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Cyrus Capital Partners, L.P. and Contrarian Capital Management, LLC v. United Mexican
States
(ICSID Case No. ARB/23/33)
Procedural Order No. 4 – Annex A
INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT
DISPUTES
ICSID Case No. ARB/23/33
CYRUS CAPITAL PARTNERS, L.P.
CONTRARIAN CAPITAL MANAGEMENT, LLC
Claimants
vs.
THE UNITED MEXICAN STATES
Respondent
CLAIMANTS' REQUEST FOR PRODUCTION OF DOCUMENTS
September 12, 2024
Jonathan C. Poling
Stephen S. Kho
Katherine P. Padgett
Lide Paterno
Hannes Sigurgeirsson
Shannon A. Jackenthal
Akin Gump Strauss Hauer & Feld LLP
Robert S. Strauss Tower
2001 K Street, N.W.
Washington, DC 20006
Attorneys for Claimants
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Pursuant to Section 15 of Procedural Order No. 1, dated April 3, 2024, Claimants request that Respondent provide copies of the documents or categories of documents described below.
Claimants have limited their requests to specific documents or categories of documents that Claimants reasonably believe to exist, and Claimants have narrowly tailored their requests with respect to both subject matter and the time period in which Claimants believe that the documents were generated or obtained. Moreover, as explained further in the attached Redfern Schedule, these documents are relevant and material to the outcome of the case in that they directly relate to the issues raised by the parties in their written submissions and/or accompanying evidentiary materials. Finally, Claimants believe the requested documents are in Respondent's possession, custody, or control (and are not in Claimants' possession, custody, or control).
All documents should be produced together with any attachments, enclosures or annexes. The documents requested should be produced in the manner in which they are maintained. In accordance with Article 15.9 of PO1, please submit responsive documents in electronic file format (PDF) and in searchable form (OCR), whenever possible. If the documents requested are stored electronically, Respondent may produce the electronic versions of such documents, but please maintain the original format of the document without removing or altering the document's “metadata.” The documents shall be submitted in their entirety, and, in the case of e-mail correspondence, with any attached files.
To the extent that documents already submitted in this arbitration fall within any of the requests, Claimants do not ask Respondent to produce them. Additionally, to the extent that documents are responsive to multiple requests, Claimants do not ask Respondent to produce the documents more than once.
Where not further specified, the documents should be produced from the relevant government agency of Respondent and shall include any documents prepared by officials, employees, representatives and/or agents of that agency, subdivision, or instrumentality, without regard to whether elected, appointed, or otherwise employed.
Unless specified otherwise, any capitalized terms not expressly defined in these Requests shall be intended as defined in the Claimants' Counter-Memorial on Jurisdiction.
"And" and "or" mean "and/or."
"Any" and "all” mean “all;"
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"Communications” means, without limitation, all formal or informal discussions, conversations, interviews, negotiations, meetings, telephone conversations, correspondence, inter-office or agency memoranda, email, or other forms of oral or written communication transmitted by email, telephone, WhatsApp, iMessage, telegram, or cloud-based messaging application or service.
“Document(s)” means a writing, communication, picture, drawing, program or data of any kind, whether recorded or maintained on paper or by electronic, audio, visual or any other means,¹ as well as all writings of any kind, whether in draft or final form, whether recorded on paper, electronic means, audio or visual recordings, or any other mechanical or electronic means of storing or recording information, including, but not limited to, all communications (including reports, memoranda, presentations, letters, and electronic correspondence (correspondence (both internal and external; both using corporate/official and personal email accounts) such as letters, faxes, emails, SMS messages, or other messages sent and/or received via any messaging system)), notes, meeting minutes, board resolutions, transcripts, talking points, pitch books, speeches, financial statements, proposals, diagrams, drawings, and charts.
"Including” means “including, but not limited to;"
"Judiciary” means the entirety of the judicial system of the Government of Mexico, including but not limited to: the Tenth Collegiate Court in Civil Matters of the First Circuit (Décimo Tribunal Colegiado en Materia Civil del Primer Circuito); the Third Civil Chamber of the Superior Court of Justice of Mexico City (Tercera Sala Civil del Tribunal Superior de Justicia de la Ciudad de México); the Judicial Discipline Committee of the Judiciary Council of Mexico City (Comisión de Disciplina Judicial del Consejo de la Judicatura de la Ciudad de México); and the Sixty-Third Civil Court of the Superior Court of Justice of Mexico City (Juzgado Sexagésimo Tercero de lo Civil del Tribunal Superior de Justicia de la Ciudad de México);
“Noteholders” means holders of the Notes issued by TV Azteca on August 9, 2017, including but not limited to Claimants in this proceeding and entities who held the Notes at any time since issuance;
“Records” means documentary materials, papers, books, photographs, writings, whether handwritten or electronic or computer-based information or data in any medium.
"The Trustee" means the Bank of New York Mellon.
¹ IBA Rules of Evidence at 7.
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1. Pursuant to §15 and Annex C of Procedural Order No. 1 (PO1) dated April 3, 2024, the Respondent presents its Objections to Claimants' Requests for Production of Documents submitted on September 12, 2024 (Requests).
2. The Requests do not comply with the provisions of ¶15.1 of PO1. In addition, they contravene the provisions of Articles 3(3) and 9 of the IBA Rules on the Taking of Evidence in International Arbitration (IBA Rules).
3. The majority of the Requests are clearly outside the scope of this jurisdictional phase. Section 14.2 of PO1 notes the parties' agreement and the Tribunal's decision to bifurcate the proceedings to address the Respondent's jurisdictional objections. Requests 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 17 and 18 are focused on the merits of the case and have no connection to the jurisdictional objections raised by Mexico.
4. The Requests are contrary to the purpose and language of the IBA Rules.
5. First, the Claimants have attempted to compare this stage of document production to the judicial process initiated in the courts of the United States for obtaining documents (“U.S. pre-trial Discovery practices").² The Claimants' requests constitute a "discovery" practice, similar to civil judicial proceedings under common law (“common law civil litigation procedures"). This arbitration is not a judicial process of such nature.
6. Second, the Requests are speculative since they are based on only the allegations of the Claimants themselves or of their witness. In fact, the Claimants have failed to quote a
² Tidewater Inc. et al. v. The Bolivarian Republic of Venezuela, ICSID Case No ARB/10/5, Procedural Order No. 1 on Production of Documents, ¶ 32, March 29, 2011 (“The Tribunal acknowledges that (absent the express decision of the parties) Common Law-style pre-trial discovery does not belong in international arbitration.”).
