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INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES

Ipek Investment Limited

v.

Republic of Turkey

(ICSID Case No. ARB/18/18)

PROCEDURAL ORDER No. 9

Members of the Tribunal
Professor Campbell McLachlan QC, President of the Tribunal
The Hon. L. Yves Fortier QC, Arbitrator
Dr Laurent Lévy, Arbitrator

Secretary of the Tribunal
Ms Jara Mínguez Almeida

Date of dispatch to the Parties: 24 December 2019

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Whereas:

(1) On 15 November 2019, the Tribunal issued Procedural Order No 8 (‘PO No 8’)
in which it decided the Parties’ respective applications for production of
documents;

(2) By Annex B of PO No 8, the Tribunal ordered the Claimant to produce for
inspection inter alia the two originals of the SPA (Respondent’s Request No
15(a)); the original of the Consent Document (Respondent’s Request No 15(g));
and the originals of the Koza Ipek Holdings share certificates (Respondent’s
Request No 22), the latter to be available for inspection in London (‘the Original
Documents’);

(3) By paragraph 2(e) of PO No 8, the Tribunal ordered that documents within the
possession of a witness for either Party are to be treated as within the power or
control of the Party to the extent that such documents came into the possession
of the witness during the course of their employment by the Party or otherwise
continue to be the property of the Party but not otherwise;

(4) By paragraph 10 of PO No 8, the Tribunal provided that either Party might make
an application as to any aspect of PO No 8, provided that it did so by 22
November 2019;

(5) On 22 November 2019, the Respondent applied for certain further relief in
relation to the production of documents from the Claimant, in particular as to
the Original Documents (‘the Application’);

(6) Pursuant to the President’s directions, the Parties exchanged written
submissions thereon: the Claimant responding on 28 November 2019; the
Respondent replying on 2 December 2019 and the Claimant rejoining on 4
December 2019;

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(7) On 10 December 2019, the Tribunal issued initial directions, ruling that the
Application constituted in substance a new application and indicating that it
would issue a further procedural order making specific provision for the
inspection of the Original Documents under the supervision of an officer of the
Tribunal and ruling on the other elements of the Application once all other
document production was completed under the timetable originally specified in
PO No 8 on 12 December 2019;

(8) On 16 December 2019, the Respondent renewed its Application for forensic
examination of Mr Ipek’s computer insofar as it contains electronic information
concerning the preparation of the SPA and Consent Document;

(9) With the leave of the Tribunal given on 18 December 2019, the Claimant replied
to the Respondent’s renewed Application;

(10) Noting that, pursuant to Article 43 of the ICSID Convention, the Contracting
States confirm that ‘…the Tribunal may, if it deems it necessary at any stage of
the proceedings (a) call upon the parties to produce documents or other
evidence.’

Now therefore the Tribunal orders that:

1. The Claimant shall make the Original Documents available for forensic
   examination by experts appointed by the Parties at a date after 6 January 2020,
   subject to the terms and conditions of this Order;
2. The Respondent may apply to the Tribunal Secretary for forensic examination
   of the Original Documents by its appointed experts at a specified location or
   locations on provision to the Tribunal Secretary of a written undertaking to
   the Tribunal from both the experts and the Respondent’s counsel of record
   that they shall not mutilate, remove or otherwise tamper with the Original
   Documents and shall examine them only for the proper purposes of the present
   arbitration;

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3. On receipt of such application, the Tribunal Secretary shall fix an appointment
   for such forensic examination, in consultation with counsel for the Parties and
   the nominated experts;
4. The Claimant shall be responsible for the transport of the Original Documents
   to the specified location and shall at all times retain ownership and control of
   them;
5. Such examination may include the conduct of laboratory testing in the United
   States of America, Switzerland or the United Kingdom, provided always that
   the above undertaking is observed; that the Original Documents shall remain
   in the power of the Claimant’s legal representative (who may be present during
   the examination); and that any such inspection is carried out in the presence
   of and subject to the supervision and direction of the Tribunal Secretary or
   her delegate;
6. The Tribunal reserves its decision on Respondent’s application to inspect the
   computer of Witness 1 insofar as it contains electronic information regarding
   the preparation of the Original Documents in the event that, pursuant to PO
   No 4, the Claimant applies to adduce the evidence of Witness 1;
7. The Tribunal’s decision on Respondent’s application for forensic examination
   of the computer of Mr Hamdi Ipek is reserved for subsequent order;
8. The Respondent’s application for an unredacted copy of the Ipek Investment
   Dormant Account email of 23 June 2016 is denied on the ground that the
   redacted name is not, on the evidence presently available for the Tribunal,
   material to the issues in the arbitration.

Signature

Professor Campbell McLachlan QC
President of the Tribunal
24 December 2019