PROCEDURAL ORDER NO. 6
DECISION ON COMMON INTEREST PRIVILEGE, LIMITED WAIVER OF
PRIVILEGE AND SUBJECT MATTER WAIVER OF PRIVILEGE

[T]he community-of-interest privilege only applies when those separate attorneys disclose information to one another, not when parties communicate directly. Id. Finally, it assumes too much to think that members of a corporate family necessarily have a substantially similar legal interest (as they must for the community-of-interest privilege to apply, see id.) in all of each other's communications. Thus, holding that parents and subsidiaries may freely share documents without implicating the disclosure rule because of a deemed community of interest stretches, we believe, the community-of-interest privilege too far.³⁴

– The IBA Rules on the Taking of Evidence in International Arbitration, applicable in this arbitration⁴⁰ (the IBA Rules), require a party to which a request to produce documents is addressed, consensually to produce the requested documents that are in its possession, custody or control or, in the case of an objection, as ordered by the Tribunal. In this arbitration, the Tribunal has decided on the parties’ respective document production requests in Procedural Order No. 3 (PO 3). It is only where a party that was ordered to produce documents evidences one of the reasons for exclusion from evidence or production set out in article 9(2) of the IBA Rules in relation to a particular document that the Tribunal may be petitioned to order that exclusion. The onus of evidencing a cause for exclusion as an exception to the disclosure rule pursuant to the document production order therefore lies on the party ordered to produce the documents.⁴¹ Any inversion of the burden of proof would defeat the purpose of the IBA Rules. For the purpose of this Order, GTH is seeking the exclusion of categories of documents the production of which it was ordered to make pursuant to PO 3. GTH therefore has the onus to establish a cause for exclusion pursuant to article 9(2) of the IBA Rules. Failing a timely and full production without evidencing a satisfactory reason for exclusion may result in the application of article 9(5) et seq. of the IBA Rules where a reasoned application is made to that effect.

– In Procedural Order No. 5 (PO 5), the Tribunal accepted the Parties’ submissions that the laws in the United States and in Canada recognize common interest privilege.⁴² The Tribunal dismissed GTH’s claim that in-house counsel admitted in Egypt is entitled to assert legal privilege. In its submissions

for the purpose of this Procedural Order No. 6, GTH stated its intent to produce relevant documents previously withheld on the ground of legal privilege asserted by Dutch in-house counsel.⁴³ This Order therefore need only determine whether the law of England and Wales and the law of New Zealand recognize common interest privilege as a principle before reviewing each category of documents over which common interest privilege is claimed.

– In paragraphs 1 and 2 of its submissions in this Schedule, GTH argued that English and New Zealand law recognize common interest privilege and adduced relevant authorities to corroborate its submissions.⁴⁴ Canada accepts GTH’s submission “that English and New Zealand law recognize that legal advice can be shared between parties, having a sufficient common interest in the particular communications being shared, without losing privilege.”⁴⁵ Therefore, this Tribunal need not rule on the entitlement of GTH to assert common interest privilege under the laws in England and in New Zealand given that Section A of GTH’s submissions in this Schedule is now accepted by the Parties, but will decide on whether the conditions for common interest privilege are met in the facts of the case as evidenced.

– The Tribunal does not accept GTH’s submission that the protections under the laws of Canada, the United States, England and Wales and New Zealand are sufficiently similar as to warrant an identical treatment of common interest privilege regardless of which law applies. GTH had previously pleaded a similar unique standard argument when arguing the existence of a most favored nation approach to legal privilege that would apply to the communications of all in-house counsel asserting legal privilege, regardless of their bar of call or of the law otherwise applicable to the communication giving rise to the privilege claim.⁴⁶ The Tribunal had declined to follow GTH in its argument and ruled in PO 5 that legal privilege should be determined pursuant to the law of the jurisdiction with the

closest connection to the communication over which privilege is claimed, that is, the jurisdiction of the bar of call of counsel who is asserting the legal privilege said to attach to the disputed communication, subject to evidencing that, in the particular circumstances in hand, another national law presents a manifestly closer connection with the situation, whereupon that law shall apply.⁴⁷

– As a final preliminary remark, PO 5 and this Order should be seen as complementary, with this Order in effect expanding PO 5. Where necessary, relevant paragraphs in PO 5 may be used for guidance in the application of this Order.

