Gavazzi and Gavazzi v Romania, Procedural order no 1, ICSID Case No ARB/12/25, IIC 1384 (2013), despatched 11th March 2013, World Bank; International Centre for Settlement of Investment Disputes [ICSID]
- Marco Gavazzi, Stefano Gavazzi
- Hans van Houtte (President); VV Veeder (Claimant appointment); Mauro Rubino-Sammartano (Respondent appointment)
- Counsel for Party One:
- Giorgio Sacerdoti (Via Privata Maria Teresa 4, 20123 Milan, Italy); Anna de Luca (Via Privata Maria Teresa 4, 20123 Milan, Italy)
- Counsel for Party Two:
- Ruxandra Elena Gindu (AAAS Privatization Agency of Government of Romania, Department of Legal Assistance and Litigations, 50 Cpt Av Al Şerbănescu Street, District 1, 014294 Bucharest, Romania); Odette Bolintineanu (AAAS Privatization Agency of Government of Romania, Department of Legal Assistance and Litigations, 50 Cpt Av Al Şerbănescu Street, District 1, 014294 Bucharest, Romania); Mihaela Stanescu (AAAS Privatization Agency of Government of Romania, Department of Legal Assistance and Litigations, 50 Cpt Av Al Şerbănescu Street, District 1, 014294 Bucharest, Romania); Alina Cobuz (SCPA “Cobuz & Associates”, The Consortium Leader, 14 Margaritarelor St, Sector 2, 020564 Bucharest, Romania); Dan Visoiu (SCPA “Cobuz & Associates”, The Consortium Leader, 14 Margaritarelor St, Sector 2, 020564 Bucharest, Romania); Laurent Niddam (14 Margaritarelor St, Sector 2, 020564, Romania); Manuela Sarbu (12 BP Hasdeu Bvd, Cam 1, Sector 5, Bucharest, Romania); Simona Tanciu (SPRL Bostina & Associates, 70 Jean Louis Calderon St, Sector 2, 020039 Bucharest, Romania); Emilia Toader (SPRL Bostina & Associates, 70 Jean Louis Calderon St, Sector 2, 020039 Bucharest, Romania); Carmen Saricu (SPRL Bostina & Associates, 70 Jean Louis Calderon St, Sector 2, 020039 Bucharest, Romania); Mihai Marian (SPRL Bostina & Associates, 70 Jean Louis Calderon St, Sector 2, 020039 Bucharest, Romania)
- Procedural Stage:
- Procedural order no 1
- Governing Law:
- Agreement between the Government of the Italian Republic and the Government of Romania on the Mutual Promotion and Protection of Investments, signed 6 December 1990, entered into force 14 March 1995 (‘Italy—Romania BIT’)
- International law
- Procedural orders
Oxford Reports on International Investment Claims is edited by:
Ian Laird, Crowell & Moring LLP, Washington, DC
Decision - full text
The first session of the Arbitral Tribunal was held on February 19, 2013, at World Bank Conference Center in Paris, 66 av. d’Iéna.
Present at the session were:
Members of the Tribunal
Prof. Hans van Houtte, President of the Tribunal
Mr. V. V. Veeder, Arbitrator
Mr. Mauro Rubino-Sammartano, Arbitrator
Ms. Martina Polasek, Secretary of the Tribunal (by telephone conference)
Participating on behalf of the Claimants
Prof. Avv. Giorgio Sacerdoti
Dr. Avv. Anna de Luca
Mr. Marco Gavazzi
Participating on behalf of the Respondent
Dr. Alina Cobuz — Lawyer
Ms. Simona Tanciu — Lawyer
Ms. Emilia Toader — Lawyer
Ms. Carmen Saricu — Lawyer
Mr. Laurent Niddam — Lawyer
The President of the Tribunal (President) opened the session at 2 p.m. and welcomed the participants. The President introduced the Tribunal and invited the parties to introduce their respective representatives.
The Tribunal and the parties considered the following:
— The Agenda adopted by the Tribunal (Annex 1), including the items proposed by the Respondent and approved by the Claimants, in addition to the items of the Draft Agenda circulated by the Secretary on January 3, 2013;
— The Draft Procedural Order (Annex 2) circulated by the Secretary on January 22, 2013; and
— The parties’ comments on the Draft Procedural Order received on February 1 and 12, 2013 (from counsel for the Claimants) and February 11, 2013 (from counsel for the Respondent), (Annex 3), indicating the items on which they agreed and their respective positions regarding the items on which they did not agree.
The Tribunal and the parties discussed the items on the Agenda in order.
