1. The Estate of Julio Miguel Orlandini-Agreda, 2. Compañía Minera Orlandini Ltda v The Plurinational State of Bolivia PCA Case 2018-39 - Procedural Order No 8 - Decision on the Parties Requests for Document Production - English - 27 July 2020
1. On February 4, 2019, following consultations with the Parties, the Tribunal issued Procedural Order No. 1. Section 6 of Procedural Order No. 1 provides that each Party may request the production of documents from the other Party in accordance with the procedural calendar in force, and establishes a procedure for the Parties to object to production and submit for the Tribunal's decision all requests on which no agreement is reached.
2. On July 13, 2020, pursuant to Sections 6.2.4 and 6.2.5 of Procedural Order No. 1 and Annex 1 to Procedural Order No. 7, dated April 10, 2020, the Parties submitted their outstanding requests for the production of documents in the form of Redfern Schedules (respectively, the "Claimants' Redfern Schedule" and the "Respondent's Redfern Schedule"). In accordance with the Tribunal's directions, as set out in its letter of May 14, 2020, the Claimants also filed a supplemental request for document production addressing matters raised in the expert report of Mr. Arturo Yáñez Cortes (the "Claimants' Supplemental Redfern Schedule").
3. On July 17, 2020, the Claimants requested that the Tribunal (i) reject and not consider certain inter-Party correspondence dated June 29, 2020 filed by the Respondent as exhibit R-425 alongside its Redfern Schedule or, at least, allow the Claimants to respond to such correspondence; and (ii) reject the Respondent's application for fees and costs incurred during the document production phase and instead order the Respondent to pay such fees and costs.
4. On July 22, 2020, the Respondent replied to the Claimants' communication of July 17, 2020, requesting that the Tribunal (i) dismiss the Claimants' claims regarding exhibit R-425; (ii) reject and not consider "the belated submissions by Claimants on the Parties' document requests"; and (iii) award the Respondent the costs of the disclosure phase.
5. The Tribunal's rulings on the Parties' outstanding requests for production of documents, as reflected in the Parties' Redfern Schedules and in accordance with the relevant standards provided in the UNCITRAL Rules and Procedural Order No. 1, are set forth in Annexes 1-3 to this Procedural Order.
6. The Tribunal recalls that, as per Articles 17(1) and 27(3) of the UNCITRAL Rules and section 6.2.6 of Procedural Order No. 1, it may exercise wide discretion when deciding on document production. In particular, and as permitted under Section 6.2.6 of Procedural Order No. 1, the Tribunal has taken guidance from the IBA Rules on the Taking of Evidence in International Arbitration 2010 in reaching its decisions on the Parties' requests for document production.
7. The Tribunal notes that the rulings set out in Annexes 1-3 to this order are based on a prima facie assessment of the relevance and materiality of the documents requested by the Parties. The Tribunal does not intend to prejudge the materiality of such documents as far as its final determinations on admissibility and burden of proof are concerned.
8. Having carefully considered the Parties' document production requests and their observations with respect to each of them in light of all relevant circumstances, the Tribunal decides as follows:
(i) To grant, for the reasons and to the extent set out in the Tribunal's decisions as incorporated in the Parties' Redfern Schedules (enclosed as Annexes 1-3 to this Procedural Order):
a) The Claimants' document production requests Nos. 1-8, 10, 12, 15-17, 21, 23, 25- 30, 33-37, 39-42 and 45, as set out in the Claimants' Redfern Schedule;
b) The Claimants' document production requests Nos. 1-5, as set out in the Claimants' Supplemental Redfern Schedule; and
c) The Respondent's document production requests Nos. 2-12, 15-16, 20-23 and 25- 32, as set out in the Respondent's Redfern Schedule.
(ii) To reject all remaining document production requests submitted by the Parties for the reasons set out in the Tribunal's decisions as incorporated in the Parties' Redfern Schedules.
(iii) In accordance with the Amended Procedural Calendar for the Phase on Jurisdiction and Liability set out in Annex 1 of Procedural Order No. 7, each side shall produce all documents as ordered by Thursday, August 27, 2020.
(iv) Should either side seek to assert either confidentiality or privilege over any document for which production has been ordered, that side should prepare a confidentiality and/or privilege log including the following information: (i) the date of the document; (ii) its author(s);
(iii) its recipient(s) (if any); (iv) a very brief description of the document; and (v) the basis for the assertion of privilege or confidentiality.
(v) Pursuant to Section 6.2.7 of Procedural Order No. 1, if a Party fails to produce documents as ordered by the Tribunal, the Tribunal shall draw the inferences it deems appropriate, taking into consideration all relevant circumstances.
(vi) Pursuant to Section 6.3 of Procedural Order No. 1, the documents produced shall not be considered part of the evidentiary record unless and until a Party subsequently submits them to the Tribunal in accordance with the procedural calendar.
Place of Arbitration: Paris, France
Dr. Stanimir A. Alexandrov
On behalf of the Tribunal