“8. APPLICABLE PROCEDURAL LAW
8.1 The procedure in this arbitration shall be governed by the 1976 UNCITRAL Arbitration Rules except as modified by the provisions of Section B of Chapter 11 of the NAFTA (per Article 1120(2) of the NAFTA).
8.2 If these provisions and rules do not address a specific procedural issue, the Tribunal shall, after consultation with the Parties, determine the applicable procedure. In addition, the Tribunal may seek guidance from, but shall not be bound by, the 2010 IBA Rules on the Taking of Evidence in International Commercial Arbitration.”
"1. Subject to these Rules, the arbitral tribunal may conduct the arbitration in such a manner as it considers appropriate, provided that the parties are treated with equality and that at any stage of the proceedings each party is given a full opportunity of presenting his case.
3. At any time during the arbitral proceedings the arbitral tribunal may require the parties to produce documents, exhibits or other evidence within such period of time as the arbitral tribunal shall determine."
“12. DOCUMENT PRODUCTION
12.1 At the request of a Party filed within the time limit specified by the Tribunal for this purpose, the Tribunal may order the other Party to disclose to the requesting Party documents or limited categories of documents within its possession, custody or control. Such a request for production shall identify each document or category of documents sought with a sufficient degree of precision and establish its relevance and materiality to the dispute. The Tribunal will, in its discretion, rule upon the disclosure of the documents or categories of documents having regard to the legitimate interests of the other Party and all of the surrounding circumstances.
12.2 Documents shall be disclosed in response to such a request in electronic format only by sending via post or courier by the date fixed by the Tribunal for such disclosure, a CD-ROM, USB key or other similar media containing the documents in electronic format with each individual document clearly labelled with a unique identifying number The media should also contain an Index of the documents contained. In addition, the Respondent will provide the Claimant with paper copies of the electronic documents it produces.
12.3 Documents so disclosed shall not be considered to be part of the record unless and until one of the Parties subsequently submits them in evidence to the Tribunal. In such a case, Section 11 above applies to the production by the requesting Party of documents or categories of documents communicated by the other Party.
12.4 In addition, the Tribunal may of its own motion order a Party to produce documents at any time.
12.5 Requests for document disclosure shall take the form of a so-called "Redfern Schedule" as attached (Annex A).
12.6 Each Party may withhold from disclosure documents which it considers not subject to production based on specific grounds of privilege as set out in Article 9 of the 2010 IBA Rules.”
“1. The Arbitral Tribunal shall determine the admissibility, relevance, materiality and weight of evidence.
2. 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:
(a) lack of sufficient relevance to the case or materiality to its outcome;
(b) legal impediment or privilege under the legal or ethical rules determined by the Arbitral Tribunal to be applicable;
(c) unreasonable burden to produce the requested evidence;
(d) loss or destruction of the Document that has been shown with reasonable likelihood to have occurred;
(e) grounds of commercial or technical confidentiality that the Arbitral Tribunal determines to be compelling;
(f) 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 Arbitral Tribunal determines to be compelling; or
(g) considerations of procedural economy, proportionality, fairness or equality of the Parties that the Arbitral Tribunal determines to be compelling.
3. 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 purpose 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 purpose 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.
4. The Arbitral Tribunal may, where appropriate, make necessary arrangements to permit evidence to be presented or considered subject to suitable confidentiality protection.”
a. The request for production must identify each document or specific category of documents sought with precision (paragraph 12.1 of PO 1). Otherwise, the other Party may not be able to trace a document and the Tribunal may possibly be unable to rule on its production. To assess whether a document or category of documents has been identified with "precision", the Tribunal will, in particular, take into consideration whether the requesting Party has limited its request as to timing and subject matter.
b. The request for production must establish the relevance and materiality of each document or of each specific category of documents sought (paragraph 12.1 of PO 1) in such a way that the other Party and the Tribunal are able to refer to allegations of facts in the submissions filed by the Parties to date or factual allegations to be made in future submissions, provided that such factual allegations are made or at least summarized in the request for production of documents. In other words, the requesting Party must make it clear with reasonable particularity what facts/allegations each document (or category of documents) is intended to establish.
