Gallo v Canada, Procedural order no 5, PCA Case No 55798, IIC 1309 (2011), 19th January 2011, Permanent Court of Arbitration [PCA]
- Vito G Gallo (United States [us])
- Juan Fernández-Armesto (President); Jean-Gabriel Castel (Claimant appointment); Laurent Lévy (Respondent appointment)
- Procedural Stage:
- Procedural order no 5
- Previous Procedural Stage(s):
- Procedural Order No 1; Vito G Gallo v Canada, PCA Case No 55798; IIC 1297 (2008), 4 June 2008Confidentiality Order; Vito G Gallo v Canada, PCA Case No 55798; IIC 1298 (2008), 4 June 2008Letter from the Tribunal to the Parties on the Procedure; Vito G Gallo v Canada, PCA Case No 55798; IIC 1299 (2008), 4 June 2008Procedural Order No 2 (amended); Vito G Gallo v Canada, PCA Case No 55798; IIC 1300 (2009), 10 February 2009Procedural Order No 1 (amended); Vito G Gallo v Canada, PCA Case No 55798; IIC 1301 (2009), 10 March 2009Procedural Order No 3; Vito G Gallo v Canada, PCA Case No 55798; IIC 1302 (2009), 8 April 2009Decision on the challenge to Mr J Christopher Thomas QC; Vito G Gallo v Canada, PCA Case No 55798, 14 October 2009Procedural Order No 4; Vito G Gallo v Canada, PCA Case No 55798; IIC 1303 (2009), 21 December 2009Letter from the Tribunal to the Parties on the Procedure, Vito G Gallo v Canada, PCA Case No 55798; IIC 1308 (2009), 30 December 2009
- Governing Law:
- North American Free Trade Agreement (17 December 1992) US Gov’t Printing Office (1992); (1993) 32 ILM 289, 605, entered into force 1 January 1994 (‘NAFTA’)
- International law
- Procedural orders
Oxford Reports on International Investment Claims is edited by:
Ian Laird, Crowell & Moring LLP, Washington, DC
Decision - full text
1. That communication A 30 provided for the opening of a new separate procedural stage, which would only deal with the jurisdictional objections, including the Claimant’s legal standing, and with the additional information requests posed by the Tribunal [the “Separate Procedure”].
2. That communication A 30 also provided that a hearing would be held in which the relevant witnesses (including experts) would be examined.
Procedural Order no. 5
Date, venue and time
4. Each party shall prepare its own comprehensive document brief for all of the witnesses it intends to examine, which can be supplemented at the hearing if necessary, so long as the supplementing documents are already in the record.
6. The Tribunal would appreciate receiving three copies of each document which is shown to witnesses and experts.
Witnesses and experts examination
10. Witnesses and experts will be divided in blocks: (i) Third party witnesses4 with agenda difficulties; (ii) Mr. Gallo and Mr. Swanick; (iii) experts on document examination; (iv) fact witnesses and (v) other experts. The sequence of blocks indicates, to the extent possible, the order of examination.
(i) Third party witnesses with agenda difficulties
— Mr. Jeff Belardi (proposed by the Claimant)
— Mr. Philip Noto (proposed by the Claimant)
— Mr. Michael Wolf (proposed by the Claimant)
— Mr. Robert Bain5 (proposed by the Respondent)
These witnesses will be heard at any moment they become available.
(ii) Mr. Gallo and Mr. Swanick
Except if “third party witnesses with agenda difficulties” become available, Mr. Vito Gallo will be the first witness to be examined, followed by Mr. Brent Swanick.
Mr. Swanick is subject to special rules regarding his sequestration. As an exception to the general rule that witnesses are allowed to attend the hearing after their examination (see para. 17 infra), Mr. Swanick is excluded from attending the examination of experts on document examination (block (iii)).
