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SAVOIE
ARBITRATION

Savoie Arbitration s.e.l.a.s.u.
26 rue Vignon
75009 Paris
T +33 1 86 64 17 48
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pierre-olivier.savoie@
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Paris, 15 May 2025

VIA E-MAIL

To:

Lucinda A. Low
Low & Kinnear Dispute Resolution LLC
1717 K St NW Ste 900
Washington DC 20006-5349
United States of America

Professor Andrea K. Bjorklund
L. Yves Fortier Chair in International Arbitration and International Commercial Law
McGill University Faculty of Law
Chancellor Day Hall
3644 rue Peel
Montréal, Québec
Canada

Professor Dr. Maxi Scherer
ArbBoutique
49 Park Lane
1 Paternoster Lane, London, EC4M 7BQ, United Kingdom
20, rue des Pyramides, 75001 Paris, France

SUBJECT : Mr. Peteris Pildegovics and SIA North Star v The Kingdom of Norway, ICSID Case ARB/20/11, Annulment Proceedings – Document Production

Dear Members of the Ad Hoc Committee,

Applicants write to the Committee to formally admit into the record, pursuant to section 15.5 of Procedural Order No.1 (PO1) exhibits A-0001 to A-0202, out of an abundance of caution.

However, as will be seen, a request may be necessary only for 12 exhibits submitted with the Memorial on Annulment (A-0146 to A-0151, A-0155, KL-064, KL-065, PP-0229 to PP-0231), and for the 45 exhibits which constitute Norway's document production and which have not yet been submitted into the record (A-0158 to A-0202).

In this letter we recall the framework for the admission of exhibits constituting new evidence in the present annulment proceedings (A). We then provide an overview of exhibits, witness

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statements and authorities submitted into the record (B). We then provide an overview, by date of submission, of new exhibits submitted into the record (A-0119 to A-0157) and also of new exhibits announced but not yet submitted into the record (A-0158 to A-0202) (C). We then provide the rationale for inclusion of all exhibits (A-0001 to A-0202, as well as KL-064, KL-065, and PP-0229 to PP-0231) into the record (D).

Applicants also include, as Annex I, the list of exhibits A-0119 to A-0157 already submitted, and those proposed to be added as A-0158 to A-0202, as well as KL-064, KL-065, and PP-0229 to PP-0231.

A) Framework to add new evidence in the present annulment proceedings

To recall, section 15.5 of PO1 provides :

In principle, no new documentary evidence shall be admitted in this proceeding unless the Committee determines that special circumstances exist based on a reasoned written request followed by observations from the other party. Should either party wish to introduce new documents, other than legal authorities, that party shall file a request to the Committee to that effect. The party may not annex to its request the document(s) that it seeks to file. The Committee will promptly decide on the admissibility of the new documentary evidence, after hearing from the other party. If the request is granted, the Committee will afford the other party an opportunity to respond to the new documentary evidence.

[emphasis added]

Moreover, section 15.3 may be recalled:

Given the nature of an annulment proceeding, the Committee expects that the parties will refer primarily to the evidentiary record from the arbitration proceeding and it does not expect to receive new evidence (exhibits, witness statements or expert reports). However, new witness statements shall be allowed.

[emphasis added]

B) Overview of exhibits, witness statements and authorities submitted

Since the beginning of the annulment proceedings, Applicants have, as at 6 May 2025, submitted:

• Exhibits A-0001 to A-0157. In addition, in the application of 6 May 2025 for document production, Applicants announced their intention to request introduction of the documents produced by Norway on 18 March 2025, including those referred to in the 6 May 2025 application as A-0158 to A-0161 as well as A-0162 to A-0202, as discussed below;

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• Witness statements from Peteris Pildegovics (2 statements), including three exhibits, PP-0229 to PP-0231, attached to his second witness statement, and from Kirill Levanidov (1 statement), including two exhibits, KL-0064 to KL-0065; and
• Legal authorities AL-0001 to AL-0122.

To submit legal authorities and witness statements, Applicants need no authorization.

