INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES

Transcription

1 INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES Occidental Petroleum Corporation and Occidental Exploration and Production Company v. Republic of Ecuador (ICSID Case No. ARB/06/11) Annulment Proceeding PROCEDURAL ORDER NO. 1 Members of the ad hoc Committee Professor Juan Fernández-Armesto, President Judge Florentino P. Feliciano Mr. Rodrigo Oreamuno Blanco Secretary of the ad hoc Committee Mr. Gonzalo Flores

2 Occidental Petroleum Corporation and Occidental Exploration and Production c. Republic of Ecuador (ICSID Case No. ARB/06/11) Annulment Proceeding Procedural Order No. 1 Table of Contents 1. Applicable Arbitration Rules Constitution of the Committee and Members Declarations Fees and Expenses of the Committee Members Apportionment of Costs and Advance Payments to ICSID Presence and Quorum Decisions of the Committee Delegation of Power to Fix Time Limits Representation of the Parties Place of Proceeding Procedural Language(s) Means of Communication and Copies of Instruments Written and Oral Procedures Schedule of Written Pleadings Evidence: Witnesses and Experts, Written Statements and Reports, Supporting Documentation Hearings Pre-Hearing Organizational Meetings Records of Hearings Publication Other Matters i

3 Occidental Petroleum Corporation and Occidental Exploration and Production v. Republic of Ecuador (ICSID Case No. ARB/06/11) Annulment Proceeding Procedural Order No. 1 Introduction The first session of the Committee was held on Monday, March 25, 2013, from 9am (EDT) to 10:20am (EDT), by teleconference, with the agreement of the parties. Participating in the conference were: Members of the Committee Prof. Juan Fernández -Armesto, President of the Committee Judge Florentino P. Feliciano, Member of the Committee Mr. Rodrigo Oreamuno Blanco, Member of the Committee ICSID Secretariat Mr. Gonzalo Flores, Secretary of the Committee On behalf of the Republic of Ecuador Dra. Christel Gaibor, Procuraduría General del Estado Dra. Diana Moya Dávalos, Procuraduría General del Estado Mr. George von Mehren, Squire Sanders LLP Mr. Stephen P. Anway, Squire Sanders LLP Prof. Eduardo Silva Romero, Dechert LLP Prof. Pierre Mayer, Dechert LLP On behalf of Occidental Petroleum Corporation and Occidental Exploration and Production Mr. David W. Rivkin, Debevoise & Plimpton LLP Ms. Marjorie J. Menza, Debevoise & Plimpton LLP Mr. Gaëtan J. Verhoosel, Covington & Burling LLP Ms. Carmen Martinez, Covington & Burling LLP Ms. Laura C. Abrahamson, Associate General Counsel, Occidental Petroleum Corporation The President of the Committee opened the session at 9am (EDT) and welcomed the participants. The President introduced the Committee and the Secretary of the Committee and the parties introduced their respective teams. Following an invitation from the President of the Tribunal, the parties confirmed not having any items to add to the Agenda (Annex 1). The Committee and the parties considered the following: - The Agenda adopted by the Committee (Annex 1) that corresponds to the Draft Agenda circulated by the Secretary on Monday, February 25,

4 Occidental Petroleum Corporation and Occidental Exploration and Production v. Republic of Ecuador (ICSID Case No. ARB/06/11) Annulment Proceeding Procedural Order No. 1 - The Draft Agenda received from the parties on Monday, March 18, 2013 (Annex 2), indicating the items on which they agreed and their respective positions regarding the items on which they did not agree. The parties confirmed that the joint communication of Monday, March 18, 2013 properly reflects their agreements. The President of the Committee suggested, and the parties agreed, to devote the session to the three items in the Agenda over which they had not been able to agree. The parties agreements and the Committee s decisions are recorded in the Procedural Order below. The session was adjourned at 10:20am (EDT). Audio recordings of the session were made and deposited in the archives of ICSID and circulated to the parties and the Committee members. Verbatim transcripts will be made from the audio recordings, and circulated to the parties and the members of the Committee, with the agreement of the parties. ORDER Pursuant to ICSID Arbitration Rule 19, this First Procedural Order sets out the Procedural Rules that the Republic of Ecuador and Occidental Petroleum Corporation and Occidental Exploration and Production have agreed and that the ad hoc Committee has determined shall govern this arbitration. 1. Applicable Arbitration Rules Convention Article 44 and Arbitration Rule The proceeding will be conducted in accordance with the ICSID Arbitration Rules in force as of April 10, Constitution of the Committee and Members Declarations Arbitration Rules 6 and 52(2). 2.1 The Committee was constituted on Friday, January 18, 2013 in accordance with the ICSID Convention and the ICSID Arbitration Rules. The parties confirmed that the Committee was properly constituted and that they had no objections to the appointment of any Member of the Committee. 2.2 The Members of the Committee timely submitted their signed declarations in accordance with ICSID Arbitration Rule 6(2). Copies of 2

