IN THE MATTER OF AN ARBITRATION PROCEEDING UNDER ARTICLE 8(2)(A) OF THE
AGREEMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AND
THE GOVERNMENT OF THE CZECH AND SLOVAK FEDERAL REPUBLIC FOR THE PROMOTION
AND PROTECTION OF INVESTMENTS AND THE UNCITRAL ARBITRATION RULES (1976)
A11Y LTD.
V.
CZECH REPUBLIC
(ICSID Case. No. UNCT/15/1)
PROCEDURAL ORDER No. 1
Yves Fortier, PC, CC, OQ, QC Presiding Arbitrator
Stanimir Alexandrov, Arbitrator
Anna Joubin-Bret, Arbitrator
Secretary of the Tribunal
Martina Polasek
March 23, 2015
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The first session of the Tribunal was held on March 9, 2015 by telephone conference.
Participating in the conference call were:
Members of the Tribunal:
Yves Fortier, PC, CC, OQ, QC, President of the Tribunal
Stanimir Alexandrov, Arbitrator
Anna Joubin-Bret, Arbitrator
Assisting the President of the Tribunal:
Annie Lespérance
ICSID Secretariat:
Martina Polasek
Celeste Mowatt
Participating on behalf of the Claimant:
Ondrej Sekanina, Sekanina Legal
Jan Buchal, A11Y
Boris Dušek, A11Y
Hynek Hanke, A11Y
Participating on behalf of the Respondent:
Marie Talašová, Ministry of Finance, Czech Republic
David Seidl, Ministry of Finance, Czech Republic
Anna Bilanová, Ministry of Finance, Czech Republic
Gerold Zeiler, zeiler.partners Rechtsanwälte GmbH
Alfred Siwy, zeiler.partners Rechtsanwälte GmbH
The Tribunal and the parties considered the following:
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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.
Following the session, the Tribunal now issues the present order:
This first Procedural Order sets out Procedural Rules that govern this arbitration.
1.1. These proceedings are conducted in accordance with the UNCITRAL Arbitration Rules 1976, except as modified by agreement of the parties in accordance with Article 8(2)(a) of the Agreement of the United Kingdom of Great Britain and Northern Ireland and the Government of the Czech and Slovak Federal Republic for the Promotion and Protection of Investments (“BIT”).
1.2. If these provisions and rules do not address a specific procedural issue, the Tribunal shall, after consultation with the parties, determine the applicable procedure. In addition, the Arbitral Tribunal will apply the 2010 IBA Rules on the Taking of Evidence in International Commercial Arbitration for any document request of a party and may seek guidance from, but shall not be bound by these rules in other matters.
1.3. The ICSID Schedule of Fees and the Memorandum on the Fees and Expenses of ICSID Arbitrators shall apply to the calculation of claims and payment of the fees and expenses of the Tribunal Members.
2.1. The Tribunal was constituted on December 19, 2014 in accordance with the UNCITRAL Arbitration Rules 1976. The parties confirmed that the Tribunal
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was properly constituted and that no party had any objection to the appointment of any Member of the Tribunal.
2.2. The Members of the Tribunal are:
| Yves Fortier, PC, CC, OQ, QC (President) Cabinet Yves Fortier 1 Place Ville Marie Bureau 2822 H3B4R4 Montréal Québec Canada Tel: +1 514 286 2011 Fax: +1 514 286 2019 Email: [email protected] |
Stanimir Alexandrov 1501 K Street, N.W. Washington, D.C. 20005 United States of America Tel: +1 202 736 8115 Fax: +1 202 736 8711 Email: [email protected] |
Anna Joubin-Bret Cabinet d’avocats 4bis rue du Colonel Moll 75017 Paris France Tel: +33 1 74 18 03 40 Fax: +33 1 74 18 05 59 Email: [email protected] |
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 the Memorandum on Fees and Expenses of ICSID Arbitrators.
3.3. The Members of the Tribunal shall submit their claims for fees and expenses to the ICSID Secretariat on a quarterly basis.
