Reproduced from www.worldbank.org/icsid with permission of ICSID.
C. THE TRIBUNAL'S CONSIDERATIONS
48. The Tribunal has duly considered the Parties' positions on the disclosure requests.
1. The Tribunal's decision on the Claimant's representatives
49. With respect to the Respondent's requests for information regarding third-party financing, the Tribunal is mindful that although there exists no procedural duty to disclose third party funding under the rules in force in these proceedings, there has been a wide policy debate in the international arbitration community on third-party funding involving concerns of transparency, conflicts of interest and legitimacy, and growing consensus that third-party funding should be disclosed in international investment arbitration proceedings. The Tribunal notes that the ICSID Rules in their 2022 revision, although not applicable in this dispute, which is also undisputed by the Parties, have clarified that parties have an obligation to disclose the name and address of any third-party funder, and where relevant the names of the persons and entities that own and control the funder, and that tribunals may order the disclosure of further information regarding the funding agreement and the provider of funding.14
50. It is undisputed that Mr. Kay has appeared as party representative in other investment arbitrations, has a professional background in the funding of international investment arbitrations and has sustained professional relationships with counsel from White & Case LLP. However, in this case, the Tribunal notes that the Claimant has clarified that there is no third-party financing, financing by a legal representative, equity financing, or any other financing arrangement for this arbitration outside of Claimant's funds in these proceedings. The Tribunal finds no reason to question the Claimant's statements and finds no ground to order the Claimant to produce the information requested in the Respondent's requests (A)(2) and (A)(3)(b) of its letter of 6 October 2022.
51. With respect to the remaining information requested by the Respondent in its requests (A)(1), (A)(3)(a) and (c) and (A)(4) of its letter of 6 October 2022, the Tribunal notes that the applicable rules only provide that "[e]ach party may be represented or assisted by agents, counsel or advocates whose names and authority shall be notified by that party to the Secretary-General, who shall promptly inform the Tribunal and the other party."15 The applicable rules do not contain any obligation upon parties to disclose information of the wide-ranging sort that the Respondent has requested.
52. Even though the Tribunal has procedural discretion to call upon the Parties to produce documents at any stage of the proceeding pursuant to paragraph 16.5 of Procedural Order No. 1, ICSID Rule 34(2) and Article 43 of the ICSID Convention, the Tribunal finds that the Respondent has not articulated a specific basis or reason for which the requested information should be ordered. The Tribunal finds that this is even more the case with respect to the information requested with respect to Messrs. Sangalli, Garcia and Arango Lopez de Letona. The Tribunal also accepts that some of the requested information may be confidential or covered by privilege.
53. In addition, the Tribunal notes that the revised ICSID Rules do not provide for the wide- ranging transparency that the Respondent requests. The same is true for other rules such as the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration.
54. While the Gabriel Resources v. Romania case referred to by the Respondent allowed the exclusion of a person affiliated with Tenor Capital from the hearing, the Tribunal notes that the issue did not concern a wide-ranging request for information about the individual and his relationship with other entities. The issue in that case was whether he should be allowed to attend an ongoing hearing when he had already been identified as being affiliated with Tenor Capital, i.e. a non-party to the proceeding.16 The Tribunal thus considers that the situation that arose in Gabriel Resources v. Romania is different from the one at hand.
55. Finally, the Tribunal has taken note of the Respondent's reservations of rights set out in its letter of 4 October 2022. While the Tribunal has duly noted the Respondent's concerns regarding inter alia the Claimant's alleged potential evading of the costs of the arbitration should its claim be rejected, the Tribunal is of the view that the Respondent's reservation of rights cannot constitute a proper basis for the disclosure of the information it requests.
2. THE TRIBUNAL'S DECISION ON THE RESPONDENT'S REQUESTS RELATING TO PROF. SCHREUER
56. The Tribunal has taken note of the clarifications provided by the Claimant and Prof. Schreuer on the circumstances of his non-participation in the Hearing. The Tribunal finds that the Respondent's request (B) set out in its letter of 6 October 2022 is therefore resolved.
57. The Tribunal also rejects the Respondent's request (d) set out in its letter of 4 November 2022 pursuant to which the Tribunal should consider the weight of Prof. Schreuer's report against the background of his non-appearance at the Hearing. In this regard, the Tribunal recalls that paragraph 18.15 of Procedural Order No. 1 provides that "[t]he Tribunal may consider the written statement of a[n] [expert] who provides a valid reason, to the Tribunal's satisfaction, for failing to appear when summoned to a hearing having regard to all the surrounding circumstances, including the fact that the [expert] was not subject to cross-examination." The Tribunal finds that Prof. Schreuer has provided a valid reason not to appear at the Hearing and will therefore assess all of the evidence of the record with care, including the expert report of Prof. Schreuer. The Tribunal thus finds no reason to grant the Respondent's request.
58. Finally, with respect to the Respondent's request that the Tribunal take into account "the position adopted by the tribunal in Renergy v. Spain," the Tribunal notes that the Respondent has not provided a clear reference to an issue decided by that tribunal or how such case was relevant to the issue of Prof. Schreuer's evidence in these proceedings. Accordingly, the Tribunal has not considered "the position adopted by the tribunal in Renergy v. Spain" in relation to Prof. Schreuer's evidence in these proceedings.
D. THE TRIBUNAL'S ORDER
59. Based on the considerations set out above, the Tribunal:
(a) decides to reject the Respondent's requests (A) set out in its letters of 6 October 2022 and its requests (a) and (d) set out in its letter of 4 November 2022;
(b) decides that the Respondent's request (B) set out in its letter of 6 October 2022 is resolved;
(c) has taken note of the Respondent's reservation of rights made in its letter of 4 November 2022 in its requests (b) and (c).