Eco Oro v. Colombia, Procedural Order No. 7 (Decision on Document Disclosure), 5 Apr 2019

UPON READING:
CONSIDERING:
AND HAVING DELIBERATED
Claimant's Requests for Disclosure
Respondent’s Requests for Disclosure

Procedural Order No. 7 (Decision on Document Disclosure)

UPON READING:

[1].

(i) Claimant’s Redfern Schedule setting out its responses to Respondent’s objections to Claimant’s document requests, circulated on 22 March 2019; and

[2].

(ii) Respondent’s Redfern Schedule setting out its responses to Claimant’s objections to Respondent’s document requests, together with Annexes 1 to 4, all circulated on 22 March 2019;

CONSIDERING:

[3].

(iii) the provisions of Section 16 of Procedural Order No. 1 dated 30 November 2017 (“Procedural Order No. 1”);

[4].

(iv) the provisions of the International Bar Association Rules on the Taking of Evidence in International Arbitration (2010) (“IBA Rules”), which, according to Section 16.2 of Procedural Order No. 1, may guide the Tribunal when rendering its decisions in relation to document production;

[5].

(v) the provisions of the Procedural Calendar set out in Procedural Order No. 5 dated 21 December 2018, as amended by the Tribunal’s directions of 6 March 2019;

AND HAVING DELIBERATED

[6].

THE TRIBUNAL HEREBY ORDERS AND DIRECTS AS FOLLOWS:

1. The Tribunal’s rulings with respect to each contested request are specified below in tabular format.

2. The Parties shall complete the production of the documents as ordered below by no later than 24 April 2019.

3. Documents deemed by either Party to be legally privileged or confidential within the purview of Article 9(2), indents (b), (e) or (f), of the IBA Rules shall be listed in a privilege/confidentiality log (the “Log”). The Log shall contain the following information for each redacted or withheld document: (i) date, (ii) type, (iii) author(s) and recipient(s)/addressee(s) (including any persons who are copied), (iv) subject-matter of the document, (v) the basis for the claim of privilege/confidentiality and (vi) the relevant category of information withheld. With regard to the documents withheld or redacted by Respondent on the basis of the Colombian Public Information Act, the Log shall contain the following additional information for each document: (i) the relevant constitutional or legal provision establishing the confidentiality framework, (ii) the reasons why the relevant provision is applicable to the instant case, (iii) the reasons why confidentiality serves a legitimate public interest and (iv) what the risk is and why there is no other way of securing the confidentiality.

4. Documents produced, and any associated Logs created, pursuant to the terms of this Order shall not be submitted to the Tribunal, save that any such document becomes part of the record in accordance with Section 17 of Procedural Order No. 1. The evidentiary value of these documents will be assessed in the context of all of the evidence produced and admitted in these arbitral proceedings.

5. The Tribunal reserves the right to review and change any of its decisions concerning the Parties’ present requests at a later stage of the proceedings, if it considers that the documents concerned are relevant and material to its determinations.

Claimant's Requests for Disclosure

[7].

No.	Documents or Category of Documents Requested	Tribunal’s Decision
1	All Documents from the files of the Instituto Colombiano de Geología y Minería (INGEOMINAS), National Mining Agency, the Ministry of Mines and Energy and/or any other relevant entity of the Colombian State relating to the designation of Concession 3452 and/or the Angostura Project as a Project of National Interest (Proyecto de Interés Nacional) (PIN) and/or Project of National and Strategic Interest (Proyecto de Interés Nacional y Estratégico) (PINE), specifically: all correspondence, emails, opinions, reports, evaluations, meeting minutes, orders and other Documents that were prepared in the context of the Angostura Project and/or Concession 3452 being evaluated or designated as a PIN and/or PINE. The time period for the request is from 1 January 2010 to 8 August 2016.	Request granted only with regard to: (1) (i) a copy of the record/minute [acta] dated 21 February 2011 referred to in Exhibit C-19 together with any Documents referred to in that record; and (ii) copies of any Documents directly relating to the designation of the Angostura Project as a PIN received by or produced by the members of the Department of Mining Services or its sub-departments who were responsible for the designation of PIN’s during the three-month period prior to the meeting that took place on 21 February 2011. (2) copies of Resolution 206 of March 22, 2013, minute No. 2 of 2013 and any other record of the meeting of the procurement committee of the ANM that took place on 21 May 2013 and minutes of any other meeting of the same committee at which the re-designation of the Angostura Project as a PIN on 19 June 2013 together with any Documents referred to in such minutes or submitted to the members of the committee or the committee as a whole for use at the meeting with respect to the re-designation of the Angostura Project as a PIN;