3.4. Each Member of the Tribunal shall receive a fee equivalent to 25% of the hearing time reserved but not used due to postponement or cancellation of a hearing at the request of one or both parties less than 30 days prior to commencement of the hearing. Non-refundable expenses incurred in connection with a hearing as a result of a postponement or cancellation of the hearing shall be reimbursed.
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4.1. The presence of all three members of the Tribunal shall constitute a quorum and shall be required to conduct proceedings unless the parties agree otherwise.
4.2. In cases of urgency, the Presiding of the Tribunal may decide procedural matters alone, after reasonable efforts to consult with the other members of the Tribunal.
5.1. Any award or other decision of the Tribunal shall be made by a majority of the arbitrators. In the case of questions of procedure, when there is no majority or when the Tribunal so authorizes, the President of the Tribunal may decide on his own, subject to revision, if any, by the Tribunal.
5.2. The award shall be made in writing and be final and binding on the parties.
5.3. 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.
6.1. On January 16, 2015, the parties confirmed their agreement to the designation of the International Centre for Settlement of Investment Disputes (ICSID) as the Administering Authority. ICSID shall render full administrative services in relation to this arbitration similar to those rendered in arbitrations under the ICSID Convention and Additional Facility Rules. The cost of ICSID’s services shall be included in the costs of the arbitration.
6.2. The Tribunal Secretary is Martina Polasek, Team Leader/Legal Counsel, ICSID, or such other person as ICSID may notify the Tribunal and the parties from time to time.
6.3. To send copies of communications by email, mail, and courier/parcel deliveries to the ICSID Secretariat, the contact details are:
Martina Polasek
ICSID – The World Bank
MSN J2-200
1818 H Street, N.W.
Washington, D.C. 20433
United States of America
Tel.: + 1 (202) 458-4567
Fax: + 1 (202) 522-2615
Email: [email protected]
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[email protected]
Paralegal email: [email protected]
6.4. For local messenger deliveries, the contact details are:
Martina Polasek/Celeste Mowatt
701 18th St, N.W. (“J Building”)
3rd Floor
Washington, D.C. 20006
United States of America
Tel.: + 1 (202) 458-4567
7.1. Each party shall be represented by its respective counsel and representatives listed below and may designate additional persons by promptly notifying such designation in writing to the other party, the Tribunal and the Tribunal Secretary.
| For Claimant | For Respondent |
| Mgr. Ondrej Sekanina, LL.M. Sekanina Legal Hvezdova 1567/23 140 00 Prague 4 Czech Republic Tel: +42 0606652622 Email: [email protected] |
Mgr. Marie Talašová LL.M. International Legal Services Department The Ministry of Finance of the Czech Republic Letenska 15 118 10 Prague 1 Czech Republic and Dr. Gerold Zeiler zeiler.partners Rechtsanwalte GmbH Stubenbastei 2 1010 Vienna Austria Tel: +43 189010870 Email: [email protected] |
8.1. The parties shall defray the costs of the arbitration in equal parts, without prejudice to the final decision of the Tribunal as to the allocation of costs, pursuant to Article 41(1) of the UNCITRAL Arbitration Rules (1976).
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8.2. By letter of January 27, 2015 ICSID requested that Claimant pay US$50,000 and Respondent US$50,000 to defray the initial costs of the proceeding. Pursuant to Article 41(4) of the UNCITRAL Arbitration Rules (1976), payment shall be made within 30 days after the receipt of the request. The Centre received the Respondent’s payment on February 20, 2015 and the Claimant’s payment on February 27, 2015.
8.3. The Tribunal may request supplementary deposits from the parties as needed. Such requests will be accompanied by an interim statement of account.
8.4. After the award has been made, the Tribunal shall render an accounting to the parties of the deposits received and return any unexpended balance to the parties.
9.1. Paris, France, shall be the place of arbitration.
9.2. The Tribunal may meet at any location it considers appropriate for deliberations.
10.1. Article 8(3) of the BIT provides that an “arbitral tribunal to which the dispute is referred under paragraph (2) shall, in particular, base its decision on the provisions of this Agreement.”