C) Overview of new exhibits submitted into the record by date (A-0119 to A-0157) and new exhibits announced but not submitted (A-0158 to A-0202)

Additional exhibits were introduced, or announced to be introduced, on 7 different dates:

• 10 April 2024: Applicants' Stay of Enforcement Application (A-0119 to A-0123)
• 26 April 2024: Applicants' Reply for Continuation of Stay of Enforcement (A-0124 to A-0135)
• 10 October 2024: Applicants' Letter to Ad Hoc Committee on Legal Protection Proceedings and Stay of Enforcement (A-0136)
• 23 October 2024: Applicants' Letter to Ad Hoc Committee on Legal Protection Application and Update (A-0137 and A-0138)
• 18 November 2024: Applicants' Reply on Respondent Request for Security for Costs (A-0139 to A-0142)
• 21 January 2025: Applicants' Memorial for Annulment of the Award of 22 December 2023 (A-0143 to A-0157; PP-0229 to PP-0231; and KL-0064, KL-0065)
• 6 May 2025: Applicants' Second Request for Production of Documents (announcing A-0158 to A-0202)

D) Rationale for inclusion of exhibits A-0001 to A-0202 into the record

Applicants first note exhibits A-0001 to A-0118 are exhibits already in the arbitration record. They were numbered “A-XXXX” for ease of reference as they did not have specific numbering in the arbitration record. As such, no authorization is needed to introduce those exhibits into the record. Applicants nonetheless do so out of an abundance of caution.

It is only on 8 November 2024 that the Committee adopted PO1. As such, Applicants assumed there was no need to apply for inclusion of A-0119 to A-0138 into the record, as they were introduced in the proceedings between 10 April and 23 October 2024. Applicants nonetheless do so out of an abundance of caution.

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Exhibits A-0119 to A-0138 were necessary to Applicants' defense on the application to stay enforcement of the award. Those exhibits were considered in the Committee's decision on the matter of 7 November 2024, and Norway never protested their inclusion prior to that decision.

As for exhibits A-0139 to A-0142, they were introduced by Applicants on 18 November 2024 in the context of Norway's security for costs application, to defend it. Those exhibits were necessary to the defense of Norway's application. Norway never protested their inclusion into the record prior to Procedural Order No. 2 of 20 December 2024 deciding the matter.

Norway now appears to wish that Applicants make a formal application in respect of either the aforementioned exhibits or those introduced in the Memorial on annulment.

As can be seen in in Annex I, in respect of exhibits submitted with the Memorial of 21 January 2025, A-0143 to A-0145, as well as A-0152, A-0156, A-0157, are not documents containing new evidence. These exhibits are correspondence dating back to 2022 and 2023 to and from the Tribunal in the original arbitration. They were renamed to facilitate reference to them. However, since they were already part of the arbitration record, there is no need to make a formal request to have them included in the record. Such a request is in any event made.

As for exhibits A-0155, KL-0064, and KL-0065, they contain factual information about Wikborg Rein essential to support the appellants' request for annulment on the grounds of conflict of interest. As for exhibits PP-0229, PP-0230 and PP-0231, they contain essential factual information about the Glimstedt law firm in support of Applicants' request for annulment on the grounds of a conflict of interest.

There is no doubt there exists “special circumstances”, as required by section 15.5 of PO1, to introduce into the record the following six exhibits: A-0155, KL-0064, KL-0065, and PP-0229 to PP-0231. Indeed, in Procedural Order No. 3 (decision on document production of 6 March 2025), the Committee ordered document productions relating to potential conflicts of interest of Glimstedt, Wikborg Rein and KPMG. Moreover, Norway did not oppose such production requests. As such, Norway agrees “special circumstances" exist. For the avoidance of doubt, and noting that five of these six exhibits were joined to witness statements (which themselves are authorized without an application), Applicants hereby request introduction into the record of A-0155, KL-0064, KL-0065, and PP-0229 to PP-0231.

As for exhibits A-0146 to A-0151, they all concern Applicants' first ground for annulment: that the Tribunal failed to discharge its duty to properly adjudicate the dispute. Two of these exhibits are publicly available documents from ICSID (A-0148) and the ICC Court of Arbitration (A-0151) concerning how arbitrators are paid in ICSID cases and referring to general duties of arbitrators. As for the other four exhibits (A-0146, A-0147, A-0149, A-0150), they consist in computing or analysis of how much time arbitrators have spent on deciding investment treaty cases. Properly speaking, these exhibits are, in essence, legal arguments and analysis based on legal authorities (the relevant awards). As such, these exhibits do not raise new facts. In any event, these exhibits are necessary to Applicants' ground for annulment that the arbitrators did not spend sufficient time on the matter. As such, and for the avoidance of doubt, Applicants request their inclusion into the record.