5 Occidental Petroleum Corporation and Occidental Exploration and Production v. Republic of Ecuador (ICSID Case No. ARB/06/11) Annulment Proceeding Procedural Order No. 1 these declarations were distributed to the parties by the Secretary on Friday, January 18, Fees and Expenses of the Committee Members Convention Article 60; Administrative and Financial Regulation 14; ICSID Schedule of Fees 3.1 The fees and expenses of each Member of the Committee 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 Member of the Annulment Committee shall receive (subject to any modification of such Schedule): 3.3 A fee of US$3,000, or such other fee as may be set forth from time to time in ICSID s Schedule of Fees, for each day of meetings or each eight hours of other work performed in connection with the proceedings or pro rata; and 3.4 A per diem allowance and reimbursement of travel and other expenses within the limits set forth in ICSID Administrative and Financial Regulation The Members of the Committee will submit their claims for fees and expenses to the ICSID Secretariat on a quarterly basis. 4. Apportionment of Costs and Advance Payments to ICSID Convention Article 61(2); Arbitration Rule 2; Administrative and Financial Regulation 14 (3) (e). 4.1 Ecuador will be responsible for making the advance payments requested by the ICSID Secretariat to cover expenses following constitution of the Committee, without prejudice to the final decision of the Committee, without prejudice to the final decision of the Committee as to the allocation of costs. 4.2 The parties may present, in addition to the information required by Arbitration Rule 28(2), the parties positions as to how and by whom costs should be paid and arguments supporting those positions. 4.3 By letter of Thursday, January 31, 2013, ICSID requested the Republic of Ecuador to pay US$250,000 (two hundred and fifty thousand United States dollars) to defray the initial costs of the proceeding. ICSID received Ecuador s payment on Wednesday, February 20, ICSID will request further advances as needed. Such requests will be accompanied by an interim statement of account providing details of the direct costs of the proceeding, including the total fees and expenses 3

6 Occidental Petroleum Corporation and Occidental Exploration and Production v. Republic of Ecuador (ICSID Case No. ARB/06/11) Annulment Proceeding Procedural Order No. 1 of all arbitrators. At the end of the case, the financial statement will include a breakdown of each arbitrator s fees and expenses. 5. Presence and Quorum Arbitration Rules 14(2) and 20(1)(a) 5.1 The presence of all Members of the Committee constitutes a quorum for its sittings. 6. Decisions of the Committee Arbitration Rule Decisions of the Committee shall be taken by a majority of the Members of the Committee. 6.2 The Committee s decisions on procedural matters may be communicated to the parties by correspondence, in accordance with Arbitration Rule 16(2). The president of the Committee will have the power to sign procedural orders on behalf of the Committee. 7. Delegation of Power to Fix Time Limits Arbitration Rule 26(1) 7.1 The President has the power to fix and extend time limits for the completion of the various steps in the proceeding. 7.2 In exercising this power, the President shall consult with all Members of the Committee. 7.3 Extensions of time shall be granted by the Committee at its discretion, and provided that a request is submitted before or, where this is impossible, in special circumstances immediately after the event preventing a party from complying with the deadline. The parties may also decide between themselves to grant extensions of time, on the basis of mutual courtesy, subject to the consent of the Committee. 8. Representation of the Parties Arbitration Rule Each party shall be represented by its respective counsel listed in Annex 2 attached to this Order, to whom all notices and communications shall be sent, and may designate additional agents, counsel, or advocates by notifying the ICSID Secretariat of such designation. 4

7 Occidental Petroleum Corporation and Occidental Exploration and Production v. Republic of Ecuador (ICSID Case No. ARB/06/11) Annulment Proceeding Procedural Order No Place of Proceeding Convention Articles 62 and 63; Arbitration Rule 13(3; Administrative and Financial Regulation The seat of ICSID in Washington D.C. shall be the place of the proceeding. The Committee can hold hearings at any other place that it deems appropriate after consulting with the parties. 9.2 The Committee may deliberate at any place it deems convenient. 9.3 It was agreed that the hearings will be held where the Committee deems it convenient (likely Washington D.C. and/or Paris). 10. Procedural Language(s) Arbitration Rules 20(1)(b) and 22;Administrative and Financial Regulation 30(3) and (4); 10.1 The parties agree that the languages of the proceedings would be Spanish and English (the Procedural Languages ) The parties will file their pleadings in English and, if they wish, in Spanish. If a Spanish version is not filed simultaneously, a courtesy translation shall be provided within two weeks Documents filed in any language different from the Procedural Languages must be accompanied by a translation into Spanish and English. A document in either Spanish or English may be required to be translated into the other language within two weeks, at the request of the other party or of the Committee. If the document is lengthy, it is sufficient if only the relevant parts are translated, provided that the Committee may require a fuller or a complete translation at the request of any party or upon its own initiative. 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 Oral arguments and testimony, if any, shall be heard in Spanish and English (other than the procedural conference of Monday, March 25, 2013, which shall be in English as agreed by the parties). Simultaneous interpretation of all hearings shall be arranged by the ICSID Secretariat and charged to the case account, without prejudice to the Committee s final allocation of costs. The parties shall inform the ICSID Secretariat of interpretation requirements at least two weeks in advance of the hearing. 5

