Procedural Background

In the context of an ICSID arbitration arising from the alleged expropriation of a water and sewerage infrastructure project, the Claimant filed a request for provisional measures pursuant to Article 47 of the ICSID Convention and Rule 39(1) of the ICSID Arbitration Rules. Following the alleged seizure of the Claimant’s local operating vehicle, City Water, by the Respondent State and its entities (DAWASA and DAWASCO), the Claimant sought the preservation and production of specific evidence. The requested measures included the preservation of bank statements, the compilation of an inventory of seized corporate records, the immediate production of various documents, and the provision of a statement of account regarding the operating vehicle's assets.

Parties' Positions

The Claimant argued that the requested measures were urgently necessary to safeguard its procedural right to the preservation and production of evidence, which directly impacted its ability to present its claims for damages. The Respondent objected, asserting that the Tribunal should exercise caution given pending jurisdictional objections. Furthermore, the Respondent contended that the Claimant failed to demonstrate necessity or urgency, arguing that the requests were effectively disguised applications for document discovery that would improperly require the Tribunal to prejudge the merits of the dispute.

Tribunal's Analysis

The Tribunal affirmed its broad authority under Article 47 of the ICSID Convention to recommend provisional measures to protect procedural rights, including the right of access to evidence. The Tribunal distinguished between the preservation of evidence, which falls squarely within the ambit of Article 47, and the actual production of documents, which is more appropriately governed by Article 43 of the ICSID Convention and the standard document disclosure process (e.g., the Redfern Schedule).

Recognizing the potential relevance of the evidence located in the Respondent's territory and beyond the Claimant's control, the Tribunal found the request for preservation reasonable to ensure no adverse steps were taken. The Tribunal noted the Respondent's prior undertaking to preserve such evidence, satisfying the requirement of circumstances necessitating the measure. Regarding the request for an inventory, the Tribunal deemed it a useful case management tool ancillary to preservation, facilitating future disclosure without imposing an undue burden. However, the Tribunal largely rejected the Claimant's requests for the immediate production of broad categories of documents and a statement of account, determining that such requests lacked case management advantages at this preliminary stage and should be deferred to the formal document production phase.

Decision

The Tribunal recommended that the Respondent preserve and take no adverse steps regarding the specified documents. Furthermore, the Tribunal ordered the Respondent to procure an inventory of documents seized or taken over at the operating vehicle's offices, and to procure the delivery of specific bank statements to the Claimant's new postal address. The requests for broader document production and a statement of account were denied for the time being.