Claimant states that BA Desarrollos LLC is a US investor protected under the Treaty simply because it is a limited liability company incorporated under the laws of the State of Delaware that, as Claimant argues, conducts its business activities within the US (Memorial on the Merits, ¶¶ 123-124).

Thus, the requested documents are relevant and material to determine whether BA Desarrollos LLC has “substantial business activities in the territory of” the US, in light of Article I(2) of the Argentina-US BIT.

Arbitral tribunals have considered that in order to determine whether a company has substantial activities in a certain State a tribunal must analyze the nature of the company’s business and the corporate functions conducted by such company in the State. IC Power Ltd. y Kenon Holdings Ltd. v. Republic of Peru, ICSID Case No. ARB/19/19, Award 3 October de 2023 ¶ 225.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request of Arbitration, ¶¶ 1, 29. Memorial on the Merits, ¶¶ 52, 123.

The documents requested are already in Argentina’s possession.

The Amended and Restated Limited Liability Company Agreement of BA Desarrollos was submitted with BA Desarrollos’s Request for Arbitration (C-3) on 23 June 2023. The Limited Liability Company Agreement of BA

Desarrollos dated 3 October 2017 was submitted with the Memorial (C-121) on 29 March 2024.

Moreover, Argentina has had both requested documents in its possession since before the initiation of these proceedings. As explained in the Memorial, in May 2023, Argentina’s Public Prosecutor sent a notice to Fideicomiso BAP’s trustee, requesting inter alia corporate information about BA Desarrollos. Fideicomiso BAP’s trustee promptly complied with the request and submitted BA Desarrollos’s limited liability agreement and amendment. See Memorial on the Merits, para 115; Witness Statement of [Redacted] para 83.

Claimant states that BA Desarrollos LLC is a US investor protected under the Treaty simply because it is a limited liability company incorporated under the laws of the State of Delaware that, as Claimant argues, conducts its business activities within the US (Memorial on the Merits, ¶¶ 123-124).

Thus, the requested documents are relevant and material to determine whether BA Desarrollos LLC has “substantial business activities in the territory of” the US, in light of Article I(2) of the Argentina-US BIT.

Arbitral tribunals have considered that for a company to have substantial business activities, “[i]t will usually have a

board of directors, board minutes, a continuous physical presence and a bank account.” Pac Rim Cayman LLC v. The Republic of El Salvador, ICSID Case No. ARB/09/12, Decision on the Respondent’s Jurisdictional Objections, 1 June 2012, ¶ 4.72.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request of Arbitration, ¶¶ 1, 29; Memorial on the Merits, ¶¶ 123-124.

As explained in the Memorial, BA Desarrollos is a limited liability company (LLC) incorporated under the laws of Delaware. Unlike corporations, Delaware LLCs do not have a board of directors and LLCs therefore do not prepare or issue any board minutes. Thus, BA Desarrollos does not issue board minutes.

In addition, since BA Desarrollos is not a corporation, BA Desarrollos does not have “shareholders” and it does not issue “shareholders’ meeting minutes”. The owners of an LLC under Delaware law are called “Members”. Delaware law does not require LLCs or their Members to hold annual meetings nor are such meetings common where the LLC is owned by a single Member, as is the case of BA Desarrollos.¹³

See Memorial on the Merits, paras 50-52, and fn 91, Witness Statement of [Redacted] paras 14-16. See also 6 Delaware Code (excerpt), C-119, §§ 18-101(10) and (13), 18-301, 18-402; Real Estate Law Corporation, “Member-Managed Vs. Manager-Managed LLCs”, C-120, p 002.

The requested documents are relevant and material to determine whether BA Desarrollos LLC has “substantial business activities in the territory of” the US, in light of Article I(2) of the Argentina-US BIT.

Financial statements are documents that provide information on the economic activities of the company, which include explanatory notes from management together with details of the company’s annual accounts that allow to identify the amount of the company’s assets, liabilities, and shareholders’ equity, its income statement and statement of cash flow, among other relevant information. Financial statements must be audited by the respective government agencies and accountants to ensure accuracy and for tax, financing, or investing purposes.

Arbitral tribunals have considered that financial statements are relevant evidence to determine if a company has substantial activities in a State. Littop Enterprises Limited, Bridgemont Ventures Limited and Bordo Management Limited v. Ukraine, SCC Case No. V 2015/092, Final Award, 4 February 2021, ¶¶ 632, 634.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request of Arbitration, ¶¶ 1, 29; Memorial on the Merits, ¶¶ 123-124.

BA Desarrollos disagrees with the assertions made by Argentina to justify its request, as well as the timeframe requested.

Nevertheless, BA Desarrollos agrees to voluntarily produce its financial statements for the years available, [Redacted]. The financial statements are not audited given that BA Desarrollos is a privately-owned company.

Claimant states that BA Desarrollos LLC is a US investor protected under the Treaty simply because it is a limited liability company incorporated under the laws of the State of Delaware that, as Claimant argues, conducts its business activities within the US (Memorial on the Merits, ¶¶ 123-124).

Thus, the requested documents are relevant and material to determine whether BA Desarrollos LLC has “substantial business activities in the territory of” the US, in light of Article I(2) of the Argentina-US BIT.

Arbitral tribunals have considered that the payment of taxes is a relevant element to assess the existence of substantial activities in the territory of a certain State. See

Littop Enterprises Limited, Bridgemont Ventures Limited and Bordo Management Limited v. Ukraine, SCC Case No. V 2015/092, Final Award, 4 February 2021, ¶ 617.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request of Arbitration, ¶¶ 1, 27-29; Memorial on the Merits, ¶¶ 123-124.

BA Desarrollos disagrees with the assertions made by Argentina to justify its request, as well as the timeframe requested.

Nevertheless, BA Desarrollos agrees to voluntarily produce its US corporate income tax returns and proof of Delaware franchise tax payments from [Redacted].

BA Desarrollos further notes that, as explained in the Memorial, BA Desarrollos is managed by EMS Capital—a limited partnership constituted in Delaware with its principal office in New York. EMS Capital is empowered “to do anything and everything it deems necessary or appropriate to carry on the business and purposes of [BA Desarrollos].” See Limited Liability Company Agreement of BA Desarrollos LLC, 3 October 2017, C-121, Art 4; Amended and Restated Limited Liability Company Agreement of BA Desarrollos LLC, [Redacted], C-3, Art 5. As BA Desarrollos has explained, EMS Capital provides the back-office capabilities for BA Desarrollos, including by employing staff who carry out business activities for BA Desarrollos. Therefore, BA Desarrollos does not directly pay “social insurance mandatory payments (for the staff employed).” See Memorial on the Merits, paras 50, 52, 124, and fn 91; Witness Statement of [Redacted], paras 14-19.

The Tribunal also acknowledges that Claimant states [Redacted] that it is not in possession of proof of social security mandatory payments, as these are made by EMS Capital pursuant to Section 4 of the Limited Liability Company Agreement (C-121).

The Tribunal issues no further orders in this regard at this stage.

Claimant states that BA Desarrollos LLC is a US investor protected under the Treaty simply because it is a limited liability company incorporated under the laws of the State of Delaware that, as Claimant argues, conducts its business activities within the US (Memorial on the Merits, ¶¶ 123-124).

Thus, the requested documents are relevant and material to determine whether BA Desarrollos LLC has “substantial business activities in the territory of” the US, in light of Article I(2) of the Argentina-US BIT.