8 Occidental Petroleum Corporation and Occidental Exploration and Production v. Republic of Ecuador (ICSID Case No. ARB/06/11) Annulment Proceeding Procedural Order No Means of Communication and Copies of Instruments Arbitration Rules 20(1) (d) and 23; Administrative and Financial Regulations 24 and 30. Communications: 11.1 Written communications in the case shall be transmitted by or other electronic means to the parties, the ICSID Secretariat, and the Committee Electronic versions of communications ordered by the Committee to be filed simultaneously shall be transmitted to the Secretariat only, which shall send them to the Committee and to the parties The Secretariat shall not be copied on direct communications between the parties when such communications are not intended to be transmitted to the Committee The addresses of the Members of the Committee are: Prof. Juan Fernández Armesto jfa@jfarmesto.com Judge Florentino P. Feliciano fpfeliciano@syciplaw.com Mr. Rodrigo Oreamuno B. roreamuno@fayca.com Instruments/Submissions: The parties shall, by the relevant filing date: 11.5 Submit by to the Secretariat, the opposing Party, and the Committee an electronic version of the submission Submit by courier to the Secretariat the following, within four business days: One hard copy of the entire submission in whichever format the Committee prefers; and Two USB drives, or CD-ROMs or DVDs, with full copies of the entire submission. 6

9 Occidental Petroleum Corporation and Occidental Exploration and Production v. Republic of Ecuador (ICSID Case No. ARB/06/11) Annulment Proceeding Procedural Order No At the same time, courier to the opposing party at the addresses indicated under paragraph 8 and each Member of the Committee at the addresses indicated below: One hard copy of the entire submission in whichever format the Committee prefers; and One USB drive, or CD-ROMs or DVDs, with a full copy of the entire submission The mailing addresses of the Members of the Committee are: Prof. Juan Fernández- Armesto Armesto & Asociados General Pardiñas, Madrid, Spain Judge Florentino P. Feliciano SyCip Salazar Hernandez & Gatmaitan 7/F SyCipLaw Center 105 Paseo de Roxas 1226 Makati City, Philippines Mr. Rodrigo Oreamuno Facio & Cañas 300 este del periódico La República frente Hotel Villa Tournón San José, Costa Rica 11.9 For , mail, and courier/parcel deliveries to the ICSID Secretariat, the contact details are: Mr. Gonzalo Flores ICSID MSN U Pennsy Dr. Landover, MD USA Tel.: + 1 (202) Fax: + 1 (202) / gflores@worldbank.org For local messenger deliveries, the contact details are: Mr. Gonzalo Flores 1800 G Street, NW ( U Building ), MSN rd Floor Washington, D.C Tel.: + 1 (202)

10 Occidental Petroleum Corporation and Occidental Exploration and Production v. Republic of Ecuador (ICSID Case No. ARB/06/11) Annulment Proceeding Procedural Order No Electronic versions of pleadings and exhibits shall be text searchable (i.e., OCR PDF or Word) The paragraphs (or groups of paragraphs) of all written submissions shall be numbered consecutively and the submissions shall include a table of contents The submissions to the Committee shall be accompanied by a list specifying the nature of each exhibit and/or legal authority, its date and its author. The list of exhibits and authorities shall be updated with each new submission in these proceedings. 12. Written and Oral Procedures Arbitration Rules 20(1) (e) and The proceeding shall consist of a written phase followed by an oral phase The Parties and the Committee will discuss at the hearings whether to have post-hearing submissions. 13. Schedule of Written Pleadings Arbitration Rules 20(1) (c) and 31 (a) Stay of Enforcement 13.1 The schedule for the Stay of enforcement issue shall be as follows: Ecuador shall file a Response to Claimant s request to lift the provisional stay or to condition the stay on the posting of security on Friday, April 5, 2013 by 6 p.m. CET; Claimants shall file a Reply on Monday, April 22, 2013; and Ecuador shall file a Rejoinder on Monday, May 6,