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single document to support their Requests. This is just a “fishing expedition” from the Claimants.
7. Third, §15.4 of PO1 establishes that the documents requested must be “relevant to the dispute and material to the outcome of the case.” The Requests simply do not meet this criterion.
8. Finally, the Respondent objects to the Requests because they are general, non-specific, unlimited, create an unreasonable burden for the Respondent and contain confidential or privileged information, reasons for which they are excluded from the production of documents pursuant to Article 9(2) of the IBA Rules.
9. The Respondent will now develop five general objections that apply to to the Claimants' Requests in addition to the specific objections to each Request.
10. Articles 3(3)(b) and 9(2)(a) of the IBA Rules set forth two standards that requests and decisions on production of documents must meet: they must be relevant to the case and material to its outcome.
11. Article 9.2(a) of the IBA Rules states that “[t]he Arbitral Tribunal shall, at the request of a Party or on its own motion exclude from evidence or production any Document, statement, oral testimony or inspection, in whole or in part, for any of the following reasons:(a) lack of sufficient relevance to the case or materiality to its outcome”.
12. In Glamis Gold v. United States of America, the Tribunal emphasized the need for a “substantial nexus to be articulated between the category of requested documents and the likely materiality of such documents to the outcome of the case”.³
³ Glamis Gold Ltd v. United States of America, UNCITRAL, Decision on Objections to Document Production, ¶ 28, July 20, 2005; see Nigel Blackaby et al., Redfern and Hunter on International Arbitration, p. 382 (6th ed. 2015) stating that the IBA Rules: "also enable [...] arbitral tribunals to deny document requests where, although the requested documents would generally be relevant, they consider that their production will not affect the outcome of the proceedings”).
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13. The Tribunal in Aguas del Tunari v. Bolvia refrained from ordering the production of certain documents during the jurisdictional phase, because said decision required a preliminary analysis of the merits of the case, which the parties, at that moment, had not yet presented. Although, the Claimants are using a large part of their facts to allege violations of due process before Mexican courts, they cannot expect the Tribunal to allow the production of documents related to their allegations, when not only it is not the appropriate procedural phase, but also since Mexico has not had the opportunity to comment on these events.
14. The Claimants have failed to demonstrate that their Requests are “relevant" to the case and "material" for the outcome of the jurisdictional objections raised by Mexico, which should not be interpreted as acceptance of any fact or argument regarding the merits of this case.
15. First. The Claimants have failed to explain how the Requests will help the Tribunal to determine that it has jurisdiction over the dispute, since these only deal with issues related to the merits of the case.
16. For example, in Requests 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 17 and 18, the Claimants argue, in essence, that the documents are relevant and material to the case since, allegedly, they will demonstrate that not being able to find assistance in the Mexican judicial system constitutes a violation of “Mexico's obligations under NAFTA to provide a minimum standard of treatment to U.S. investors”. It is clear that these Requests are related to the merits of the case, and, this is not the appropriate procedural moment to request them. In accordance
⁵ “By agreement of the Parties, the Tribunal has (i) bifurcated the proceeding and (ii) determined the Procedural Timetable in Annex B only for the phase of this arbitration addressing Respondent's jurisdictional objections. The Procedural Timetable for the merits phase (if necessary) will be determined in consultation with the Parties following the issuance of the Tribunal's Decision on Respondent's jurisdictional objections.”
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with §14.2 of PO1, and by agreement of the parties, this production of documents is exclusively on matters related to the jurisdiction of the Tribunal.⁵
17. Second. The Requests are ambiguous, speculative, invasive and lack any connection to the jurisdictional objections raised by the Respondent. The Claimants fail to establish a sufficiently substantial connection or nexus between the requested documents and the jurisdictional objections, referring only to speculation that would require the Tribunal to make considerations on the merits of the case prematurely, e.g. the determination of the alleged acts with the aim of favour TV Azteca.
1. Additionally, the reasoning and justifications of the Requests are based solely on the allegations of the Claimants, who fail to take into consideration that “there is an important distinction between requiring documents to be produced as evidence of some fact... and asking for disclosure to trawl through documents to see if they support the applicant's case.' Disclosure in international arbitration adopts the former approach over the latter”. ⁶
17. The Requests are speculative and lack a “nexus” with the Jurisdictional Objections raised by the Respondent, therefore, they are contrary to Article 9.2(a) of the IBA Rules.
18. For all of the above, Mexico objects to these Requests due to the lack of relevance to the case and materiality to its outcome.
2. Article 9(2)(c) of the IBA Rules establishes that: “The Arbitral Tribunal shall [...] exclude [the] production [of] any Document [due to]: unreasonable burden to produce the requested evidence."
⁵ "By agreement of the Parties, the Tribunal has (i) bifurcated the proceeding and (ii) determined the Procedural Timetable in Annex B only for the phase of this arbitration addressing Respondent's jurisdictional objections. The Procedural Timetable for the merits phase (if necessary) will be determined in consultation with the Parties following the issuance of the Tribunal's Decision on Respondent's jurisdictional objections.”
⁶ O'Malley, Nathan D. Rules of Evidence in International Arbitration: An Annotated Guide: Lloyd's Arbitration Law Library. Taylor and Francis, p. 39.
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19. In Waste Management II v. United Mexican States, the tribunal considered that the request to produce “copies of all the invoices issued in the period 1994-1998" was prima facie too burdensome, since it was likely to include a large number of documents, which all or most of them would not be in dispute as such.⁷
20. A similar conclusion was reached by the tribunal in Gallo v. Canada, which rejected and considered extremely onerous a request for the production of the documents received or sent to certain companies between October 2003 and 2004 regarding the investment project, without any other characteristics or additional description.⁸
21. The Claimant's Requests do not include sufficiently precise references, inter alia, on dates or date ranges; on the details about the authorities or administrative areas within these that have the information; on the authors, senders or recipients of the requested communications; on the type of documents requested; on the specificity of the topics adressed in the documents or communications or any other parameters that may allow the Respondent to carry out the research.
22. The Claimants do not even make an attempt to: i) detail the issues adressed in the "negotiating documents” or in the requested communications; ii) identify the public officials or individuals who supposedly prepared these documents and; iii) justifications that demostrate the reasons why theexcessively onerous searches must be carried out, and that also involve unreasonable workloads to locate communications from people who it is not even certain that continue to be part of the governments of Mexico, the United States or Canada.
