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

Procedural Order No. 6

WHEREAS

1.
This arbitration arises between Lion Mexico Consolidated LP and the United Mexican States [“Mexico” or “Respondent”] under the North American Free Trade Agreement [“NAFTA”]. Claimant and Respondent shall be jointly referred to as the Parties.
2.
On October 14, 2016 the Tribunal issued Procedural Order No. 1 [“PO 1”], after receiving the Parties' comments1.
3.
According to paragraph 17.1 of PO 1, each Party shall be entitled to request production of documents at the stages set out in Annex A.
4.
On August 6, 2018, Mexico submitted its requests for the production of certain documents.
5.
Claimant filed its response to Respondent's request one week later, according the procedural calendar (Annex A to PO 1). Respondent submitted its reply to Claimant's response the next week.
6.
On August 20, 2018, Claimant submitted the final version of the document production schedule, containing the arguments of both parties and the agreements and disagreements on each request.
7.
This Order is made in accordance with Section 17 and Annex A of PO 1, which establish some rules and deadlines for the Tribunal to decide on document production requests.

I. GUIDELINES FOR RULING ON REQUESTS

8.
Paragraph 13.1 of PO 1 provides that the Parties and the Tribunal will be guided by the International Bar Association Rules on the Taking of Evidence in International Arbitration (2010) [“IBA Rules”] for the production of documents in this arbitration, but they are not legally bound by them.
9.
Both Parties have made and exchanged their arguments referring to the IBA Rules.
10.
This section summarizes the guidelines provided by the IBA Rules, upon the basis of which decisions on each specific request are made in Section III below.

1. Definition of Document

11.
The “Definitions” section of the IBA Rules includes the following definition of document:

“‘Document' means a writing, communication, picture, drawing, program or data of any kind, whether recorded or maintained on paper or by electronic, audio, visual or any other means”.

12.
The same definition has been used by the Parties in relation to Mexico's requests for document production and will be used in this Order.

2. Requirements

13.
The Tribunal will grant the request for production of those Documents that meet the following requirements [“R”]:

2.1 “R1”: Identification of each Document or description of a narrow and specific category2

14.
The description must be in sufficient detail to identify the requested Document.
15.
If the request is for a category of Documents, the following additional requirements must be met:

- a clear and well defined characterization of a narrow and specific category has been provided;

- circumstantial evidence of the putative existence of the category has been marshalled;

- the name of the person, authority or entity which has issued the category of Documents has been provided;

- the initial and the final date of a narrow time period, during which the Documents belonging to the category were issued, has been identified.

- if the category may include email communications, the request specifies the custodians and search terms for the Documents requested.

2.2 “R2”: Relevant and material3

16.
The requesting Party has proved that the Documents are relevant to the case and material to its outcome by identifying the specific paragraph in its submission for which evidentiary support by way of document production is requested.
17.
Documents

- referred to in other Documents that have already been submitted,

- mentioned in witness statements or in expert reports, or

- relied upon by experts to prepare their expert reports (but excluding working papers used by experts),

will, as a general rule, be considered relevant.

2.3 “R3”: Not in the possession, custody or control of the requesting Party4

18.
The requesting Party must aver that the Documents sought are not in its possession, custody or control, and explain why it assumes that the Documents are in the possession, custody or control of the counterparty. The request will be rejected if the Documents are located in the premises or under the control of a third party, to which the requesting Party has access.

3. Objections

19.
The IBA Rules provide for a number of objections to the production of Documents. Further to alleging failure to satisfy any of the previously established requirements (R1 to R3), a Party may object to a request for production in the following cases [“O”]5:

3.1 “O1”: Legal or settlement privilege6

20.
The requested Party may invoke privilege with regard to Documents prepared by or addressed to counsel, pertaining to the provision of legal advice, and given or received with the expectation that such Documents would be kept confidential.
21.
In general, a Document needs to meet the following requirements in order to be granted special protection under legal privilege7:

- The Document has to be drafted by a lawyer acting in his or her capacity as a lawyer, or addressed to a lawyer seeking his or her legal advice;

- A relationship based on trust must exist as between the lawyer (in-house or external legal advisor) and the client;

- The Document has to be elaborated for the purpose of obtaining or giving legal advice;

- The lawyer and the client, when giving and obtaining legal advice, must have acted with the expectation that the advice would be kept confidential in a contentious situation.

22.
A requested Party may also invoke privilege with regard to Documents prepared by or for a Party or their representative or counsel in anticipation of litigation or arbitration. For the avoidance of doubt, drafts, working papers, or any other documentation created by an expert, and any communications between the expert and a Party or its counsel, for purposes of providing expert evidence in litigation or arbitration, shall be privileged from production and shall not be produced in the arbitration.
23.
A requested Party may also invoke privilege regarding Documents prepared in connection with settlement negotiations8, including

- internal Documents prepared specifically for negotiations,

- oral or written statements submitted to the other side during negotiations, and

- drafts or final versions of any settlement agreements.

3.2 “O2”: Production is unreasonably burdensome9

24.
The requested Party may object to the production of Documents on the basis that it would impose an unreasonable burden. In making its decision, the Tribunal will weigh time and cost of producing the Documents against their expected evidentiary value. The Tribunal may also reduce the scope of production to avoid unreasonable burden.

3.3 “O3”: Loss, destruction or inexistence10

25.
The requested Party may object to the production of Documents if it shows, with reasonable likelihood, that they have been lost or destroyed, or do not exist for other reasons.

3.4 “O4”: Technical or commercial confidentiality11

26.
A Party may request that a Document should not be produced, alleging compelling grounds of technical or commercial confidentiality.

3.5 “O5”: Special political or institutional sensitivity12

27.
A Party may request that a Document should not be produced, alleging 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 Tribunal determines to be compelling.

3.6 “O6”: Production would affect the fairness or equality of the procedure13

28.
Documents will not be ordered to be produced when the Tribunal finds considerations of procedural economy, proportionality, fairness or equality of the Parties that it determines to be compelling.

II. DECISION OF THE ARBITRAL TRIBUNAL

29.
The Tribunal hereby decides each of the requests for document production as set out in Section III (“Document Production Schedule”) of this PO.
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