11.1. The proceedings shall be conducted in English.
11.2. All documentary evidence and legal authorities in a language other than English shall be submitted in the original along with a translation to English. Whenever lengthy documents need to be translated, the translation may be limited to the relevant passages together with such other portions of the document as may be necessary to put those passages in proper context. Each Party shall bear its own cost of translations. Translation of documents into English need not be certified. However, if a dispute arises as to the accuracy of a translation, the matter shall be decided by the Tribunal. For ease of reference, the Parties shall paginate any translation in the same way as the original document.
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11.3. Witness testimony in a language other than English shall be interpreted simultaneously to English. 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. The parties shall notify the Arbitral Tribunal no later than the pre-hearing conference which witnesses and/or experts will require interpretation.
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 ICSID Secretariat, which shall send them to the Tribunal.
12.3. The ICSID Secretariat shall not be copied on direct communications between the parties when such communications are not intended to be transmitted to the Tribunal.
13.1. Each party shall number the paragraphs of its written pleadings and each pleading shall include all factual and legal arguments in support thereof, including written witness statements, expert opinions or reports, exhibits and legal authorities.
13.2. By the relevant filing date of a pleading or submission, the parties shall submit by email to the ICSID Secretariat and the opposing party an electronic version of the pleading with witness statements, expert reports and list of exhibits and legal authorities,¹ and upload the pleading with the supporting documentation to a file sharing platform (Box account) created by ICSID for this case.
13.2.1. The parties shall courier to the ICSID Secretariat at the address indicated at § 6.3 above by the following business day:
13.2.1.1. one unbound hard copy in A4/letter format2 of the entire submission, including signed originals of the pleading, witness statements, and expert reports, together with exhibits (but not including legal authorities);
¹ Please note that the World Bank server does not accept emails larger than 10 MB.
² The A4/Letter format is required for ICSID’s archiving.
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13.2.1.2. one hard copy in A5 format of the entire submission including the pleading as well as the witness statements, expert reports, and exhibits (but not including legal authorities); and
13.2.1.3. two USB drives with full copies of the entire submission, including the pleading as well as the witness statements, expert reports, factual exhibits, and legal authorities.
13.2.2. at the same time, courier to the opposing party at the address(es) indicated at §7.1 above and each Member of the Tribunal at the addresses indicated at § 2.2 above:
13.2.2.1. one hard copy in A5 format of the entire submission including the pleading as well as the witness statements, expert reports, and exhibits (but not including legal authorities); and
13.2.2.2. one USB drive with a full copy of the entire submission, including the pleading as well as the witness statements, expert reports, factual exhibits, and legal authorities.
13.3. Legal authorities shall be submitted in electronic format only, unless a hard copy is specifically requested by the Tribunal.
13.4. Electronic versions of a pleading shall be text searchable (i.e., OCR PDF or Word).
13.5. Pleadings shall be accompanied by an index hyperlinked to the supporting documentation.
13.6. The official date of receipt of a pleading or communication shall be the day on which the electronic version is sent to the ICSID Secretariat.
13.7. A filing shall be deemed timely if sent by a party by midnight, Washington, D.C. time, on the relevant date.
14.1. Following a disagreement between the parties concerning the procedural calendar, the Tribunal determined the following number and sequence of pleadings and their time limits:
14.2. The Claimant shall file a full Memorial (Statement of Claim) on the merits and quantum of its claim on 30 May 2015.
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14.3. The Respondent shall file a Counter-Memorial (Statement of Defence) that shall include any objections to jurisdiction by 31 August 2015. The Respondent shall also state in the submission whether it requests the bifurcation of the proceeding into jurisdiction and merits phases.
14.4. The Claimant shall reply to the request for bifurcation, if any, by no later than 15 September 2015.
14.5. The Tribunal shall endeavor to issue its decision on the request for bifurcation, if any, by 6 October 2015.
14.6. In the absence of a request to bifurcate or if the Tribunal decides not to bifurcate and join the objections to jurisdiction and admissibility to the merits (“scenario 1”), the schedule shall be as follows:
14.6.1. The parties shall simultaneously exchange requests for the production of documents by 20 October 2015.
14.6.2. Each party shall state its objections to any request by 3 November 2015.
14.6.3. Each party shall respond to the other party’s objections by 17 November 2015.
14.6.4. The Tribunal shall make its best efforts to rule on the objections by 4 December 2015.
14.6.5. Each party shall produce those documents for which no objection is made or has been sustained by the Tribunal by 18 December 2015.