23. Likewise, the Claimant assumes that the documents within the territory of Mexico are in some way under the power, custody or control of the Respondent. This is incorrect.
⁷ Waste Management, Inc v. United Mexican States, ICSID Case No ARB (AF)/00/3, Procedural Order Concerning Disclosure of Documents, ¶ 11, October 1, 2002.
⁸ Vito G Gallo v. Government of Canada, UNCITRAL, Procedural Order No 2 [Amended], February 10, 2009, ¶ 13. “No. 68: Documents received or sent to Notre/Enterprise/Gartner Lee/Golder Associates concerning the Project from October 2003 to 5 April 2004 The Arbitral Tribunal considers that the production of these documents would be extremely burdensome for Canada and that the documents, in any case, lack relevance."
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24. For example, in 2018, various structural changes occurred within the Ministry of Economy, therefore various officials —such as Mr. Smith Ramos— ceased to work in this agency.⁹ According to Mexican legislation, when a public servant leaves his position, he is obliged to submit an “Administrative Handover and Reception of Authority Act” in which he must develop a detailed report of the matters that were in his charge, and must transfer all information that had been generated, related to the activities carried out in accordance with his functions. Unfortunately, this was not the case for Mr. Smith. The Respondent has carried out an exhaustive search for Mr. Smith's Administrative Handover and Reception of Authority Act, however, the Respondent has been unable to locate the documents related to him in its records. Consequently, the Respondent is not in possession of this document.
25. Therefore, and according to the Claimants' Witness Statement, it is clear that this information is in their possession, and the Claimants have been able to review it.
26. Likewise, contrary to what the Claimants try to make the Tribunal believe in their justifications, the Respondent lacks extensive authority or “omnipotent power" to obtain information from any department, area or administrative unit of any governmental authority or entity. The Claimants fail to recognize the legal impossibility of the Respondent to force other governmental entities or branches of the government (e.g. judicial or legislative) to provide information when, to begin with, it is not even possible to determine if it exists.
27. To comply with these information searches, the Respondent would have to carry out a review of all files and information backups in possession of entities such as the Ministry of Economy, the Ministry of Foreign Affairs, the Federal Congress, and the TSJCDMX, all of which are only some entities that the Respondent assumes could be in possession of the required information. The Claimants ignore that each one of these entities and/or authorities have complex administrative structures in which hundreds of public officials work with excessive workloads. Also, the Claimants ignore the fact that some of these authorities are part of an independent branch of the federal government.
⁹ See Witness Statement of Mr. Smith Ramos, ¶1.
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28. Therefore, carrying out this task is practically impossible to accomplish. Based on the foregoing, the Respondent objects to these Requests pursuant to Article 9(2)(c) of the IBA Rules.
29. Article 3.3 of the IBA Rules establishes that each request for the production of documents must include a sufficiently detailed description of the documents requested. The Claimants have not met this requirement.
30. The purpose of this requirement is to avoid a “fishing expedition".¹⁰ This practice is not permitted in international arbitration, nor can it be used as a mechanism to “build” a case on the hopes of discovering facts unknown to the party which is requesting the documents. The tribunal in Libananco v. Turkey was emphatic about this:
"The Tribunal, like any other arbitral tribunal in a similar position, could not allow its process to be used as the cover for a mere fishing expedition launched in the hope of uncovering material to serve as the foundation for an argument [...]".¹¹
31. To prevent these practices, O'Malley points out that:
"[T]he presumption in arbitration is that a party will establish its case based largely (if not entirely) on the documents within its own possession. Thus, a wide-ranging discovery process that allows a party to substantiate a case by “discovering” the primary evidence to support its arguments is not compatible with this threshold concept. Indeed, it is more accurate to view disclosure under [IBA Rules] article 13.3 as a limited process aimed at filling gaps or providing assistance in covering important, but discreet, issues raised by the factual record, for which sufficient evidence has not been voluntarily supplied by the parties". ¹²
¹⁰ See 1999 IBA Working Party, & 2010 IBA Rules of Evidence Review Subcommittee & 2020 IBA Rules of Evidence Review Task Force, Commentary on the revised text of the 2020 IBA Rules on the Taking of Evidence in International Arbitration, January 2021, pp. 9-10. David Caron and Lee Caplan, The UNCITRAL Arbitration Rules: A Commentary, p. 567 (2013) OUP. (“[...] the tribunal should not accept non-specific requests or permit so-called “fishing expedition" by granting requests, for example, for "all possibly relevant material").
¹¹ Libananco Holdings Co. Limited v. Republic of Turkey, ICSID Case No. ARB/06/8), Decision on Preliminary Issues ¶70, June 23, 2008.
¹² Nathan D. O'Malley, Rules of Evidence in International Arbitration, (2nd ed. 2019), p. 39.
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32. Another author echoes O'Malley's observation, noting that the IBA Rules: “establish the principle [...] that the parties should produce the evidentiary documents on which they rely as the first stage". ¹³
33. In this regard, the Respondent objects to the Requests since they contravene the provisions of Article 3(3)(a)(ii) of the IBA Rules. The Requests shall be made with a sufficiently detailed description to be able to identify them; additionally, they shall be made in a concrete and specific manner, this is, by category of documents to demonstrate that they do exist. With very few exceptions, the Requests lack specificity and concreteness as they use general formulas. The following examples illustrate the lack of specificity of the Requests:
34. In Thunderbird v. United Mexican States, the tribunal interpreted the terms “narrow and specific" as “narrowly tailored", that is, reasonably limited in time and subject, in accordance with the nature of the claims and defenses raised in the case.¹⁴
¹³ Nigel Blackaby et al., Redfern and Hunter on International Arbitration, pp. 382 (6th ed. 2015).
¹⁴ International Thunderbird Gaming Corporation v. Estados Unidos Mexicanos, UNCITRAL, Procedural Order No. 2, ¶ 2(ii), July 31, 2003.