11 Occidental Petroleum Corporation and Occidental Exploration and Production v. Republic of Ecuador (ICSID Case No. ARB/06/11) Annulment Proceeding Procedural Order No. 1 (b) Annulment 13.2 The schedule for the annulment proceeding shall be as follows: The Republic of Ecuador shall file a Memorial on Annulment on Wednesday, July 31, Occidental Petroleum Corporation and Occidental Exploration and Production shall file a Counter-Memorial on Annulment on Tuesday, October 1, The Republic of Ecuador shall file a Reply on Annulment on Tuesday, December 31, Occidental Petroleum Corporation and Occidental Exploration and Production shall file a Rejoinder to the Reply on Annulment on Friday, February 28, Evidence: Witnesses and Experts, Written Statements and Reports, Supporting Documentation Convention Article 43(a); Arbitration Rules 24 and ICSID Arbitration Rules 35 and 36 will be applicable. Should either party wish to introduce new witness statements or expert reports, that party shall, as promptly as possible, file a request to the Committee to that effect. In accordance with ICSID Arbitration Rule 34, the Committee will promptly decide on the admissibility of the new witness statements and/or expert reports, after hearing from both parties Documents and evidence admitted in the original arbitration hearing are admitted in this proceeding. Should either party wish to introduce new documents or evidence, other than legal authorities, that party shall, as promptly as possible, file a request to the Committee to that effect. In accordance with ICSID Arbitration Rule 34, the Committee will promptly decide on the admissibility of the new documents and/or evidence, after hearing from the parties New legal authorities shall be admissible and shall be annexed to the submissions presented by the parties 15. Hearings Arbitration Rule 13(2) (a) Stay of Enforcement 9

12 Occidental Petroleum Corporation and Occidental Exploration and Production v. Republic of Ecuador (ICSID Case No. ARB/06/11) Annulment Proceeding Procedural Order No The Hearing on the stay of enforcement issue will be held on Monday, May 13, 2013 in Paris (France). (b) Annulment 15.2 The hearing on annulment will be held from Monday, April 7, 2014 through Wednesday, April 9, 2014, with Thursday, April 10 being kept as a day of reserve. 16. Pre-Hearing Organizational Meetings Arbitration Rule 21(1) 16.1 The parties should use their best efforts before a scheduled hearing to agree on the organizational aspects of such hearing (especially in connection with the marshaling of the evidence). For that purpose, the parties should aim to hold a conference call with the Secretariat and the President of the Committee at least a month before any hearing. Such meetings may be conducted by telephone or video link. 17. Records of Hearings Arbitration Rule 20(1)(g) 17.1 Sound recordings shall be made of all sessions. The sound recordings shall be provided to the parties and the Committee Verbatim transcript(s) in the Procedural Languages shall be made of any sessions. Unless otherwise agreed by the parties or ordered by the Committee, 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 Committee on a same-day basis. 18. Publication Convention Article 48(5), Administrative and Financial Regulation 22, Arbitration Rule 48(4) 19. Other matters 18.1 Any decision of the Committee may be published by the Centre The parties confirmed not having any other matters to discuss discussion at the First Session. [signed] Prof. Juan Fernández-Armesto President of the Committee Date: April 10,

13 Annex 1 Occidental Petroleum Corporation and Occidental Exploration and Production Company v. Republic of Ecuador Annulment Proceeding (ICSID Case No. ARB/06/11) First Session of the Ad Hoc Committee Date:, 2013 Provisional Agenda I. Procedural Matters 1. Applicable Arbitration Rules (Convention Article 44 and Arbitration Rule 53) 2. Constitution of the Committee and Members Declarations (Arbitration Rules 6 and 52(2)) 3. Fees and Expenses of the Committee Members (Convention Article 60; Administrative and Financial Regulation 14; ICSID Schedule of Fees) 4. Advance Payments to ICSID (Administrative and Financial Regulation 14(3)(e) 5. Presence and Quorum (Arbitration Rules 14(2) and 20(1)(a)) 6. Decisions of the Committee (Arbitration Rule 16(2)) 7. Delegation of Power to Fix Time Limits (Arbitration Rule 26(1)) 8. Representation of the Parties (Arbitration Rule 18) 9. Place of Proceeding (Convention Articles 62 and 63; Administrative and Financial Regulation 26; Arbitration Rule 13(3)) 10. Procedural Language(s) (Arbitration Rules 20(1)(b) and 22) 11. Means of Communication and Copies of Instruments (Administrative and Financial Regulations 24 and 30; Arbitration Rules 20(1)(d) and 23) 12. Written and Oral Procedures (Arbitration Rules 20(1)(e) and 29) 13. Schedule of Written Pleadings (Arbitration Rules 20(1)(c) and 31) 14. Evidence: Witnesses and Experts, Written Statements and Reports, Supporting Documentation (Convention Article 43(a); Arbitration Rules 24 and 33-36) 15. Hearings (Arbitration Rules 13(2) and 33-36) 16. Organizational Meeting(s) (Arbitration Rule 21(1) 17. Records of Hearings (Arbitration Rule 20(1)(g))