1. The Tribunal accepts that a communication that was created as a legally privileged communication,⁵³ namely a communication between lawyer and client for the purpose of seeking or obtaining legal advice, remains privileged when shared with:

• a party represented by the same lawyer, or
• a party represented by another lawyer, but where that party is part of the same litigation, as ascertained at the time when the privileged communication is shared.⁵⁴

2. In addition to the two situations outlined in paragraph 1 above, a third situation involves parties forming part of the ownership structure of an entity. The question that arises is whether those parties may be presumed to have sufficient commonality of interest so as to allow the initial privilege attaching to a document not to be defeated when that document is shared amongst those parties. The Tribunal considers that the question should be decided on the merits of the facts of each case. To that

end, while no irrebuttable presumption applicable to all instances can be upheld,⁵⁵ the Tribunal accepts GTH’s submission that, when working towards the sale of GTH’s stake in Wind Mobile, GTH, Wind Mobile and VimpelCom may be presumed to have an aligned economic interest in the result of the sale. No contrary evidence is established by Canada at this stage.⁵⁶ [Redacted] In both of those situations, the Tribunal considers that privilege is not defeated by the sharing between GTH, Wind Mobile and VimpelCom, as parties to the same ownership structure, of a document that was created as a privileged document as further provided in PO 5,⁵⁷ unless Canada establishes conflicting interests between the sharing parties so as to rebut the presumption that the Tribunal upholds in this paragraph based on GTH’s affirmative assertion that it has conducted further review and produced all responsive documents.⁵⁸ In the same vein, had it been petitioned to that effect, the Tribunal would have viewed with favour an application to uphold a similar presumption in favour of allowing privilege to subsist where the relevant privileged document is circulated between the different government agencies that are involved in the same project.⁵⁹

3. The Tribunal notes the unqualified affirmative statement by counsel for GTH that they have re-examined the withheld documents in light of the directions given by the Tribunal and that, in relation to each Category (C) to (M), GTH has produced responsive documents where privilege is not defeated by the circulation of such documents.⁶⁰ The Tribunal adds that, in resisting production on

the ground of article 9(2) of the IBA Rules, GTH is expected to have verified that each withheld document strictly meets the four prerequisites in Gallo cited in PO 5.⁶¹ In addition, GTH is expected to have verified that the circulation of each of those privileged documents occurred (i) between parties that are part of the ownership structure of Wind Mobile (ii) for the purpose of either (a) the sale of that company or [Redacted] whereupon the commonality of interest may be presumed in such circumstances subject to Canada’s evidencing the contrary. Where any of those criteria is not satisfied, GTH shall produce the document forthwith. For the avoidance of doubt, in the hypothetical event that GTH finds, or Canada evidences, in a particular situation that only GTH and VimpelCom, but not Wind Mobile, had an aligned interest, the sharing of privileged documents between those three parties can no longer benefit of the common interest doctrine which, as an exception to the waiver rule, should be construed restrictively.

4. Canada’s claim in paragraph 2 of its submission above that communications over which GTH asserts common interest privilege “appear to [have been] shared with third parties”, while insufficiently particularized, calls for the following guidance from the Tribunal: privileged communications shared with third parties that are neither represented by the same lawyer, nor parties to the same litigation, nor part of the same ownership structure of an entity, cannot benefit from the presumption of the continuation of the legal privilege. Absent submission of satisfactory evidence by GTH, in relation to each withheld communication, that the initial legal privilege is not defeated by the sharing of the communication with third parties, GTH must produce those communications forthwith in compliance with PO 3.

5. Turning now to each of the categories of documents over which GTH asserts common interest privilege, the Tribunal decides as follows:

5.1 Communications discussing offers to purchase Wind Mobile, the sale of Wind Mobile (or a merger), and/or the decision by GTH to exit the Canadian market, or to move to CCAA (i.e., liquidation) proceedings:

The Claimant has provided no explanation or support for its assertion that Earnscliffe was retained in contemplation of litigation or that communication with Earnscliffe was in contemplation of litigation. Nor has it provided any details regarding the timing of such communications and the litigation that was being contemplated.

The fact that outside counsel was involved in the communications does not change anything. It only serves to highlight the point that Canada made previously regarding outside counsel’s role in the Investment Canada Act application process which was not limited to the provision of legal advice. The examples of communications Letter to Government”, “Draft submissions to government”, “Letter from IRD and preparing for meeting” confirm that the communications relate not to legal advice but to discussions and representations to the government in the context of the regulatory process.

Further, the Claimant’s argument that the parties did not expect that communications with a public relations firm would be disclosed should be rejected: the parties’ expectations should have been informed by Canadian law which does not recognize a limited waiver exception for communications with a public relations firm.

c) PwC: the Claimant has not asserted that the communications with PWC over which privilege is being claimed were necessary to the provision of legal advice. Instead it claims that communications included outside legal counsel and related to the tax structuring of the potential sale of Wind Mobile. As explained above not every communication that includes outside counsel becomes privileged and the fact that outside counsel is copied does not suffice for the communication to qualify under the limited waiver exception.