The requested documents are a common source of records reflecting substantial activities in the US, such as payments received by or paid to customers/clients, suppliers and contractors, salary payments to payroll personnel, tax payments, shareholder contributions, cash receipts from bank loans, transfers to third parties, etc.

Arbitral tribunals have considered the existence of bank accounts to be relevant to assess the existence of substantial activities in a State: “a holding company has substantive business operations in its State of incorporation as long as it

conducts core corporate functions, rents office spaces, has full-time locally-based employees and bank accounts there.” IC Power Ltd. y Kenon Holdings Ltd. v. Republic of Peru, ICSID Case No. ARB/19/19, Award, 3 October de 2023, ¶ 225.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request of Arbitration, ¶¶ 1, 29; Memorial on the Merits, ¶¶ 123-124.

BA Desarrollos partially objects to this request.

(a) Notwithstanding BA Desarrollos’s disagreement with the assertions made by Argentina to justify its request, including the dates relevant to establishing substantial business activities under Article I(2) of the Treaty, BA Desarrollos agrees to voluntarily produce documents that are sufficient to identify BA Desarrollos’s bank account in the US, namely a certificate from [Redacted] identifying the bank account held by BA Desarrollos in the United States.

(b) BA Desarrollos objects to Argentina’s request to produce all of its bank account statements. Argentina’s request is excessively broad, irrelevant to this case and immaterial to its outcome (Articles 3(3)(a), 9(2)(a) of the IBA Rules on the Taking of Evidence in International Arbitration (IBA Rules)). To establish that BA Desarrollos has substantial business activities in the US, it is unnecessary to disclose all of the individual payments made by BA Desarrollos.

In any event, Argentina’s request is duplicative with Request 3, as BA Desarrollos’s financial statements, which BA Desarrollos is agreeing to voluntarily produce, will show the information requested by Argentina (namely the amounts going in and out of the company). It should therefore also be denied on the basis of Article 9(2)(g) of the IBA Rules.

The Tribunal takes note of Claimant’s agreement to produce a certificate from [Redacted] identifying the bank account held by BA Desarrollos in the United States. Claimant shall produce such document no later than 9 May 2024, in accordance with Annex B to Procedural Order No. 1.

As to the bank statements between 3 October 2017 and 23 June 2023, the Tribunal considers that the request is narrow and specific, and that the requested Documents appear to be prima facie relevant and material to evaluate BA Desarrollos’ business activity in the United States. Therefore, Claimant shall find and produce any Documents reponsive to such order before 9 May 2024, in accordance with Annex B to Procedural Order No. 1.

the State of Delaware that, as Claimant argues, conducts its business activities within the US (Memorial on the Merits, ¶¶ 123-124).

Thus, the requested documents are relevant and material to determine whether BA Desarrollos LLC has “substantial business activities in the territory of” the US, in light of Article I(2) of the Argentina-US BIT.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request for Arbitration, ¶¶ 1, 27-29; Memorial on the Merits, ¶¶ 123-124.

BA Desarrollos objects to this request.

Any assets owned by BA Desarrollos would be reflected in BA Desarrollos’s financial statements, which BA Desarrollos is voluntarily agreeing to produce. See Response to Document Request 3.

In any event, the requested documents are irrelevant to the case and immaterial to its outcome (Article 9(2)(a) of the IBA Rules). Argentina cites to no caselaw to support its assertion that the registration of assets in the US such as real estate properties, vehicles and “inventory” is relevant for establishing that BA Desarrollos has “substantial business activities in the territory of” the US. As explained by the tribunal in 9REN Holding v Spain, “[t]he test of substantial business activities must take its colour from the nature of the business.”¹⁴ In this case, BA Desarrollos was constituted to develop real estate projects in Argentina. See Memorial on the Merits, paras 50-54. As BA Desarrollos has explained, it has taken all of the major business decisions on the development of the

Claimant states that BA Desarrollos LLC is a US investor protected under the Treaty simply because it is a limited liability company incorporated under the laws of the State of Delaware that, as Claimant argues, conducts its business activities within the US (Memorial on the Merits, ¶¶ 123-124).

Thus, the requested documents are relevant and material to determine whether BA Desarrollos LLC has “substantial business activities in the territory of” the US, in light of Article I(2) of the Argentina-US BIT.

Arbitral tribunals have considered that “a holding company has substantive business operations in its State of incorporation as long as it conducts core corporate functions, rents office spaces, has full-time locally-based employees and bank accounts there.” IC Power Ltd. y Kenon Holdings Ltd. v. Republic of Peru, ICSID Case No. ARB/19/19, Award, 3 October de 2023, ¶ 225; see also Littop Enterprises Limited, Bridgemont Ventures Limited and Bordo Management Limited v. Ukraine, SCC Case No. V 2015/092, Final Award, 4 February 2021, ¶ 630.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request of Arbitration, ¶¶ 1, 29; Memorial on the Merits, ¶¶ 123-124.

Thus, the requested documents are relevant and material to determine whether BA Desarrollos LLC has “substantial business activities in the territory of” the US, in light of Article I(2) of the Argentina-US BIT.

Indeed, payroll is one of the major expenses for most businesses and is generally deductible from income tax lowering the company’s taxable income.

Arbitral tribunals have considered that “a holding company has substantive business operations in its State of incorporation as long as it conducts core corporate functions, rents office spaces, has full-time locally-based employees and bank accounts there.” IC Power Ltd. y Kenon Holdings Ltd. v. Republic of Peru, ICSID Case No. ARB/19/19, Award, 3 October de 2023, ¶ 225; see also Littop Enterprises Limited, Bridgemont Ventures Limited and Bordo Management Limited v. Ukraine, SCC Case No. V 2015/092, Final Award, 4 February 2021, ¶ 630.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request of Arbitration, ¶¶ 1, 29; Memorial on the Merits, ¶¶ 123-124.

As explained in the Memorial and above, the requested documents do not exist as BA Desarrollos is managed by EMS Capital and, in that capacity, EMS Capital hires employees who undertake BA Desarrollos’s business activities. See Memorial on the Merits, paras 50, 52, 124, and fn 91; Witness Statement of [Redacted], paras 14-19.

In addition, Argentina requests that BA Desarrollos provide documents sufficient to identify BA Desarrollos’s payments of “any other amounts in Delaware between the date of incorporation of BA Desarrollos LLC (3 October 2017) and the date of the filing of the Request for Arbitration (inclusive).” Such a request is, on its face, excessively broad and fails to identify “a narrow and specific category of documents,” and should therefore be rejected. Also, it is not clear why payments made in Delaware would be relevant or

The Tribunal takes note of Claimant’s statement that there are no Documents related to the hiring of staff since BA Desarrollos does not hire employees directly.

Additionally, the Tribunal acknowledges that Claimant has agreed to produce the invoices issued in Delaware and the Documents related to the Delaware franchise tax. Claimant shall produce such documents no later than 9 May 2024, in accordance with Annex B to Procedural Order No. 1.

The Tribunal issues no further orders in this regard at this stage.

The requested documents are relevant and material to determine whether BA Desarrollos LLC has “substantial business activities in the territory of” the US, in light of Article I(2) of the Argentina-US BIT.