14 Annex Publication (Convention Article 48(5), Administrative and Financial Regulation 22, Arbitration Rule 48(4)) II. Other Matters

15 Occidental Petroleum Corporation and Occidental Exploration and Production Company v. Republic of Ecuador Annulment Proceeding (ICSID Case No. ARB/06/11) First Session of the Ad Hoc Committee Date: March 25, 2013 Provisional Agenda I. Agreed Procedural Matters The Parties have agreed on most of the procedural issues listed by the Committee for consideration. See Annex I hereto. For ease of reference, the Parties have maintained the reference number for each issue as listed by the Committee. II. Procedural Matters on Which the Parties Could Not Agree The Parties disagreements focus on the schedule to be followed in the main annulment proceedings, the nature of the submissions to be made by the Parties and the hearing. 13. Schedule of Written Pleadings (Arbitration Rules 20(1)(c) and 31) Stay of enforcement The parties have agreed to a schedule for the stay of enforcement proceedings under Arbitration Rules 20(1)(c) and 31. See Annex I. Annulment Ecuador s position The schedule for the Annulment proceedings shall be as follows: - Ecuador shall file a Memorial on Annulment within four months of the date of the procedural order setting forth the procedural calendar; - Claimants shall file a Counter-Memorial on Annulment within four months thereafter; - Ecuador shall file a Reply on Annulment within three months thereafter; and - Claimants shall file a Rejoinder on Annulment within three months thereafter. Claimants position As we stated in our letter dated February 20, 2013, Ecuador has not needed a procedural order from the Committee to begin working on its memorial on annulment. Over five months have now passed since Ecuador filed its annulment application. We expect, therefore, that Ecuador has v1 1

16 progressed on its memorial and should be able to submit it by early April, six months after the commencement of these proceedings. As Ecuador has stated that it has needed four months to prepare its papers, at the very least, Ecuador should be required to file its memorial on annulment in May, four months after the constitution of the Committee. We continue to think the schedule we proposed in our letter of February 20 is appropriate. That proposal is as follows: - Ecuador should file its submission in April or early May; - Claimants shall file a Counter-Memorial on Annulment within 45 days thereafter; - Ecuador shall file a Reply on Annulment within 45 days thereafter; and - Claimants shall file a Rejoinder on Annulment within 45 days thereafter. Such a schedule would enable a hearing on the annulment application by this fall, one year after the application was filed. Given the circumstances and the limited nature of annulment proceedings, we believe this is a fair and feasible schedule for these proceedings. While Claimants believe the schedule above is appropriate, Claimants would be willing to accept a compromise schedule that offers a middle ground between the Parties positions: - Ecuador shall file its submission by May 31, 2013; - Claimants shall file a Counter-Memorial on Annulment by July 31, 2013; - Ecuador shall file a Reply on Annulment by September 30, 2013; and - Claimants shall file a Rejoinder on Annulment by November 30, Claimants hope that the hearing would then be scheduled to occur in December Evidence: Witnesses and Experts, Written Statements and Reports, Supporting Documentation (Convention Article 43(a); Arbitration Rules 24 and 33-36) Ecuador s position Document production Ecuador reserves its right to request production of evidence after the filing of Claimants submission. Witnesses, experts and supporting documentation The Parties shall include all of the evidence on which they intend to rely, including written witness statements, expert opinions or reports, and other evidence in whatever form, with their written submissions v1 2

17 Unless authorized or requested by the Committee, documents shall be submitted together with the pleadings which refer to them. If new documents are admitted after the exchange of the submissions on Annulment, the other Party shall be afforded sufficient opportunity to study and make its observations thereon. All documentary evidence submitted to the Committee shall be deemed authentic and complete, including evidence submitted in the form of copies, unless a Party disputes its authenticity or completeness. The Committee shall decide on any objection as to the authenticity or completeness of the exhibits. Duly certified copies of documents are not required unless the authenticity of the copy is contested and the Committee considers the certification necessary. Each Party shall number the accompanying documentation consecutively throughout the entire proceeding (EEA-001 or CEA-001 for documentary evidence and EAA-001 or CAA-001 for legal sources) and shall number the paragraphs of each of their written pleadings. Any documents previously submitted to which the Parties wish to refer shall not be re-filed but referred to using the earlier number. In their second written submissions, the Parties shall include only additional written witness testimony, expert opinion testimony, documents or other evidence that responds to or rebuts matters raised by the opposing Party s prior written submission, subject to documents obtained in the course of the document production phase. Any individual may present evidence as a witness, including the Parties representatives and persons affiliated with a Party. Each witness statement and expert report shall: - contain the name and address of the witness or expert, his or her relationship to the Party (if any) and a description of his or her qualifications; - identify with specificity any document or other material relied upon; and - be signed by the witness or expert and give the date and place of signature. The documents or other materials relied upon by witnesses and/or experts shall be attached as exhibits to the submission with which the witness statements and/or expert reports are filed. At least three weeks before the hearing on Annulment, each Party will identify the factual witnesses and expert witnesses whom it intends to examine. Shortly after the Parties notifications, the Committee will indicate the witnesses and experts not called by the Parties that it wishes to question, if any. Each Party shall be responsible for summoning their own witnesses and experts to the hearing(s). The Committee may disregard the testimony of a witness or expert called to testify at the hearing who fails to appear at the hearing without justified reasons. Witnesses and experts shall be examined by each Party under the control of the Committee. Before giving evidence, witnesses shall make the declaration set out in ICSID Arbitration Rule v1 3

