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91. Claimant had every opportunity to express itself and present its case. In Fraport,
the Committee concluded that the tribunal ought not to have considered the new evidence
in its deliberations without granting both parties the opportunity to make submissions. 178
The ad hoc committee annulled the award because the tribunal deprived Fraport the
opportunity to rebut Philippines’ claim that the prosecutor did not have the evidence that
was before the tribunal. 179 The Tribunal’s decision to consider Dr. Ranapuer’s Expert
Report despite Dr. Ranapuer’s unavailability to be cross-examined is distinguishable from
the case in Fraport because Max Solutions had the opportunity to request that the Expert
Report be excluded and to submit additional evidence.
92. To be certain, the Tribunal must afford both parties the opportunity to make
submissions if new evidence is received and considered by the Tribunal to be relevant. The
Tribunal did exactly so. Unlike the precedent annulments based on violations of the right
to be heard, Claimant had sufficient opportunities to submit new evidence, including
additional expert reports. Claimant enjoyed its right to be heard, consisting of the
opportunity to adduce evidence and argument on its claim and in rebuttal of those of its
opponents. 180 The Tribunal’s decision to rely on the Expert Report was made only after
taking in all the evidence from both parties as well as having received the Claimant’s
request to exclude the report. As the Tribunal is the ultimate judge of the probative
evidence, the Committee lacks to the power to weigh the evidence brought before the
Tribunal. 181
B. The Tribunal did not seriously departure from a fundamental rule of
procedure regarding evidence by considering Dr. Ranapuer’s Expert Report.
93. Although Articles 5 and 8 of the Bela Rano Model Rules provide rules on the
taking of evidence with regard to evidentiary hearing and party-appointed experts, they are
neither “fundamental” within the meaning of 52(1)(d) nor has the Tribunal committed a
“serious departure” from them.
94. Article 8.1 of the Bela Rano Model Rules states that
178 Fraport II, para. 231-234.
179 Id. para. 218, 234.
180 Scherer, para. 12.30. See also, Fraport II, para. 186, citing History, pp. 271, 423, 480, 517.
181 Rumeli, para. 96. See also, ICSID Arbitration Rule 34(1).
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