustments in the Tribunal’s discretion due to any unbalanced situation, who may decide how to allocate the use of such time according to a chess-clock system to be monitored by the Secretary of the Tribunal. The Parties shall not ask for more time once they have used up their allocated time. The allocation will be discussed at the pre-hearing organizational meeting and set by the Tribunal, which may grant short extensions if appropriate under the circumstances and the remaining time so permits.

22.7. In accordance with Article 827(2) of the Treaty, Canada, as the other Contracting Party to the Treaty, shall have the right to attend any hearings. Upon written notice to the Parties, the Government of Canada may make oral and written submissions to the Tribunal on a question of interpretation of the Treaty.

22.8. Other matters regarding the conduct of the hearing (including hearing bundles, order of appearance of witnesses, and allocation of time between the Parties) shall

[Page 25]

be agreed upon by the Parties at a later stage and in advance of the hearing, or, failing such agreement, decided by the Tribunal after consultation with the Parties during a pre-hearing organizational meeting held pursuant to §20 above.

23. Recordings of Hearings and Sessions

Arbitration Rule 29(4)(i)

23.1. Sound recordings shall be made of all hearings and sessions. The recordings shall be provided to the Parties and the Tribunal Members. They shall not be made public.

23.2. Verbatim transcripts in the procedural languages shall be made of any hearing and session other than sessions on procedural issues. To the extent that any witness or expert testifies in Spanish at any such hearing or other session, a verbatim transcript of this testimony shall also be made in Spanish. 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 original-language transcripts within 30 days of the later of the dates of the receipt of the sound recordings and transcripts. The translated-language transcripts will not be corrected. The Parties agree that, in the event of disagreement with the written transcript, the audio recording in the original spoken language controls. 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.

24. Post-Hearing Memorials and Statements of Costs

Convention Article 44; Arbitration Rules 51

24.1. The Tribunal will determine at the end of the hearing and upon consultation with the Parties whether post-hearing submissions should be made. If so, the Tribunal will address the time limits for preparing, as well the length, format, and content of the post-hearing submissions. No new evidence may be produced together with the post-hearing submissions, except with leave or on request of the Tribunal.

24.2. The Tribunal will issue directions on the Parties’ statements of costs at the end of the hearing.

25. Submissions by a Non-Disputing Party

Arbitration Rule 67; FTA Article 831; Annex 831

25.1. An application to the Tribunal for leave to file a non-disputing party submission, and the filing of a submission, if allowed by the Tribunal, shall be made in

[Page 26]

accordance with ICSID Arbitration Rule 67, and Article 831 and Annex 831 of the Treaty.

25.2. The Parties shall have the right to submit observations in relation to any non-disputing party submissions, in accordance with the schedule prescribed by the Tribunal or as agreed to between the Parties.

25.3. In accordance with ICSID Arbitration Rule 67(4) and Article 831 of the Treaty, the Tribunal shall ensure that any non-disputing party submission does not unduly disrupt the proceeding or unduly burden or unfairly prejudice either Party. Accordingly, such submissions shall not affect the dates fixed by the Procedural Calendar outlined in Annex B.

26. Transparency Matters

Convention Article 48(5), Arbitration Rules 62-66

26.1. The Parties agree that the transparency regime governing these proceedings 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.

27.4. If particular documents, information, and/or communications require heightened security measures, the Parties will confer in order to take appropriate security measures for the transmission of such documents, information and/or communications. Unless instructed otherwise by the Parties, the Tribunal will not take any special measures beyond its standard procedures to safeguard the cyber security of arbitration-related information, and the Parties confirm that communications may be sent by email.

[Page 27]

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. The Parties may agree to suspend the arbitration for this purpose. 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). Any agreement pursuant to ICSID Arbitration Rule 54(1), made in order to pursue amicable settlement discussions, should be communicated to the Tribunal.

29. Disability Inclusion

29.1. At any point during the proceedings, but ideally as soon as practicable, either Party may advise the Tribunal of a person who, by reason of disability, requires reasonable accommodation to facilitate their full participation in the arbitration, including oral hearings. In considering such requests, the 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 reasonable accommodation, would significantly impair a person’s ability to participate in work related to an arbitration.

On behalf of the Tribunal,

Signature

Prof. Dr. Klaus Sachs
President of the Tribunal
Date: 14 March 2025

[Page 28]

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.

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.

[Page 29]

[Page 30]

Annex B – Procedural Calendar

SCENARIO 1: NO REQUEST FOR BIFURCATION

[Page 31]

[Page 32]

SCENARIO 2: BIFURCATION IS REQUESTED AND DENIED

[Page 33]

[Page 34]

SCENARIO 3: BIFURCATION IS REQUESTED AND GRANTED

If the Tribunal grants bifurcation, a further procedural calendar will be set for the first phase and, depending on its outcome – for the second phase (if any) of this arbitration.

[Page 35]

Annex C – Stern Schedule

[Page 36]

[Page 37]

Annex D – List of Public Holidays

[Page 38]