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INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES

Fouad Alghanim & Sons Co. for General Trading & Contracting, W.L.L. and
Mr. Fouad Mohammed Thunyan Alghanim

v.

Hashemite Kingdom of Jordan

(ICSID Case No. ARB/13/38)

PROCEDURAL ORDER NO 1

Professor Campbell McLachlan QC, President of the Tribunal
The Honourable L. Yves Fortier QC, Arbitrator
Professor Marcelo G. Kohen, Arbitrator

Secretary of the Tribunal
Ms. Aïssatou Diop

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Introduction

The first session of the Tribunal was held on October 2, 2014, at 2 p.m., at the IDRC in London, UK.

Participating in the first session were:

Members of the Tribunal
Professor Campbell McLachlan QC, President of the Tribunal
The Honourable L. Yves Fortier QC, Arbitrator
Professor Marcelo G. Kohen, Arbitrator

ICSID Secretariat:
Ms. Aïssatou Diop, Secretary of the Tribunal

Attending on behalf of the Claimant:
Mr. Raid Abu-Manneh
Mr. Dany Khayat
Mr. Jose Caicedo
Ms. Rachael Guilor
Dr. Salaheddin Al Bashir
Mr. Fouad Mohammed Thunyan Alghanim
Mr. Mohammed Fouad Alghanim

Attending on behalf of the Respondent:
Mr. Aiman Odeh
Mr. Firas Bakr
Mr. Luis Gonzalez Garcia
Ms. Alison Macdonald
Miss Rulan Samara

The Tribunal and the parties considered the following:

• the Draft Agenda circulated by the Tribunal Secretary on July 9, 2014;
• the Draft Procedural Order No. 1 circulated by the Tribunal Secretary on July 9, 2014;
• the parties’ comments on the Draft Agenda and the Draft Procedural Order received on September 18, 2014, indicating the items on which they agreed and their respective positions regarding the items on which they did not agree; and

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• the parties’ respective proposals on the procedural timetable received on September 18, 2014, from the Claimants and on September 23, 2014, from the Respondent.

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 procedural timetable is attached as Annex A.

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.

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

2.1. The Tribunal was constituted on June 27, 2014, 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 June 27, 2014.

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

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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 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.

3.5. The Tribunal has advised that in the event of cancellation or postponement less than 4 weeks before the start of the hearing, or at any time during the hearing, it may charge 50% of its notional daily sitting rate, based on an 8-hour day multiplied by the number of days reserved for the hearing; and in the event of cancellation or postponement more than 4 weeks, but less than 12 weeks, before the start of the hearing, 30% of its daily sitting rate multiplied by the number of days reserved for the hearing.

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. The Tribunal may meet by any means including electronic means.

5. Decisions and Procedural 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 issue procedural decisions

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without consulting the other Members, subject to possible reconsideration of such decision by the full Tribunal.

5.3. The President is authorized to issue Procedural Orders and Procedural Decisions – subject to what is decided in 5.2 for the avoidance of doubt – on behalf of the Tribunal.

5.4. 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. Aïssatou Diop, 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:

Ms. Aïssatou Diop
ICSID
MSN J2-200
1818 H Street, N.W.
Washington, D.C. 20433
USA
Tel.: + 1 (202) 458-9833
Fax: + 1 (202) 522-2615
Email: [email protected]
Paralegal email: [email protected]@worldbank.org

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

Ms. Aïssatou Diop
701 18th Street, N.W. (“J Building”)
2nd Floor
Washington, D.C. 20006
Tel.: + 1 (202) 458-9833

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.