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35. Just like the Claimants did, in ADF Group Inc v. United States of America the investor used very general wording. In this regard, the tribunal rejected the investor's requests according to the following argument:
"We consider that Category C documents are described in overly broad terms which makes identification of the requested documents very problematical. In addition, the Claimant has not shown how those documents relate to the issues raised, or expected to be raised, in the present case [...] The request for Category C documents simply lacks the necessary particularity and indication of potential relevancy to the present case for us to determine it is sufficiently "necessary" to order production”. ¹⁵
36. The aforementioned conclusion is applicable to this case, since the Claimants have drafted their Requests in extremely broad terms. In addition to the examples referred to in previous paragraphs, they have also not identified the docket number to which their request refers, nor the name of the individuals who received or sent the alleged communications or attended the alleged meetings, including, and as explained supra they have not even been able to explain how their Requests relate to the jurisdictional objections.
37. For this, it is evident that the Claimants' Requests do not comply with the requirements provided for in Article 3(3)(1)(ii) of the IBA Rules.
38. Article 3(3)(c)(i) of the IBA Rules states that a Document Request must contain the following:
"(c) (i) a statement that the requested Documents are not in the possession, custody or control of the requesting Party or a statement of the reasons why it would be unreasonably burdensome for the requesting Party to produce such Documents"
[Emphasis added]
39. From the above it follows that the requesting party must comply with one of the following two elements: i) declare that the required documentation is not in its possession, custody or control, or; ii) declare why, being in possession of it, it would be unreasonably
¹⁵ ADF Group Inc v United States of America, ICSID Case No ARB (AF)/00/1, Procedural Order No 3, Concerning the Production of Documents, ¶ 10, October 4, 2001.
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burdensome to provide it. In ADF Group Inc v. United States of America, the tribunal established the following:
"Where, [...] the documents requested are in the public domain and equally and effectively available to both parties, we believe that there would be no necessity for requiring the other party physically to produce and deliver the documents to the former for inspection and copying. Where, however, the requesting party shows it would sustain undue burden or expense in accessing the publicly available material, the other party should be required to produce the documents for inspection". ¹⁶
40. In this sense, the Claimants fail to comply with Article 3(3)(c)(i) of the IBA Rules, since, at least, Requests 7, 13, 14, 15 and 16, refer to documents that are —or should be— in the power, custody or control of the Claimants or which they have the possibility of obtaining, inter alia, through their own witness.
41. The foregoing is due to the fact that: i) the information requested is part of Mercantil Lawsuit 995/2022, to which the Claimants should have access; ii) the Claimants' witness must have a copy of the requested documents, iii) the Claimants have been advised by various lawyers and are —or were— able to obtain the requested documents through various mechanisms provided for in the Mexican law (e.g. requests for access to public information to the agency or entity that apparently has said information) or these are published on various internet portals. However, the Claimants made no effort to explain why they do not have access to those documents.
42. Article 9.2 (b) and (f) of the IBA Rules establishes that “The Tribunal shall exclude, at the request of a Party or ex officio, [...] the production of any Document [due to, inter alia, the] existence of legal impediment or privilege [and] reasons of special political or institutional sensitivity [...]".
¹⁶ ADF Group Inc. v. United States of America, ICSID Case No. ARB(AF)/00/1, Procedural Order No. 3, ¶ 4, October 4, 2001. See Reto Marghitola, Document Production in International Arbitration, p. 69 (2015) Kluwer Law International: ("Document production requests for public documents unnecessarily harass the other party.").
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43. The Claimants minimize the confidential and reserved nature of administrative investigations or judicial procedures in Mexico, and ignore the fact that the investigative and judicial authorities of Mexico are prevented, according to the Mexican legal system, from disclosing information about ongoing procedures or to people who are not a party of these.
44. The above constitutes confidential or privilieged information in accordance with article 110, sections VII, IX, X, XI of the Federal Law of Transparency and Access to Public Information¹⁷ and article 113, sections VII, VIII, IX, of the General Law of Transparency and Access to Public Information.¹⁸
¹⁷ Article 110. Pursuant to the provisions of Article 113 of the General Law, reserved information may be classified as that which publication: [...] VII. Obstructs the prevention or prosecution of crimes; [...] IX. Obstructs the proceedings to hold Public Servants accountable, as long as the administrative resolution has not been issued; [...] X. Affect the rights of due process; [...] XI. Violates the conduct of judicial files or administrative proceedings conducted in the form of a trial, as long as they have not yet become final; [...].
¹⁸ Article 113. Reserved information may be classified as information whose publication: [...] VI. Obstructs the prevention or prosecution of crimes; [...] VIII. That which contains the opinions, recommendations or points of view that are part of the deliberative process of public servants, until the final decision is adopted, which must be documented; [...] IX. Obstruct the procedures to hold Public Servants accountable, until the administrative resolution has been issued; [...] X. Affects due process rights; [...] XI. Violates the conduct of judicial files or administrative procedures followed in the form of a trial, as long as they have not caused a state; [...].
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1. Mexico has submitted 5 (five) general objections to Claimants' request to produce documents. In addition, it raises specific objections to each request. From the outset, it is evident that Mexico (the “Respondent” or the “State”) is unwilling to provide, or even formally request, the information requested by Claimant in its request for documents, even where it is clearly within the control of Mexican State entities (the “Requested Documents").
Mexico's general objections affect three groups of Requested Documents: (1) the refusal to produce documents responsive to requests 1 through 14, and which refer among others to the request for documents relating to the actions of the judiciary, including the Sixty-Third Superior Court of Mexico City; the involvement of judicial branch officials in litigation proceedings to favor the interests of TV Azteca or Grupo Salinas; and documents that relate primarily to domestic litigation in Mexico; (ii) the failure to produce responsive documents for requests 14 through 16 and that refer to documents related to the negotiation process of USMCA Chapter 14 and Annex 14-C; and (iii) the refusal to produce documents that respond to requests 17 and 18 related to the judicial reform process in Mexico.
Claimants provide these general responses to Mexico's objections to their request for documents.
Mexico states that Claimants' Requests No. 1 through No. 13 are not relevant or material to the case, are unduly burdensome, and are general and speculative. In doing so, it incorporates mutatis mutandis its objections made primarily to the requests 1 and 2. However, Mexico's objections are unsupported. Claimants' requests comply with articles 3(3) and 9(2) of the IBA Rules and Section 15.4 of PO1, as they provide a narrow and specific description of the required documents, explain their relevance and materiality to demonstrate the Tribunal's jurisdiction, and confirm that the documents are in the Respondent's possession. Therefore, the Respondent's argument that characterizes certain Requestsas “fishing expeditions” is unfounded.
