Neustar v. Colombia

This is the Tribunal's Decision in respect of Respondent's document production Application dated 5 September 2022. Specifically, Respondent seeks an order from the Tribunal that Claimant produce:

a. All agreements and contractual arrangements regarding the purported transfer of the ICSID Claim and/or Security Services LLC's purported retention of rights to this arbitration, including but not limited to any agreements mentioned at Exhibit A of the UPA mentioning the ICSID Claim, any other agreements between/amongst any of Neustar Inc TransUnion, Security Services LLC, Aerial Blocker Corp., Aerial Security Services Intermediate, LLC, Golden Gate Capital, and/or GIC mentioning the ICSID Claim, as well as

b. Documents that establish the exact corporate ownership of Neustar Inc and Security Services LLC before and after the corporate changes mentioned in the 29 July 2022 letter

c. Unredacted version of requested documents as well as the UPA (Disclosed as Exhibit C-136)

Respondent also seeks a further order that Claimant "comply in good faith with Procedural Order No 2". The Application arises out of the notice provided by Claimant in its letter dated 29 July 2022 of the change of its name and corporate structure. Respondent's concern is with the consequences of the Claimant's corporate restructure on the jurisdiction of this Tribunal and admissibility of the claims in this Arbitration.

The Tribunal has considered the Parties' correspondence including in particular (i) Hogan Lovells (HL) letter to the Tribunal dated 5 September 2022; (ii) Steptoe letter to the Tribunal dated 15 September 2022; (iii) HL letter to the Tribunal dated 28 September 2022, and (iv) Steptoe letter to the Tribunal dated 3 October 2022.

After careful consideration of the Parties' contentions, the Tribunal has decided to reject Respondent's Application for document production as requested for the following reasons:

a. Claimant has the burden of proof to show that it remains entitled to present and recover in respect of the claims presented in this Arbitration following the corporate restructuring.

b. Claimant accepts that it has this burden and contends that it has satisfied the burden of proof and has submitted evidence in support of this contention by way of the Unit Price Agreement (UPA) submitted as exhibit C-136 (albeit significantly redacted).

c. As the burden of proof is on Claimant, the Tribunal does not think it appropriate to order removal of the redactions and re-producing them without the redactions.

d. If at the Hearing Claimant fails to persuade the Tribunal that it is legally the successor to the claims in this Arbitration and that the Tribunal has jurisdiction over Claimant in respect of this matter, the Tribunal will decide accordingly.

The Tribunal notes that Claimant has offered to provide an unredacted copy of the UPA to Respondent's counsel in this Arbitration.

With respect to the Respondent's request for an order that Claimant comply with Procedural Order No 2, Claimant has explained the efforts made to find and disclose to Respondent documents ordered by the Tribunal. Claimant undertook to continue to search and produce documents found by 24 June 2022. If relevant documents are found even now, they should be produced to Respondent.

If at the Hearing allegations in respect of Claimant not producing or withholding documents is shown, the Tribunal will consider the effect of such withholding if so persuaded and draw the appropriate inferences after hearing from the Parties at the hearing.

The Tribunal also notes that Claimant has offered productive discussions with Respondent (letter of 15 September) and urges the Parties to cooperate on this matter.

The Tribunal regrets the pejorative language used by the Parties which is not in line with the practice of international arbitration.

The Respondent's Application is rejected.

Date: 25 October 2022