1. GTH avers its case for partial privilege, or limited waiver of privilege, in the event the Tribunal decides that common interest privilege, argued in (I) above, does not apply to the communications involving the different entities in the VimpelCom/GTH/Wind Mobile group.⁸⁷ To that end, GTH adduces authorities evidencing that limited privilege is recognized in the laws of Canada, England and Wales, and the United States.⁸⁸ Moreover, the Parties agree that the advisers to whom the question of limited waiver of privilege might apply are UBS, Earnscliffe, and PwC.
2. First in relation to UBS, GTH is not as conclusive in its submissions as would have been expected in view of its successive purported reviews of the privilege log. References to “almost exclusively from outside counsel”⁸⁹ cannot be accepted as they would lead to arbitrary decisions on evidence that may be relevant for Canada’s case. Absent

2. evidence that limited waiver attaches under the relevant law to the sharing of each privileged communication with UBS, GTH is required to comply with the production order in PO 3.
3. Canada disputes that Kovel⁹⁰ sets the standard for the applicable test, at least in the United States. Setting aside for a moment whether Permian⁹¹ superseded Kovel as Canada submits, Canada seems to be reading Kovel unduly restrictively by limiting its application to cases where counsel originates the communication to the third party, whereas Justice Friendly in his opinion accepted that the principle could apply in cases where the client speaks with the accountant without the lawyer sitting in.⁹² That said, the Tribunal notes that Kovel does require that the accountant be engaged by the lawyer, that the lawyer has directed the client to tell his story in the first instance to the accountant, and that the purpose of that telling is for the accountant to interpret that story so that the lawyer may better give legal advice. Outside that purpose, which must be the leading thread throughout the sharing of communications with third parties, privilege is bound to be defeated. GTH has not evidenced that each privileged document communicated to UBS respects the strict criteria identified in Kovel. Accordingly, GTH’s claim for a limited waiver in relation to UBS is dismissed. The Tribunal adds that the fate of GTH’s claim thus decided was in any event inescapable in view of the fact that the sharing of the privileged advice was meant, not to allow the provision of legal advice, but to permit the provision of UBS’s business advice. The Tribunal accordingly need not proceed to decide whether Kovel or Permian (which is obviously even stricter that Kovel) sets the relevant law.
4. The Tribunal notes that Canada does not agree with GTH’s presentation of the law applicable in each of the jurisdictions with respect to limitations of waiver of privilege further to disclosure to third parties.⁹³ Without limiting its decision in PO 5 on the law applicable to legal privilege, as reiterated in this Order, and while expecting that the guidance given in this Order will meet the intended purpose of permitting a voluntary disclosure without the need to have specific decisions rendered by the Tribunal in relation to each of the relevant jurisdictions, the Tribunal underscores that an application from either Party asking for a ruling on legal privilege and its extension through common interest sharing in relation to specific jurisdictions will require better particularized submissions and

4. evidence of the applicable law, including legal expert reports, in addition to a likely hearing, to enable it to issue such a ruling. Any application to that end is expected to be made without delay to avoid impacting the upcoming procedural stages.
5. The Tribunal’s view expressed in paragraph 3 above applies mutatis mutandis to privileged communications shared with Earnscliffe, a public relations firm, and PWC, acting as a tax councilor. In both cases, GTH argues that the participation of counsel in the exchange with Earnscliffe and with PWC leads to the assertion of privilege. As Canada correctly points out, GTH has not asserted that the sharing of the legal advice with those third parties was necessary for the provision of legal advice. Lobbying the government and offering tax advice does not amount to legal advice. Absent GTH evidencing that the purpose of the sharing of information with Earnscliffe and with PWC was to permit the provision of legal advice (or advice in contemplation of litigation), the claimed privilege is defeated. GTH is accordingly ordered to disclose the relevant documents shared with Earnscliffe and with PWC.

1. Canada had not originally included subject-matter waiver as an issue for determination when it provided GTH with the list of issues for determination in the Stern Schedule of Disputed Issues Regarding the Claimant’s Assertions of Legal Privilege. Only once GTH had completed its submissions (based on the list of issues provided by Canada) did Canada add its submissions on subject matter waiver. GTH has thus not yet had an opportunity to respond to this issue, and the Tribunal did not decide the matter in its Procedural Order No. 5. Canada has now indicated that it wishes to maintain this objection and that it intends to request the Tribunal to decide the matter. In this context, GTH provides its submissions on Canada’s subject-matter waiver objection below.
2. GTH has not waived privilege in the course of these proceedings. Rather, GTH has been careful to maintain privilege to avoid exactly the type of allegation now being advanced by Canada. Based on its limited submissions to date, it is not even clear from Canada’s submission where GTH has waived privilege with respect to particular issues.⁹⁴
3. GTH presumes that Canada’s vague reference to the advice of [Redacted] (a Canadian law firm) is to paragraph 82 of Claimant’s Memorial on the Merits and Damages, which reads:

   “On 3 March 2008, the Investment Committee convened to discuss the opportunity in Canada and whether GTH should provide the LOC required by Globalive to participate in the Auction. In advance of the call, members of the Investment Committee received materials describing Globalive’s background and experience, key elements of the Canadian legal and regulatory framework including specific conditions relevant to the 2008 AWS Auction, and Globalive’s proposed vehicle structure to pursue the investment. The Investment Committee also received market materials describing the regulatory framework and important terms of the 2008 AWS Auction. By this point, Globalive had agreed to allow GTH to withdraw the LOC and exit from the Auction if a joint venture could not be established, and Industry Canada had confirmed that GTH would be permitted to withdraw under these