Arbitral tribunals have considered that “a holding company has substantive business operations in its State of incorporation as long as it conducts core corporate functions, rents office spaces, has full-time locally-based employees and bank accounts there.” IC Power Ltd. y Kenon Holdings Ltd. v. Republic of Peru, ICSID Case No. ARB/19/19, Award, 3 October de 2023, ¶ 225; see also Littop Enterprises

Limited, Bridgemont Ventures Limited and Bordo Management Limited v. Ukraine, SCC Case No. V 2015/092, Final Award, 4 February 2021, ¶ 630.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request of Arbitration, ¶¶ 1, 29; Memorial on the Merits, ¶¶ 52, 123.

The requested documents are relevant and material to determine whether BA Desarrollos LLC has “substantial business activities in the territory of” the US, in light of Article I(2) of the Argentina-US BIT.

Arbitral tribunals have considered that evidence of expenditure in office utilities and related expenses is relevant to determine if a company has substantial activities in a certain State. Aris Mining Corporation (formerly known as GCM Mining Corp. and Gran Colombia Gold Corp.) v. Republic of Colombia, ICSID Case No. ARB/18/23,

Decision on the Bifurcated Jurisdictional Issue, 23 November 2020, ¶ 139.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request of Arbitration, ¶¶ 1, 29; Memorial on the Merits, ¶¶ 52, 123.

Thus, the requested documents are relevant and material to determine whether BA Desarrollos LLC has “substantial business activities in the territory of” the US, in light of Article I(2) of the Argentina-US BIT.

Arbitral tribunals have considered that evidence of purchase of goods and services connected with the core business purpose of a company is relevant to determine if there are substantial activities in a certain State. Aris Mining Corporation (formerly known as GCM Mining Corp. and Gran Colombia Gold Corp.) v. Republic of Colombia, ICSID Case No. ARB/18/23, Decision on the Bifurcated Jurisdictional Issue, 23 November 2020, ¶ 139.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request of Arbitration, ¶¶ 1, 29; Memorial on the Merits, ¶¶ 123-124.

BA Desarrollos disagrees with the assertions made by Argentina to justify its request, as well as the timeframe requested.

Nevertheless, BA Desarrollos agrees to voluntarily produce the services contracts it has entered into.

The requested documents are relevant and material to determine whether BA Desarrollos LLC has “substantial business activities in the territory of” the US, in light of Article I(2) of the Argentina-US BIT. Indeed, the requested documents are relevant and material to determine what activities, if any, BA Desarrollos LLC’s directors conduct in the US.

Arbitral tribunals have considered that “a holding company has substantive business operations in its State of incorporation as long as it conducts core corporate functions, rents office spaces, has full-time locally-based employees and bank accounts there.” IC Power Ltd. Y Kenon Holdings Ltd. V. Republic of Peru, ICSID Case No. ARB/19/19, Award, 3 October de 2023, ¶ 225; see also Littop Enterprises Limited, Bridgemont Ventures Limited and Bordo Management Limited v. Ukraine, SCC Case No. V 2015/092, Final award, 4 February 2021, ¶ 630.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request of Arbitration, ¶¶ 1, 29; Memorial on the Merits, ¶¶ 52, 123.

The requested documents are relevant and material to determine whether BA Desarrollos LLC has “substantial business activities in the territory of” the US, in light of Article I(2) of the Argentina-US BIT.

Arbitral tribunals have considered that “a holding company has substantive business operations in its State of incorporation as long as it conducts core corporate functions, rents office spaces, has full-time locally-based employees and bank accounts there.” IC Power Ltd. Y Kenon Holdings Ltd. V. Republic of Peru, ICSID Case No. ARB/19/19, Award, 3 October de 2023, ¶ 225; see also Littop Enterprises Limited, Bridgemont Ventures Limited and Bordo Management Limited v. Ukraine, SCC Case No. V 2015/092, Final award, 4 February 2021, ¶ 630.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request of Arbitration, ¶¶ 1, 29; Memorial on the Merits, ¶¶ 52, 123.

The Tribunal takes note of Claimant’s statement that there are no Documents related to Request 13 since BA Desarrollos does not hire employees directly.

The Tribunal issues no further orders in this regard at this stage.

The requested documents are relevant and material in light of the “control” element of Article I(2) of the Argentina-US BIT.

[Redacted] (one of the entities in the so-called EMS Group) constituted BA Desarrollos LLC, a limited liability company incorporated under the laws of Delaware to act as the special purpose vehicle for the Catalina’s Norte II project (see Memorial on the Merits, ¶ 52). In [Redacted] all of [Redacted] membership interests in BA Desarrollos seem to have been assigned to [Redacted] (see Memorial on the Merits, fn. 94).

Claimant refers to the so-called EMS Group (see Witness Statement of [Redacted], ¶¶ 14, 17), which is not known to be a shareholder, and implies that it would be part of the corporate chain of BA Desarrollos. Also, Mr. Safra, an Italian and Brazilian national according to Claimant (Memorial on the Merits, fn. 92), seems to be the ultimate owner of the so-called EMS Group (see Witness Statement of [Redacted], ¶ 20).

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request for Arbitration, ¶¶ 1, 27-29; Memorial on the Merits, ¶¶ 52, 123-124, fns. 92, 94; Witness Statement of [Redacted], ¶ 20.

BA Desarrollos objects to this request.

The request is irrelevant to the case and immaterial to its outcome (Article 9(2)(a) of the IBA Rules).

As BA Desarrollos has explained, BA Desarrollos was owned by [Redacted], an entity incorporated in the Cayman Island from October 2017 [Redacted]. As of [Redacted], BA Desarrollos is owned by [Redacted], an entity incorporated in the British Virgin Islands. Neither entity is a US national.¹⁵

As BA Desarrollos has also explained, BA Desarrollos is ultimately owned by Mr. Safra, an Italian and Brazilian national. See Memorial on the Merits, para 51, fn 92;

Claimant argues that EMS Opportunity Ltd. [Redacted] (Memorial on the Merits, [Redacted]). It appears that at the time of its incorporation [Redacted] EMS Opportunity Ltd (Amended and Restated [Redacted] Agreement [Redacted], first recital, [Redacted]), a company incorporated in [Redacted].

The requested documents are relevant and material to know the place of incorporation and the registration details of EMS Opportunity Ltd. [Redacted], in light of the [Redacted] Argentina-US BIT.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the

potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request for Arbitration, ¶¶ 1, 27-29; Memorial on the Merits, [Redacted]; Witness Statement of [Redacted], ¶ 18.

BA Desarrollos objects to this request.

The request is irrelevant to the case and immaterial to its outcome (Article 9(2)(a) of the IBA Rules). It is not in dispute that at the time [Redacted] was EMS Opportunity Ltd. See [Redacted] Preamble, first paragraph. It is also not in dispute that EMS Opportunity is incorporated in the [Redacted]. See Witness Statement of [Redacted], para 14, fn 4.

Furthermore, as noted above, it is not in dispute that [Redacted] EMS Opportunity [Redacted]. Preamble, second paragraph. Accordingly, the nationality of EMS Opportunity, while undisputed, is also irrelevant and immaterial.

Claimant argues that BA Desarrollos LLC was incorporated in Delaware (Request for Arbitration, ¶¶ 1, 27-29) and that it was constituted by [Redacted] (Memorial on the Merits, ¶ 52); however, it has not submitted documents regarding its chain of ownership or its managers.

