Written pleadings and other...
Transcript of Written pleadings and other...
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2017/IEG/WKSP/016 Session: 3-4
Written Pleadings and Other Proceedings
Submitted by: Dechert
Capacity Building Workshop on Investor-State Dispute Settlement Prevention and Management
Washington, D.C., United States3-6 October 2017
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© 2017 Dechert LLP
October 5, 2017
Written pleadings and otherproceedings
APEC Capacity Building on Investor-State Dispute Settlement (ISDS)
Prevention and Management
Juan Felipe Merizalde
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Contents
Structure of the written phase
Scope of the main briefs of an arbitration
How to prepare your brief
Other briefs
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Main structure of the written phase
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ICSID Arbitration Rules, Rule 31(1)
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Structure of the written phase – strategicdecisions
Bifurcation? Trifurcation?
Number of pleadings
Simultanous or consecutive?
Timing for submit the evidence (document production requests)
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Standard structure of a written phase
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Criteria to decide whether to bifurcate
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Glamis Gold Ltd v United States of America (UNCITRAL), Procedural Order No 2, 31 May 2005, para 12(c)
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Bi(tri)furcation
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Scope of the briefs
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Statement of Claim
Counter-Memorial
Reply
Rejoinder
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Submission of evidence
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Statement of Claim
Counter-Memorial
Reply
Rejoinder
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How to prepare your brief (I)
You never get a second chance to make a first good impression
The written pleadings will be your first impression: use it wisely
Briefs are written in stone
Pick your battles
Lo bueno si breve, dos veces bueno (Something good, if it's
short, two times good)
Know your Tribunal
Engage the debate
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Presenting your facts
Describe facts chronologically
Cite supporting evidence
Avoid unnecessary adjectives and characterizations
Don’t risk your credibility
Take the skeleton out of the closet
Have a clear structure
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Responding to Claimant’s facts
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What Claimant will try to do What Respondent needs to do
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Responding to Claimant’s facts
Double check all facts
Mind the gap
Dispute undisputed facts
Tackle witnesses with documents and documents with witnesses
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Describing the law
Start with the Treaty provision
Develop, if needed, the standard
Explain why the standard was breached (or not) in this case
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Let’s think of a case
Lannister is a junior mining company incorporated in Dorne.
Claimant acquired a mining license in Westeros to exploit dragon glass. The population of Westeros includes a large number of indigenous communities called Wildlings. Wildlings are culturally very aggressive but sometimes work together with local business when there is a benefit for their community.
In 2012, five thousand Wildlings marched to Capital City to demand the immediate expulsion of Lannister arguing the company’s breach of commitments with the communities and abuses on women and children. Protests became violent. Two wildlings died during protests against the police.
In September 2012, the President of Westeros issued a Royal Decree immediately expelling Lannister from Westeros.
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Claimant’s structure (1)
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1. Introduction
2. Factual Background
3. Legal Background
4. Request Relief
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Claimant’s structure (2)
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THE FACTS OF THE CASE DEMONSTRATE THAT
WESTEROS ILLEGALLY EXPROPRIATED LANNISTER’S
INVESTMENTS WITHOUT ANY COMPENSATION
1. Lannister has been involved in the Westeros Mining sector since
1968 due to the State’s positive attitude towards foreign
investment
a. History and Activity of Lannister
b. Westeros’ legal framework promoted foreign Investment in
the mining sector
c. Lannister has been involved in four mining projects in
Westeros
2. Lannister’s investments in the Dragon Glass Mine
a. First identifications of the Dragon Glass deposits in 1998
and the acquisition of the mining license
b. At all relevant times, Lannister owned the Dragon Glass
license
c. Lannister’s exploration and pre-development efforts at the
Dragon Glass Mine
d. Lannister’s Community relations efforts
3 Westeros’ efforts to recover the Dragon Glass Mine
