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M-Mex LLC and ors v Mexico, Procedural order no 3, ICSID Case No ARB(AF)/16/3, IIC 1341 (2018), 9th May 2018, World Bank; International Centre for Settlement of Investment Disputes [ICSID]

Parties:
M-Mex LLC and ors
Mexico
Judges/Arbitrators:
Gaëtan Verhoosel (President); Gary Born (Claimant appointment); Raúl E Vinuesa (Respondent appointment)
Procedural Stage:
Procedural order no 3
Previous Procedural Stage(s):
Procedural order no 1; B-Mex, LLC and ors v Mexico, ICSID Case No ARB(AF)/16/3; IIC 931 (2017), 4 April 2017Procedural Order No 2; B-Mex, LLC and ors v Mexico, ICSID Case No ARB(AF)/16/3; IIC 1325 (2018), 1 February 2018
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
International law
Subject(s):
Procedural orders

Oxford Reports on International Investment Claims is edited by:

Ian Laird, Crowell & Moring LLP, Washington, DC

Decision - full text

Original Source PDF

1.  Hearing dates and venue

1.1.  Monday 21 May to Sunday 27 May 2018

1.2.  World Bank — 1818 H Street NW, Washington DC 20433

2.  Hearing daily schedule

2.1.  9 am — 5.30 pm

2.2.  There will on each day be a one-hour lunch break and two 15-minute breaks.

3.  Allocation of time

3.1.  The total nominal useful time shall be 49 hours. In view of the large number of witness statements introduced with Claimants’ Rejoinder on Jurisdiction, and to ensure fairness and equality of treatment, this total shall be divided as follows: 26 hours for Respondent; 23 hours for Claimants.

3.2.  Questions from the Tribunal shall be deducted equally from each of the parties’ time allocations. For planning purposes, a prudent estimate for the parties to assume is one hour per hearing day.

3.3.  Openings and closings by each party shall not exceed 3 hours each—i.e., a maximum of 12 hours for both parties’ openings and closings.

3.4.  Without prejudice to Section 4.3 below, each party shall use its time as it sees fit. The Tribunal Secretary shall record the time used by each party and report the same at the end of each hearing day.

4.  Witness examinations

4.1.  The order of the witness examinations shall be as follows (italicized names are witnesses whose examination shall be conducted by video-conference):

  1. 4.1.1.  Ana Carla Martinez Gamba

  2. 4.1.2.  Gordon Burr

  3. 4.1.3.  Erin Burr

  4. 4.1.4.  Julio Gutiérrez

  5. 4.1.5.  José Ramón Moreno

  6. 4.1.6.  John Conley

  7. 4.1.7.  Benjamin Chow

  8. 4.1.8.  Luc Pelchat

  9. 4.1.9.  José Luis Segura

  10. 4.1.10.  Moisés Opatowski

  11. 4.1.11.  Neil Ayervais

  12. 4.1.12.  Peg Rudden

  13. 4.1.13.  Lou Fohn

  14. 4.1.14.  Victory Fund

  15. 4.1.15.  René Irra Ibarra

  16. 4.1.16.  [legal expert presented by Claimant]

4.2.  The foregoing sequence may be varied by the Tribunal at the hearing should logistical issues relating to video-conferencing so demand.

4.3.  In accordance with Section 19.5 of Procedural Order No. 1, direct examination shall be “brief”. Where a party in its last written submission relies on new exhibits to challenge the evidence of a witness as reflected in his/her witness statement(s), a party shall be entitled to conduct a brief direct examination in regard to those new exhibits.

4.4.  The Tribunal may decide to examine both legal experts by way of expert conferencing (or “hot-tubbing”). The Tribunal shall advise the parties whether it wishes to do so at the hearing.

4.5.  Where a witness is examined by video-conference, the parties shall be entitled to each designate one proctor to be present in the room with the witness. Except for the requisite IT personnel, no other persons shall be allowed to be in the room with the witness.

5.  Presence of witnesses at the hearing

5.1.  All witnesses and expert shall be allowed to attend the opening statements.

5.2.  Claimants’ witnesses who are also parties shall be allowed to be present during the examination of Respondent’s sole fact witness, Ms. Martinez Gamba.

5.3.  All other witnesses shall be allowed to be present in the room during the examination of other witnesses only after their own examination has been concluded.

6.  Non-Disputing NAFTA Parties

6.1.  The Tribunal Secretary shall advise the Non-Disputing NAFTA Parties of the dates and venue of the hearing. In accordance with Article 1128 of NAFTA, should any such Non-Disputing NAFTA Party make a request to attend the hearing, the Tribunal shall grant any such request.

6.2.  A Non-Disputing NAFTA Party shall be granted access to the hearing materials described in Article 1129 of NAFTA where it makes a request to that effect to the Tribunal.

7.  Other organizational or logistical matters

7.1.  Any matters not addressed in this Procedural Order shall be resolved by reference to the parties’ agreements recorded in the joint document submitted to the Tribunal on 2 May 2018 and attached hereto; or, absent such agreement, by the Tribunal after hearing the parties.

On behalf of the Tribunal,

Dr. Gaëtan Verhoosel

President of the Tribunal

Date: 9 May 2018

Attached: Annex A (Draft Agenda — Hearing Logistics)