The parties’ agreements and the Tribunal’s decisions are recorded in the Procedural Order below.
The session was adjourned at 5.47 p.m.
An audio recording of the session was made and deposited in the archives of ICSID.
A USB drive containing the recording of the session was distributed to the Members of the Tribunal and the parties.
Pursuant to ICSID Arbitration Rule 19, this first Procedural Order sets out the Procedural Rules that the Claimants and the Respondent have agreed and the Arbitral Tribunal has determined shall govern this arbitration.
1. Applicable Arbitration Rules
2. Constitution of the Tribunal and the Tribunal Members’ Declarations
Arbitration Rule 6
2.1. The Tribunal was constituted on November 26, 2012 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.
3. Fees and Expenses of the Tribunal Members
Convention Article 60; Administrative and Financial Regulation 14; ICSID Schedule of Fees
3.1. The fees and expenses of each arbitrator 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.
3.2.1. 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
3.3. 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 the hearing as a result of such postponement or cancellation shall be reimbursed.
4. Presence and Quorum
5. Decisions of the Tribunal
Arbitration Rule 16
6. Delegation of Power to Fix Time Limits
Arbitration Rule 26(1)
6.1. The President has the power to fix and extend time limits for the completion of the various steps in the proceeding.
7. Representation of the Parties
Arbitration Rule 18
7.1. Each party shall be represented by its respective counsel listed below and may designate additional agents, counsel, or advocates by notifying the Tribunal and the ICSID Secretariat promptly of such intended designation.
7.2. By letter of February 27, 2013, the Respondent confirmed the names of the attorneys authorized to represent Romania during the first session of the Tribunal, corresponding to the above attorneys participating in the session.
- For the Claimants
- Prof. Avv. Giorgio Sacerdoti
- Dr. Avv. Anna de Luca
- Via Privata Maria Teresa 4
- 20123 Milano
- Tel: +39 348 313 6019
- Fax:+ 39 025 830 3818
- For the Respondent
- THE AUTHORITY FOR STATE ASSETS ADMINISTRATION (A.A.A.S.) Romania
- Ms. Ruxandra Elena Gîndu
- Ms. Odette Bolintineanu
- Ms. Mihaela Stanescu
- AAAS Privatization Agency of Government of Romania Department of Legal Assistance and Litigations
- 50 Cpt. Av.Al. Şerbănescu Street,
- District 1
- 014294 Bucharest
- Tel: +40 021 30 36 166
- Fax: +40 021 30 36 184
- Ms. Alina Cobuz
- Mr. Dan Visoiu
- SCPA “Cobuz & Associates”
- the leader of the Consortium
- including also Mr. Laurent Niddam
- 14 Margaritarelor St., Sector 2
- 020564 Bucharest
- Tel: +40 21 2 10 42 64
- Fax: +40 212 10 42 69
- Ms. Simona Tanciu
- Ms. Emilia Toader
- Ms. Carmen Saricu
- Mr. Mihai Marian
- SPRL“Bostina & Associates”
- 70 Jean Louis Calderon St., Sector 2
- 020039 Bucharest
- Tel: +40 21 211 48 09
- +40 21 211 48 31
- Fax:+40 21 210 46 43
- +40 21 319 48 O3
- Ms. Manuela Sarbu
- 12 B.P.Hasdeu Bvd., Cam. 1, sector 5
- Tel: +40 21 319 45 60
8. Apportionment of Costs and Advance Payments to ICSID
Convention Article 61(2); Administrative and Financial Regulation 14; Arbitration Rule 28
8.1. 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.
8.2. By letter of November 28, 2012, ICSID requested that each party pay US$ 150,000 to defray the initial costs of the proceeding. ICSID received Respondent’s payment on December 27, 2012 and Claimants’ payment on January 25, 2013.
8.3. ICSID shall request further advances as needed. Such requests shall be accompanied by an interim statement of account providing details of the direct costs of the proceeding, including the total fees and expenses of all arbitrators. At the end of the case, the financial statement will include a breakdown of each arbitrator’s fees and expenses.
9. Place of Proceeding
Convention Articles 62 and 63; Administrative and Financial Regulation 26; Arbitration Rule 13(3)
10. Procedural Language(s)
Administrative and Financial Regulation 30(3) and (4); Arbitration Rules 20(1)(b) and 22
10.1. English is the procedural language of the arbitration. Documents filed in any other language must be accompanied by a translation into English. If the document is lengthy and relevant only in part, it is sufficient if only the relevant parts are translated, provided that the Tribunal 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.