For Claimants	For Respondent
Mr. Raid Abu-Manneh Mayer Brown International LLP 201 Bishopsgate London EC2M 3AF Tel: +44 (0)20 3130 3773 Fax: +44 20 3130 8913 [email protected]	Mr. Aiman Odeh Mr. Firas Bakr Bakr & Odeh P.O. Box 6981 Amman 11118 Jordan Tel: +962 6 553 7999 Fax: +962 6 553 7939 [email protected] [email protected]
Mr. Dany Khayat Mayer Brown 20 Avenue Hoche 75008 Paris France Tel: +33 1 53 53 36 31 Fax: +33 1 53 96 03 83 [email protected]	Mr. Luis Gonzalez Garcia Ms. Alison Macdonald Matrix Chambers Griffin Building Gray’s Inn London WC1R 5LN United Kingdom Tel: +44 7404 3447 Fax: +44 7404 3448 [email protected] [email protected]
Dr. Salaheddin M. Al-Bashir International Business Legal Associates PO Box 9028 Amman 11191

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Jordan Tel: +962 6 552 5127 Fax: +962 6 552 7052 [email protected]	Mr. Jalal Alzoubi Ministry of Justice P.O. Box 6040 Amman 11118 Jordan Tel:+962 6 462 9946 Fax:+962 6 463 1996 [email protected]
Dr. Tarek Elzayat (in-house counsel for the Claimants) Alhamra Tower – 31st Floor Al Shuhada Street Sharq Kuwait Tel: +965 22212071 Fax: +965 22212055 [email protected]

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 defray 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 July 7, 2014, ICSID requested that each party pay US$100,000 to defray the initial costs of the proceeding. ICSID received Claimants’ payment on September 3, 2014. On September 24, 2014, ICSID sent a letter inviting either party to pay within 15 days the Respondent’s share of the requested advance. ICSID received Respondent’s payment on September 26, 2014.

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. London 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.

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

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 and produces 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 interpreters 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. Each party’s written communications in the case shall be transmitted by email or other electronic means to the parties, the Tribunal Secretary, and the Tribunal.

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12.2. Written communications from the Tribunal shall be transmitted by email or other electronic means to the Tribunal Secretary for transmission to the parties.

12.3. Unless otherwise agreed by the parties, 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.

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.

12.5. The email addresses of the Members of the Tribunal are:

Professor Campbell McLachlan QC	The Honourable L. Yves Fortier QC	Professor Marcelo G. Kohen
Campbell.mclachlan@vuw. ac.nz	[email protected]	marcelo.kohen@graduateinstit ute.ch

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

Electronic copies to be sent by email to the Tribunal Secretary, the opposing party, and the Tribunal, and uploaded on the FTP server

13.1. By the relevant filing date, the parties shall submit by email to the Tribunal Secretary, the opposing party, and the Tribunal an electronic version of the pleading with witness statements, expert reports and a list of documents.¹

13.2. In consideration of the Jordanian and British calendars, as will be reflected in Annex A, any filing date coinciding with a Friday, Saturday, Sunday, or religious holiday observed in either country shall automatically fall on the subsequent business day.

13.3. The parties shall also upload the pleading with the supporting documentation to the FTP server created for this case.

¹ Please note that the World Bank server does not accept emails larger than 10 MB. ↩

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Hard copies and USBs to be sent by courier to the Tribunal Secretary

13.4. The parties shall courier to the Tribunal Secretary on the following business day, at the latest:

13.4.1. one unbound hard copy in A4/Letter format², printed double-sided, of the entire submission, including signed originals of the pleading, witness statements, and expert reports, together with documents (but not including legal authorities);

13.4.2. one bound hard copy in A5 format of the entire submission, printed double-sided, including the pleading, the witness statements, expert reports, and documents (but not including legal authorities); and

13.4.3. two USB drives with full copies of the entire submission, including the pleading, the witness statements, expert reports, documents, and legal authorities.

Hard copies and USBs to be sent by courier to the opposing party and the Tribunal

13.5. at the same time, courier to the opposing party at the addresses indicated at §8.1 above and to each Member of the Tribunal at the addresses indicated at §13.6 below:

13.5.1. one hard copy in A5 format (Respondent may file in A4 format in case it is easier) of the pleadings printed double-sided.

13.5.2. one minimum USB drive with a full copy of the entire submission, including the pleading, the witness statements, expert reports, legal authorities, and documents.