The requested documents are relevant and material to know the partner(s), member(s), shareholder(s) or owner(s) of [Redacted] as the apparent original sole and immediate shareholder (“member”) of BA Desarrollos LLC, in light of the “control” element of Article I(2) of the Argentina-US BIT.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request for Arbitration, ¶¶ 1, 29; Memorial on the Merits, ¶¶ 52, 123-124.

BA Desarrollos objects to this request.

The request is irrelevant to the case and immaterial to its outcome (Article 9(2)(a) of the IBA Rules). The identity of [Redacted] shareholders is irrelevant and immaterial since, as of [Redacted], [Redacted] no longer owns BA Desarrollos.

In any event, as BA Desarrollos has already explained, there is no entity in its chain of ownership that is a US national. BA Desarrollos refers to its Response to Request 14.

Therefore, the Tribunal decides that this request should be reduced to:

“Documents sufficient to identify [Redacted] shareholding structure, including but not limited to share registers and details of the stakeholders of [Redacted] and the number of shares held by each of them, as well as all BA Desarrollos LLC shares owned by [Redacted], if any, between the date of incorporation of BA Desarrollos LLC (3 October 2017) and [Redacted] (inclusive).”

The Tribunal considers that the (reduced) request is prima facie relevant and material to the outcome of the case. Therefore, Claimant shall find and produce any Document responsive to such order before 9 May 2024, in accordance with Annex B to Procedural Order No. 1.

The requested documents are relevant and material in light of [Redacted] the Argentina-US BIT, considering that Claimant asserts that EMS Opportunity Ltd., [Redacted] (Memorial on the Merits, [Redacted]), and that EMS Opportunity Ltd [Redacted] (Amended and Restated [Redacted] Agreement [Redacted], first recital, [Redacted]).

Financial statements are documents that provide information on the economic activities of the company, which include explanatory notes from management together with details of the company’s annual accounts that allow to identify the amount of the company’s assets, liabilities, and

shareholders’ equity, its income statement and statement of cash flow, among other relevant information. Financial statements must be audited by the respective government agencies and accountants to ensure accuracy and for tax, financing, or investing purposes.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request for Arbitration, ¶¶ 1, 27-29; Memorial on the Merits, [Redacted].

BA Desarrollos objects to this request.

The request is excessively broad as EMS Opportunity [Redacted] since [Redacted] (Article 3(3)(a) of the IBA Rules). Argentina argues that the financial statements of EMS Opportunity would show the “assets”, “liabilities” and “cash flow[s]” of EMS Opportunity and that these documents [Redacted]. All of these elements are irrelevant and immaterial to establishing whether [Redacted] (Article 9(2)(a) of the IBA Rules).

The Tribunal does not consider EMS Opportunity’s financial statements after [Redacted] to be relevant, as EMS Opportunity [Redacted] thereafter. Therefore, the Tribunal resolves that this request should be reduced to:

“Financial statements of EMS Opportunity Ltd. for all fiscal years between [Redacted] and [Redacted] (inclusive).”

The Tribunal considers that the (reduced) request is prima facie relevant and material to the outcome of the case. Therefore, Claimant shall find and produce any Documents responsive to such order before 9 May 2024, in accordance with Annex B to Procedural Order No. 1.

The requested documents are relevant and material to determine whether BA Desarrollos LLC conducts “substantial business activities in the territory of” the US, in light of Article I(2) of the Argentina-US BIT.

Claimant argues that BA Desarrollos LLC was incorporated in Delaware (Request for Arbitration, ¶¶ 1, 27-29); however, it has not submitted documents regarding its chain of ownership or its managers.

The requested documents are relevant and material to understand the circumstances and terms under which the alleged original sole shareholder (“member”) assigned 100% of the membership to the alleged current sole shareholder (“member”) of BA Desarrollos LLC.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request for Arbitration, ¶¶ 1, 27-29; Memorial on the Merits, fn. 94; Amended and Restated Limited Liability Company Agreement of BA Desarrollos LLC dated [Redacted], second recital (C-003).

BA Desarrollos objects to this request.

First, Argentina has a copy of the Assignment Agreement dated [Redacted] in its possession (Article 3(3)(c) of the IBA Rules). As BA Desarrollos explained in the Memorial, in May 2023, Argentina’s Public Prosecutor sent a notice to Fideicomiso BAP’s trustee, requesting inter alia corporate information about BA Desarrollos. Fideicomiso BAP’s trustee promptly complied with the request and submitted

the Assignment Agreement that Argentina now requests. See Memorial on the Merits, para 115; Witness Statement of [Redacted], para 83.

Second, and in any event, the Assignment Agreement is irrelevant to this case and immaterial to its outcome (Article 9(2)(a) of the IBA Rules). Contrary to Argentina’s assertions, the Assignment Agreement transferring ownership in BA Desarrollos [Redacted] has no bearing on whether BA Desarrollos has substantial business activities in the US.

The Tribunal considers that the request is narrow and specific, and that the requested Documents appear to be prima facie relevant and material to the outcome of the case.

The Tribunal also takes note of Claimant’s statement that the Documents responding to this request were furnished to Argentina’s Federal Public Prosecutor in response to a request dated May 2023. However, on 25 April 2024, Argentina notified that its attempts to obtain the documents from the Federal Public Prosecutor had been unsuccessful.

The Tribunal recognizes the particularity of the situation, where the requested Documents are in the possession of an office of Respondent, but Respondent has no access to it. However, the Tribunal does not consider that the production of these Documents imposes an unreasonable burden on Claimant to the extent it has produced them before.

Therefore, and in view of the fact that Respondent has been unable to obtain the requested Documents, Claimant shall produce them before 9 May 2024, in accordance with Annex B to Procedural Order No. 1.

Claimant argues that [Redacted] (Request for Arbitration, ¶¶ 1, 27-29); however, it has not submitted documents regarding [Redacted].

It appears that, [Redacted] EMS Continuation S.A. has been [Redacted] a company incorporated in the [Redacted] and also registered in [Redacted] as a company domiciled abroad.

The requested documents are relevant and material to know the place of incorporation and the registration details of EMS Continuation S.A., [Redacted].

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request for Arbitration, ¶¶ 1, 27-29; Memorial on the Merits, [Redacted]; Witness Statement of [Redacted], fn. 4.

BA Desarrollos objects to this request.

The request is irrelevant to the case and immaterial to its outcome (Article 9(2)(a) of the IBA Rules). Argentina argues that it needs this information to ascertain whether [Redacted].

[Redacted] is irrelevant [Redacted].

In any event, it is not in dispute that EMS Continuation is incorporated in [Redacted]. See Witness Statement of [Redacted], para 14, fn 4. It is also not in dispute [Redacted] EMS Continuation is [Redacted].

Claimant argues that BA Desarrollos LLC was incorporated in Delaware (Request for Arbitration, ¶¶ 1, 27-29); however, it has not submitted documents regarding its chain of ownership or its managers.

It appears that, [Redacted] has been the direct and sole shareholder (“member”) of BA Desarrollos LLC. (Amended and Restated Limited Liability Company Agreement of BA Desarrollos LLC [Redacted], second recital, C-003), a company incorporated in the British Virgin Islands and also registered in Brazil as a company domiciled abroad.

The requested documents are relevant and material to know the partner(s), member(s), shareholder(s) or owner(s) of [Redacted], as the apparent current sole and immediate shareholder (“member”) of BA Desarrollos LLC, in light of the “control” element of Article I(2) of the Argentina-US BIT.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request for Arbitration, ¶¶ 1, 27-29; Memorial on the Merits, fn. 94.