18 35(2), and experts shall make the declaration set out in ICSID Arbitration Rule 35(3). The Committee may examine the witness or expert at any time during the oral procedure. The witness statements and expert reports shall be sufficiently detailed so as to exempt witnesses and experts from direct oral examination. The direct examination at the hearing(s) shall be limited to confirming the witness statements or expert reports, to making any corrections to those documents, or to explaining briefly important aspects of their testimony. The direct examination is given in the form of witness statements and expert reports. However, the Party presenting the witness may conduct a brief direct examination. Subject to the direction of the Committee, there shall be no limitation on the scope of the cross-examination to the contents of the witness statement or expert report. However, in case a Party intends to cross-examine a witness or an expert outside the scope of his/her statement or report, it shall submit a week in advance of the hearing a list of issues to the opposing Party and to the Committee. Re-direct examination shall be limited to the subject of cross-examination. Unless the Parties and the Committee agree otherwise, factual and expert witnesses shall not be allowed in the hearing room before giving their oral evidence. The Committee shall freely assess all evidence, oral or written, including the written statements/expert reports of those witnesses/experts who have not been called to appear for crossexamination. Where a witness/expert was called to appear at the hearing and does not appear, the Committee shall, upon its own assessment and having due regard to all the circumstances, including whether the non-appearance was justified, either reschedule the examination of such witness to a later date or consider and evaluate the value of his or her statement/report. Claimants position Because the scope of annulment review is limited to the narrow grounds in Article 52 of the Convention, which do not require the submission of new evidence, it would be inappropriate, absent a direct request from the ad hoc Committee, to allow witness testimony, expert reports, or the production of additional documents in these proceedings. Ad hoc Committee jurisprudence clearly dictates that the record should not be reopened in the annulment phase of proceedings. See, e.g., Fraport AG Frankfurt Airport Services Worldwide v. Republic of the Philippines 45 ( The Committee must determine the reasonableness the evidence and submissions which were before the Tribunal, and not on the basis of new evidence. ); MTD Equity Sdn. Bhd. and MTD Chile S.A. v. Republic of Chile 31 ( Under Article 52 of the ICSID Convention, an annulment proceeding is not an appeal, still less a retrial; it is a form of review on specified and limited grounds which take as their premise the record before the tribunal. ); Hussein Nuaman Soufraki v. United Arab Emirates 20 (same); Sociedad Anónima Eduardo Vieira v. Republic of Chile 237 ( Como consecuencia del control sobre la legitimidad del procedimiento que debe realizar un comité ad hoc, todo nuevo argumento o nueva evidencia sobre el fondo de la disputa deberá ser irrelevante para el procedimiento de anulación.... ); Sempra Energy International v. Argentine Republic 74 ( New arguments or evidence on the merits will therefore be irrelevant for the annulment process, and therefore not admissible. ). If the Committee does allow for additional evidence, it should only be under exceptional circumstances at the Committee s sole discretion. See, e.g., Sociedad Anónima Eduardo Vieira v. Republic of Chile 237; Sempra Energy International v. Argentine Republic v1 4

19 15. Hearings (Arbitration Rules 13(2) and 33-36) Stay of Enforcement The Committee has set the hearing on Claimants application to lift the stay or to impose conditions to occur on May 13, 2013 in Paris. See Annex I. Annulment Ecuador s position Ecuador suggests that the Hearing on Annulment be held within no less than two months after the date of submission of Claimants Rejoinder on Annulment. The date and the duration of the Hearing on Annulment, in the absence of an agreement, shall be determined by the Committee after consultation with the Parties. Ecuador proposes that four days be reserved for a Hearing on Annulment. Claimants position Claimants believe that the hearing on annulment should be held as soon as possible after the close of briefing. Because of the limited nature of review under Article 52 of the Convention, Claimants believe that only two days are necessary for a hearing on annulment. Claimants agree that the date and duration of the hearing on annulment should be decided by the Committee after consultation with the parties in the absence of an agreement at the March 25 procedural conference v1 5