3. circumstances. GTH had also received advice from the Canadian law firm, [Redacted], regarding the structural requirements to comply with the O&C Rules. On the basis of this information, the Investment Committee decided that GTH should continue its negotiations with Globalive and enter into an agreement to provide the LOC necessary to participate in the Auction.”⁹⁵

4. The two emphasized sentences in the above extract include footnotes (187 and 188) citing to paragraphs 11 and 13 of Mr. Dobbie’s witness statement. Footnote 187 also clearly states: “For the avoidance of doubt, no privilege is waived with respect of the legal advice obtained from [Redacted].”
5. Paragraph 11 of Mr. Dobbie’s witness statement read as follows:

   “During February 2008, I liaised with Globalive and [Redacted] in relation to the regulatory and legal conditions surrounding the potential investment and how a potential investment could be structured in order to comply with the O&C Rules. In the course of those discussions, I became aware that there was a policy movement in Canada towards a relaxation of the O&C Rules which would allow a foreign company like GTH to take control of its investment in Wind Mobile, and Globalive ultimately agreed to structure the investment in a way that would give GTH the right to take control if the O&C Rules changed.”

6. Again, the emphasized sentence above is followed by a footnote (8) that states: “For the avoidance of doubt, privilege is not waived with respect to this legal advice.”
7. Paragraph 13 of Mr. Dobbie’s witness statement reads as follows:

   “On 3 March 2008, GTH’s Investment Committee convened a call to discuss whether GTH should provide the required LOC. In advance of that call, Mr. O’Connor and others circulated background materials including market commentary, the materials received from Globalive, and legal advice regarding the legal and regulatory requirements applicable to the proposed investment opportunity. Mr. O’Connor informed me after the call that the Investment Committee had agreed to provide the LOC to participate in the AWS Auction and that we should proceed with finalizing an agreement on this point with Globalive.

8. Once again, the emphasized sentence above is followed by a footnote (14) that states: “For the avoidance of doubt, privilege is not waived with respect to this legal advice.”

9. With the above as background, Canada’s submission that there has been any subject matter waiver is wrong and inappropriate:

   9.1. Canada has cited no authoritative support for its submission, despite now having pleaded the issue twice: first in its letter dated 2 November 2018 and secondly in the Parties’ Stern Schedule of Disputed Issues Regarding the Claimant’s Assertions of Legal Privilege, dated 29 November 2018. This is because there is none.

   9.2. GTH respectfully submits that questions of subject matter waiver raised by Canada are ones of international law, as Canada’s assertion is that privilege has been waived in GTH’s pleadings in this Arbitration (i.e., when the Parties expectations as to the applicable law was and is, without question, the law of the Arbitration). GTH directs the Tribunal to IBA Rule 9.3(d), which provides the Arbitral Tribunal may take into account “any possible waiver of any applicable legal impediment or privilege by virtue of consent, earlier disclosure, affirmative use of the Document, statement, oral communication or advice contained therein, or otherwise.”⁹⁶

   9.3. In this instance, GTH has clearly not consented to waive privilege. Rather GTH explicitly and repeatedly maintained privilege over the content of [Redacted] legal advice.

   9.4. GTH also did not disclose the content of [Redacted] advice or put the content of the advice affirmatively at issue. GTH simply referenced the non-privileged fact that a privileged communication with counsel occurred. Accordingly, under a straightforward application of the IBA Rules, GTH has not waived privilege here. Any suggestion by Canada to the contrary is an incorrect reading of GTH’s submissions.

   9.5. Should the Tribunal choose to apply Canadian law, it would reach the same result and reject Canada’s nonsensical assertion of waiver. Under Canadian law, subject matter waiver is narrowly applied in circumstances in which a party unfairly and misleadingly discloses a portion of a privileged communication but withholds the rest of it.⁹⁷ Again, in this instance, GTH has not disclosed any portion of a privileged communication, but has simply referenced the fact that a communication with counsel occurred. All that GTH has disclosed is that, as one part of its due diligence, it communicated with counsel about the Canadian ownership and control rules, and then formed certain expectations about the legal framework. Disclosing the fact of the communication without disclosing anything about its contents is neither misleading nor unfair. Indeed it is particularly difficult to understand how it could be unfair in these circumstances, when Canada has

9. not seriously contested that it created the general expectation in the industry that the ownership and control rules would be relaxed in the future.⁹⁸

   9.6. Finally, Canada’s attempt to pierce GTH’s privilege in this regard is telling of its overall approach to disclosure in this Arbitration and underscores why GTH has been right to closely guard its privilege.