First, the requests are relevant and material to this phase of the arbitral proceedings as those documents will further demonstrate to the Tribunal the inability of Claimants to adhere to the 90-day period in Article 1119 as a result of the secret proceeding orchestrated between court officials and TV Azteca legal advisors and demonstrate favoritism to the interests of TV Azteca and Grupo Salinas. Those documents are also relevant to the case and material to the outcome of the jurisdictional phase under Rule 3(3) (b) of the IBA Rules,
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because the Requested Documents will provide support for the contention that the Mexican local courts unjustifiably favored TV Azteca and prevented Claimants from notification of the injunction in due course purportedly as a result of the COVID -19 pandemic and at the same time prevented Claimants from adhering to a 90 day period under NAFTA Article 1119 as a result of the failure to ensure timely disclosure of the secret proceeding and resulting injunction. Claimants do not dispute that certain of these documents will likely provide support for their claims on the merits, but this support is merely incidental to the underlying facts that can be established for the purposes of the Tribunal's decision on jurisdiction.
Second, contrary to Mexico's objections, the Requested Documents contain descriptions in sufficient detail (including the subject matter) of a narrow and specific requested category of documents that are reasonable to believe to exist in the hands of the Respondent in accordance with Rules 3(3) (a) of the IBA Rules.
Mexico suggests, based on a procedural order by a Tribunal in Waste Management II v. Mexican United States, that Claimants' requests for production of documents are “too burdensome”. However, that case is not applicable to the specific facts of the present dispute. In that case, Mexico, as Respondent, requested the "copies of all the invoices issued in the period 1994-1998,¹⁹ without specifying any particular type of invoice or any wording that narrowed the request of such documents, a situation that is entirely different in the present dispute.²⁰ In fact, the Claimants' requests each contain descriptions, in sufficient detail (including the subject matter), of a narrow and specific requested category of Documents to be produced consistent with Article 3(3)(a) and are not contrary to article 9(2)(c) of the IBA Rules. Specifically, the Requested Documents pertain tocommunications and records that will revewal the complicity of the Mexican court in conducting a secret proceeding, which had the effect, among other things, of prejudicing Claimants' ability to adhere to the 90-day period under NAFTA Article 1119.
In its objections to Request No. 14 to Request No.16, Mexico also states that certain documents are not in its possession, custody or control due to staff turnover within the Ministry of Economy. But that cannot be a valid justification from a Sovereign State when it relates to the relevance of the negotiation, discussion and approval process of an international treaty to which it is a Party, such as the USMCA. In fact, Mexico acknowledges that it made an exhaustive search in the Acta de Entrega Recepción without finding the
¹⁹ Waste Management, Inc v. United Mexican States, ICSID Case No ARB (AF)/00/3, Procedural Order Concerning Disclosure of Documents, ¶ 11, October 1, 2002.
²⁰ Waste Management, Inc v. United Mexican States, ICSID Case No ARB (AF)/00/3, Procedural Order Concerning Disclosure of Documents, ¶ 11, October 1, 2002.
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requested documents. Again, it is not credible that Mexico, as a Party to the USMCA, does not have a back-up of the complete documents and negotiating history of Chapter 14 and Annex 14-C. It is Respondent's responsibility to preserve the negotiating history of the treaty, and it cannot simply disclaim that responsibility due to normal staffing changes in a federal government agency. As stipulated in Claimants' objections to Mexico's documents requests, Mr. Smith has provided all the information available to him in the preparation of his witness statement. However, it is clear that there are other contemporaneous documents, including from the chief negotiators of the investment chapter, that only Mexico has access to and which it refuses to produce. In fact, Mexican authorities are required under domestic law to preserve such integral documents in accordance with Article 7 of the General Law on Archives which states in Spanish as follows:
Artículo 7. Los sujetos obligados deberán producir, registrar, organizar y conservar los documentos de archivo sobre todo acto que derive del ejercicio de sus facultades, competencias o funciones de acuerdo con lo establecido en las disposiciones jurídicas correspondientes.
Hence, article 7 of the General Law on Archives obliges the relevant Mexican authorities to produce, register, organize and preserve public documents, which include the Requested Documents. Therefore, the objections submitted by the Respondent based on the argument that the Requested Documents do not exist or are extremely onerous cannot be seriously considered and must be dismissed by the Tribunal.
Mexico also argues that it does not have “omnipotent power” to obtain information from any administrative agency or unit. However, as the legal representative of the Mexican State in international investment arbitration proceedings, the Ministry of Economy cannot credibly claim that it does not have the ability to request that the different agencies and bodies of the State, including the judiciary, produce the documents in question.
Mexico argues that Claimants' Requests Nos. 7, 13, 14, 15 and 16 deal with documents that are—or should be—in the possession, custody or control of Claimants or that Claimants have the ability to obtain them, inter alia, through their own witness and states that the requested information: (i) is part of the Mercantile Lawsuit 995/2022 to which the Claimants should have access; (ii) the Claimants' witness should have a copy of the requested documents; (iii) the Claimants may request the relevant documents through various mechanisms provided for under Mexican law. This argument makes no logical sense, as Mexico cannot simply disregard its responsibility as a party to this arbitration by pointing out that the documents “are or should be” in the Claimants' possession or suggest that the documents should have been
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requested through “mechanisms provided for in Mexican law." This is precisely why investment arbitration, and the Procedural Order in this case, provides for a document production stage. The Claimants are not in possession of the Reqeusted Documents and are under no obligation to resort to mechanisms under Mexican law to obtain them. The Claimants have submitted in their Counter-Memorial based on the available supporting evidence in good faith and prepared their request for documents in accordance with that principle.
Finally, Mexico objects to Request Nos. 17 and 18 on the basis that they are vague and excessively onerous, or are otherwise offensive to the State. Claimant clarifies that both requests are not, and should not be understood, as offensive to the Respondent.