BA Desarrollos objects to this request which is duplicative with Request 14. BA Desarrollos refers to its Response to Request 14.

For the avoidance of doubt, BA Desarrollos confirms that [Redacted] is the sole Member of BA Desarrollos and that no entity in its chain of ownership is a US national.

BA Desarrollos at that time. Therefore, the Tribunal resolves that this request should be reduced to:

“Documents sufficient to show the shareholding structure of [Redacted] including but not limited to share registers and details of the stakeholders of [Redacted] and the number of shares held by each of them, as well as all BA Desarrollos LLC shares owned by [Redacted], if any, between [Redacted] and the date of the filing of the Request for Arbitration (inclusive).”

The Tribunal considers that the (reduced) request is prima facie relevant and material to the outcome of the case. Therefore, Claimant shall find and produce any Document responsive to such order before 9 May 2024, in accordance with Annex B to Procedural Order No. 1.

The requested documents are relevant and material in light of the [Redacted] Argentina-US BIT, considering that it seems that EMS Continuation S.A. [Redacted] a company incorporated in the [Redacted] and also registered in [Redacted] as a company domiciled abroad.

Financial statements are documents that provide information on the economic activities of the company,

which include explanatory notes from management together with details of the company’s annual accounts that allow to identify the amount of the company’s assets, liabilities, and shareholders’ equity, its income statement and statement of cash flow, among other relevant information. Financial statements must be audited by the respective government agencies and accountants to ensure accuracy and for tax, financing, or investing purposes.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request for Arbitration, ¶¶ 1, 27-29; Memorial on the Merits, [Redacted].

BA Desarrollos objects to this request.

The request is excessively broad as EMS Continuation has [Redacted] (Article 3(3)(a) of the IBA Rules). Argentina argues that the financial statements of EMS Continuation would show the “assets”, “liabilities” and “cash flow[s]” of EMS Continuation and that these documents “are relevant and material [Redacted]. All of these elements are irrelevant and immaterial [Redacted] (Article 9(2)(a) of the IBA Rules).

The Tribunal does not consider EMS Continuation’s financial statements prior [Redacted] to be relevant, as it [Redacted]. Therefore, the Tribunal resolves that this request should be reduced to:

“Financial statements of EMS Continuation S.A. for all fiscal years between [Redacted] the date of the filing of the Request for Arbitration (inclusive).”

The requested document is relevant and material to determine whether BA Desarrollos LLC has “substantial business activities in the territory of” the US and is controlled by nationals of a third country, in light of Article 1(2) of the Argentina-US BIT.

The requested document is germane to the role of EMS Capital LP in connection with BA Desarrollos LLC. Claimant indicates that EMS Capital LP is the manager of BA Desarrollos (Request for Arbitration, ¶ 8; Amended and Restated Limited Liability Company Agreement of BA Desarrollos LLC [Redacted], second recital (C-003); Memorial on the Merits, ¶ 52), and that BA Desarrollos “conducts its business activities” purportedly “via its manager, EMS Capital” (Memorial on the Merits, ¶ 124).

Argentina confirms that it does not possess, have custody over, or control the requested document, save for any potentially responsive document submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request for Arbitration, ¶¶ 1, 8, 27-29; Memorial on the Merits, ¶¶ 52, 124.

BA Desarrollos objects to this request.

BA Desarrollos has already established that EMS Capital is constituted in Delaware and has its principal place of business in New York. See EMS Capital LP, SEC Form 13F, 2022, C-118, p 003.

The requested documents are relevant and material to determine whether BA Desarrollos LLC has “substantial business activities in the territory of” the US and is controlled by nationals of a third country, in light of Article 1(2) of the Argentina-US BIT.

The requested documents are germane to the role of EMS Capital LP in connection with BA Desarrollos LLC. Claimant indicates that EMS Capital LP is the manager of BA Desarrollos (Request for Arbitration, ¶ 8; Amended and Restated Limited Liability Company Agreement of BA Desarrollos LLC [Redacted], second recital (C-003); Memorial on the Merits, ¶ 52), and that BA Desarrollos “conducts its business activities” purportedly “via its manager, EMS Capital” (Memorial on the Merits, ¶ 124).

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request for Arbitration, ¶¶ 1, 8, 27-29; Memorial on the Merits, ¶¶ 52, 124.

BA Desarrollos objects to this request.

It irrelevant to the case and immaterial to its outcome (Article 9(2)(a) of the IBA Rules). The constituting instrument of EMS Capital is irrelevant as to the scope of activities that EMS Capital undertakes for BA Desarrollos. Rather, as BA Desarrollos has explained, BA Desarrollos’s Company Agreement and amendment set out in great detail the broad scope of activities that EMS Capital undertakes for BA Desarrollos. See Limited Liability Company Agreement of BA Desarrollos LLC, 3 October 2017, C-121, Art 4; Amended and Restated Limited Liability Company Agreement of BA Desarrollos LLC, [Redacted], C-3, Art 5.

Moreover, since EMS Capital is a limited partnership and not a corporation, it does not have an incorporation agreement.

The Tribunal considers that the request is narrow and specific, and that the requested Documents appear to be prima facie relevant and material to the outcome of the case. The Tribunal recognizes Claimant’s statement that EMS Capital does not have an incorporation agreement. Therefore, Claimant shall find and produce any other similar Document that responds to this request before 9 May 2024, in accordance with Annex B to Procedural Order No. 1.

The Tribunal does not consider the “schedules, supplements or other writings containing provisions as to the conduct of the business and affairs of EMS Capital LP” to be relevant and material for the purposes of establishing

jurisdiction. Therefore, the Tribunal resolves that this request should be reduced to:

“Incorporation Agreement of EMS Capital LP or similar instruments under which the company was constituted".

The Tribunal considers that the (reduced) request is prima facie relevant and material to the outcome of the case. Therefore, Claimant shall find and produce any Document responsive to such order before 9 May 2024, in accordance with Annex B to Procedural Order No. 1.

The requested documents are relevant and material to determine whether BA Desarrollos LLC has “substantial business activities in the territory of” the US and is controlled by nationals of a third country, in light of Article 1(2) of the Argentina-US BIT.

The requested documents are germane to the role of EMS Capital LP in connection with BA Desarrollos LLC. Claimant indicates that EMS Capital LP is the manager of BA Desarrollos (Request for Arbitration, ¶ 8; Amended and Restated Limited Liability Company Agreement of BA Desarrollos LLC [Redacted], second recital (C-003); Memorial on the Merits, ¶ 52), and that BA Desarrollos “conducts its business activities” purportedly “via its manager, EMS Capital” (Memorial on the Merits, ¶ 124).

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the

potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request for Arbitration, ¶¶ 1, 8, 27-29; Memorial on the Merits, ¶¶ 52, 124.

BA Desarrollos objects to this request.

It is irrelevant to this case and immaterial to its outcome (Article 9(2)(a) of the IBA Rules).

The identity of the “shareholders” of EMS Capital is irrelevant to establishing whether EMS Capital is a US entity and to establish the activities that EMS Capital performs in the US. As BA Desarrollos has explained, the scope of the activities that EMS Capital performs for BA Desarrollos are set out in BA Desarrollos’s Company Agreement and amended agreement. See Limited Liability Company Agreement of BA Desarrollos LLC, 3 October 2017, C-121, Art 4; Amended and Restated Limited Liability Company Agreement of BA Desarrollos LLC, [Redacted], C-3, Art 5. See also Witness Statement of [Redacted] paras 1, 8, 17-19.