		(3) copies of all minutes of meetings of the Commission at which the designation of the Angostura Project as a PINE was discussed together with copies of all Documents referred to in such minutes or submitted to the Commission for the purposes of such meetings. The period of this request extends to the end of March 2018 (not August 2016 as Claimant mistakenly suggested opposite). Documents deemed to be legally privileged/confidential shall be listed in a Log as set out in paragraph 3 of this Procedural Order, above.
2	To the extent not produced in relation to Request 1 above, minutes of meetings of the Inter-sectoral Commission for Infrastructure and Strategic Projects (Comisión intersectorial de infraestructura y proyectos estratégicos) in which either the Angostura Project and/or Concession 3452 are recorded as having been discussed or addressed (directly or indirectly). The time period for the request is November 2013 to present.	Request granted only with regard to minutes of meetings where the Angostura Project and/or Concession 3452 are recorded as having been directly discussed or addressed. Documents deemed to be legally privileged/confidential shall be listed in a Log as set out in paragraph 3 of this Procedural Order, above.
3	The following Documents regarding the “proposal for delineation” of the Santurbán Páramo, referred to in Brigitte Baptiste’s witness statement: (a) coordinates of the “transition zone” (ie, the area located between the lower limit of the páramo proper and the upper limit of the high Andean forest) of the Santurbán Páramo, as “published in 2014 in the publication Aportes a la conservación estratégica de los Páramos de Colombia ” (witness statement of Brigitte Baptiste, paras 41-50, and 53); (b) Documents, including photographs and/or video recordings, concerning or derived from the “specific field visits” carried out in order to prepare the delineation proposal for the Santurbán Páramo (witness statement of Brigitte Baptiste, paras 48-49) showing (i) how and why the locations for the field studies were determined by the IAVH, (ii) who was responsible for selecting the locations for the field studies, (iii) the dates when the field studies were carried out, (iv) the methodology implemented during the field studies, and (v) the observations and conclusions drawn from those field studies; (c) in relation to the field studies carried out in order to prepare the delineation proposal for the Santurbán Páramo, and to the extent not produced in relation to Request 3(b) above, Documents showing the scope, content, methodology and results of any	Request granted. Documents deemed to be legally privileged/confidential shall be listed in a Log as set out in paragraph 3 of this Procedural Order, above.

