Document Production Requestsmddb.apec.org/Documents/2017/IEG/WKSP1/17_ieg_wksp_015.pdf ·...
Transcript of 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
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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:
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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
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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
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NO
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DOCUMENTS REQUESTED JUSTIFICATION REQUESTED PARTY’S
RESPONSE
REQUESTING PARTY’S
REPLY
TRIBUNAL’S DECISION
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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
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NO. DOCUMENTS REQUESTED JUSTIFICATION REQUESTED PARTY’S
RESPONSE
REQUESTING PARTY’S
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
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NO. DOCUMENTS REQUESTED JUSTIFICATION REQUESTED PARTY’S
RESPONSE
REQUESTING PARTY’S
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
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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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