20 Annex I 1. Applicable Arbitration Rules (Convention Article 44 and Arbitration Rule 53) These proceedings are to be conducted in accordance with the ICSID Arbitration Rules in force as of 10 April Constitution of the Committee and Members Declarations (Arbitration Rules 6 and 52(2)) The Parties confirmed that the Committee was properly constituted and that no Party has any objection to the appointment of any Member of the Committee. 3. Fees and Expenses of the Committee Members (Convention Article 60; Administrative and Financial Regulation 14; ICSID Schedule of Fees) The fees and expenses of the Committee shall be set in accordance with Article 60 of the Convention and Administrative and Financial Regulation 14 and are limited to what is provided in the Centre s prevailing fee schedule. 4. Advance Payments to ICSID (Administrative and Financial Regulation 14(3)(e) Ecuador will be responsible for making the advance payments requested by the Secretary-General to cover expenses following the constitution of the Committee, without prejudice to the final decision of the Committee as to the allocation of costs. The Parties may present, in addition to the information required by Arbitration Rule 28(2), the Parties positions as to how and by whom costs should be paid and arguments supporting those positions. 5. Presence and Quorum (Arbitration Rules 14(2) and 20(1)(a)) The presence of all Members of the Committee constitutes a quorum for its sittings. 6. Decisions of the Committee (Arbitration Rule 16(2)) Decisions of the Committee shall be taken by a majority of the Members of the Committee. The Committee s decisions on procedural matters may be communicated to the Parties by correspondence, in accordance with Arbitration Rule 16(2). The President of the Committee will have the power to sign procedural orders on behalf of the Committee v1 6

21 7. Delegation of Power to Fix Time Limits (Arbitration Rule 26(1)) The President has the power to fix and extend time limits for the completion of the various steps in the proceeding. In exercising this power, the President shall consult with all Members of the Committee. Extensions of time shall be granted by the Committee at its discretion, and provided that a request is submitted before or, where this is impossible, in special circumstances immediately after the event preventing a Party from complying with the deadline. The Parties may also decide between themselves to grant extensions of time, on the basis of mutual courtesy, subject to the consent of the Committee. 8. Representation of the Parties (Arbitration Rule 18) The Parties shall be represented during these proceedings by the Counsel mentioned below. The Parties may designate additional Counsel by notification to the ICSID Secretariat v1 7

22 Ecuador PROCURADURIA GENERAL DEL ESTADO Dr. Diego García Carrión Dra. Christel Gaibor Dra. Diana Moya Dávalos Quito. Amazonas 477 y Roca Ecuador Tel.: +593 (2) s: dgarcia@pge.gob.ec cgaybor@pge.gob.ec dmoya@pge.gob.ec SQUIRE SANDERS (US) LLP Mr. George von Mehren 7 Devonshire Square London EC2M 4YH United Kingdom Tel.: Fax.: +44 (0) george.vonmehren@squiresanders.com SQUIRE SANDERS (US) LLP Mr. Stephen P. Anway 30 Rockefeller Plaza New York, NY United States of America Tel.: Fax.: stephen.anway@squiresanders.com DECHERT (Paris) LLP Prof. Eduardo Silva Romero Prof. Pierre Mayer Mr. Philip Dunham Mr. José-Manuel Garcia Represa Mr. Alvaro Galindo Ms. Audrey Caminades 32 Rue de Monceau Paris, France T : F : s: eduardo.silvaromero@dechert.com pierre.mayer@dechert.com philip.dunham@dechert.com jose-manuel.garciarepresa@dechert.com alvaro.galindo@dechert.com audrey.caminades@dechert.com Claimants OCCIDENTAL PETROLEUM CORPORATION Mr. Donald P. de Brier Mr. John C. Ale Ms. Laura C. Abrahamson Wilshire Blvd. Los Angeles, CA United States T: F: s: donald_de_brier@oxy.com john_ale@oxy.com laura_abrahamson@oxy.com DEBEVOISE & PLIMPTON LLP Mr. David W. Rivkin Ms. Marjorie J. Menza Ms. Ina C. Popova Mr. Benjamin M. Aronson 919 Third Avenue New York, NY United States T: F: s: dwrivkin@debevoise.com mjmenza@debevoise.com ipopova@debevoise.com baronson@debevoise.com COVINGTON & BURLING LLP Mr. Gaëtan Verhoosel Ms. Carmen Martínez López Mr. Ian Redfearn 265 Strand London WC2R 1BH England T: F: s: gverhoosel@cov.com cmartinez@cov.com iredfearn@cov.com v1 8