(iii) Experts on document examination
— Mr. Brian Lindblom (proposed by the Respondent)
— Mr. Marc Gaudreau (proposed by the Respondent)
— Mr. Luc Brazeau (proposed by the Respondent)
— Mr. Valery Aginsky (proposed by the Claimant)
On this issue, Respondent’s experts shall, in principle, be examined before Claimant’s experts.
(iv) Fact witnesses
— Mr. Mario Cortellucci (proposed by the Claimant)
— Mr. Frank Peri (proposed by the Claimant)
(v) Other experts
— Mr. Bruce Welling (proposed by the Claimant)
— Mr. Perry Truster (proposed by the Respondent)
— Mr. Lorn Kutner (proposed by the Claimant)
11. The Claimant shall indicate by Saturday, 22 January 2011, 12 a.m., the order of appearance of fact witnesses within block (iv). The Respondent shall do the same with respect to the experts presented by it in block (iii). The Tribunal encourages the parties to reach an agreement by the same date on the order of appearance within block (v). This order of appearance should not be altered, except if authorised by the Tribunal for good cause.
12. The Claimant and the Respondent will be granted respectively 11 hours for witness and expert examination. Counsel to both parties will be entitled to conduct direct examination and cross-examination as felt appropriate under the control of the Tribunal. The time used by each party for each examination will be deducted from the 11 hours global time allocation.
13. Prior to his testimony:
(i) Each witness shall swear the following oath: “I solemnly affirm, under penalty of perjury, that I shall speak the truth, the whole truth, and nothing but the truth”;
(ii) Each expert shall swear the following oath: “I solemnly affirm, under penalty of perjury, that my statement will be in accordance with my sincere belief”.
14. Pursuant to Procedural Order no. 16, the examination of witnesses shall proceed as follows:
(i) The party summoning the witness may briefly examine the witness;
(ii) The adverse party may then cross-examine the witness;
(iii) The party summoning the witness may then re-examine the witness with respect to any matters or issues arising out of the cross-examination, with re-cross examination to be granted only with leave from the Arbitral Tribunal; and
(iv) The Arbitral Tribunal may examine the witness at any time, either before, during or after examination by one of the disputing parties.
15. The same shall apply to expert examination, save for the first examination by the party who summoned them, which may (reasonably) be more extensive than the brief examination of witnesses.
16. In accordance with Procedural Order no. 17, fact witnesses are prevented from being present in the hearing room during the hearing of oral testimony, discussing the testimony of any other witness who has already testified prior to giving their testimony, or reading any transcript of any oral testimony, prior to their examination, except with the express permission of the Arbitral Tribunal upon request from a party or sua sponte. This condition does not apply to experts. For good cause, the Arbitral Tribunal may change this rule.
17. Fact witnesses may be present at the hearing after being examined. Experts, however, will be permitted to be present throughout the hearing, and shall not be sequestered prior to their testimony.
19. In addition to the facts and opinions contained in their respective reports, Respondent’s experts shall be permitted to respond to the forensic report submitted by Dr. Aginsky. Further, to the extent that any witness testifies to facts or opinions not in his previous witness statement(s), experts shall be entitled to offer testimony in response.
21. Real-time reporting will be available. Costs will be advanced and, possibly, split as agreed among the parties.
22. At the end of the hearing the parties and the Tribunal will agree on a time schedule for the correction of transcripts.
24. By close of the hearing session of Wednesday, 2 February 2011, the Arbitral Tribunal and the parties will discuss whether conclusions shall be held orally and/or in writing, and the details of the post-hearing submissions, if any.
Jean-Gabriel Castel, OC, Q.C.
1 As amended on 10 March 2009.
2 Section G). c).
3 Section H). c) and d).
4 The expression “third party witness” is used for convenience and does not intend to express any view on the possible relationship of any such witness with any of the parties.
5 The Claimant indicated the possibility of also submitting a witness statement from Mr. Bain. Mr. Bain’s presence at the hearing would, in such case, not be necessary.
6 Para. 54.
7 Para. 55.