[Page 20]
| No. | Documents or categories of documents requested (requested party) |
Relevance and Materiality, including references to the brief (requesting party) |
Reasoned objections to a request for production of documents (Objecting Party) |
Response to the objections to the request for production of documents (Requesting Party) |
Decision (Tribunal) |
|
|---|---|---|---|---|---|---|
| References to principal documents |
Comments | |||||
| 1 |
Communications |
Claimants' |
The requested |
Respondent objects
|
Records from the rt will establish facts Contrary to the |
Se concede (en |
|
September 27, 2022, |
to the Judiciary and This request |
specificity (General The Request is |
documents are |
audiencias |
||
|
have access to, or |
1, 2023. However, Likewise, this |
argues that |
cautelar. |
|||
|
allowed by this The Claimants do not |
Mexico well after |
|||||
|
think these The scope of this Requiring private |
Superior Court and Furthermore, |
|||||
|
arbitration in which Likewise, the |
Mexican State. See Next, Request No. 1 |
|||||
|
Documents are |
||||||
|
any other court in |
||||||
|
As the Tribunal is |
||||||
|
complies with the |
||||||
| 2 |
Any records, |
Claimants' |
The requested |
Respondent objects • Not relevant to the |
Claimants' response |
Denegado: Las |
|
other supervisory |
footnotes |
September 2022 This request |
search and • For being too This Request is |
No. 2 is not Request No. 2 is |
demostrado que |
|
|
to or prepared in |
Respondent officials, |
objections raised by The search for these |
Requested Mexico contends in |
|||
|
may have the This Request is a |
the Sixty Third Mexico does not |
|||||
|
those documents Claimants do not |
||||||
|
been affected by the |
||||||
|
result of the secret |
||||||
| 3 |
Any formal and |
Claimants' |
The requested |
The Respondent |
Request No. 3 is not For efficiency |
Denegado: no |
|
to the Motion to |
Vacate the suit of This request |
which apply mutatis |
||||
|
in the Respondent's |
||||||
| 4 |
Ex parte |
Claimants' |
The requested |
Respondent objects • Because it is not |
Request No. 4 is not Mexico also suggests |
Denegado: no |
|
messages, telegram, |
companies from This request |
• Because it is • For being too • For involving The Respondent |
information. |
|||
|
Additionally, the Finally, this Request |
parties or the It appears that |
|||||
|
an offensive fishing |
regular conduct of However, Claimants Instead, the |
|||||
[Page 41]
| No. | Documents or categories of documents requested (requested party) |
Relevance and Materiality, including references to the brief (requesting party) |
Reasoned objections to a request for production of documents (Objecting Party) |
Response to the objections to the request for production of documents (Requesting Party) |
Decision (Tribunal) |
|
|---|---|---|---|---|---|---|
| References to principal documents |
Comments | |||||
| merely confirm that the Mexican Courts unfairly favor TV Azteca and Grupo Salinas in domestic legal proceedings, and potentially conspired to prevent Claimants from receiving due notice of the proceedings, thus preventing them from adhering to the 90-day period under NAFTA Article 1119. This request is not and should not be understood as an offense to the Respondent. |
||||||
| For efficiency Claimants incorporate here by reference their responses to the objections for Request No. 1 and 2, along with their General Responses, which apply mutatis mutandis. |
||||||
| 5 | All documents, including but not limited to, correspondence, communications, formal or informal petitions or written communications, formal petitions, emails, WhatsApp, |
Claimants’ Counter- Memorial at ¶ 77 |
The requested documents are relevant and material to Claimants’ argument related Judge Robles’ track record of unfairly and baselessly favoring TV Azteca |
The Respondent objects to Claimants’ Request 5 and incorporates mutatis mutandis the arguments put forth in the objections to Requests 1, 2 and 4. |
Request No. 5 is not For efficiency |
Denegado: no se ha demostrado que sea relevante para las objeciones jurisdiccionale s. |
| text messages, telegram, iMessage or any other type of correspondence or cloud -based messaging service between TV Azteca or Grupo Salinas and Judge Robles, including officials from Mexican Court headed by Judge Robles, from December 2022 to May 2023, related to injunction favoring TV Azteca for refraining to comply its obligations as a publicly-traded company on the Mexican stock exchange and |
and companies from Grupo Salinas. This request concerns a narrowly defined category of documents within a specific time period that are or should be in the Respondent’s possession, custody, or control because they directly involve Respondent officials, personnel and representatives. Claimants do not have access to, or possession, custody, or control of the requested documents. |
responses to the objections for Request No. 1 and 2, along with their General Responses, which apply mutatis mutandis. |
||||
| obligations to report financial information. |
||||||
| 6 | From Judge Miguel Ángel Robles: (a) copies of the record of visits received in connection with case number 995/2022; and (b) copies of the record of visits received in connection with any matter or case related to TV Azteca. |
Claimants’ Counter- Memorial at ¶¶ 60- 71 |
The requested documents are relevant and material to Claimants’ argument related Judge Robles’ track record of unfairly and baselessly favoring TV Azteca and companies from Grupo Salinas. This request concerns a narrowly defined category of documents within a specific time period that are or should be in the Respondent’s possession, custody, or control because |
The Respondent objects to Claimants’ Request 6 and incorporates mutatis mutandis the arguments put forth in the objections to Requests 1, 2 and 4. Additionally, Request 6 finds its sole basis in its own assertions; however, the Claimants have failed to explain the importance and relevance of these documents to help strengthen their arguments regarding |
Request No. 6 is not For efficiency |
Denegado: no se ha demostrado que sea relevante para las objeciones jurisdiccionale s. |
| they directly involve Respondent officials, personnel and representatives. Claimants do not have access to, or possession, custody, or control of the requested documents. |
the Tribunal’s jurisdiction. Evidently, the Claimants have used this procedure solely as a fishing expedition, since they have not even managed to establish a search period for the documents. Likewise, the Claimants are requesting information related to all of the trials followed before 63rd Civil Court and in which TV Azteca is a party, which constitutes privileged information under Mexican law, |
|||||
| 7 | From the case file number RC- 181/2024 processed before the Tenth Collegiate Court in Civil Matters of the First Circuit: (a) All the drafts of the opinions that circulated among the magistrates prior the ruling dated July 3, 2024. (b) The recorded sessions held on: June 26, 2024, when |
Claimants’ Counter- Memorial at ¶¶ 74- 75 |
The requested documents are relevant and material to Claimants’ demonstration that they are unable to find relief in Mexico’s judiciary as a result of an imbalanced process that favors TV Azteca and denies Claimants a minimum standard of treatment. Specifically, these documents will |
particularly under the Code of Civil Procedures, as well as under the Organic Law of Mexico City’s Judiciary. The Respondent objects to Request 7 and incorporates mutatis mutandis the arguments put forth in the objections to Requests 1, 2 and 4. Likewise, the requested documents are available to the Claimants, since the recordings of the hearings held by Collegiate Courts are available on the website of the |
