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INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES

Veolia Propreté SAS

v.

Italian Republic

(ICSID Case No. ARB/18/20)

PROCEDURAL ORDER NO. 1

Members of the Tribunal
Mr. Eduardo Zuleta, President of the Tribunal
Ms. Judith Gill QC, Arbitrator
Prof. Laurence Boisson de Chazournes, Arbitrator

Secretary of the Tribunal
Ms. Natalí Sequeira

March 6, 2020

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Introduction

The first session of the Tribunal was held on February 10, 2020, at 8:00 a.m. Washington D.C. time/ 2:00 p.m. Rome/Paris time, by telephone conference among the members of the Tribunal only¹.

Participating in the conference were:

Members of the Tribunal
Mr. Eduardo Zuleta, President of the Tribunal
Ms. Judith Gill QC, Arbitrator
Prof. Laurence Boisson de Chazournes, Arbitrator

ICSID Secretariat:
Ms. Natalí Sequeira, Secretary of the Tribunal

The Tribunal considered the following:

• The Draft Agenda and Draft Procedural Order circulated by the ICSID Secretariat on December 20, 2019; and
• The Parties’ comments on the Draft Agenda and the Draft Procedural Order received on February 3 and February 25, 2020, indicating the agreements of the parties.

Following the session, the Tribunal now issues the present Order:

Order

Pursuant to ICSID Arbitration Rules 19 and 20, this first Procedural Order sets out the Procedural Rules that govern this arbitration. The timetable is attached as Annex B.

1. Applicable Arbitration Rules
Convention Article 44

1.1. These proceedings are conducted in accordance with the ICSID Arbitration Rules in force as of April 10, 2006.

¹ See letter from the Tribunal to the Parties of February 6, 2020, indicating that “[i]n view that the parties have agreed on all procedural matters reflected in the draft PO No. 1 and that only minor points remain pending and mindful of the need to reduce time and costs, ...[t]he Members of the Tribunal will hold the first session provided for in Arbitration Rule 13 among themselves and convey further comments or questions, if any, on the agreements reached by the parties soon thereafter”. ↩

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2. Constitution of the Tribunal and Tribunal Members’ Declarations
Arbitration Rule 6

2.1. The Tribunal was constituted on January 15, 2019, 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 6(2). Copies of these declarations were distributed to the parties by the ICSID Secretariat on January 15, 2019.

2.3. The Members of the Tribunal confirmed that they have sufficient availability during the next 24 months to dedicate to this case.

3. Fees and Expenses of Tribunal Members
Convention Article 60; Administrative and Financial Regulation 14; ICSID Schedule of Fees

3.1. The fees and expenses of each Tribunal Member shall be determined and paid in accordance with the ICSID Schedule of Fees and the Memorandum on Fees and Expenses of ICSID Arbitrators in force at the time the fees and expenses are incurred.

3.2. Under the current Schedule of Fees, each Tribunal Member receives:

3.2.1. US$3,000 for each day of meetings or each eight hours of other work performed in connection with the proceedings or pro rata; and

3.2.2. subsistence allowances, reimbursement of travel, and other expenses pursuant to ICSID Administrative and Financial Regulation 14.

3.3. Each Tribunal Member shall submit his/her claims for fees and expenses to the ICSID Secretariat on a quarterly basis.

3.4. Non-refundable expenses incurred in connection with a hearing as a result of a postponement or cancellation of the hearing shall be reimbursed.

4. Presence and Quorum
Arbitration Rules 14(2) and 20(1)(a)

4.1. The presence of all Members of the Tribunal constitutes a quorum for its sittings, including by any appropriate means of communication.

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5. Rulings of the Tribunal
Convention Article 48(1); Arbitration Rules 16, 19 and 20

5.1. Decisions of the Tribunal shall be taken by a majority of the Members of the Tribunal.

5.2. ICSID Arbitration Rule 16(2) applies to decisions taken by correspondence except that where the matter is urgent, the President may decide procedural matters without consulting the other Members, subject to possible reconsideration of such decision by the full Tribunal.

5.3. The Tribunal will draft all rulings, including the award, within a reasonable time period. If a ruling, other than the award, has not been issued within one month after the final submission on a particular matter, the Tribunal will provide the parties with status updates every week. If the award has not been issued within six months after the final submission, the Tribunal will provide the parties with status updates every two months.

