document production requestsmddb.apec.org/documents/2017/ieg/wksp1/17_ieg_wksp_015.pdf ·...

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2017/IEG/WKSP/015 Session: 3-4

Document Production Requests

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

Document production requests

APEC Capacity Building on Investor-State Dispute Settlement (ISDS)

Prevention and Management

Juan Felipe Merizalde

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The Tribunal’s power to compel the productionof evidence

Document production requests 2October 5, 2017

ICSID Arbitration Rules, Rule 34

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Principles governing the production of documents


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Therefore, a Party may request documents:


In the other Party’s custody, possession or control

Requested in a narrow and specific request

That exist or are reasonably believed to exist

And that are relevant to the requesting party’s case and material

to its outcome

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Also, a Tribunal may reject a request for production of documents because of


Legal impediment or privilege under the legal or ethical rules determined by the Arbitral Tribunal to be applicable

Unreasonable burden to produce the requested evidence

Grounds of commercial or technical confidentiality that the Arbitral Tribunal determines to be compelling

Grounds of special political or institutional sensitivity (including evidence that has been classified as secret by a government or a public international institution) that the Arbitral Tribunal determines to be compelling

Considerations of procedural economy, proportionality, fairness or equality of the Parties that the Arbitral Tribunal determines to be compelling

IBA Rules, Rule 9.2

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Timing for the Document Production Requests


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The Redfern Schedule


NO

.

DOCUMENTS REQUESTED JUSTIFICATION REQUESTED PARTY’S

RESPONSE

REQUESTING PARTY’S

REPLY

TRIBUNAL’S DECISION

.

1.

1.

1.

1.

1.

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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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Relevance and Materiality


NO. DOCUMENTS REQUESTED JUSTIFICATION REQUESTED PARTY’S

RESPONSE


REPLY

TRIBUNAL’S

DECISION

1 Documents prepared by

Lannister regarding the risks

associated with establishing a

mining project in Westeros,

particularly those mentioning

the risks of social protests by

Wildlings

Westeros requires these documents to demonstrate that Wildlings are violent people that oppose mining projects in their lands

2 Reports prepared or requested

by Lannister indicating the

amount of resources and

reserves in the Mine

Respondent needs these

documents to demonstrate that

Claimant’s damages calculation is

grossly inflated.

3 Draft feasibility of pre-

feasibility studies prepared by

or requested by Lannister

establishing the cut-off grade

and the geological conditions

of the mine

As Westeros explained in its

Counter-Memorial (section 5.3),

the project was at an embrionary

stage and there was no certainty

of its technical feasibility. Under

international law, Claimant can

only claim damages that are

certain, which excludes

hypothetical damages.

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Relevance and Materiality


NO. DOCUMENTS REQUESTED JUSTIFICATION REQUESTED PARTY’S

RESPONSE


REPLY

TRIBUNAL’S

DECISION

1 Reports of complaints

presented by Widlings during

the life of the Project including,

but not limited to, letters,

emails, sms, whatsapp

messages, minutes of meetings,

reports prepared by Mr

Greyjoy, handwritten notes of

meetings, etc.

We require these documents to demonstrate that the Wildlings were highly opposed to the Project and that Lannister did not diligently respond the local communities’ complaints

2 Yearly environmental impact

reports prepared by Lannister

and delivered to the Ministry of

Environment

Westeros Mining Law requires

local mining companies to prepare

and deliver an environmental

impact report at the end of the

year. These documents are

relevant to identify Lannister’s

environmental breaches. 3 Monthly community

relationship reports prepared by

Mr Greyjoy and submitted to

the general manager of

Lannister between 2010 and

2012

Claimant submitted two monthly

reports (C-56 and C-96) to

allegedly demonstrate that the

large minority of Wildlings

supported the project. These

documents are relevant to

demonstrate the contrary.

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Privilege


NO. DOCUMENTS REQUESTED JUSTIFICATION REQUESTED

PARTY’S

RESPONSE

REQUESTING

PARTY’S REPLY

TRIBUNAL’S

DECISION

1 Legal analysis prepared or

requested by Lannister

regarding the requisites to

incorporate a mining company

in Westeros

Westeros will demonstrate that Lannister did not establish its purported investment “according to the laws” of Westeros, as required by the Treaty. These documents are relevant to demonstrate that Lannister was well aware of certain illegalities in the License approval process.

2 Memorandum 075 prepared by

Ms Sansa Stark regarding the

legal requirement under

Westeros Law to conduct a

public consultation of local

communities as a requisite to

begin the exploitation phase of

a mining project

Mr Tyrion Lannister, a witness presented by

Claimant, argues that he had no knowledge of this

requirement and cites his meetings with this local

lawyer and excerpts of the existence of this memo

(Lannister WS, para. 65). The requested

documents will demonstrate that Claimant’s

legitimate expectations to exploit this project

were conditioned to the approval of the Wildlings 3 Studies carried out by

Invercom International

indicating the exact points of

the Castle Rock Mountain with

large deposits of Dragon Glass

A document submitted by Claimant (C-65)

mentions that Lannister hired Invercom

International to conduct geophysical studies of

the Castle Rock Mountain using satellite and

radar pictures to identify the drilling points to

reach the largest Dragon Glass deposits. These

documents are relevant to assess damages.

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