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

© 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

Written pleadings and other proceedings 2October 5, 2017

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Main structure of the written phase


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


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


Statement of Claim

Counter-Memorial

Reply

Rejoinder

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Submission of evidence


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


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)


1. Introduction

2. Factual Background

3. Legal Background

4. Request Relief

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Claimant’s structure (2)


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


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


Not a summary of your written pleadings

Explain to the Tribunal what happened during the hearing

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Post Hearing Briefs


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


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.

For further information, visit our website at dechert.com.Dechert practices as a limited liability partnership or limited liability company other than in Dublin and Hong Kong.

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