5.4. The President is authorized to issue Procedural Orders on behalf of the Tribunal.

5.5. The Tribunal’s rulings on procedural matters may be communicated to the parties by the Tribunal Secretary in the form of a letter or email.

6. Power to Fix Time Limits
Arbitration Rule 26(1)

6.1. The President may fix and extend time limits for the completion of the various steps in the proceeding.

6.2. In exercising this power, the President shall consult with the other Members of the Tribunal. If the matter is urgent, the President may fix or extend time limits without consulting the other Members, subject to possible reconsideration of such decision by the full Tribunal.

7. Secretary of the Tribunal
Administrative and Financial Regulation 25

7.1. The Tribunal Secretary is Ms. Natalí Sequeira, Senior 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:

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Natalí Sequeira
ICSID
MSN C3-300
1818 H Street, N.W.
Washington, D.C. 20433
USA
Tel.: + 1 (202) 458-8575
Fax: + 1 (202) 522-2615
Email: [email protected]

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

Natalí Sequeira
1225 Connecticut Ave., N.W.
(known within the World Bank Group
as the “C Building”)
3rd Floor
Washington, D.C. 20036
Tel.: + 1 (202) 473-7231

8. Representation of the Parties
Arbitration Rule 18

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

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9. Apportionment of Costs and Advance Payments to ICSID
Convention Article 61(2); Administrative and Financial Regulation 14; Arbitration Rule 28

9.1. The parties shall cover the direct costs of the proceeding in equal parts, without prejudice to the final decision of the Tribunal as to the allocation of costs.

9.2. By letter of January 22, 2019, ICSID requested that each party pay US$200,000 to cover the initial costs of the proceeding. ICSID received Claimant’s payment on December 5, 2019. To this date ICSID has not received the Respondent’s payment².

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

10. Place of Proceeding
Convention Articles 62 and 63; Administrative and Financial Regulation 26; Arbitration Rule 13(3)

10.1. Paris, France, shall be the place of the proceeding.

10.2. The Tribunal may hold hearings at any other place that it considers appropriate if the parties so agree.

10.3. The Tribunal may deliberate at any place it considers convenient.

² The Tribunal takes note of the Respondent’s email of February 5, 2020, indicating that the oustanding payment will be made soon. ↩

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11. Procedural Language(s), Translation and Interpretation
Administrative and Financial Regulation 30(3) and (4); Arbitration Rules 20(1)(b) and 22

11.1. English is the procedural language of the arbitration.

11.2. Documents filed in any other language must be accompanied by a translation into English.

11.3. If the document is lengthy and relevant only in part, it is sufficient to translate only relevant parts, provided that the Tribunal may require a fuller or a complete translation at the request of any party or on its own initiative.

11.4. Translations need not be certified unless there is a dispute as to the content of a translation provided and the party disputing the translation specifically requests a certified version.

11.5. Documents exchanged between the parties in a language other than English under §15 below (Production of Documents) need not be translated.

11.6. The testimony of a witness called for examination during the hearing who prefers to give evidence other than in the English language shall be interpreted simultaneously.

11.7. The parties will notify the Tribunal, as soon as possible, and no later than at the pre-hearing organizational meeting (see §19 below), which witnesses or experts require interpretation.

11.8. The costs of the interpreter(s) 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.

12. Routing of Communications
Administrative and Financial Regulation 24

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

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

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

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

13. Number of Copies and Method of Filing of Parties’ Pleadings
Administrative and Financial Regulation 30; Arbitration Rules 20(1)(d) and 23

13.1. By the relevant filing date, the parties shall submit by email to the Tribunal Secretary and the opposing party an electronic version of the pleading with witness statements, expert reports and the updated hyperlinked index of all the supporting documentation attached to the pleading (including witness statements, expert reports, exhibits and legal authorities)³.

13.2. Within three business days from the date of submission, the parties shall upload the pleading, with all the supporting documentation and the corresponding updated hyperlinked index to the file sharing platform that will be created by ICSID for purposes of this case.

13.3. Within three business days following the electronic filing, the parties shall courier to the Tribunal Secretary:

13.3.1. one unbound hard copy in A4/Letter format⁴ of the entire submission⁵, including signed originals of the pleading, witness statements, and expert reports, together with any other supporting documentation (but not including legal authorities) and the updated index; and

13.3.2. two USB drives with full copies of the entire submission, including the pleading, the witness statements, expert reports, exhibits, legal authorities and the updated hyperlinked index of all the supporting documentation.