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

Professor Campbell McLachlan QC Victoria University of Wellington Law School Old Government Buildings 15 Lambton Quay

The Honourable L. Yves Fortier Cabinet Yves Fortier 1 Place Ville-Marie Bureau 2822 H3B 4R4 Montréal

Professor Marcelo G. Kohen Professor of International Law The Graduate Institute of International and

² The A4/Letter format is required for ICSID’s archiving. ↩

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PO Box 600 Wellington New Zealand Tel:+64 4 463 6347

(Québec) Canada Tel:+1.514.286.2011

Development Studies P.O. Box 136 CH – 1211 Geneva 21 Switzerland Tel:+ 41 22 908 58 40

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 a pleading shall be text searchable (i.e., OCR PDF or Word).

13.9. Pleadings shall be accompanied by an index hyperlinked to the supporting documentation.

13.10. 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.

13.11. 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. See Annex A.

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

15.1. The production of documents shall take place in accordance with the timetable set out in Annex A.

15.2. Documents may only be requested after the deadline prescribed in Annex A with the leave of the Tribunal or the written consent of the other party.

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

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evidence relied upon by the parties, including exhibits and legal authorities. Further documentary evidence relied upon by the parties may be submitted in rebuttal 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, save at the discretion of the Tribunal upon 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.

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16.5.6. 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.

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

16.7. Demonstrative exhibits (such as Power Point 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 hard copy to the other party, the Tribunal Members, the Tribunal Secretary, the court reporter(s) and interpreter(s) at the hearing.

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. The Tribunal shall not admit any testimony that has not been filed with the written submissions without leave.

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

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

18.1. Having sought the parties’ views, the Tribunal decided, in agreement with the parties, not to include a clause on this matter in the Order at this stage. At the closure of the written pleadings, either party can renew its request on the matter. At that point, the Tribunal will revisit the issue and issue a decision.

19. Pre-Hearing Organizational Meetings
Arbitration Rule 13

19.1. A pre-hearing organizational meeting shall be held at a date no later than 20 days

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before the Hearing to be determined by the Tribunal with prior 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 a hearing for examination of witnesses and experts, if any, and oral arguments.

20.2. The hearing shall be held at a place to be determined in accordance with §10 above.

20.3. The hearing shall take place pursuant to the timetable set out in Annex A.

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

20.5. Allocation of time at the hearing shall be determined at the pre-hearing organizational meeting.

20.6. Hearings shall be closed to the public.

20.7. Prior to the Hearing, the parties shall use their best endeavours to agree and prepare:

20.7.1. a core bundle of contemporaneous documents (or extracts) in chronological order, to be discussed between the parties. The bundle shall be cross-referenced to where these documents are exhibited in the arbitration file; and,

20.7.2. a memory key of all pleadings, statements, exhibits and orders in the arbitration file, with a hyper-linked index

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.

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21.2. The Tribunal Secretary may prepare summary minutes of hearings and sessions upon request.

21.3. Verbatim transcripts in the procedural language shall be made of any hearing and session other than sessions on procedural issues unless 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.

21.4. The parties shall agree on any corrections to the transcripts within a reasonable time, to be agreed during the last day of the Hearing. The agreed corrections shall 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. Having sought the parties’ views, the Tribunal decided, in agreement with the parties, to defer any decision on this issue until the hearing.

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

23.1. The ICSID Secretariat shall not publish any ruling issued in the present proceeding without the consent of the parties, unless it has been previously published by any other source.

24. Application of IBA Rules to these proceedings

24.1. Both parties agree that the IBA Rules of the Taking of Evidence in International Arbitration dated May 29, 2010 (“IBA Rules”) shall provide general guidance for the parties and the Tribunal in these proceedings.

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25. Amendments

25.1. This Procedural Order No. 1 may be amended or supplemented, and the procedures for the conduct of this arbitration modified, pursuant to such further directions or Procedural Orders as the Arbitral Tribunal may from time to time issue following consultations with the parties.

26. End of First Session

26.1. The session was adjourned at 4:12 pm.

26.2. An audio recording of the session was made and deposited in the archives of ICSID. The recording was subsequently distributed to the Members of the Tribunal and the parties.

SIGNED

On behalf of the Tribunal
Professor Campbell McLachlan QC
President of the Tribunal
Date: October 16, 2014

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ANNEX A

¹ Applicable only in the event that Respondent advances jurisdictional objections that are joined to the merits ↩