23 9. Place of Proceeding (Convention Articles 62 and 63; Administrative and Financial Regulation 26; Arbitration Rule 13(3)) The Parties prefer that Washington D.C. (United States of America) be the place of the proceeding, but are willing to attend hearings wherever the Committee finds convenient. The Committee may deliberate in any place it considers convenient. 10. Procedural Language(s) (Arbitration Rules 20(1)(b) and 22) The Parties agree that the languages of the proceedings would be Spanish and English (the Procedural Languages ). The Parties will file their pleadings in English and, if they wish, Spanish. If a Spanish version is not filed simultaneously, a courtesy translation shall be provided within two weeks. Documents filed in any language different from the Procedural Languages must be accompanied by a translation into Spanish and English. A document in either Spanish or English may be required to be translated into the other language within two weeks, at the request of the other Party or of the Committee. If the document is lengthy, it is sufficient if only the relevant parts are translated, provided that the Committee may require a fuller or a complete translation at the request of any Party or upon its own initiative. 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. Oral arguments and testimony, if any, shall be heard in Spanish and English (other than the procedural conference of March 25, 2013, which shall be in English as agreed by the Parties). Simultaneous interpretation of all hearings shall be arranged by the ICSID Secretariat and charged to the case account, without prejudice to the Committee s final allocation of costs. The Parties shall inform the ICSID Secretariat of interpretation requirements at least two weeks in advance of the hearing. 11. Means of Communication and Copies of Instruments (Administrative and Financial Regulations 24 and 30; Arbitration Rules 20(1)(d) and 23) a) Communications: Written communications in the case shall be transmitted by or other electronic means to the Parties, the ICSID Secretariat, and the Committee. Electronic versions of communications ordered by the Committee to be filed simultaneously shall be transmitted to the Secretariat only, which shall send them to the Committee and to the Parties. The Secretariat shall not be copied on direct communications between the Parties when such communications are not intended to be transmitted to the Committee v1 9

24 The addresses of the Members of the Committee are: [TBC] b) Instruments/Submissions: The Parties shall: - by the relevant filing date, submit by to the Secretariat, the opposing Party, and the Committee an electronic version of the submission. - courier to the Secretariat by the following within four business days: one hard copy of the entire submission in whichever format the Committee prefers; and two USB drives, or CD-ROMs or DVDs, with full copies of the entire submission. - at the same time, courier to the opposing Party at the addresses indicated under paragraph 8 and each Member of the Committee at the addresses indicated under this paragraph, 11(b): one hard copy of the entire submission in whichever format the Committee prefers; and one USB drive, or CD-ROMs or DVDs, with a full copy of the entire submission. The Members of the Committee s addresses are as follows: [TBC] ***** For , mail, and courier/parcel deliveries to the Secretariat, the contact details are: [TBC] **** Electronic versions of all documents in the submissions shall be text searchable (i.e., OCR PDF or Word). The paragraphs (or groups of paragraphs) of all written submissions shall be numbered consecutively and the submissions shall include a table of contents. The submissions to the Committee shall be accompanied by a list specifying the nature of each exhibit and/or legal authority, its date and its author. The list of exhibits and authorities shall be updated with each new submission in these proceedings. 12. Written and Oral Procedures (Arbitration Rules 20(1)(e) and 29) The Annulment proceedings and the Stay of enforcement proceedings shall both consist of a v1 10

25 written phase followed by an oral phase. The Parties and the Committee will discuss at the hearings whether to have post-hearing submissions. 13. Written and Oral Procedures (Arbitration Rules 20(1)(e) and 29) Stay of enforcement The schedule for the Stay of enforcement issue shall be as follows: - Ecuador shall file a Response to Claimant s request to lift the provisional stay or to condition the stay on the posting of security on 5 April 2013 by 6 p.m. CET; - Claimants shall file a Reply on 22 April 2013; and - Ecuador shall file a Rejoinder on 6 May Hearings (Arbitration Rules 13(2) and 33-36) The Hearing on the stay of enforcement issue shall be held on 13 May 2013 in Paris (France). 16. Organizational Meeting(s) (Arbitration Rule 21(1) The Parties should use their best efforts before a scheduled hearing to agree on the organizational aspects of such hearing (especially in connection with the marshalling of the evidence). For that purpose, the Parties should aim to hold a conference call with the Secretariat and the President of the Committee at least a month before any hearing. Such meetings may be conducted by telephone or video link. 17. Records of Hearings (Arbitration Rule 20(1)(g)) Sound recordings shall be made of all sessions. The sound recordings shall be provided to the Parties and the Committee. Verbatim transcript(s) in the Procedural Languages shall be made of any sessions. Unless otherwise agreed by the Parties or ordered by the Committee, 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 Committee on a same-day basis. 18. Publication (Convention Article 48(5), Administrative and Financial Regulation 22, Arbitration Rule 48(4)) v1 11

26 Any decision of the Committee may be published by the Centre v1 12