13.4. Also within three business days of the electronic filing, the parties shall courier to each Member of the Tribunal at the addresses indicated at §13.6 and in accordance with their preferences indicated below:

13.4.1. Hard Copies:

For Ms. Gill: one hard copy in A4 format of the entire submission including the pleading, the witness statements and the expert reports and the updated index. Ms. Gill does not wish to receive hard copies of any other supporting documentation e.g. exhibits or legal authorities, including attachments to expert reports.

³ Please note that the World Bank server does not accept emails larger than 25 MB. ↩
⁴ The A4/Letter format is required for ICSID’s archiving. ↩
⁵ The Secretariat’s copy will be kept in the official repository of ICSID, and is not intended to be used at hearings. ↩

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For Prof. Boisson de Chazournes: one hard copy in A5 format of the entire submission including the pleading, the witness statements and expert reports and the updated index (but not including supporting documentation and legal authorities, including attachments to expert reports); and

Mr. Zuleta: does not wish to receive hard copies of the submissions.

13.4.2. Electronic Copies: one USB drive with a full copy of the entire submission, including the pleading, the witness statements, expert reports, exhibits, legal authorities and the updated hyperlinked index of all the supporting documentation⁶.

13.5. Also within five business days of the electronic filing, the parties shall courier to the other party at their addresses indicated at § 8.1 above and in accordance with their preferences indicated below:

13.5.1. Hard Copies:

Claimant: one hard copy in A4 format of the entire submission including the pleadings, witness statements, and expert reports, together with any supporting documentation and the updated index for the law firm Darrois Villey Maillot Brochier and one hard copy in A4 format of the entire submission including the pleadings, witness statements, and expert reports, together with any supporting documentation and the updated index for Professor Pierre Mayer.

Respondent: one hard copy in A4 format of the entire submission including the pleadings, witness statements, and expert reports, together with any supporting documentation and the updated index (to the attention of Avv, G. Aiello).

13.5.2. Electronic Copies: one USB drive with a full copy of the entire submission, including the pleading, the witness statements, expert reports, exhibits, legal authorities and the updated hyperlinked index of all the supporting documentation.

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

⁶ Please note that Prof. Boisson de Chazournes wishes to receive copies of the Parties’ submissions in Word and PDF. ↩

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13.7. Legal authorities shall be submitted in electronic format only, unless a hard copy is specifically requested by the Tribunal.

13.8. Electronic versions of pleadings, witness statements, expert reports, and legal authorities shall be text searchable (i.e., OCR PDF or Word) and compatible with Mac computers.

13.9. All pleadings shall be accompanied by the updated index hyperlinked to the supporting documentation. The index shall indicate the document number, the pleading with which it was submitted. (Please follow the naming conventions contained in Annex A).

13.10. 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 courier to the ICSID Secretariat and each Member of the Tribunal a USB drive containing 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.

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

13.12. A filing shall be deemed timely if sent by a party by midnight, Washington, D.C. time, on the relevant date.

14. Number and Sequence of Pleadings
Arbitration Rules 20(1)(c), 20(1)(e), 29 and 31

14.1. The proceedings shall consist of a written procedure, followed by an oral procedure. The written procedure shall include the submission of two rounds of written pleadings (Memorial, Counter-Memorial, Reply and Rejoinder) before a hearing.

14.2. It was agreed that the timetable for submission of written pleadings shall be as recorded in Annex B to the present Procedural Order.

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15. Production of Documents
Convention Article 43(a); Arbitration Rules 24 and 33-36

15.1. The International Bar Association Rules on the Taking of Evidence in International Arbitration (2010) shall guide the Tribunal and the parties regarding document production in this case.

15.2. The parties shall exchange requests for document production simultaneously. Every request for production of documents shall comply with the conditions set out in the said IBA Rules. The requests shall be recorded in a joint schedule in the form of the below. Such requests shall not be sent to the Tribunal or the ICSID Secretariat.

15.3. Each party shall state its response and/or objection to each request in column 5 of the above schedule. If there is no objection, then the requested party shall produce the requested document within the time limit set out in Annex B.