a. In 2008, the Government sought to obtain a participating
interest in the Dragon Glass Mine
b. After 2009, the local government withdrew its support to
the project and fueled opposition to Lannister
c. In May 2012, after local elections, the Government
increased the pressure on Lannister to abandon the Mine
4 Westeros expropriated the Dragon Glass Mine without providing
any compensation to Lannister
a. In September 2012, the Government nationalized the
Dragon Glass Mine
b. The Ministry of Mines is currently seeking to bring a new
investor from the Vale
c. Westeros never paid or offered any compensation to
Lannister
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Respondent’s structure
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Lannister caused – by breaching the Wildlings’ human rights – a violent confrontation that
forced the State to revert the Mine in order to protect the local communities
1. The Dragon Glass Province and its fragile socio-environmental balance
2. The alleged acquisition of the license was surrounded by a cast of corruption and fraud
3. Contrary to Lannister’s assertions, the Company never had a good relationship with
the Wildlings
a. Since the beginning of the operation in 2008, and instead of generating benefits
for the local communities, Lannister committed assaults and acts of violence
against the Wildlings
b. Lannister had a poor (or inexistent) social responsibility program
c. The opposition to the Project did not arise from a “handful of illegal miners”, as
Lannister argues
4. In view of the existing divisions between the Wildlings, and to prevent the escalation of
the conflict, the Government first intervened as mediator in 2009
5. Lannister aggravated the division of the Wildlings by bribing some of their leaders and
criminalizing others
6. In view of the unsustainable violent situation caused by Lannister, the Government was
forced to revert the Mining Concessions
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Other pleadings
Preliminary Objections (Rule 41(5) of the ICSID Arbitration
Rules)
Requests for Provisional Measures
Challenge of Arbitrators
Motions to exclude evidence
Post Hearing Briefs
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Post Hearing Briefs
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Not a summary of your written pleadings
Explain to the Tribunal what happened during the hearing
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Post Hearing Briefs
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In any case, the Hearing confirmed, at least, four forms of Lannister’s negligence in the
management of community relations:
First, Mr. Jaime Lannister admitted, regarding the engagement of RRR by Lannister in
2009, that “[c]ommunity relations are always an issue in mining ventures” and that
Lannister “took very seriously and was looking into ways how they could develop a very
strong program” [D2:P307:L5-8]. Despite the latter, Mr. Greyjoy recognized that “I never
saw RRR’s report because it was drafted in Westerian and I don’t speak Westerian”
[D2:P504:L9-13] or, simply, that he “I never knew the contents of that report”
[D2:P504:L25]. It is striking and symptomatic of how Lannister worked that its community
relations manager did not know the recommendations by RRR (the only report on
community relations ordered by Lannister).
The lack of awareness of the recommendations by RRR – formulated in May 2009 –
explains why, in 2010, Mr. Smith was still “organizing meetings with some of the Wildlings,
but not all of them” [D2:P504:L1-3], in spite that, in 2009, as it was admitted by Mr.
Lannister, “RRR recommended avoid individual meetings with the Wildlings because these
exacerbate their differences” [D3:P657:L1-4].
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Post Hearing Briefs
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Third, even more shocking is the candor with which Lannister’s witnesses admitted that
they never “socialized” the real implications of the Project, in spite of the fact that RRR
pointed in 2009 the existence of a “clear lack of information about the impacts of mining
and industry best practices in the external stakeholders groups surveyed” (C-154, page 23)
and that “[w]orkshops on basic mining concepts or environment should not be substitutes
for the company’s presentations on project status and progress” (C-154, page 15 (emphasis
added))
Indeed, Mr. Greyjoy confirmed that, as to “the Wildlings are ignorant people that
need to be treated like children” [D2:P513:L12-14], Lannister did not take the effort
to explain to the Communities what the Project was about nor the implications of
exploiting an open pit mine [D2:P513:L7-10]. Mr. Greyjoy also didn’t make any
effort for the Communities to be informed on the exploration activities effects. For
example, aware of the complaint by a community member about the death of a
sheep that drank water from a river neighboring the exploration area, Mr. Grejoy
demanded evidence of such pollution instead of explaining to her about the use of
water by Lannister or offering a solution.
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