1. In Canada’s letter to the Tribunal dated November 2, 2018, at Section II.B.2(b), Canada explained that the Claimant had waived privilege in the course of this arbitration over certain legal advice provided to the Claimant which it has referred to and put at issue in the context of this arbitration. This includes in particular the legal advice provided by the law firm [Redacted] In the Stern Schedule of Disputed Issues Regarding the Claimant’s Assertions of Legal Privilege dated November 29, 2018, at Outstanding Issue 4, section (vi), Canada maintained its position on this issue. Below, Canada outlines: (i) the law on subject-matter waiver in Canada (where counsel for [Redacted] was most likely admitted); and (ii) how the law applies to the Claimant.
2. Canada respectfully requests the Tribunal to determine that the Claimant waived attorney-client privilege, and must produce without redactions all documents containing and discussing advice provided to the Claimant in relation to whether the Claimant: (a) would be permitted to transfer Wind Mobile’s spectrum licences to an Incumbent after the five-year rollout period; and (b) would be able to obtain full voting control over Wind Mobile following an anticipated relaxation in the ownership and control rules.

A. LAW ON SUBJECT-MATTER WAIVER

3. Subject-matter waiver, also known as deemed waiver, occurs when a party puts its knowledge of the law or the legal advice that it received into issue and attempts to rely on privileged communications in support of its case.⁹⁹ As the Court in Canadian Appliance Source explained, “a party will be deemed to have waived privilege if the party places its state of mind in issue with respect to its defence and has received legal advice to help form the state of mind.”¹⁰⁰ In such circumstances, waiver is implied because it is unfair to permit a party to premise a

3. claim on privileged communications and simultaneously prevent its opponent from examining communications relevant to this issue.¹⁰¹ Contrary to the Claimant’s suggestion at paragraph 9.3, it is irrelevant whether the party consents to waiving legal advice. It is also irrelevant whether the party states that it has not waived legal advice. Rather, the test in Canada for a deemed waiver of privilege and an obligation to disclose a privileged communication involves two elements: (1) the presence or absence of legal advice is relevant to the existence or non-existence of a claim or defence, which is to say that the presence or absence of legal advice is material to the lawsuit; and (2) the party who received the legal advice must make the receipt of it an issue in the claim or defence.¹⁰²
4. Many Canadian courts have found that a client waived privilege when their counsel swore an affidavit on their behalf on a matter of substance in the case.¹⁰³ For instance, in Sky Solar (Canada) Ltd. v. Economical Mutual Insurance Co., the Court concluded that privilege had been waived where an affidavit from counsel was filed on a motion for a further and better affidavit of documents, stating:

   When a lawyer "enters the fray", and provides evidence in the form of an affidavit, his client is taken to have waived privilege. A party cannot use privilege as a sword, nor can a party disclose a part of a communication which is favourable, while hiding part of a communication which is unfavourable. A party cannot use a solicitor to avoid having to give evidence under oath.¹⁰⁴

5. In United States v. Friedland, the Court concluded that deemed waiver had occurred where an affidavit from a lawyer was filed on a motion for an injunction, stating that the plaintiff had “put squarely in issue the strength of its case against the defendant” and chose to establish the necessary facts to support its case by leading the

5. evidence of its lawyer.¹⁰⁵ The Court also held that as a result of the implied waiver, the defendant was entitled to explore the adequacy of disclosure.¹⁰⁶
6. Similarly, in Canadian Appliance Source Inc. v. Utradecanada.com Inc., a lawyer’s affidavit put the strength of the client’s case and its state of mind forward in support of the client’s positions.¹⁰⁷ The lawyer’s affidavit contained numerous statements regarding the substance of the action which the client relied upon to establish its case.¹⁰⁸ The Court noted that “[w]hile it is arguable that any one of the” lawyer’s references to legal advice in the affidavit was sufficient on their own or combined with certain others to constitute waiver of privilege, the “collective effect and weight” of the lawyer’s statements led to the conclusion that by filing and relying on the legal advice, the lawyer had “entered the fray” and advanced opinions and positions which put the strength of the client’s case and its state of mind forward in support of its position. In so doing, the lawyer’s affidavit “selectively discloses some, but not all, privileged communications, which is not permitted”.¹⁰⁹ Accordingly, the Ontario Superior Court of Justice held that the client had waived privilege over the legal advice and required the client to disclose all privileged communications.¹¹⁰

B. APPLICATION OF THE LAW TO THE CLAIMANT

7. As Canada explains below, the Claimant met the two-part test for waiver of privilege over advice it received from [Redacted] by: (1) making the presence of this legal advice a relevant and material fact in support of GTH’s claims; and (2) making the legal advice that it received from [Redacted] an issue in the claim. The Claimant did not simply reference the fact that a privileged communication with counsel occurred, as it suggests at paragraph 9.4. Nor has the Claimant treated the legal advice as separate and distinct from the expectations that GTH formed, as suggested in paragraph 9.5. Instead, in the Claimant’s Memorial and through David Dobbie’s Witness Statement, GTH and Mr. Dobbie put the Claimant’s state of mind at play as informed by the legal advice it received in order to support GTH’s positions on two central issues in this arbitration: (a) that GTH had a legitimate expectation that it would be permitted to sell Wind Mobile or transfer Wind Mobile’s licences to an