15.4. Each party shall respond to the other party’s objections. Such responses shall be recorded in column 6 of the same schedule.

15.5. At such point, after having completed said column 6, each party shall provide the other party and the Tribunal with the completed schedule (in both Word and PDF formats).

15.6. The Tribunal will make its best efforts to rule on the objections within two weeks of their receipt.

15.7. The time limits for each of the above exchanges are set out in Annex B.

16. Submission of Documents
Convention Article 44; Administrative and Financial Regulation 30; Arbitration Rule 24

16.1. The Memorial and Counter-Memorial shall be accompanied by the documentary evidence relied upon by the parties, including exhibits and legal authorities. Further

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documentary evidence relied upon by the parties in rebuttal shall be submitted with the Reply and Rejoinder.

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

16.3. Neither party shall be permitted to submit additional or responsive documents after the filing of its respective last written submission, unless the Tribunal determines that exceptional circumstances exist based on a reasoned written request followed by observations from the other party.

16.3.1. Should a party request leave to file additional or responsive documents, that party may not annex the documents that it seeks to file to its request.

16.3.2. If the Tribunal grants such an application for submission of an additional or responsive document, the Tribunal shall ensure that the other party is afforded sufficient opportunity to make its observations concerning such a document.

16.4. The Tribunal may call upon the parties to produce documents or other evidence in accordance with ICSID Arbitration Rule 34(2).

16.5. The documents shall be submitted in the following form:

16.5.1. Exhibits shall be numbered consecutively throughout these proceedings.

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

16.5.3. Each Exhibit shall have a divider with the Exhibit identification number on the tab.

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

16.5.5. Exhibits shall also be submitted in PDF format and start with the number “C-0001” and “R-0001,” respectively.

16.5.6. Electronic filings and the accompanying indexes shall follow the naming conventions contained in Annex A.

16.6. 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.

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16.7. The parties shall file all documents only once by attaching them to their pleadings. Documents need not be resubmitted with witness statements even if referred to in such statements.

16.8. Demonstrative exhibits (such as PowerPoint slides, charts, tabulations, etc.) may be used at any hearing, provided they contain no 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 hard copy to the other party, the Tribunal Members, the Tribunal Secretary, the court reporter(s) and interpreter(s) at the hearing at a time to be decided at the pre-hearing organizational meeting.

17. Witness Statements and Expert Reports
Convention Article 43(a); Arbitration Rule 24

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

17.2. Neither party shall be permitted to submit any testimony that has not been filed with the written submissions, unless the Tribunal determines that exceptional circumstances exist based on a reasoned written request followed by observations from the other party (following the procedure outlined in §16.3).

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

18. Examination of Witnesses and Experts
Arbitration Rules 35 and 36

18.1. The International Bar Association Rules on the Taking of Evidence in International Arbitration (2010) shall guide the Tribunal and the parties regarding examination of witnesses and experts in this case.

18.2. Each party will identify the factual witnesses and expert witnesses of the opposing party (having filed written statements and expert reports) whom it intends to examine in accordance with the time limit set out in Annex B.

18.3. A decision not to call a fact witness or expert witness to appear for cross examination or questioning shall not be considered a concession as to the substance of the written statement or report.

18.4. The Tribunal may disregard the testimony of a witness or expert called to testify at a hearing who fails to appear at the hearing without justified reasons.

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18.5. Witnesses and experts shall be examined by each party under the control of the Tribunal. Before giving evidence, witnesses shall make the declaration set out in ICSID Arbitration Rule 35(2), and experts shall make the declaration set out in ICSID Arbitration Rule 35(3). The Tribunal may examine the witness or expert at any time during the scheduled oral examination of said witness or expert.

18.6. The time, form and order of the direct examination, cross-examination, and any re-direct examinations shall be discussed and agreed on by the parties at the Pre-Hearing Organizational Meeting set out in Annex B.

18.7. Fact witnesses shall not be allowed in the hearing room until they are giving their oral evidence. However, if a fact witness is also a representative of one party, such fact witness shall be called to testify first (this applies to both Claimant and Respondent) and shall be allowed to stay in the hearing room. Expert witnesses shall be allowed in the hearing room at any time.