	sampling studies carried out or commissioned from third parties by the IAVH; and (d) Documents, including notes, reports, observations, evaluations and any other similar Documents prepared in relation to the site visits carried out to the area of Concession 3452 by (i) Luis Alberto Giraldo on 26 September 2014; and (ii) Brigitte Baptiste in March 2012. The time period for the request is from 16 June 2011 to 19 December 2014.
4	Documents—including, but not limited to, communications, memoranda, opinions, reports, evaluations and other similar documents in the possession of the Ministry of Environment analyzing, addressing or otherwise referring to the views of the Council of State regarding the questions submitted by the Ministry of Environment seeking clarification of “certain questions concerning Article 202 of Law 1450” (see, Counter-Memorial, para 152) as expressed in Advisory Opinion No. 2233 of 11 December 2014 issued by the Council of State (R-135), or any prior communications in relation to the Ministry of Environment’s consultation request. The time period for the request is from 7 October 2014 to 19 December 2014.	Request granted. Documents deemed to be legally privileged/confidential shall be listed in a Log as set out in paragraph 3 of this Procedural Order, above.
5	Drafts of Resolution 2090 including comments and changes in mark up. The period for this Request is September 2013 to December 2014.	Request denied: relevance not sufficiently established.
6	Documents including, but not limited to, communications, memoranda, opinions, reports, evaluations, surveys, polls, records of workshops and other similar documents in the possession of the Ministry of Environment demonstrating how, and the extent to which, the Ministry of Environment “factored social and economic criteria into the delimitation” of the Santurbán Páramo (see, Counter-Memorial, para 179). In particular, but without limitation, the following Documents referenced in Resolution 2090 (C-34), the “Memoria técnica para la gestión integral del Territorio para la conservación del Páramo Jurisdicciones - Santurbán - Berlín. Incorporación de aspectos sociales y económicos," prepared by the Ministry of Environment and the IAVH (R-133), and the Ministry of Environment presentation of the Santurbán Páramo delimitation (C-217): (a) The technical, economic, social and environmental studies for the delineation of the Santurbán Páramo submitted by the CDMB to the Ministry of Environment, filed under number (radicado) 4120-E1-57045 (C-34, p 3); (b) The technical, economic, social and environmental studies for the delineation of the Santurbán Páramo submitted by CORPONOR to the Ministry of Environment, filed under number (radicado) 4120-E1-57719 of 2012 (C-34, p 3);	Request granted only with regard to responsive documents in the possession, custody or control of the Ministry of Environment (and not otherwise publicly available) and which were relied upon in the delimitation and limited to 2013 and 2014. Documents deemed to be legally privileged/confidential shall be listed in a Log as set out in paragraph 3 of this Procedural Order, above.

	(c) Documents, including communications, memoranda, minutes, notes, opinions, reports, evaluations, surveys, polls or records of the “joint working sessions” (sesiones de trabajo conjunta) or “round tables” (mesas de trabajo) (see, R-133, p 5), between the Ministry of Environment and other public entities to “improve the existing characterization in socio-economic studies through the exchange of information and inter-sectorial dialogue”, including with the Ministry of Mines and Energy, the Ministry of Agriculture, the National Mining Agency, the Rural Land Planning, Land Development, and Agricultural Uses Unit (Unidad de Planificación de Tierras Rurales, Adecuación de Tierras y Usos Agropecuarios) (C-34, p 4); (d) Communication from the National Mining Agency to the Ministry of Environment filed under number (radicado) ANM2Ó041000413491 (C-34, p 4); (e) Documents, including drafts, communications, memoranda, minutes, notes, opinions, reports, evaluations or records relating to the preparation of the delimitation proposal for the Santurbán Páramo jointly prepared by the Ministry of Environment and the IAVH which was ultimately included in the document called “Memoria técnica para la gestión integral del Territorio para la conservación del Páramo Jurisdicciones - Santurbán - Berlín. Incorporación de aspectos sociales y económicos” (C-34, p 4); (f) Documents, including maps and coordinates, showing the “land coverage in the date closest to years 2010 and 2011” analyzed by the Ministry of Environment and/or the IAVH during the delineation process (R-133, p 6: “... se analizaron, dentro del área identificada dentro del límite inferior generado por el IAvH, las coberturas de la tierra presentes en la fecha más cercana posible al año 2010 y 2011 ..."); (g) Documents referred to in page 38 of exhibit C-217 regarding socio-economic criteria taken into account for the delimitation, ie (i) studies to determine the economic value of ecosystemic services prepared by Fedesarrollo, the Universidad Industrial de Santander — UIS, among others; (ii) robust data at local level (“datos robustos a escala local")', (iii) “spatial expression” (“expresión espacial”)-, and (iv) analysis of local submissions (documents, minutes of workshops and meetings, letters, etc.); and (h) To the extent not produced in relation to Request 6(g) above Documents referred to in page 39 of exhibit C-217, ie (i) Map of areas transformed to 2011; and (ii) Maps of socioeconomic variables.
7	Documents containing the data or information from the S&P Global Market Intelligence Metals & Mining Mergers and Acquisitions database (S&P Database), in their native format, relied upon by the valuation experts from Charles River Associates (CRA) for the purposes of the exercise described at paragraph 92 of CRA's expert report.	No order required.

