Procedural Order 6 (On the Parties’ Requests for Documents)
On 17 January 2020, the Tribunal issued Procedural Order No. 3 ("PO3"). In its order, the Tribunal decided to hear the Respondent’s jurisdictional objection concerning denial of benefits in a preliminary phase on the basis of an accelerated timetable, and invited the Parties to confer with respect to an annexed Proposed Schedule for Accelerated Determination of the Bifurcated Jurisdictional Issue (the "Schedule").
By emails of 25 January 2020, the Parties informed the Tribunal of their agreement to the Schedule contained in PO3.
On 6 February 2020, the Tribunal confirmed that the determination of the denial of benefits objection would take place in accordance with the Schedule.
Pursuant to the agreed procedural timetable, the Parties exchanged document production requests, followed by responses and replies, relevant to the bifurcated jurisdictional issue. The Parties’ completed schedules related to their respective document requests were submitted to the ICSID Secretariat, for transmission to the Tribunal, on 4 May 2020.
The Tribunal has duly considered the Parties’ respective positions. Its decision on the Claimant’s requests is set out as Annex A accompanying this Procedural Order; its decision on the Respondent’s requests is set out as Annex B.
The Tribunal notes that its decision on the Parties’ contested requests is not intended to provide an implied decision on any issue in dispute between the Parties. Accordingly, if a request is denied or granted in a modified fashion, that should not be taken as any indication as to the Tribunal’s views on the merits, and the Parties should not hereafter plead or allege that the Tribunal’s decision to uphold or deny a request was indicative of a position either in their favor or against them. If a request is denied, for example, that does not mean that the requested Party can consider that its own burden of proof has been discharged. Moreover, if a Party refuses to produce documents on an issue for which it bears the burden of proof, notwithstanding the Tribunal order of such production, then such Party runs the risk of having the issue resolved in due course as not proven. The Parties are expected to bear this in mind in facilitating disclosure of relevant and material documents in compliance with the Tribunal’s rulings.