Finally, BA Desarrollos notes that EMS Capital is a limited partnership, not a corporation. It therefore does not have shareholders or a shareholding structure. For the avoidance of doubt, BA Desarrollos confirms that Mr. Safra is the ultimate owner of EMS Capital.

The Tribunal takes note of Claimant’s statement that EMS Capital is a limited partnership and, accordingly, has neither shareholders nor a shareholding structure. In light of the foregoing, the Tribunal resolves that this request should be reduced to:

“Documents sufficient to identify EMS Capital LP's ownership structure between the date of incorporation of BA Desarrollos (3 October 2017) and the date of the filing of the Request for Arbitration.”

The Tribunal considers that the (reduced) request is specific and that the underlying Documents appear to be

The requested documents are relevant and material to determine whether BA Desarrollos LLC has “substantial business activities in the territory of” the US and is controlled by nationals of a third country, in light of Article 1(2) of the Argentina-US BIT.

The requested documents are germane to the role of EMS Capital LP in connection with BA Desarrollos LLC. Claimant indicates that EMS Capital LP is the manager of BA Desarrollos (Request for Arbitration, ¶ 8; Amended and Restated Limited Liability Company Agreement of BA Desarrollos LLC [Redacted], second recital (C-003); Memorial on the Merits, ¶ 52), and that BA Desarrollos “conducts its business activities” purportedly “via its manager, EMS Capital” (Memorial on the Merits, ¶ 124).

Financial statements are documents that provide information on the economic activities of the company, which include explanatory notes from management together with details of the company’s annual accounts that allow to identify the amount of the company’s assets, liabilities, and shareholders’ equity, its income statement and statement of cash flow, among other relevant information. Financial statements must be audited by the respective government agencies and accountants to ensure accuracy and for tax, financing, or investing purposes.

Arbitral tribunals have considered that financial statements are relevant evidence to determine if a company has

substantial activities in a State. Littop Enterprises Limited, Bridgemont Ventures Limited and Bordo Management Limited v. Ukraine, SCC Case No. V 2015/092, Final Award, 4 February 2021, ¶¶ 632, 634.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request for Arbitration, ¶¶ 1, 27-29; Memorial on the Merits, ¶ 52.

BA Desarrollos objects to this request.

It is irrelevant to the case and immaterial to its outcome (Article 9(2)(a) of the IBA Rules).

BA Desarrollos has established that EMS Capital is the manager of BA Desarrollos. BA Desarrollos’s Company Agreement and amended agreement set out in great detail the broad scope of activities that EMS Capital undertakes for BA Desarrollos. See Limited Liability Company Agreement of BA Desarrollos LLC, 3 October 2017, C-121, Art 4; Amended and Restated Limited Liability Company Agreement of BA Desarrollos LLC, [Redacted], C-3, Art 5. See also Witness Statement of [Redacted], paras 1, 8, 17-19.

Moreover, Argentina’s request is excessively broad. As BA Desarrollos has explained, EMS Capital acts as the investment manager for a large base of assets owned by the EMS Group. See Memorial on the Merits, paras 50-51; Witness Statement of [Redacted], paras 1, 14. See also EMS Capital LP, “Real Estate Portfolio”, June 2022, C-117, pp 002-004; EMS Capital, SEC Form 13F, 2022, C-118, pp 006-007. It is irrelevant and excessively broad to produce information about the entire base of assets managed by EMS Capital. See Section 16.3.1 of Procedural Order No. 1 and Article 3(3)(a)(ii) of the IBA Rules.

BA Desarrollos is voluntarily producing its own financial statements. See Response to Request 3.

The Tribunal considers that the request is narrow and specific, and that the requested Documents appear to be prima facie relevant and material to the outcome of the case. Therefore, Claimant shall find and produce any Document responsive to the request no later than 9 May 2024, in accordance with Annex B to Procedural Order No. 1.

Claimant argues that BA Desarrollos LLC was incorporated in Delaware (Request for Arbitration, ¶¶ 1, 27-29); however, it has not submitted documents regarding its chain of ownership or its managers.

The requested document is relevant and material considering that EMS Capital LP (the purported manager of BA Desarrollos LLC, see Memorial on the Merits, ¶¶ 52, 124) seems to be controlled by EMS Capital Holding Inc. (see, e.g., https://www.sec.gov/Archives/edgar/data/1763731/000110465920122469/tm2035066-2_sc13da.htm), in light of the “control” element of Article 1(2) of the Argentina-US BIT.

Argentina confirms that it does not possess, have custody over, or control the requested document, save for any potentially responsive document submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request for Arbitration, ¶¶ 1, 29; Memorial on the Merits, ¶¶ 52, 123-124.

BA Desarrollos objects to this request.

BA Desarrollos confirms that EMS Capital Holding Inc. is the general partner of EMS Capital and that EMS Capital Holding Inc. is incorporated in Delaware. This is confirmed in the SEC filing that Argentina cites to in its justification for the request, so no additional documents are warranted.¹⁶

Claimant argues that BA Desarrollos LLC was incorporated in Delaware (Request for Arbitration, ¶¶ 1, 27-29); however, it has not submitted documents regarding its chain of ownership or its managers.

The requested documents are relevant and material considering that EMS Capital LP (the purported manager of BA Desarrollos LLC, see Memorial on the Merits, ¶¶ 52, 124) seems to be controlled by EMS Capital Holding Inc. (see, e.g., https://www.sec.gov/Archives/edgar/data/1763731/000110

465920122469/tm2035066-2_sc13da.htm), in light of the “control” element of Article 1(2) of the Argentina-US BIT.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request for Arbitration, ¶¶ 1, 29; Memorial on the Merits, ¶¶ 52, 123-124.

BA Desarrollos objects to this request.

This request is duplicative with Request 26. BA Desarrollos refers to its Response to that Request.

Claimant argues that BA Desarrollos LLC was incorporated in Delaware (Request for Arbitration, ¶¶ 1, 27-29); however, it has not submitted documents regarding its chain of ownership or its managers.

The requested documents are relevant and material considering that EMS Capital LP (the purported manager of BA Desarrollos LLC, see Memorial on the Merits, ¶¶ 52,

124) seems to be controlled by EMS Capital Holding Inc. (see, e.g., https://www.sec.gov/Archives/edgar/data/1763731/000110465920122469/tm2035066-2_sc13da.htm), in light of the “control” element of Article 1(2) of the Argentina-US BIT.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request for Arbitration, ¶¶ 1, 29; Memorial on the Merits, ¶¶ 52, 123-124.

29); however, it has not submitted documents regarding its chain of ownership or its managers.

Claimant also argues that “Mr. Safra is a national of Brazil and Italy” but it has not provided any evidence to support that assertion (Memorial on the Merits, fn. 92).

The requested documents are relevant and material considering that Mr. Edmond Safra seems to be the president of EMS Capital LP (the purported manager of BA Desarrollos LLC, see Memorial on the Merits, ¶¶ 52, 124) and the ultimate owner of BA Desarrollos LLC (Witness Statement of [Redacted], ¶¶ 7, 20), in light of the “control” element of Article 1(2) of the Argentina-US BIT.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Memorial on the Merits, fn. 92; Witness Statement of [Redacted] ¶¶ 7, 20.