Native files used to create exhibits CRA-05 to CRA-15, submitted with CRA’s expert report.

No order required.

Respondent’s Requests for Disclosure

[8].

No.	Documents or Category of Documents Requested	Tribunal’s Decision
1	(i) The document referred to as “List of Key Parties” submitted in the matter Re Eco Oro Minerals Corp., 2017 ONSEC 23 before the Ontario Securities Commission. (ii) Any further documents listing for the period between 8 June 2016 and 8 June 2017: • the names of Eco Oro’s shareholders; and/or • the number of shares of each class or series of shares held by each of those shareholders; and/or • the nationality of each of those shareholders.	(i) No order required. (ii) Request granted only with regard to the names and nationalities of Claimant’s shareholders as at 8 December 2016.
2	(i) An unredacted version of the Investment Agreement entered into with Trexs, including: • Exhibit I, containing a document titled “List of Key Parties”, and • Schedule A, regarding the CVRs issued by Eco Oro. (ii) Any further documents memorializing any agreement entered into with third parties for the purpose of funding Eco Oro’s claim against the Republic of Colombia.	(i) No order required so far as Exhibit I is concerned. Claimant to produce Schedule A. (ii) No order required. Documents deemed to be legally privileged/confidential shall be listed in a Log as set out in paragraph 3 of this Procedural Order, above.
3	(i) The lease agreement entered into between Eco Oro and Signal Warehousing Ltd. referred to in ¶ 206 of the Claimant’s Memorial. (ii) invoice(s) from Signal Warehousing Ltd. between 8 June 2016 and 8 June 2017 in connection with the lease agreement referred to in ¶ 206 of the Claimant’s Memorial.	No order required.
4	Monthly statements for Eco Oro’s Bank of Montreal account between 8 June 2016 and 8 June 2017.	No order required.
5	Eco Oro’s “Arbitration and Budget Committee Mandate” adopted by Eco Oro’s Board of Directors and referred to in Eco Oro’s Management Information Circular of September 2017.	No order required.
6	Documents sent to Eco Oro’s Board of Directors and/or its shareholders discussing the effects of the following measures on Eco Oro’s Angostura project: • Law 1382 of 2010, • Order 1241 of 2010, • Resolution 937 of 2011, • Resolution 1015 of 2011, • Law 1450 of 2011, • Resolution 35 of 2011, and • Resolution VSC 4.	Request granted with regard to documents sent to Directors and only those documents sent to shareholders as are not in the public domain. Documents deemed to be legally privileged/confidential shall be listed in a Log as set out in paragraph 3 of this Procedural Order, above.