7. Incumbent after the five-year moratorium; and (b) that GTH would be able to obtain full voting control over Wind Mobile.¹¹¹

A. (a) Sale of Wind Mobile and Transferability of Its Spectrum Licences

8. To demonstrate how the Claimant put the content of the legal advice it received at issue, it may assist the Tribunal to briefly outline the Parties’ positions on the issues themselves. As the Tribunal is aware, the Claimant maintains that GTH had a legitimate expectation that GTH could sell Wind Mobile to an Incumbent,¹¹² and that GTH “would be allowed to sell set-aside spectrum licenses [sic] to an Incumbent after five years.”¹¹³ Canada contends that the Claimant’s alleged expectation was not legitimate in the circumstances;¹¹⁴ and Canada has identified key elements of its legal and regulatory framework that should have informed the Claimant’s expectations had it conducted reasonable due diligence.¹¹⁵ The Claimant has asserted that it did conduct due diligence before investing in Wind Mobile, and that this included obtaining legal advice from [Redacted].¹¹⁶ For instance, Mr. Dobbie states in his Witness Statement:

   I reviewed the licensing framework for the AWS Auction (which contained the rules and conditions for participation in the auction), reviewed publicly available market information, and retained external Canadian counsel, [Redacted] [footnote omitted] to advise on these documents and the legal and regulatory framework and policy environment.¹¹⁷

9. Mr. Dobbie also refers to legal advice from [Redacted] on the regulatory and legal conditions:

During February 2008, I liaised with Globalive and [Redacted] in relation to the regulatory and legal conditions surrounding the potential investment.¹¹⁸

10. These conditions would include the issue of whether the Claimant could transfer Wind Mobile’s spectrum licenses to an Incumbent after five-years. In describing Canada’s documents applicable to the AWS Auction, Mr. Dobbie states:

    I further recall that these documents made clear that there was a five-year restriction on the ability of New Entrants to transfer their set-aside spectrum licences purchased during the AWS Auction to an Incumbent. [Footnote omitted.] We understood this provision to mean that, after the five-year period was up, a New Entrant would be able to sell set-aside spectrum licences to an Incumbent.¹¹⁹

11. That is, Mr. Dobbie refers to the fact that [Redacted] provided it legal advice on the documents applicable to the licensing framework for the 2008 AWS Auction, and implies that this advice supported its position and understanding of the how the rules would apply after the five-year moratorium. Mr. Dobbie notes that the GTH Investment Committee considered the legal advice in deciding whether to invest in Canada, stating:

    On 3 March 2008, GTH’s Investment Committee convened a call to discuss whether GTH should provide the required LOC. In advance of that call, Mr. O’Connor and others circulated background materials including market commentary, [footnote omitted] the materials received from Globalive, [footnote omitted] and legal advice regarding the legal and regulatory requirements applicable to the proposed investment opportunity.¹²⁰

12. Mr. Dobbie continues:

    On 6 May 2008, the Investment Committee was provided with briefing materials from the due diligence process, and convened on 7 May 2008 to run through the materials. […]

[T]he Investment Committee had decided to pursue the joint venture with Globalive to participate in the AWS Auction.

13. Thus Mr. Dobbie identifies the subject of the legal advice that the Claimant received, says it shaped GTH’s expectations, and refers to it in explaining how the GTH Investment Committee reached its decision to invest in Canada. In its Memorial, the Claimant relies on the testimony of Mr. Dobbie to support its claims concerning its decision to invest in Canada and its expectations in doing so. In describing the steps that GTH took to review the framework and terms for the 2008 AWS Auction, the Claimant cites the paragraphs from Mr. Dobbie’s Witness Statement in which he refers to advice provided by [Redacted].¹²¹ In explaining how the GTH Investment Committee reviewed the materials describing the regulatory framework and important terms of the 2008 AWS Auction, the Claimant cites the paragraphs in Mr. Dobbie’s Witness Statement in which he describes the legal advice provided to GTH.¹²² Referencing Mr. Dobbie’s testimony, the Claimant states:

    In May 2008, three weeks before the 2008 AWS Auction was scheduled to begin, the Investment Committee convened and reviewed a set of materials summarizing the conclusions from the due diligence process. [Footnote citing Mr. Dobbie’s Witness Statement, para. 16.] Following the review of the materials and the ensuing discussions, the Investment Committee made the decision to pursue the joint venture with Globalive to participate in the 2008 AWS Auction.” [Footnote citing Mr. Dobbie’s Witness Statement, para. 16.]¹²³

14. Furthermore, the Claimant relies on Mr. Dobbie’s testimony described above (which itself refers to the legal advice on which it relied) in explaining its expectations when investing in Canada:

    To inform its decision to invest, GTH reviewed a wide breadth of information detailing the framework Canada had created for the 2008 AWS Auction. [Footnote citing Mr. Dobbie’s Witness Statement, para. 10] On this basis, GTH had two key expectations. […]

101. First, GTH expected that Canada would promote a regulatory environment which would afford New Entrants the chance of successfully competing against the Incumbents.

