The Parties were ordered to produce documents pursuant to the decisions set out in Annexes A and B of PO No. 10. Unless a specific date was specified in PO No. 10, the Parties were to produce such documents by 21 June 2018, the deadline contemplated in the Procedural Timetable as amended.
- Request no. 11: “The Government's instructions to Minister of Economy Ion Ariton with regard to ‘renegotiating' the Project's financial terms in 2011-2012, including, but not limited to: i. the mandate provided by the Government or by Prime Minister Boc to Minister Ariton in or about September 2011 (and any subsequent mandates or amendments thereto, including but not limited to the new mandate provided to him in or about November 2011); and ii. the minutes and resolutions of any Government meetings in 2011-2012 discussing or analyzing the economic terms of the Project.”
- Request no. 14: “All documents reflecting the Government's: i. analysis of Gabriel's financial forecasts presented by Gabriel and RMGC during the negotiations; ii. analysis of the offers made by Gabriel to try to accommodate the State's demands; and iii. reasons, if any, for not accepting Gabriel's offers.”
- Request no. 11: “Granted only with respect to Request no. 11(i). Respondent's statement that it does not have any documents in its possession, custody or control responsive to Request no. 11(ii) is noted.”
- Request no. 14: “Granted subject to limiting the request in terms of time and in terms of specific government agencies”.
- Request no. 11: According to Claimants, Respondent did not produce any documents (note that only Request no. 11(i) was granted by the Tribunal).
- Request no. 14: Pursuant to the Tribunal's directions (see above para. 29), Claimants limited their request in terms of time and in terms of specific government agencies. Respondent produced the relevant documents, including Documents 14.E and 14.F which are Government memoranda dated 26 October and 11 November 2011.
These memoranda state that (i) the Government mandated the Ministry of Economy “to start the renegotiation of the contract with Gabriel Resources / RMGC”, (ii) that the then Minister of Economy, Ion Ariton, “issued an order mandating the establishment of a Negotiation Commission” and (iii) that the Negotiation Commission evaluated proposals made by RMGC in response to the Government's demand for an increased financial stake in the Project and made recommendations to the Government about those proposals.
- “all mandates, direction, or communications from the Government to the Negotiation Commission in 2011-2012”;
- “all minutes or resolutions of the Negotiation Commission's meetings in 2011-2012”; and
- “all reports or communications from the Negotiation Commission to the Government in 2011-2012”.
(a) Its decisions on document production requests are without prejudice to the merits of the dispute (see PO No. 10, para. 22) or its continuing right to order production of documents at any stage of the proceedings (see PO No. 10, para. 23).
(b) Each Party bears the burden to prove its own case, however a Party should also have access to documents that will permit it to develop such case (see PO No. 10, para. 28).
(c) For a document production request to be granted, it must be relevant and material to the outcome of the case (see PO No. 10, para. 32) and the requested document must not be in the possession, custody or control of the requesting Party but in that of the requested Party (see PO No. 10, para. 37). In relation to the latter, there is no reason to doubt either Party's confirmation that a requested document is not in its possession, custody or control (see PO No. 10, para. 38).
(a) With respect to the first category of the requested documents, while such category may appear at first sight slightly broader than Claimants' Request no. 11(i) (which was granted by the Tribunal but for which no documents were produced by Respondent), the fact remains that the two are different: the first category seeks documents directed to the Negotiation Commission and not to Minister Ariton, who appears to have been mandated to set up such Commission. Both remain nonetheless relevant.
The fact that the first category is separate from Claimants' Request no. 14, in that it refers to instructions and not analyses from the Government, does not change its relevance.
The Tribunal, therefore, upholds the first category of the requested documents. Respondent will either produce the requested documents or specifically confirm that it has no possession, custody, or control of such documents.
(b) With respect to the second category of the requested documents, “minutes and resolutions of the Negotiation Commission's meetings in 2011-2012” may fall under the broader Claimants' Request no. 11(ii), which refers to minutes and resolutions of “any Government meetings” and for which Respondent affirmed that it is in no possession, custody or control of any responsive documents. This being said, the Tribunal considers it important for Respondent to either produce the requested documents or specifically confirm that it does not have possession, custody, or control of the exact requested documents, i.e., as those may relate to the Negotiation Commission itself.
(c) With respect to the third category of the requested documents, the Tribunal does not find such category broader than Claimants' Request no. 11(ii) as “minutes and resolutions of any Government meetings” (Request 11(ii) may not necessarily capture “all reports or communications from the Negotiation Commission” itself (third category of the requested documents)). The two are therefore relevant but different.
Similar to the first category of the requested documents, the fact that such third category may be different from Claimants' Request no. 14 does not change the third category's relevance.
Therefore, Respondent will either produce the third category of the requested documents or specifically confirm that it has no possession, custody or control of such requested documents.
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