14.6.6. The Claimant shall file a Reply on the merits and a Counter-Memorial on jurisdiction by 29 February 2016.
14.6.7. The Respondent shall file a Rejoinder on the merits and a Reply on jurisdiction by 31 May 2016.
14.6.8. The Claimant shall file a Rejoinder on jurisdiction by 31 August 2016.
14.7. If the Tribunal decides to bifurcate (“scenario 2”), the schedule shall be as follows:
14.7.1. The Claimant shall file a Counter-memorial on jurisdiction by 7 December 2015.
14.7.2. The parties shall simultaneously exchange requests for the production of documents by 18 December 2015.
14.7.3. Each party shall state its objections to any request by 8 January 2016.
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14.7.4. Each party shall respond to the other party’s objections by 22 January 2016.
14.7.5. The Tribunal shall make its best efforts to rule on the objections by 12 February 2016.
14.7.6. Each party shall produce those documents for which no objection is made or has been sustained by the Tribunal by 26 February 2016.
14.7.7. The Respondent shall file a Reply on jurisdiction by 11 April 2016.
14.7.8. The Claimant shall file a Rejoinder on jurisdiction by 11 July 2016.
14.7.9. If jurisdiction is affirmed, a schedule for merits pleadings will be established by the Tribunal in consultation with the parties.
14.8. The above schedule is set out in the Procedural Timetable annexed to this Order as Annex 1.
15.1. Written pleadings shall be accompanied by the documentary evidence relied upon by the parties, including exhibits and legal authorities.
15.2. The documents shall be submitted in the manner and form set forth in § 13 above.
15.3. Neither party shall be permitted to submit additional or responsive documents after the filing of its respective last written submission, save under exceptional circumstances at the discretion of the Tribunal upon a reasoned written request followed by observations from the other party.
15.3.1. 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.
15.3.2. 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.
15.4. The Tribunal may call upon the parties to produce documents or other evidence in accordance with Article 24(3) of the UNCITRAL Arbitration Rules (1976).
15.5. The documents shall be submitted in the following form:
15.5.1. Exhibits shall be numbered consecutively throughout these proceedings.
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15.5.2. 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.
15.5.3. Each Exhibit shall have a divider with the Exhibit identification number on the tab.
15.5.4. A party may produce several documents relating to the same subject matter within one Exhibit, numbering each page of such Exhibit separately and consecutively.
15.5.5. Exhibits shall also be submitted in PDF format and start with the number “C-0001” and “R-0001,” respectively.
15.5.6. 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.
15.6. 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.
15.7. Demonstrative exhibits (such as Power Point slides, charts, tabulations, etc.) may be used at the 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.
16.1. Witness statements and expert reports shall be filed together with the parties’ pleadings.
16.2. The Tribunal shall not admit any testimony that has not been filed with the written submissions, unless the Tribunal determines that exceptional circumstances exist.
16.3. Each witness statement and expert report shall be signed and dated by the witness.
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17.1. The oral procedure shall consist of a hearing for examination of witnesses and experts, if any, and for oral arguments.
17.2. The dates proposed by the Tribunal for a possible hearing on the merits and jurisdiction (following two scenarios of a proceeding with and without bifurcation) are set out in the Procedural Timetable annexed to this Order as Annex 1.
17.3. The venue for the hearing shall be Paris, at the World Bank Conference Center or at any other cost-effective facility consulted with the Parties.
17.4. The Members of the Tribunal shall reserve at least one day after the hearing to determine the next steps and to hold deliberations.
17.5. The hearing shall be closed to the public.
17.6. A pre-hearing organizational meeting shall be held 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.
18.1. Sound recordings shall be made of the hearing and sessions. The sound recordings shall be provided to the parties and the Tribunal Members.
