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INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES

Legacy Vulcan, LLC

v.

United Mexican States

(ICSID Case No. ARB/19/1)

PROCEDURAL ORDER NO. 4

Members of the Tribunal
Prof. Albert Jan van den Berg, President of the Tribunal
Prof. Sergio Puig, Arbitrator
Prof. Guido Santiago Tawil, Arbitrator

Secretary of the Tribunal
Ms. Sara Marzal

Assistant to the Tribunal
Ms. Emily Hay

8 January 2021

I. INTRODUCTION

1. On 4 January 2021, in accordance with Annex A of Procedural Order No. 1, as amended by the Parties, the Claimant submitted to the Tribunal its requests for the production of documents in the form of a Redfern Schedule (including the Respondent's objections to the requests and the Claimant's replies to such objections), together with a pdf file containing the Claimant's instructions and definitions relating to its requests, and the Respondent's “general objections” referenced in the Redfern Schedule.

2. This Order and the annexed Redfern Schedule contain the Tribunal's decisions on the Claimant's requests for the production of documents.

II. APPLICABLE RULES AND DISCUSSION

3. As reflected in Section 1 of Procedural Order No. 1, these proceedings are conducted in accordance with the ICSID Arbitration Rules in force as of 10 April 2006, except to the extent that they are modified by Section B of NAFTA Chapter Eleven.

4. With regard to the ICSID Arbitration Rules, Rule 34(2) and (3) provides:

(2) The Tribunal may, if it deems it necessary at any stage of the proceeding:

(a) call upon the parties to produce documents, witnesses and experts; and

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(3) The parties shall cooperate with the Tribunal in the production of the evidence and in the other measures provided for in paragraph (2). The Tribunal shall take formal note of the failure of a party to comply with its obligations under this paragraph and of any reasons given for such failure.

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5. Section B of Chapter 11 of the NAFTA, which concerns the procedural framework governing an arbitration between a NAFTA State and an Investor of another NAFTA State, does not provide any rules that modify the ICSID Arbitration Rules' general provisions on the production of documents.

6. Thus, in the absence of a specific procedural framework for the production of documents, the Tribunal, in consultation with the Parties, determined the procedural rules applicable to the production of documents, which are set forth in Section 15 of Procedural Order No. 1. The Tribunal has adhered to these rules in deciding upon the Claimant's document requests.

7. In addition, Section 15.5 of Procedural Order No. 1 requires that each document request comply with the requisites established in Article 3(3) of the IBA Rules on the Taking of Evidence in International Arbitration dated 29 May 2010 (“IBA Rules”) and Section 15.10 requires that objections to each document request be justified in Article 9(2) of the IBA Rules. The Tribunal has therefore also taken into account the referred IBA Rules in deciding upon the Claimant's document requests.

8. Finally, where appropriate, the Tribunal has weighed the Claimant's document requests against the legitimate interests of the Respondent, including any unreasonable burden likely to be caused to the Respondent, taking into account all the surrounding circumstances, including the breadth and relevance of the requests.

9. The Tribunal's decision on each document request is stated in the completed version of the Claimant's Redfern Schedule, which is attached to this Order as Annex A.

10. The Tribunal notes that, in setting forth its decisions on the document requests, it has not explicitly addressed every argument raised by the Claimant in its submission of 4 January 2021; doing would be unnecessary and indeed repetitive. Instead, the Tribunal's statements in the Redfern Schedule address only what the Tribunal views as the most important reasons for its decisions. Yet, the Tribunal emphasizes that in reaching these decisions, it has considered all of the Parties' arguments and objections.

III. DECISION

11. On the basis of the above, the Tribunal hereby decides as follows:

1. The annexed Redfern Schedule, including the Tribunal's decisions set forth in the last column, form an integral part of this Order;
2. In accordance with Section 15.16 and Annex A of Procedural Order No. 1, as amended by the Parties, and subject to paragraph (c) below, the Respondent shall produce all documents for which no objection has been sustained by 25 January 2021;
3. In relation to documents responsive to request no. 3, also by 25 January 2021, the Respondent shall produce a privilege log identifying any documents or redactions in respect of which a claim of privilege is asserted and the legal basis for such claim. In the event that the Claimant disputes a claim of privilege identified in the privilege log, it may apply to the Tribunal by 1 February 2021, following which the Tribunal shall issue further directions; and
4. Documents shall be produced in accordance with Sections 15.17 and 15.18 of Procedural Order No. 1, and, as provided in Section 15.19 of Procedural Order No. 1, documents so disclosed shall not be considered to be part of the record unless and until one of the Parties subsequently includes them as exhibits to a written submission or as an annex to a witness statement or expert report.

On behalf of the Tribunal,

[Signed]

Prof. Albert Jan van den Berg
President of the Tribunal
Date: 8 January 2021

Redfern Schedule

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²¹ Contrary to Respondent's assertions in Section II.A.1. of its "objections,” the definitions applicable to Claimant's requests do not render the requests overbroad or unspecific. The definition of the term "Document(s)" is exactly the same as the definition of that term in the IBA Rules and merely adds illustrative examples of what is covered by that definition. The definitions of “including" and "and/or" are meant to clarify what is meant by those terms in the requests. ↩

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²² Artículo 110. Conforme a lo dispuesto por el artículo 113 de la Ley General, como información reservada podrá clasificarse aquella cuya publicación: ↩
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VI. Obstruya las actividades de verificación, inspección y auditoría relativas al cumplimiento de las leyes o afecte la recaudación de contribuciones;
VII. Obstruya la prevención o persecución de los delitos;
[...]
VIII. La que contenga las opiniones, recomendaciones o puntos de vista que formen parte del proceso deliberativo de los Servidores Públicos, hasta en tanto no sea adoptada la decisión definitiva, la cual deberá estar documentada;
[...]
X. Afecte los derechos del debido proceso;
XI. Vulnere la conducción de los Expedientes judiciales o de los procedimientos administrativos seguidos en forma de juicio, en tanto no hayan causado estado;

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