7	Documents sent to Eco Oro’s Board of Directors and/or its shareholders discussing the reasons for the transformation of the Angostura Project into an underground mine.	Request granted with regard to documents sent to Directors and only those documents sent to shareholders as are not in the public domain.
8	Documents between June 2011 and February 2012 relied upon by the Claimant for its allegation that: • Eco Oro "proposed" a new underground project to the Colombian Government; and • that said project “tras welcomed by the Government.”	Request denied: relevance not sufficiently established.
9	Documents memorializing Eco Oro’s meetings allegedly held in 2012 with "several Government officials, including the Minister of Mines, who expressed their support for Eco Oro and their desire to see the Angostura Project come to fruition as soon as possible."	Request granted to the limited extent that (i) any additional documents exist and (ii) non-responsive information can be redacted.
10	Documents memorializing the meetings held in 2014 in which Eco Oro allegedly "shared the results o/[the Ecodes] report with the Colombian Government" including but not limited to the meeting with President Santos’s Chief of Staff, Maria Lorena Gutiérrez.	Request granted to the limited extent that (i) any additional documents exist and (ii) non-responsive information can be redacted.
11	Documents memorializing Eco Oro’s September 2014 meeting with Mr. Luis Alberto Giraldo, allegedly "to discuss the status of the delimitation process" of the Santurbán Páramo.	Request granted to the limited extent that (i) any additional documents exist and (ii) non-responsive information can be redacted.
12	Documents memorializing Mr. Luis Alberto Giraldo’s visit to the Angostura deposit on 26 September 2014 in which Mr. Giraldo allegedly told Eco Oro representatives that "Brigitte Baptiste threatening to criticize Minister Vallejo and Mr. Giraldo publicly if the final delimitation departed from the 1AVH proposal."	Request granted to the limited extent that (i) any additional documents exist and (ii) non-responsive information can be redacted.
13	Documents reflecting payment of any "equity capital" funding to Eco Oro.	Save that copies of the Claimant’s audited financial accounts for the period from financial year 1996 to present, reflecting the payments of equity capita! to Eco Oro have been produced, Request denied: relevance not sufficiently established.
14	Documents between December 2014 and December 2015 memorializing Eco Oro’s alleged understanding that the Angostura Project benefited from the transitional regime in Article 5 of Resolution 2090.	Request denied: relevance not sufficiently established.
15	Documents memorializing Eco Oro's meeting of 20 December 2014 with the Vice-minister of Mines, Maria Isabel Ulloa, in relation to Resolution 2090.	Request granted to the limited extent that (i) any additional documents exist and (ii) non-responsive information can be redacted.
16	Documents reflecting Eco Oro's discussions at the meeting of 20 December 2014 with the Minister of Mines, Tomás González Estrada, and PINE coordinator Pedro Perico, in which Mr. González Estrada allegedly "pledged his full support to assist Eco Oro in advancing the Angostura Project."	Request granted to the limited extent that (i) any additional documents exist and (ii) non-responsive information can be redacted.

17	(i) Documents memorializing Eco Oro’s discussions in February 2015 with PINE coordinator Pedro Perico in which he allegedly stated that “he thought it would be possible to license the Angostura Project.” (ii) Documents memorializing Eco Oro’s discussions at the meeting of 22 February 2015 with PINE coordinator Pedro Perico and ANLA’s Infrastructure Division Coordinator, Ms. Laura Edith Santoyo, in which she allegedly stated to Eco Oro “that a license application by Eco Oro could be accepted.”	Request granted to the limited extent that (i) any additional documents exist and (ii) non-responsive information can be redacted.
18	Documents memorializing the alleged “close contact' between Eco Oro and ANLA’s officers during 2015.	Request denied: overly broad and documents not sufficiently identified.
19	Documents between June 2015 and January 2016 memorializing Eco Oro’s alleged contemporaneous understanding that: • the Angostura Project was exempt from the ban on mining in the delimited Santurbán Páramo because Eco Oro benefitted from the transitional regime in Article 173 of Law 1753 of 2015; and • per Law 1753, the Angostura Project would be “subject to licensing and administrative processes before national (rather than regional) authorities.”	Request denied: relevance not sufficiently established.
20	Documents reflecting Eco Oro’s meeting of November 2015 with the Vice-Minister of Mines, María Isabel Ulloa, and PINE coordinator, Pedro Perico, in which “they were very supportive of the project.”	Request granted to the limited extent that (i) any additional documents exist and (ii) non-responsive information can be redacted.
21	Documents memorializing Eco Oro’s meeting of 6 February 2016 with President Santos and his Chief of Staff, María Lorena Guitérrez, in which Mr. Santos allegedly “was supportive of the Project and asked that Eco Oro apply for its environmental license as soon as possible so that he could showcase the Angostura Project as a post-páramo delimitation success story.”	Request granted to the limited extent that (i) any additional documents exist and (ii) non-responsive information can be redacted.
22	(i) The “thorough ecological study” of the Angostura project prepared by Eco Oro’s environmental management team, referred to at ¶ 26 of Wilmer González Aldana’s Witness Statement. (ii) Documents prepared by Eco Oro’s environmental management team “reviewing the company’s Environmental Management Plan and environmental reports”, referred to at ¶ 26 of Wilmer González Aldana’s Witness Statement.	No order required.
23	(i) Drafts of the EIA Eco Oro allegedly started to prepare in early 2015, “in order to obtain the environmental license for the project.” (ii) Any further documents memorializing Eco Oro’s alleged efforts to prepare an EIA for an underground project starting January 2015, referred to at ¶ 145 of the Claimant’s Memorial.	(i) No order required. (ii) No order made now. Respondent shall be at liberty to reapply with a properly targeted request after reviewing the documents produced.
24	(i) Drafts of the internal underground mine plan Eco Oro allegedly started to prepare in early 2015 to be “used as the basis for licensing applications.”	(i) No order required. (ii) Request granted as per revised scope, i.e., any internal reports, or consultants’ reports, prepared in