BA Desarrollos objects to this request.

Argentina complains that BA Desarrollos has not provided evidence of Mr. Safra’s Brazilian and Italian nationality, but Argentina already possesses evidence of all of this and in particular a copy of Mr. Safra’s passport and nationality information. Mr. Safra provided this to Argentina when it requested a [Redacted]. See Article 3(3)(c)(i) of the IBA Rules.

In addition, Mr. Safra’s personal tax returns or his tax residence are not relevant to the case or material to its outcome, and Argentina has not established otherwise. See Article 9(2)(a) of the IBA Rules. Also, Argentina’s request for Mr. Safra’s personal tax returns makes no mention of any jurisdiction; it thus not only irrelevant but also overly broad. See Section 16.3.1 of Procedural Order No. 1 and Article 3(3)(a)(ii) of the IBA Rules.

The Tribunal does not consider Mr. Safra’s tax returns to be relevant and material for the purposes of establishing jurisdiction. Therefore, the Tribunal resolves that this request should be reduced to:

“Documents sufficient to show the nationality and residence of Mr. Edmond Safra between the date of incorporation of BA Desarrollos LLC (3 October 2017) and the date of the filing of the Request for Arbitration (inclusive), including but not limited to copies of the passports used by Mr. Edmond Safra.”

The Tribunal considers that the (reduced) request is prima facie relevant and material to the outcome of the case. Therefore, Claimant shall find and produce any Document responsive to such order before 9 May 2024, in accordance with Annex B to Procedural Order No. 1.

The requested documents are relevant and material considering that Mr. Edmond Safra seems to be the president of EMS Capital LP (the purported manager of BA Desarrollos LLC, see Memorial on the Merits, ¶¶ 52, 124) and the ultimate owner of BA Desarrollos LLC (Witness Statement of [Redacted] ¶¶ 7, 20), in light of the “control” element of Article 1(2) of the Argentina-US BIT.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Memorial on the Merits, fn. 92; Witness Statement of [Redacted] ¶¶ 7, 20.

BA Desarrollos objects to this request.

It is irrelevant to this case and immaterial to its outcome (Article 9(2)(a) of the IBA Rules) and is excessively broad (Procedural Order No. 1, Section 16.3.1. See also Article 3(3)(a)(ii) of the IBA Rules).

It is not in dispute that Mr. Safra is: (i) the President of EMS Capital LP (see, e.g., C-3, p 006); and (ii) the ultimate owner of BA Desarrollos.

It is also not in dispute that in his capacity as President of EMS Capital, Mr. Safra, along with the staff at EMS Capital, undertakes the business of BA Desarrollos. See Witness Statement of [Redacted], paras 37, 61.

Moreover, Argentina requests that BA Desarrollos produce correspondence exchanged “between Mr. Edmond Safra and Claimant or any of the direct or indirect partner(s), member(s), or shareholder(s) or owner(s) of Claimant” in relation to “the operation or management of Claimant or any of the direct or indirect partner(s), member(s), or shareholder(s) or owner(s) of Claimant” during a six-year period. Such an indefinite request is, on its face, excessively broad and fails to identify “a narrow and specific category of documents.”

Claimant states that “BA Desarrollos holds a protected investment in Argentina under the Treaty represented, inter alia, by the following ... Claimant’s equity and debt contributions in Fideicomiso BAP ... Claimant’s interest and rights in Fideicomiso BAP and in Fideicomiso BAP’s assets (including the Plots), which derive from the Claimant’s contributions” (Request for arbitration, ¶ 31 (a)(b)).

The Trust Agreement of Fideicomiso BAP states that the trustee must provide a quarterly report to the beneficiary (BA Desarrollos LLC) on funds received by Fideicomiso BAP and their allocation (Trust Agreement, Section 10.5, (C-023)).

The requested documents are relevant and material to know the effective crediting and inflow of the funds in the trust, which are relevant to the discussion on ratione materia jurisdiction of this Tribunal.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request for Arbitration, ¶¶ 30-31; Memorial on the Merits, ¶¶ 53-54.

BA Desarrollos objects to this request.

It is out of scope, as well as irrelevant to this case and immaterial to its outcome (Article 9(2)(a) of the IBA Rules).

For the reasons explained in the introduction above, any requests relating to the Tribunal’s jurisdiction ratione materiae fall outside the scope of the limited document production phase on preliminary objections authorized by the Tribunal and for that reason alone should be denied.

In any event, BA Desarrollos has submitted Fideicomiso BAP’s audited financial statements [Redacted] (C-190 to C-194), Fideicomiso BAP’s ledger information [Redacted] (C-195 to C-199), the Loan Agreements between Fideicomiso BAP and BA Desarrollos (C-32, C-32A and C-32B), BA Desarrollos’s Participation Certificates in Fideicomiso BAP (C-33bis) and BA Desarrollos’s Trust Debt Titles in Fideicomiso BAP (C-62). This information is amply sufficient to identify the funds received by Fideicomiso BAP “and their allocation.”

Claimant’s contributions” (Request for Arbitration, ¶ 31 (a)(b)).

The Trust Agreement of Fideicomiso BAP states that the trustee is responsible for keeping the accounts and presenting the financial statements of the trust on an annual basis (Trust Agreement, Sections 10.5 and 10.6, C-023).

The requested documents are relevant to know the effective crediting and inflow of the funds in the trust, which are relevant to the discussion on ratione materia jurisdiction of this Tribunal.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request for Arbitration, ¶¶ 30-31; Memorial on the Merits, ¶ 126.

The requested documents are relevant and material in light of the fork-in-the-road clause contained in Article VII of the Treaty, considering the different claims or requests pursued in connection with Claimant’s alleged investment.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request for Arbitration, ¶¶ 15, 17-19, fns. 39(d) and 48, Memorial on the Merits, ¶¶ 9, 12, 76-77, 82, 106, 108, 113, 128, 131, 152 and 183; Witness Statement of [Redacted], ¶¶ 42-43, 74, 76 and 79.

BA Desarrollos objects to this request.

For the reasons explained in the introduction above, this request relating to Argentina’s potential fork-in-the road objection falls outside the scope of the limited document production phase on preliminary objections authorized by the Tribunal and for that reason alone should be denied.

In any event, Argentina’s request is irrelevant to this case and immaterial to its outcome (Article 9(2)(a) of the IBA Rules). “Documents related to the preparation and submission” of the administrative claim filed by Fideicomiso BAP (C-46) or the administrative requests and communications (C-38, C-45, C-55, C-56, C-57, C-58, C-59 and C-60) are irrelevant to determining whether the fork-in-the-road provision contained in Article VII of the Treaty has been triggered. At most, only the submissions themselves, which are already in the record, could be relevant in making that determination.

Moreover, Argentina requests a wide range of documents relating to the preparation of nine submissions and fails to identify a specific time range or even a minimal description of the documents it is requesting. Such a request is excessively broad and fails to identify “a narrow and specific category of documents.” See Procedural Order No. 1, Section 16.3.1. See also Article 3(3)(a)(ii) of the IBA Rules.

Finally, given that the request relates to the preparation of formal submissions made by Fideicomiso BAP before administrative authorities domestically as well as internal documents concerning “the status of such claims,” the requested documents were created with input from local counsel and would therefore be privileged (Articles 9(2)(b) and 9(4)(a) of the IBA Rules).