Request No. 7 is not For efficiency |
Denegado: no se ha demostrado que sea relevante para las objeciones jurisdiccionale s. |
| the case was withdrawn from the discussion list; and July 3, 2024, when the last draft of the judgment was approved by the magistrates deciding to revoke the amparo. |
support Claimants’ contention that the judiciary’s decision- making process is flawed and violates Mexico’s obligations under NAFTA to provide a minimum standard of treatment to U.S. investors. This request concerns a narrowly defined category of documents within a specific time period that are or should be in the Respondent’s possession, custody, or control because they directly involve Respondent officials, personnel and representatives. |
Judicial Branch of the Federation. However, without prejudice to the objections raised, under the principle of good faith, the Respondent provides the links related to Request 7(b). - 2024-06-26. Ordinary Session of the Tenth Collegiate Court in Civil Matters of the First Circuit. https://apps.cjf.gob. mx/BVS/Transmisio nBiblioteca?clave=1 76082 - 2024-07-03. Ordinary Session |
which apply mutatis mutandis. |
|||
| Claimants do not have access to, or possession, custody, or control of the requested documents. |
of the Tenth Collegiate Court in Civil Matters of the First Circuit. https://apps.cjf.gob. mx/BVS/Transmisio nBiblioteca?clave=1 76687 |
|||||
| 8 | From Magistrate Víctor Hugo Díaz Arellano, President of the Tenth Collegiate Court in Civil Matters of the First Circuit; Magistrate Jaime Aurelio Serret Álvarez, member of |
Claimants’ Counter- Memorial at ¶¶ 74- 75 |
The requested records are relevant and material to Claimants’ inability to find relief at any level or through any avenue of Mexico’s judiciary, and of the judiciary’s baseless favorable treatment |
The Respondent objects to Request 8 and incorporates mutatis mutandis the arguments put forth in the objections to Requests 1, 2, 4 and 6. |
Request No. 8 is is For efficiency |
Denegado: no se ha demostrado que sea relevante para las objeciones jurisdiccionale s. |
| the Tenth Collegiate Court in Civil Matters of the First Circuit; and Judge Martha Gabriela Sánchez Alonso, member of the Tenth Collegiate Court in Civil Matters of the First Circuit: (a) copies of the record of visits received in connection with case number RC- 181/2024; and (b) copies of the record of visits received in connection with any matter or case |
toward TV Azteca, depriving Claimants of their rights to equal treatment. This request concerns a narrowly defined category of documents within a specific time period that are or should be in the Respondent’s possession, custody, or control because they directly involve Respondent officials, personnel and representatives. Claimants do not have access to, or possession, custody, or control of the requested documents. |
responses to the objections for Request No. 1, 2, and 4 along with their General Responses, which apply mutatis mutandis. |
||||
| related to TV Azteca. |
||||||
| 9 | From the case file number 1681/2023 related to the Lack of Jurisdiction Plea processed before the Third Civil Chamber of the Superior Court of Justice of Mexico City, all the drafts of the opinions analyzed by the magistrate prior the ruling dated January 30, 2024 by which the appeal filed by TVA against the motion for reconsideration was decided. |
Claimants’ Counter- Memorial at ¶ 73 |
The requested documents are relevant and material to Claimants’ demonstration that they are unable to find relief in Mexico’s judiciary as a result of an imbalanced process that favors TV Azteca and denies Claimants a minimum standard of treatment. Specifically, these documents will support Claimants’ contention that the judiciary’s decision- |
The Respondent objects to Request 9 and incorporates mutatis mutandis the arguments put forth in the objections to Requests 1, 2, 4 and 6. |
Request No. 9 is not For efficiency |
Denegado: no se ha demostrado que sea relevante para las objeciones jurisdiccionale s. |
| making process is flawed and violates Mexico’s obligations under NAFTA to provide a minimum standard of treatment to U.S. investors. This request concerns a narrowly defined category of documents within a specific time period that are or should be in the Respondent’s possession, custody, or control because they directly involve Respondent officials, personnel and representatives. Claimants do not have access to, or possession, custody, |
||||||
| or control of the requested documents. |
||||||
| 10 | From the case file number 1186/2023 related to appeal filed by The Trustee against the September Injunction processed before the Third Civil Chamber of the Superior Court of Justice of Mexico City, all the drafts of the opinions analyzed by the magistrate prior the ruling dated July 8, 2024, by which the September Injunction was confirmed. |
Claimants’ Counter- Memorial at ¶ 71 |
The requested documents are relevant and material to Claimants’ demonstration that they are unable to find relief in Mexico’s judiciary as a result of an imbalanced process that favors TV Azteca and denies Claimants a minimum standard of treatment. Specifically, these documents will support Claimants’ contention that the judiciary’s decision- |
The Respondent objects to Request 10 and incorporates mutatis mutandis the arguments put forth in the objections to Requests 1, 2, 4 and 6. |
Request No. 10 is For efficiency |
Denegado: no se ha demostrado que sea relevante para las objeciones jurisdiccionale s. |
| making process is flawed and violates Mexico’s obligations under NAFTA to provide a minimum standard of treatment to U.S. investors. This request concerns a narrowly defined category of documents within a specific time period that are or should be in the Respondent’s possession, custody, or control because they directly involve Respondent officials, personnel and representatives. Claimants do not have access to, or possession, custody, |
||||||
| or control of the requested documents. |
||||||
| 11 | From Magistrate Claudia Díaz Zepeda, member of the Third Civil Chamber of the Superior Court of Justice of Mexico City: (a) copies of the record of visits received in connection with case number 1186/2023 and the case number 1681/2023; and (b) copies of the record of visits received in connection with any |
Claimants’ Counter- Memorial at ¶ 71 |
The requested records are relevant and material to Claimants’ inability to find relief at any level or through any avenue of Mexico’s judiciary, and of the judiciary’s baseless favorable treatment toward TV Azteca, depriving Claimants of their rights to equal treatment. This request concerns a narrowly defined category of documents within a specific time period that are or should be |
The Respondent objects to Request 11 and incorporates mutatis mutandis the arguments put forth in the objections to Requests 1, 2, 4 and 6. |
Request No. 11 is For efficiency |
Denegado: no se ha demostrado que sea relevante para las objeciones jurisdiccionale s. |
| matter or case related to TV Azteca. |
in the Respondent’s possession, custody, or control because they directly involve Respondent officials, personnel and representatives. Claimants do not have access to, or possession, custody, or control of the requested documents. |
|||||
| 12 | From the case file number AD650/2024 related to the administrative complaint filed by The Trustee processed before the Judicial Discipline Committee of the Judiciary Council of |
