Mesa Power Group, LLC v. Government of Canada, UNCITRAL, PCA Case No. 2012-17, Procedural Order No. 6 (March 5, 2014)
I. PROCEDURAL BACKGROUND
1. In their communications over the past two and a half months, the Parties have made several applications to the Tribunal. On 30 December 2013, recognising the urgency of the applications, the Tribunal conveyed its decisions on the then pending requests, advising the Parties that the reasons for its decisions would follow. This Order provides the reasons for the Tribunal’s decisions of 30 December 2013. It also contains the Tribunal’s decisions on the several requests made by the Parties since then.
II. THE REQUESTS
A. STRIKING PORTIONS OF THE CLAIMANT'S MEMORIAL AND THE ACCOMPANYING EXHIBITS REFERRING TO WITNESS TESTIMONY
1. The Respondent’s position
2. In a communication of 9 December 2013, the Respondent requested the Tribunal to “strike the portions of the Claimant's Memorial and the accompanying exhibits that refer to witness testimony obtained and submitted by the Claimant contrary to the established procedures in this arbitration and to Canada's due process rights.”
3. The Respondent submitted that in several instances, the Claimant had relied on witness testimony which it had obtained through its ex parte 1782 applications as the sole evidence of certain facts. In particular, it pointed out that the Claimant had relied on the testimony of Messrs Mawani and Edwards without submitting witness statements from these individuals. The Respondent (and subsequently the Tribunal) would therefore be unable to examine these individuals and assess their credibility, which would affect the Respondent’s right to procedural fairness. According to the Respondent, admitting the evidence into the record would be contrary to the IBA Rules on the Taking of Evidence in International Arbitration (2010) (“the IBA Rules”), the Tribunal’s earlier procedural orders, as well as the 1976 UNCITRAL Arbitration Rules (“the UNCITRAL Rules”). Finally, the Respondent stressed that it had consistently objected to the admissibility of witness testimony obtained through the 1782 process.