Specifically, Claimants filed a table annexed to its Redfern Schedule by which they submit their "Preliminary Responses" to "Respondent's Preliminary Comments". Respondent filed its comments1 in the form of a letter to the Tribunal, together with three Annexes.
a. In many instances Claimants have objected to Respondent’s requests but nevertheless produced certain documents. In these cases and where it appears that there are further documents responsive to the request, the Tribunal is requested to order Claimants to produce all responsive documents in their possession, custody or control or to confirm that they have already done so.
Insofar as Claimants have produced documents responsive to a particular request, Respondents argue that Claimants have waived their right to object to the request.
b. While the Parties agree that, further to Article 9(2)(b) of the IBA Rules, they are not required to produce legally-privileged documents, they disagree regarding the definition and scope of the legal privilege to be applied in this case. Claimants provide no support for their overly broad and untenable definition of a legally privileged document.
c. Claimants have produced redacted documents and simply asserted, without further explanation, that the redactions correspond to allegedly "confidential and sensitive financial business information". Claimants have provided no explanations regarding the nature of the allegedly confidential information or the need or justification for the redaction, to which Respondent should respond and the Tribunal should rule. Claimants must produce these documents without redactions.
In any event, these proceedings are already the subject of a strict Confidentiality Undertaking set out at PO 3, such that redactions to documents produced through document production are unnecessary.
In considering issues of legal impediment or privilege under Article 9.2(b), and insofar as permitted by any mandatory legal or ethical rules that are determined by it to be applicable, the Arbitral Tribunal may take into account:
(a) any need to protect the confidentiality of a Document created or statement or oral communication made in connection with and for the purposes of providing or obtaining legal advice;
(b) any need to protect the confidentiality of a Document created or statement or oral communication made in connection with and for the purposes of settlement negotiations;
(c) the expectations of the Parties and their advisors at the time the legal impediment or privilege is said to have arisen;
(d) any possible waiver of any applicable legal impediment or privilege by virtue of consent, earlier disclosure, affirmative use of the Document, statement, oral communication or advice contained therein, or otherwise; and
(e) the need to maintain fairness and equality as between the Parties, particularly if they are subject to different legal or ethical rules.
1. The Parties shall produce documents pursuant to the decisions set out in Annexes A and B enclosed herein, which form an integral part of the present Procedural Order No. 10. The Parties shall liaise and cooperate in good faith to comply with the Tribunal’s decisions, particularly in relation to the requests that are granted but subject to the other Party limiting their scope.
2. Claimants are requested to make full production of documents to the extent that they have not or to confirm that they have already done so, in the cases that they have agreed to produce certain documents, by 21 June 2018 (see above para. 40)
3. The Parties are requested to produce a log of any documents for which privilege is asserted, as specifically set out in the Annexes of the present Procedural Order No. 10, for the understanding of the other Party and for the Tribunal’s decision by 14 June 2018. The relevant Party shall have an opportunity to provide its comments to the Party asserting privilege by 21 June 2018 and the Tribunal will decide by 28 June 2018 (see above para. 47).
4. The Parties are requested to produce a log of any documents for which redactions are sought, as specifically set out in the Annexes of the present Procedural Order No. 10, for the understanding of the other Party and for the Tribunal’s decision by 14 June 2018. The relevant Party shall have an opportunity to provide its comments to the Party claiming by 21 June 2018 and the Tribunal will decide by 28 June 2018 (see above para. 53).
5. Concerning Claimants’ Requests no. 13, Respondent is hereby requested to substantiate its objection based on Article 9(2)(f) of the IBA Rules by 14 June 2018. Claimant shall have an opportunity to provide its comments to Respondent’s objection by 21 June 2018 and the Tribunal will decide by 28 June 2018. To the extent that the Tribunal orders production, Respondent may then follow the procedure set out in para. 53 above with a new timetable to be set up by the Tribunal in due time (see above para. 54).
6. At any time during the proceedings, the Tribunal may order the production of the requested documents in accordance with Article 43(a) of the ICSID Convention and ICSID Arbitration Rule 34(2).
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