[…]

104. Second, GTH expected that once the Five-Year Rollout Period expired, the prohibition on a New Entrant’s ability to transfer Wind Mobile’s set-aside spectrum licenses to an Incumbent would expire and GTH would be free to transfer these licenses to an Incumbent.”

15. Thus the Claimant put at issue its state of mind based on the legal advice it received, including the advice received from [Redacted] by referring to that legal advice in support of its argument that GTH conducted due diligence in determining whether to invest in Canada and therefore had a legitimate expectation that it could transfer Wind Mobile’s spectrum licences to an Incumbent after five years.

B. b) Ownership and Control of Wind Mobile

16. As the Tribunal is aware, the Claimant has argued that the national security review process was arbitrary in part because “GTH fully expected that it would be able to obtain full voting control over Wind Mobile”¹²⁴ following changes to Canada’s ownership and control rules in the wireless telecommunications sector, and that it had an “express right”¹²⁵ to do so.¹²⁶ Canada has responded that this alleged expectation was not reasonable in the circumstances.¹²⁷ To support its arguments on this issue, the Claimant refers to the advice provided by [Redacted] in relation to the regulatory and legal conditions surrounding the Claimant’s potential investment in a joint venture with Globalive Communications Corp. and how this potential investment could be structured in order to comply with the O&C Rules. Mr. Dobbie states that one of the subjects on which [Redacted]

16. provided advice to the Claimant was “how a potential investment could be structured in order to comply with the O&C Rules”.¹²⁸ Mr. Dobbie also states that in the course of discussions with [Redacted]

    I became aware that there was a policy movement in Canada towards a relaxation of the O&C Rules which would allow a foreign company like GTH to take control of its investment in Wind Mobile, and Globalive ultimately agreed to structure the investment in a way that would give GTH the right to take control if the O&C Rules changed.¹²⁹

17. Mr. Dobbie also refers to the legal advice, and content of the advice, that GTH received with respect to the Claimant’s purported right to take voting control:

    The right to take voting control of Wind Mobile should the restrictions on foreign ownership and control be relaxed was very important to GTH, and featured prominently in our internal discussions. It was also specifically raised with Industry Canada by our external counsel, and Industry Canada was entirely comfortable with the provision. I was also informed by external counsel that this provision was a common feature of structures involving non-Canadian entities that Industry Canada was very familiar with.¹³⁰

18. The Claimant relies on Mr. Dobbie’s testimony in its Memorial. In describing how it reviewed the O&C Rules, the Claimant cites the paragraphs in Mr. Dobbie’s Witness Statement where he refers to the subject matter of legal advice from [Redacted].¹³¹
19. In support of this statement, the Claimant cited paragraph 11 of Mr. Dobbie’s Witness Statement, where he described his discussions with [Redacted] on the O&C Rules. That is, the Claimant put its state of mind at issue, and cited the legal advice it received to inform that perspective. In fact, and as the Claimant notes above, GTH expressly states that it relied on [Redacted] advice, explaining in its Memorial:

    GTH had also received advice from the Canadian law firm, [Redacted], [footnote omitted] regarding the structural requirements to comply with the O&C Rules. [Footnote

omitted.] On the basis of this information, the Investment Committee decided that GTH should continue its negotiations with Globalive and enter into an agreement to provide the LOC necessary to participate in the Auction. [Footnote omitted.]¹³²

20. Moreover, in describing the due diligence efforts that GTH took concerning the structure of GTH’s investment in Canada, the Claimant cites the paragraph in Mr. Dobbie’s Witness Statement in which he describes working with [Redacted] to ensure the investment would comply with the O&C Rules.¹³³

* * *

21. As the collective effect and weight of the statements above show, the Claimant and Mr. Dobbie placed GTH’s state of mind in issue with respect to the legal advice that it received by contenting that the legal advice helped to form GTH’s expectations when entering the Canadian market. The Claimant identifies the subject matter of that legal advice in an attempt to rely on it in support of GTH’s claims that it conducted due diligence prior to investing in Wind Mobile and therefore had a legitimate expectation that GTH could (a) sell Wind Mobile to an Incumbent after five years or transfer the spectrum licenses after five years; and (b) acquire voting control over Wind Mobile. Rather than treating the legal advice merely as a fact, the Claimant implies that the content of the advice supports its allegations that Canada contravened Article II(2)(a). As such, the Claimant put the substance of its legal advice at issue and thereby waived any privilege that may have applied to the requested documents.
22. Canada must therefore be able to test whether the Claimant’s expectations were in fact supported by the advice of [Redacted] and whether the advice reflected reasonable due diligence by the Claimant. It would be unfair to permit the Claimant to selectively refer to some aspects of privileged communications in support of its substantive case, while refraining from disclosing those communications.