10.2. A witness may testify in a language other than the procedural language with simultaneous interpretation into the procedural language.
10.3. Simultaneous interpretation shall be arranged by the ICSID Secretariat and charged to the case account, without prejudice to the Tribunal’s final allocation of costs. The parties shall inform the ICSID Secretariat of interpretation requirements at least four weeks in advance of the hearing. The parties will be entitled to involve their own interpreters to check, for internal purposes, the accuracy of the interpretation of the interpreters selected by ICSID (if the case may be). Any proposed corrections to the interpretation, as reflected on the English transcript, should be raised with the Tribunal.
11. Means of Communication and Copies of Instruments
Administrative and Financial Regulations 24 and 30; Arbitration Rules 20(1)(d) and 23
11.1. ICSID shall be the channel of written communications between the parties and the Tribunal. Written communications (except the submissions mentioned below under 11(b)) shall be transmitted by email or other electronic means to the other party and the ICSID Secretariat. The Secretary shall acknowledge receipt of a communication received by a party and transmit it to the Tribunal. The Secretary shall not be copied on direct communications between the parties when such communications are not intended to be transmitted to the Tribunal.
11.2.1. by the relevant filing date, submit by email to the ICSID Secretariat, the opposing party, and the Tribunal an electronic version without exhibits of pleadings, witness statements, and expert reports;
18.104.22.168. two hard copy sets in A5 booklet double sided print format of the entire submission, including witness statements and expert reports, together with exhibits (the brief, exhibits, witness statements and expert reports should be bound separately) but excluding legal authorities; and
22.214.171.124. two USB drives, with full copies of the entire submission, including the pleading, witness statements, expert reports, exhibits, and legal authorities (organized in consecutive order in the USB, eg. C-001, C-002 for exhibits + a short description of the document, C-Memorial 1, C-Memorial 2 (in case there is any addition to the Memorial filed by the Claimants), CEW1-last name of expert witness I (for an expert witness’ first report), CW1-last name of witness II (for a factual witness’ second statement).
11.2.3. at the same time, courier to the opposing party:
for the Claimants, one hard copy set in A-4 format as per item 126.96.36.199 and one USB drive as per item 188.8.131.52 to the following address: c/o Prof. Avv. Giorgio Sacerdoti, Via Privata Maria Teresa 4, 20123 Milano Italy;
c/o Ms. Emilia Toader, Bostina & Associates, 70 Jean Louis Calderon, 2nd district Bucharest, 020039.
- Professor Hans van Houtte
- Iran — United States Claims Tribunal
- Parkweg 13
- 2585 JH The Hague
- The Netherlands
- Email: firstname.lastname@example.org
- Mr. V.V. Veeder, QC
- Essex Court Chambers
- 24 Lincoln’s Inn Fields
- London, WC2A 3EG
- England, UK
- Email: email@example.com
11.3. For email, mail, and courier/parcel deliveries to the ICSID Secretariat, the contact details are:
- Ms. Martina Polasek
- MSN U3-301
- 3301 Pennsy Dr.
- Landover, MD 20785-1606
- Tel.: + 1 (202) 458 4567
- Fax: + 1 (202) 522-2615
- Email: firstname.lastname@example.org
11.4. Legal authorities shall be submitted in electronic version only, unless specifically requested by the Tribunal.
11.5. The parties will endeavor to submit electronic versions of pleadings and exhibits, where feasible in text searchable format (i.e., OCR PDF or Word).
12. Written and Oral Procedures
13. Schedule for Submission of Pleadings
Arbitration Rules 20(1)(c), 31 and 40
a) Period of Time Filings
13.1.1. The Claimants’ Request for Arbitration is accepted as the Claimants’ Memorial on the Merits, excluding quantum;
13.1.2. The Claimants shall complete their Memorial on the Merits with its submission on quantum by Monday, July 15, 2013;
13.1.3. The Respondent shall file its Counter-Memorial on the Merits, excluding quantum, but including any Objections to Jurisdiction and Admissibility and any Counter-Claim that it may have by Monday, July 15, 2013.