	(ii) Any further documents memorializing Eco Oro’s alleged efforts to develop an underground mine plan starting in January 2015, referred to at ¶ 145 of the Claimant’s Memorial.	2015 or 2016 for the purposes of the development of an underground mine plan.
25	Findings of Dr. Richard Valenta’s assessment of the 2015 Micon Report.	No order required.
26	Documents from potential investors to Eco Oro reflecting interest in investing in the Angostura Project from July 2015 onwards, including the investors that allegedly met with Mark Moseley-Williams in London, Vancouver and Colombia.	Request granted only with regard to names of those who met with Mosely-Williams, the dates of the meetings and any minutes/notes of the meetings and any follow up communications. Documents deemed to be legally privileged/confidential shall be listed in a Log as set out in paragraph 3 of this Procedural Order, above.
27	Documents evidencing Eco Oro’s alleged expenditure of over USD 250 million in the development of the Angostura project.	Request denied: the burden of proof is on the Claimant.
28	Cost estimates for (i) the licensing process; (ii) the preparation of pre-feasibility studies and (iii) the environmental impact assessment, prepared by mining consulting firms at Mark Moseley-Williams’s request.	Request denied: the burden of proof is on the Claimant,
29	(i) The updated 3D geological model and Eco Oro’s project database provided to Micon by Eco Oro, referred to in Micon’s 2015 Updated Mineral Resource Estimate for the Angostura Gold Silver Deposit. (ii) Any further documents provided by Eco Oro to Micon for the preparation of the 2015 Updated Mineral Resource Estimate for the Angostura Gold Silver Deposit, including, but not limited to: • the project’s drillhole database; • density data files; • wireframe files; and • topographic surface data.	Request granted to the limited extent that any additional responsive documents exist. Documents deemed to be legally privileged/confidential shall be listed in a Log as set out in paragraph 3 of this Procedural Order, above.
30	The Resource Block Model and corresponding table describing each variable included in the block model, provided by Eco Oro to Micon and adopted by Micon for its 2015 updated mineral resource estimation of the Angostura deposit.	Request granted to the limited extent that any additional responsive documents exist. Documents deemed to be legally privileged/confidential shall be listed in a Log as set out in paragraph 3 of this Procedural Order, above.
31	(i) The project data, drill hole database and topographic data provided to Golder by Eco Oro, referred to in Golder’s 2012 Resource Estimation of the Mongora Gold-Silver Deposit. (ii) Any further documents provided by Eco Oro to Golder for the preparation of the 2012 Resource Estimation of the Mongora Gold-Silver Deposit, including, but not limited to: • the project’s drillhole data;	Request granted to the limited extent that any additional responsive documents exist. Documents deemed to be legally privileged/confidential shall be listed in a Log as set out in paragraph 3 of this Procedural Order, above.
	• density data; • wireframe files; and • topographic surface data.
32	The Resource Block Model and corresponding table describing each variable included in the block model, used by Golder in its 2012 mineral resource estimation for the Mongora deposit.	Request granted.

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Juliet Blanch	President
Horacio A. Grigera Naón	Appointed by the investor
Philippe J. Sands	Appointed by the State

Eco Oro v. Colombia

Documents of the case

Lawyers, other representatives, expert(s), tribunal’s secretary