1. The Tribunal notes at the outset that neither Party objects to the admissibility of Canada’s submission on subject-matter waiver of legal advice although it is raised belatedly.¹³⁴ However, GTH disputes the merits of Canada’s submission. Both Parties have briefed their respective positions in the Schedule above.
2. GTH’s submission that questions of subject-matter waiver raised by Canada are governed by international law cannot be accepted as it would be inconsistent with the Tribunal’s previously reached decision on the law applicable to legal privilege.¹³⁵ Consistent with its earlier determination, the potential waiver of subject matter privilege shall be decided in accordance with Canadian law, being the law applicable the legal privilege that initially attached to the legal advice provided by Canadian counsel [Redacted] in relation to Canadian law. The Tribunal saw no submissions that the event triggering Canada’s claim of waiver of privilege, namely GTH’s reference to that advice in its claim documents, has occurred under a different law.
3. GTH argues that, whether under international law or under Canadian law, legal privilege over [Redacted] advice cannot be deemed to have been waived as GTH only referenced in its case documents the fact that a communication with [Redacted] had occurred, but did not disclose a portion of that advice.¹³⁶ Canada submits that GTH waived attorney-client privilege, and must produce without redactions all documents containing and discussing advice provided to GTH in relation to whether GTH: (a) would be permitted to transfer Wind Mobile’s spectrum licences to an Incumbent after the five-year rollout period; and (b) would be able to obtain full voting control over Wind Mobile following an anticipated relaxation in the ownership and control rules.
4. The Tribunal accepts Canada’s definition of subject-matter privilege under Canadian law (also known as deemed waiver) based on the authorities that Canada submitted. In brief, such a waiver is deemed to occur when a party puts its knowledge of the legal advice that it received into issue and attempts to rely on privileged communications in support of its case. The rationale for the deemed waiver is that such party cannot affirmatively use privileged

4. communications in its claim while simultaneously preventing the other party from examining those communications.¹³⁷ The reference in the IBA Rules to “affirmative use” is important in differentiating the situation from one of inadvertent disclosure of privileged communications as a result of an error. There is no suggestion in this arbitration that GTH’s reference to the [Redacted] legal advice in the Memorial on the Merits and Damages or in Mr Dobbie’s witness statement is the result of an error or inadvertence. Accordingly, the precautions in asserting the non-waiver of privilege to which GTH points are irrelevant.¹³⁸ Waiver is implied where the privileged material is affirmatively used to support the claim.
5. Gallo v Canada,¹³⁹ previously relied upon by this Tribunal in PO 5, is a case in point. In that case, Canada had referred in its Statement of Defence to legal advice provided to the government and confirmed that the government acted on that advice.¹⁴⁰ Claimant submitted that Canada had, “thus, waived any privilege and Claimant should be entitled to the disclosure of the legal advice ( ... ) in part to test whether the Ministry of the Environment was indeed fulfilling its duty to consult.”¹⁴¹ The learned tribunal in Gallo decided that Canada had implicitly waived privilege because it had made the existence of the legal advice part of its defence.¹⁴² This Tribunal finds significant similarity with GTH’s case herein considered, which makes the Gallo order a persuasive precedent.
6. After reviewing the evidence cited by Canada in this Schedule,¹⁴³ the Tribunal finds that GTH has affirmatively used in its Memorial and its in-house counsel’s evidence the legal advice provided by [Redacted], thereby going

6. beyond a mere reference to the fact that privileged advice was obtained from counsel. As Canada submits,¹⁴⁴ GTH relied in its evidence and pleadings on the [Redacted] legal advice in support of its claims that it conducted due diligence prior to investing in Wind Mobile and therefore had a legitimate expectation that GTH could (a) sell Wind Mobile to an Incumbent after five years or transfer the spectrum licenses after five years being the rollout period, and (b) acquire voting control over Wind Mobile following an anticipated relaxation in the ownership and control rules. By affirmatively using the [Redacted] advice in such a way, GTH did not merely refer to its existence as a fact, but implied, as Canada observes, that the content of the advice supports its allegations that Canada contravened the applicable law. As such, GTH is deemed to have waived its entitlement to assert privilege on the relevant documents.
7. As a result, Canada must be permitted to examine and to rely on the legal advice provided by [Redacted] for the purpose of its defense. GTH is ordered to disclose the relevant documents forthwith and is permitted to redact terms of the advice that do not relate to items (a) and (b) in the preceding paragraph as long as the redactions do not create a misleading impression of the unredacted parts of the advice.