13.1.4. The Claimants shall file any Objections to Jurisdiction to and Admissibility of the Counter-Claim, as well as its submission on whether or not the parties’ objections to jurisdiction and admissibility should be bifurcated from the merits of the case by Wednesday, July 31, 2013;
13.1.6. Provided that the parties do not agree on whether or not the proceedings should be bifurcated, the Tribunal shall hold a telephone conference with the parties on Thursday, September 5, 2013;
13.1.7. The Tribunal shall make its best effort to issue a decision on bifurcation by Friday, September 13, 2013;
13.1.8. If the Tribunal decides to bifurcate the proceeding on jurisdiction from the merits, see 13.2 Scenario A;
13.1.9. If the Tribunal decides to join the objections to jurisdiction to the merits of the case, see 13.3 Scenario B.
13.2. Scenario A — Bifurcation of the Proceedings (Respondent’s Objections to Jurisdiction and Claimants’ Objections to Jurisdiction with respect to the Counter-Claim)
13.2.1. The Claimants shall file their Counter-Memorial on Jurisdiction by Friday, November 15, 2013;
13.2.2. The Respondent shall file its Reply on Jurisdiction and Counter-Memorial on the Jurisdiction of the Counter-Claim by January 31, 2014;
13.2.3. The Claimants shall file their Reply on the Jurisdiction of the Counter-Claim by February 28, 2014;
13.2.4. The Tribunal shall hold an organizational pre-hearing telephone conference on March 10, 2014; and
13.3.1. The Claimants shall file a Reply on the Merits, excluding quantum, and a Counter-Memorial on Jurisdiction and the Counter-Claim by Tuesday, December 17, 2013;
13.3.3. The Respondent shall file a Rejoinder on the Merits and a Reply on Jurisdiction and the Counter-Claim by March 31, 2014;
13.3.6. The Claimants shall file a Rejoinder on Jurisdiction and the Counter-Claim by Tuesday, April 30, 2014;
13.3.7. The Tribunal shall hold an organizational pre-hearing telephone conference on Monday, May 12, 2014; and
14. Document Production
Convention Article 43(a); Arbitration Rule 34
14.1. Articles 3 and 9 of the International Bar Association Rules on the Taking of Evidence in International Arbitration (2010) shall guide the Tribunal and the parties regarding document production in this case.
14.2. The parties shall address any request for production of documents to the Tribunal within two (2) weeks from the other party’s submission. Every request for production of documents shall identify with precision each document or category of documents sought and establish its relevance. The requests shall be recorded in a joint schedule (populating columns 1 through 4) in the form below.
14.3. Each party shall produce the requested documents that are in its possession, custody or control and to which it does not object within four (4) weeks from the request for production of documents.
14.4. Each party shall state its response to each request and any objections to any request within two (2) weeks from the request for production of documents. Such responses and objections shall be recorded in column 5 of the joint schedule following the format below:
Documents or Category of Documents Requested
Relevance and Materiality According to Requesting Party
Responses / Objections to Document Request
Reply to Objections to Document Request
Ref. to Submissions
14.5. Each party shall respond to these objections within one week from the receipt thereof. Such responses shall be recorded in column 6 of the schedule above. Each party shall provide the other party and the Tribunal with the completed schedule (in both Word and PDF formats).
14.6. The Tribunal will make its best efforts to rule on the objections as soon as possible after receipt of the Reply to the objections (No. 6 in Table).
14.7. A party shall produce those documents for which no objection is sustained by the Tribunal within one week of the ruling.
14.8. The failure to produce as ordered may result in adverse inferences drawn by the Tribunal as regards the merits of the defaulting party’s case.
14.9. Further requests for the production of documents sought by either party, if any, shall be permitted only at the discretion of the Tribunal. The request must be substantiated with reasons.
14.10. Introduction by a party of evidentiary materials following the filing of the last written submission will be permitted only in exceptional circumstances at the discretion of the Tribunal upon a reasoned written request followed by observations from the other party. Any such request shall not attach the new evidentiary materials. If the Tribunal admits the new evidentiary materials, the opposing party shall be allowed to submit evidence in rebuttal.
14.11. For the avoidance of doubt, Power Point slides, demonstrative exhibits and charts or other similar materials in aid of argument may be used by either party during any oral hearing, subject to the discretion of the Tribunal, and provided always that such slides or materials reflect evidence on the record (with citations to such evidence) and do not constitute or introduce any new evidence, whether directly or indirectly.
15. Evidence: Witnesses and Experts, Written Statements and Reports, Supporting Documentation
Convention Article 43(a); Arbitration Rules 24 and 33–36
15.1. 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. If a document is lengthy, the parties shall mark the portions on which they rely.
15.2. Considering that, as undertaken within the hearing, the Claimants intend to appoint Deloitte as their expert counsel who shall provide an expert report on the quantum of the damages claimed as loss of profit resulting from the destruction and loss of their investment, starting with the issuance date of the Procedural Order no. 1, the Respondent shall take all the necessary steps in accordance with the applicable laws and regulations, including carrying out any procurement procedure and fulfilling any related administrative operation, if the case, in order to nominate and contract the experts who shall draft the accounting expert report and/or answer to the Claimants’ expert report and who shall further assist the Respondent in all related issues in respect with this case.