As for exhibits A-0153 and A-0154, they actually constitute legal authorities, being the ICJ's Diallo judgment of 30 November 2010 and Judge Greenwood's separate opinion of the same date in that case. For the avoidance of doubt, Applicants request their inclusion into the record as such, but intend to relabel them as legal authorities with the Reply.

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The Applicants now address their request for the inclusion of A-0158 to A-0202 into the record. None of these documents have to date been submitted by Applicants, though A-0158 to A-0161 have been referred to in Applicants' second request for documents of 6 May 2025. These documents constitute the document production of Norway of 18 March 2025, ordered by the Tribunal. Since the documents, which all pertain the potential conflicts of interests of KPMG, Wikborg Rein and Glimstedt, were ordered to be produced by the Tribunal, they necessarily all go to "special circumstances” within the terms of section 15.5 of PO1. As such, they can be introduced into the record.

Finally, while the inclusion of exhibit A-0120 was already addressed above, a further observation is useful. The inclusion of exhibit A-0120 into the record is essential and fundamental to Applicants' annulment proceedings. There is also not doubt it goes to “special circumstances”. In the Award, the Tribunal doubts the existence of the diplomatic note sent by the EU to Norway on 30 October 2023 (which nonetheless exists, as shown by A-0120). That diplomatic note was sent in protest against the judgment of the Norwegian Supreme Court of 20 March 2023. The Tribunal relies on the alleged non-existence of this diplomatic note to dismiss Applicants' claim and not reopen the proceedings to discuss this note, despite Applicants' request to do so, and Applicants' request to have this note introduced into the record (which the Tribunal ignored). The sole existence of A-0120 should, in and of itself, lead to the annulment of the entire Award, whether the Tribunal rendered (or not) a procedural decision on 5 December 2023 never notified to the parties, as recognized by Norway.¹

***

For the above reasons, Applicants request formal inclusion into the record of A-0001 to A-0202, as well as PP-0229 to PP-0231, and KL-0064 and KL-0065.

***

The Applicants thank in advance the Committee for its attention to the matters raised in the present letter and remain at their disposal with respect to any further questions arising from the above.

Sincerely,

Signature

¹ Norway's Counter-Memorial, para. 43 (“The Applicants' case is built upon the supposition that there was a further decision of 5 December 2023, in which the Tribunal refused to admit the Applicants offered exhibit C-0360 to the record, which neither the Applicants nor Norway received.” [emphasis added]). ↩

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Copy (by email):

Mr Kristian Jervell, Director General
Mr Martin Sorby, Deputy Director General
Ms Kristina Nygård, International Law Adviser
Mr Fredrik Bergsjø, Adviser
Legal Affairs Department, Norwegian Ministry of Foreign Affairs
PO Box 8114 Dep
NO-0030 Oslo
Norway
e-mail: [email protected]
e-mail: [email protected]
e-mail: [email protected]
e-mail: [email protected]

Prof Vaughan Lowe KC
Mr Mubarak Wassem
Prof Alain Pellet
Mr Ysam Soualhi
e-mail: [email protected]
e-mail: [email protected]
e-mail: [email protected]
e-mail: [email protected]

Ms Leah Waitirah Njoroge
ICSID
1818 H Street NW
Washington, DC 20433
United States of America
e-mail: [email protected]

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ANNEX I

APPLICANTS' STAY OF ENFORCEMENT APPLICATION, 10 APRIL 2024

APPLICANTS' REPLY FOR CONTINUATION OF STAY OF ENFORCEMENT, 26 APRIL 2024

APPLICANTS' LETTER TO AD HOC COMMITTEE ON LEGAL PROTECTION PROCEEDINGS AND STAY OF ENFORCEMENT, 10 OCTOBER 2024

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APPLICANTS' LETTER TO AD HOC COMMITTEE RE LEGAL PROTECTION APPLICATION UPDATE, 23 OCTOBER 2024

APPLICANTS' REPLY ON RESPONDENT REQUEST FOR SECURITY FOR COSTS, 18 NOVEMBER 2024

APPLICANTS' MEMORIAL FOR ANNULMENT OF THE AWARD OF 22 DECEMBER 2023, 21 JANUARY 2025

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APPLICANTS' SECOND REQUEST FOR PRODUCTION OF DOCUMENTS, 6 MAY 2025
ANNOUNCED BUT NOT SUBMITTED INTO THE RECORD

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FIRST WITNESS STATEMENT OF KIRILL LEVANIDOV, 21 JANUARY 2025

SECOND WITNESS STATEMENT OF PETERIS PILDEGOVICS, 21 JANUARY 2025