c. For the sake of clarity, the Tribunal emphasizes that in ruling on the requests for document production, it has made determinations on the prima facie relevance and materiality of the requested documents, having regard to the allegations of fact made by the Parties in the submissions filed to date or the factual allegations they intend to make in future submissions, summarized in the request for production of documents. This determination is without prejudice to the Tribunal’s later assessment of the definitive relevance and/or materiality of the requested documents and underlying facts.
d. The Tribunal will only order the production of documents or categories of documents if the requesting Party shows that it is more likely than not that the documents exist and are within the possession, custody or control of the other Party, and that they are not in the possession, custody or control of the requesting Party.
e. Where appropriate, the Tribunal has also weighed the request for production against the legitimate interests of the other Party, including any unreasonable burden likely to be caused to such Party, taking into account all the surrounding circumstances.
"The arbitral Tribunal considers that [. ] in addition to entities which may be controlled by a party, there may be entities or persons with whom a party has a relationship which is relevant for the purposes of this arbitral procee[d]ing. The duty of production extends to the entities controlled by each party. Furthermore, good faith also imposes a duty of best efforts to obtain documents that are in the possession of entities or persons with whom or with which the party the subject of the request has a relevant relationship."3
"As regards request No. 11 [concerning communications with third parties], the Tribunal accepts that such documents may not be in the possession, custody or control of the Respondent. However, the Tribunal wishes to clarify that, for a party to claim that documents are not in its control, it must have made "best efforts" to obtain documents that are in the possession of persons or entities with whom or which the party has a relevant relationship. This is consistent with the approach adopted by the Tribunal in Vito G. Gallo v. Government of Canada... "5
“i. business confidential information;
ii. business confidential information relating to a third party;
iii. information otherwise protected from disclosure under the applicable domestic law of the disputing State party; and
iv. confidential information that is deemed to be financial, commercial, scientific or technical information supplied by third parties that has been treated as confidential information by those third parties.”
“i. trade secrets;
ii. financial, commercial, scientific or technical information that is treated consistently in a confidential manner by the disputing party to which it relates, including pricing and costing information, marketing and strategic planning documents, market share data, or detailed accounting or financial records not otherwise disclosed in the public domain;
iii. information the disclosure of which could result in material financial loss or gain to the disputing party to which it relates; and
iv. information the disclosure of which could interfere with contractual or other negotiations of the disputing party to which it relates."
i. Denies the Request for Particulars;
ii. In respect of the Parties’ document production requests:
a. Decides each document production request as stated in the last column of the completed version of the Redfern Schedules that are attached as Annexes A (Claimant’s Request for Documents) and B (Respondent’s Request for Documents) hereto. These Annexes form an integral part of the present Procedural Order;
b. As a consequence, and in accordance with Annex A to PO 3 and the Tribunal’s letters of 8 and 11 July 2013, each Party shall produce all the documents ordered to be produced on or before 9 August 2013. These documents shall be communicated to counsel; they shall not be communicated to the Tribunal at this stage;
c. Each Party shall provide an index of the documents produced with a reference to the respective document production request. Each Party shall also state whether (i) it has produced all responsive documents in its possession, custody or control, (ii) whether responsive documents had previously been submitted as evidence, or (iii) whether no such documents exist;
d. The documents produced shall not be considered part of the record, unless and until one of the Parties submits them as exhibits with their forthcoming submissions;
iii. Denies the Respondent’s request for exclusively electronic production of the documents to the Claimant. If the Respondent requires additional time for the production of the paper version of the documents ordered, it may apply to the Tribunal for a reasonable extension (in respect of the paper production only);
iv. Determines that the information contained in the text of footnotes 54 and 55 and paragraphs 72 and 77 in the Claimant’s Answer shall not be designated as "Confidential";
v. Denies the Claimant’s request for the production of documents referred to in the footnotes and paragraphs mentioned in sub-paragraph (iv) above;
vi. Reserves all questions of costs for subsequent determination.
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