15.3. Duly certified copies of documents are not required unless the authenticity of the copy is contested and the Tribunal considers the certification necessary.
15.4. Each party shall number the accompanying documentation consecutively throughout the entire proceeding (C-001 or R-001 for documentary evidence and CLA-001 or RLA-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 refiled but referred to using the earlier number.
15.5. 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.
15.6. The Tribunal shall not admit any testimony or other evidence that has not been filed with the written submissions, unless the Tribunal determines that it is appropriate under the circumstances.
15.7. All witness statements or expert reports shall be signed and dated by the submitting factual witness or expert witness, and shall have attached a copy of their identification document.
15.8. Within 60 days prior to the date of the evidentiary hearing, but not earlier than 60 days following the receipt of written statements and expert reports, each party will identify the factual witnesses and expert witnesses of the opposing party (having filed written statements and expert reports) whom it intends to cross-examine. Shortly after the parties’ notifications, the Tribunal will indicate the witnesses and experts not called by the parties that it wishes to question, if any.
15.10. The Tribunal 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.
15.11. Witnesses and experts shall be examined by each party under the control of the Tribunal. Before giving evidence, witnesses shall make the declaration set out in ICSID Arbitration Rule 35(2), and experts shall make the declaration set out in ICSID Arbitration Rule 35(3). The Tribunal may examine the witness or expert at any time during the oral procedure.
15.12. 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 Tribunal, there shall be no limitation on the scope of the cross-examination to the contents of the witness statement or expert report. Re-direct examination shall be limited to the subject of cross-examination.
15.13. Unless the parties and the Tribunal agree otherwise, factual witnesses shall not be allowed in the hearing room before giving their oral evidence. The potential sequestration of expert witnesses will be discussed during the pre-hearing organizational telephone conference.
15.14. Other matters regarding hearings, including the possibility of witness conferencing, shall be addressed at the pre-hearing organizational telephone conference.
16. Submissions of Non-Disputing Parties
Arbitration Rule 37(2)
16.1. Pursuant to ICSID Arbitration Rule 37(2), and after consulting with the parties, the Tribunal may allow a person or entity that is not a party to the dispute to file a written submission with the Tribunal regarding a matter within the scope of the dispute.
16.2. The parties agreed that any non-disputing party seeking to file written submissions and approaching either party or the Tribunal shall be referred to the ICSID Secretariat, who shall advise such non-disputing party of the provisions agreed below regarding the criteria and the procedure for the written submissions by non-disputing parties.
16.3. Non-disputing parties seeking to make a written submission shall file a petition with the Tribunal for leave to file a written submission and such petition shall include the following information:
16.3.1. the identity and background of the petitioner, the nature of its membership if it is an organization, and the nature of its relationships, if any, to the parties to the dispute;
16.3.3. whether the petitioner has received financial or other material support from any of the parties or from any person connected with the parties in this case; and
16.4. Upon receipt of a petition for leave to file a written submission, the Tribunal shall provide copies of the petition to both parties and ask for their views. In deciding whether to grant a non-disputing party leave to submit a written submission, the Tribunal shall consider the factors enumerated in Arbitration Rule 37(2) as well as:
16.4.3. any undue burden or unfair prejudice which the acceptance of written submissions by non-disputing parties may place on the parties, the Tribunal, and the proceedings; and
17. Hearings (including Pre-Hearing Organizational Meetings)
Arbitration Rule 13(2)
See under item 13
18. Records of Hearings
Arbitration Rule 20(1)(g)
18.1. Sound recordings shall be made of all sessions. The sound recordings shall be provided to the parties and the Tribunal Members.
18.2. The Secretary may prepare summary minutes of hearings or sessions upon request, under the direction of the Tribunal.
18.3. Verbatim transcript(s) in the procedural language(s) shall be made of any 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.
18.4. The parties shall attempt to agree on any proposed 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/court reporter] in the transcripts (“revised transcripts”). In case of disagreement between the parties, the Tribunal shall decide upon such disagreement and any correction adopted by the Tribunal shall be entered by the [parties/court reporter] in the revised transcripts.
Convention Article 48(5), Administrative and Financial Regulation 22, Arbitration Rule 48(4)
19.1. ICSID shall not publish any procedural order, decision, or award related to the proceeding without the consent of the parties. However, the parties consent to ICSID publishing the texts of any procedural order, decision, or award in these proceedings previously published by any other source once the award has been rendered.