The requested documents are relevant in light of the fork-in-the-road clause contained in Article VII of the Treaty.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

BA Desarrollos objects to this request.

For the reasons explained in the introduction above, this request relating to Argentina’s potential fork-in-the road objection falls outside the scope of the limited document production phase on preliminary objections authorized by the Tribunal and on that ground alone should be denied.

Moreover, “[d]ocuments related to the preparation and analysis of potential administrative or judicial claims” (emphasis added) are irrelevant to determining whether the fork-in-the-road provision contained in Article VII of the Treaty has been triggered. Accordingly, this request is irrelevant to this case and immaterial to its outcome. See Article 9(2)(a) of the IBA Rules.

Furthermore, Argentina’s request fails to identify a specific time range or even a minimal description of the documents it is requesting. Such a request is excessively broad and fails to identify “a narrow and specific category of documents.” See Procedural Order No. 1, Section 16.3.1. See also Article 3(3)(a)(ii) of the IBA Rules.

Finally, given that the requested documents relate to the preparation and analysis of potential claims before Argentine administrative or judicial authorities, the requested documents were created with input from local counsel and would therefore be privileged (Articles 9(2)(b) and 9(4)(a) of the IBA Rules).

Documents sufficient to show that Claimant has complied with Argentine laws and regulations, between 2016 and the date of the filing of the request for Arbitration (inclusive), in particular:

• All affidavits submitted by Fideicomiso BAP before the Inspección General Justicia (“IGJ”), including but not limited to the affidavits required by Articles 511 and 518 of IGJ’s General Resolution No. 7/15, amended by IGJ’s General Resolution No. 9/15;
• Certificates of registration of all trust agreements (contratos de fideicomiso) and their amendments, and termination and/or substitution of trustees, filed by Fideicomiso BAP;
• The relevant pre-qualifying reports;
• Minutes of the management and assembly bodies submitted before the IGJ; and
• Certificates of registration of all trust agreements (contratos de fideicomiso) and their amendments, and termination and/or substitution of trustees, filed by Fideicomiso BAP, pursuant to Article 1669 of the Argentine Civil and Commercial Code, which imposes a general rule of registration for trust agreements, Article 36.4.e. of Annex “A” of the IGJ’s General Resolution No. 7/15, as amended by IGJ’s General Resolution No. 9/15, and IGJ’s Resolution No. 33/2020, which imposes the registration requirement to all trust agreements whose trustee is domiciled in the City of Buenos Aires.

This request includes provisory and permanent registration certificates of each of the above-mentioned documents.

The requested documents are relevant and material to know whether Claimant made an investment in accordance with Argentine laws and regulations, which is relevant to the discussion on ratione materia jurisdiction of this Tribunal. See Phoenix Action Ltd v. Czech Republic, ICSID Case No. ARB/06/5, Award, 15 April 2009, ¶ 114.

Other than the Inscripción de Contrato de Fideicomiso Urgente filed with the IGJ and such documents filed with Argentine authorities that Claimant may point to in response to this document request, Argentina does not possess, have custody over, or control the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request for Arbitration; ¶ 31, Memorial on the Merits ¶ 54; Witness Statement of [Redacted] ¶ 24.

BA Desarrollos objects to this request on various grounds.

First, for the reasons explained in the introduction above, this request falls outside the scope of the limited document production phase on the denial of benefits objection authorized by the Tribunal, and on that ground alone should be denied.

Second, the request is excessively broad. It covers documents from the time before BA Desarrollos was even constituted and until 2023 without identifying why such a broad timeframe would be relevant. Procedural Order No. 1, Section 16.3.1. See also Article 3(3)(a)(ii) of the IBA Rules.

Third, the requested documents are in Argentina’s possession, custody and control. See Article 3(3)(c)(i) of the IBA Rules. Argentina requests documents that were submitted before, filed with, or issued by the Inspección General Justicia (IGJ). The IGJ is an Argentine federal authority, which reports to the Ministry of Justice.

The requested documents are relevant and material to assess whether Claimant’s alleged investment meets the requirements of the so-called Salini test.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request for Arbitration, ¶ 9.

For the reasons explained in the introduction above, this request falls outside the scope of the limited document production phase on the denial of benefits objection authorized by the Tribunal, and on that ground alone should be denied.

In addition, Argentina’s request is excessively broad, irrelevant to this case and immaterial to its outcome. See Articles 3(3)(a)(ii) and Article 9(2)(a) of the IBA Rules; Procedural Order No. 1, Section 16.3.1.

Argentina requests a broad range of BA Desarrollos’s internal “documents regarding the extent of participation in each auction, scope of the bids to be made, and the reasons underlying the abstentions and absences in some of the auctions,” including in relation to auctions that BA Desarrollos did not win and that are not part of BA Desarrollos’s claim in the arbitration (i.e., Public Auction No. 33/17 (Plot 8), Public Auction No. 34/17 (Plot 7), Public Auction No. 32/17 (Plots 5 and 6), and Public Action 392-0045-SPU19 (Plot 1C)). The request is overly broad and fails to identify “a narrow and specific category of documents.” See Procedural Order No. 1, Section 16.3.1. See also Article 3(3)(a)(ii) of the IBA Rules.

Moreover, it is not in dispute that BA Desarrollos participated in and was the successful winner of the Auctions that awarded BA Desarrollos the Plots. Therefore, the documents in relation to BA Desarrollos’s participation in the Auctions, or any other auction for other plots in the Catalinas Norte II area, is entirely irrelevant and immaterial to the dispute.

Finally, BA Desarrollos notes that Argentina has not even explained why the Salini test applies and even if it did apply, what element of the test purportedly underpins Argentina’s request. Such a vaguely justified request provides a further reason why it must be denied. See Procedural Order No. 1, Section 16.3.2; Article 3(3)(b) of the IBA Rules.

The requested documents are relevant and material to assess whether Claimant’s alleged investment meets the requirements of the so-called Salini test.

Argentina confirms that it does not possess, have custody over, or control any of the requested documents, save for the potentially responsive documents submitted with the Memorial on the Merits that Claimant may identify.

References: see, e.g., Request for Arbitration, ¶ 3; Witness Statement of [Redacted] ¶ 10, fn. 3.

BA Desarrollos objects to this request.

For the reasons explained in the introduction above, this request falls outside the scope of the limited document production phase on the denial of benefits objection authorized by the Tribunal and for this reason alone should be denied.

In addition, Argentina’s request is excessively broad, irrelevant to this case and immaterial to its outcome. See

Articles 3(3)(a) and 9(2)(a) of the IBA Rules; Procedural Order No. 1, Section 16.3.1.

Argentina requests “documents” allegedly prepared by any number of entities regarding the alleged transfer of rights in Fideicomiso BAP. Argentina’s request fails to identify “a narrow and specific category of documents.” See Procedural Order No. 1, Section 16.3.1. See also Article 3(3)(a)(ii) of the IBA Rules.

Moreover, Argentina’s request is irrelevant and immaterial to the dispute. BA Desarrollos confirms that it continues to own Fideicomiso BAP and that neither entity has assigned rights to the Plots.

Finally, BA Desarrollos notes that Argentina has not even explained why the Salini test applies and even if it did apply, what element of the test purportedly underpins Argentina’s request. Such a vaguely justified request provides a further reason why it must be denied. See Procedural Order No. 1, Section 16.3.2; Article 3(3)(b) of the IBA Rules.