18.8. Other matters regarding the hearing shall be addressed at the Pre-Hearing Organizational Meeting.

19. Pre-Hearing Organizational Meetings
Arbitration Rule 13

19.1. A pre-hearing organizational meeting shall be held at a date determined by the Tribunal after consultation with the parties by telephone between the Tribunal, or its President and the parties in order to resolve any outstanding procedural, administrative, and logistical matters in preparation for the hearing.

20. Hearings
Arbitration Rules 20(1)(e) and 32

20.1. The oral procedure shall consist of (i) a hearing for examination of witnesses and experts, if any, and (ii) a further hearing for closing statements.

20.2. The hearings shall take place in Paris, France.

20.3. The Members of the Tribunal shall endeavor to reserve at least one day after the hearing to determine the next steps and to hold deliberations.

20.4. The parties agree that the time be split equally between the parties. Each party may allocate its time as it sees fit for witness and expert examinations. The particulars of time allocation for the parties’ oral pleadings (i.e., opening and closing statements) shall be decided in the Pre-Hearing Organizational Meeting.

20.5. The Parties agree that the hearings be closed to the public.

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21. Records of Hearings and Sessions
Arbitration Rules 13 and 20(1)(g)

21.1. Sound recordings shall be made of all hearings and sessions. The sound recordings shall be provided to the parties and the Tribunal Members.

21.2. Verbatim transcript in the procedural language shall be made of any hearing and session other than sessions on procedural issues. Unless otherwise agreed by the parties or ordered by the Tribunal, the verbatim transcripts shall be available in real-time using LiveNote or similar software and electronic transcripts shall be provided to the parties and the Tribunal on a same-day basis.

21.3. The parties shall agree on any corrections to the transcripts within 30 days of the later of the dates of the receipt of the sound recordings and transcripts. The agreed corrections 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.

22. Post-Hearing Memorials and Statements of Costs
Convention Article 44; Arbitration Rule 28(2)

22.1. At the end of the closing statements, the Parties and the Tribunal shall agree on:

22.1.1. the eventuality, particulars and date for the submission of post-hearing briefs; and

22.1.2. the date for simultaneous submission of statements of costs.

23. Publication
Convention Article 48(5), Administrative and Financial Regulation 22, Arbitration Rule 48(4)

23.1. The parties consent to ICSID publication of the award issued in the present proceeding.

Signature

Mr. Eduardo Zuleta
President of the Tribunal
Date: March 6, 2020

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ANNEX A

ELECTRONIC FILE NAMING GUIDELINES

Please follow these guidelines when naming electronic files and for the accompanying Consolidated Hyperlinked Index. The examples provided (in italics) are for demonstration purposes only and should be adapted to the relevant phase of the case.

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 use 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.

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Timetable

The following timetable shall apply in the event no preliminary objections are raised [Scenario 1]:

¹ The requests for production of documents have been inserted after the first exchange of pleadings on the merits for illustration purposes. The parties are free to agree on a different timing for such requests. If the parties fail to agree, the Tribunal can also decide otherwise. ↩

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The following timetable shall apply in the event preliminary objections are raised [OPTION 1 – Scenarios 2 and 3]:

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The following timetable shall apply in the event the Tribunal decides to join the preliminary objections to the merits [Scenario 2]:

² The requests for production of documents have been inserted after the first exchange of pleadings on the merits for illustration purposes. The parties are free to agree on a different timing for such requests. If the parties fail to agree, the Tribunal can also decide otherwise. ↩

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The following timetable shall apply in the event the Tribunal decides to bifurcate [Scenario 3]:

The remainder of the schedule for further proceedings, if any issues remain after a phase on preliminary objections, will be fixed pursuant to Arbitration Rule 41(4) (last sentence).

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The following timetable shall apply in the event preliminary objections are raised [OPTION 2 – Scenarios 3 and 4]:

The following timetable shall apply in the event the Tribunal decides to bifurcate [Scenario 3]:

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The remainder of the schedule for further proceedings, if any issues remain after a phase on preliminary objections, will be fixed pursuant to Arbitration Rule 41(4) (last sentence).

The following timetable shall apply in the event the Tribunal decides to join the preliminary objections to the merits [Scenario 4]:

³ The requests for production of documents have been inserted after the first exchange of pleadings on the merits for illustration purposes. The parties are free to agree on a different timing for such requests. If the parties fail to agree, the Tribunal can also decide otherwise. ↩

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