18.2. Verbatim transcripts in the procedural languages shall be made of the hearing and sessions 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. The Secretariat will arrange for court reporting services.
18.3. The parties shall agree on any corrections to the transcripts within 15 days of the later of the dates of the receipt of the sound recordings and transcripts. The agreed corrections may be entered by the parties 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 parties in the revised transcripts.
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19.1. By letter of March 8, 2015, the Claimant made a request for an initial hearing the purpose of which would be to provide an introduction to the technology behind the Claimant’s investment, accessibility technology. According to the Claimant, the Tribunal needs first to understand this unique technology to understand the issues in dispute. The hearing would consist of an explanation of accessibility and a demonstration of how it works in practice with the aid of the Claimant’s experts.
19.2. During the first session, the Respondent objected to the hearing, stating that it should form part of a standard evidentiary hearing to be held after the written phase of the proceeding. The Respondent argued that the Claimant must first make its case in writing so that the Respondent can properly respond to the claims made.
19.3. The parties filed additional observations on the Claimant’s request by communications of March 12 and 16, 2015 (from the Claimant) and March 16, 2015 (from the Respondent).
19.4. The Tribunal finds that it is unable to determine whether a hearing to explain the technology involved in the merits of this case would be useful, relevant and appropriate at this stage of the proceeding. It therefore denies the Claimant’s request. If the Claimant wishes to renew the request following the Respondent’s Counter-Memorial on the merits, the Tribunal will consider it at that time.
On behalf of the Tribunal:
Signature
Yves Fortier, PC, CC, OQ, QC
President of the Tribunal
Date: March 23, 2015
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ANNEX 1
Procedural Timetable
| Date | Party/Tribunal | Description |
| 30 May 2015 (Saturday) |
Claimant | Memorial (Statement of Claim) on merits and quantum |
| 31 August 2015 | Respondent | Counter-Memorial (Statement of Defence), including any Objections to Jurisdiction and Request for Bifurcation of the proceeding |
| 15 September 2015 | Claimant | Response to Request for Bifurcation, if any |
| 6 October 2015 | Tribunal | Tribunal shall endeavor to issue its Decision on Request for Bifurcation, if any |
| Scenario 1 – Without Bifurcation (Joint Proceeding on Jurisdiction and the Merits) | Scenario 2 –With Bifurcation (Proceeding on Jurisdiction) | ||||
|---|---|---|---|---|---|
| Date | Party | Description | Date | Party | Description |
| 20 October 2015 | Claimant and Respondent | Requests for Production of Documents | 7 December 2015 | Claimant | Counter-Memorial on Jurisdiction |
| 3 November 2015 | Claimant and Respondent | Objections to Document Production Requests, if any | 18 December 2015 | Claimant and Respondent | Requests for Production of Documents |
| 17 November 2015 | Claimant and Respondent | Response to Objections to Document Production Requests | 8 January 2016 | Claimant and Respondent | Objections to Document Production Requests, if any |
| 4 December 2015 | Tribunal | Tribunal best efforts to issue Decision on Document Production Requests | 22 January 2016 | Claimant and Respondent | Response to Objections to Document Production Requests |
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| 18 December 2015 | Claimant and Respondent | Production of Documents | 12 February 2016 | Tribunal | Tribunal best efforts to issue Decision on Document Production Requests |
| 29 February 2016 | Claimant | Reply on the Merits and Counter-Memorial on Jurisdiction | 26 February 2016 | Claimant and Respondent | Production of Documents |
| 31 May 2016 | Respondent | Rejoinder on the Merits and Reply on Jurisdiction | 11 April 2016 | Respondent | Reply on Jurisdiction |
| 31 August 2016 | Claimant | Rejoinder on Jurisdiction | 11 July 2016 | Claimant | Rejoinder on Jurisdiction |
| TBD | All | Pre-hearing Conference | TBD | All | Pre-hearing Conference |
| 10-14 October 2016 | All | Hearing on Jurisdiction and Merits | 28-29 September 2016 | All | Hearing on Jurisdiction |