Gabriel Resources v. Romania

On 8 June 2018, the Tribunal issued Procedural Order No. 10 (hereinafter "PO 10") together with Annexes A and B, ruling on the Parties’ document production requests and ordering the following:

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’ Request 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).

Also on 14 June 2018, Respondent submitted its clarifications regarding its objections to Claimants’ Request no. 13, pursuant to paragraph 55(5) of PO 10.

Respondent confirmed that it does not have any documents responsive to this request in its custody, possession or control. It noted that it cannot therefore at this stage further substantiate its objection under Article 9(2)(f) of the 2010 IBA Rules on the Taking of Evidence in International Arbitration ("IBA Rules"), but reserved the right to do so, should any responsive documents come within its custody, possession, or control, if and as appropriate. In any event, Respondent maintained its objections to production based on the absence of relevance and materiality of the requested documents.

It is recalled that, in Section 15.11 of PO 1, it was agreed that "[t]he parties and the Tribunal are not bound, but shall be guided as appropriate by Articles 3 and 9 of the IBA Rules on the Taking of Evidence in International Arbitration".

It is also recalled that Article 9(2) of the IBA Rules provides the following in relevant part:

"The Arbitral Tribunal shall, at the request of a Party or on its own motion, exclude from evidence or production any Document, statement, oral testimony or inspection for any of the following reasons: [...]

(b) legal impediment or privilege under the legal or ethical rules determined by the Arbitral Tribunal to be applicable;

[...]

(e) grounds of commercial or technical confidentiality that the Arbitral Tribunal determines to be compelling".

Therefore, where a document contains statements subject to legal privilege, such document should be disclosed but with the relevant statements redacted (Article 9(2)(b) of the IBA Rules). In the present case, the Tribunal considers that there is no disagreement as to the proposed redacted text on which legal privilege is asserted.

Furthermore, where a document contains statements in respect of which the Tribunal considers there are "compelling" grounds of commercial or technical confidentiality, such statements may also be redacted (Article 9(2)(e) of the IBA Rules). In the present case, the Tribunal considers that there are no compelling reasons to order redaction of statements of such nature.

1. The Parties shall produce documents pursuant to the decisions set out in Annexes A, B and C enclosed herein, which form an integral part of the present Procedural Order No. 12 (see also paragraphs 55(3) and (4) of Procedural Order No. 10) by Monday, 9 July 2018.

2. Concerning paragraph 55(2) of Procedural Order No. 10, and in the absence of any communication to the Tribunal, the Tribunal understands that Claimants have either made full production of documents or confirmed to Respondent that they have already done so, in the cases that they have agreed to produce certain documents.