Claimants’ Counter- Memorial at C-0001 (Summary of Mexican Court Proceedin gs) |
The requested documents are relevant and material to Claimants’ demonstration that they are unable to find relief in Mexico’s judiciary at any level or through any meaningful |
The Respondent objects to Request 12 and incorporates mutatis mutandis the arguments put forth in the objections to Requests 1 and 2. Additionally, the Respondent objects to this request |
Request No. 12 is For efficiency |
Denegado: no se ha demostrado que sea relevante para las objeciones jurisdiccionale s. |
| Mexico City: the complete file. |
avenue as a result of an imbalanced process that favors TV Azteca and denies Claimants a minimum standard of treatment. Specifically, these documents will support Claimants’ contention that the judiciary’s decision- making process is flawed and violates Mexico’s obligations under NAFTA to provide a minimum standard of treatment to U.S. investors. This request concerns a narrowly defined category of documents within a |
because the requested documents are in the possession, custody or control of the Claimants (General Objection 4) and because the information requested is privileged (General Objection No. 5). The Claimants request information about a procedure that was initiated by BNY itself, so they must have access to the file. Notwithstanding the foregoing, assuming without conceding that the Claimants could not have access |
responses to the objections for Request No. 1, 2, and 4 along with their General Responses, which apply mutatis mutandis. Moreover, in contrary to the Respondent’s contention, the Claimants do not have direct access to the Requested Documents in the file AD650/2024. In addition, the Respondent argues that such documents are classified as confidential |
|||
| specific time period that are or should be in the Respondent’s possession, custody, or control because they directly involve Respondent officials, personnel and representatives. Claimants do not have access to, or possession, custody, or control of the requested documents. |
to this file, the object of an administrative complaint is to place some administrative responsibility on the Public Servants, which could even involve the prosecution of a crime. The above constitutes confidential and/or reserved information based on the LFTAIP and LGTAIP. Notably, the Claimants base this Request on Exhibit C-0001; however, the Tribunal may corroborate that this procedure is not mentioned in this |
information in accordance with the LGTAI. Nevertheless, Section IX of article 113 of the cited legal authority establishes that the authorities may decline to provide information that “Obstructs the procedures to hold public servants accountable, until the administrative resolution has been issued.” In the case at hand, the production of such documents would not affect or obstruct such a procedure, as the Requested |
||||
| exhibit, nor in the Claimants’ Counter- Memorial, therefore, there is no link between the claims and the relevance of the requested documents. The above is a clear example of the way in which the Claimants have attempted to use this procedure as a fishing expedition. |
Documents are only requests to demonstrate jurisdictional claims in the present arbitration. Claimants would be in a position to accept a confidentiality agreement and to request the Tribunal to order a prohibition of disclosure to third parties or the appointment of an independent and impartial expert to review the documents in context of Article 3(8) of the IBA Rules. |
|||||
| 13 | From the case file number 995/2022 processed before the Sixty-Third Civil Court of the Superior Court: The Complete file, including: (a) Copies of all the letters rogatory that TV Azteca received to carry out the service of process on the defendants; (b) the acknowledgement of receipt signed by TV Azteca proving when it received the letters rogatory to carry out the service |
Claimants’ Counter- Memorial at ¶ 128 |
This request is relevant and material to Claimants’ demonstration of TV Azteca’s initiation and maintenance of a secret proceeding via its failure to notify Claimants and Noteholders about the Injunction, along with the Mexican judiciary’s exacerbation and collusion in this effort. These documents are also material to Claimants’ ability to file a Notice of Intent to arbitrate no |
Respondent objects to Claimants’ Request 13 and incorporates mutatis mutandis the objections to Requests 1, 2 and 12. |
Request No. 13 is For efficiency |
Denegado: no se ha demostrado que sea relevante para las objeciones jurisdiccionale s. |
| of process on the defendants; and (c) copies of the official communications between the Civil Chamber of the Superior Court of Justice of Mexico City and the Sixty- Third Court. |
later than April 1, 2023. This request concerns a narrowly defined category of documents within a specific time period that are or should be in the Respondent’s possession, custody, or control because they directly involve Respondent officials, personnel and representatives. Claimants do not have access to, or possession, custody, or control of the requested documents. |
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| 14 | All documents and records, including but not limited to negotiating documents, proposals, or positions; explanatory statements, presentations, or other explanatory material; discussion documents; preparatory works; reports; minutes; draft documents; emails and other electronic or non- electronic materials that were prepared, proposed, or exchanged between or among one or |
Responde nt’s Memorial on Jurisdictio n at ¶¶ 52, 77, 84; Claimants’ Counter Memorial at ¶¶ 107- 113, 194- 199, 220, 232-237, Witness Statement from Mr. Kenneth Patrick Smith Ramos at ¶¶ 20-28 |
The requested documents are relevant and material to Respondent’s allegations that the Tribunal lacks Jurisdiction ratione voluntatis because the USMCA replaced NAFTA on July 1st, 2020 and at that time Mexico was not subject to the obligations provided in NAFTA Article 1105. Specifically, Respondent’s negotiating positions and understanding of the USMCA’s legacy investment provisions contained |
Respondent objects to Request 14 for the following reasons:
|
Mexico argues that this request is not relevant and material to the outcome of the case. However, Mexico’s third jurisdictional objection suggests that the Claimants do not have a valid legacy investment under Annex 14-C of the USMCA. See Memorial on Jurisdiction at ¶¶ 70- 76. As set forth at length in Claimants’ Counter-Memorial, Mexico is advancing an erroneous interpretation of the legacy investment provision under |
Denegado: Las Demandantes no han demostrado, prima facie, que los trabajos preparatorios sean de asistencia para el Tribunal, y la solicitud es irrazonablemen te amplia. |
| more of the representatives from Mexico, the United States of America, or Canada (including any of their agencies, officials, or employees) or that otherwise pertain to positions considered or taken by any of them, in connection with the negotiation of the investment chapter of the USMCA, including Chapter 14 of the USMCA, its Annexes and the Negotiating Protocol (including previous iterations of those provisions). This |
in Annex 14-C upon the USMCA’s entry into force is material to Claimants’ position that the USMCA Parties intended the legacy investment provision to extend NAFTA’S substantive obligations for the term of the legacy provision, i.e., until July 1, 2023. This request concerns a narrowly defined category of documents within a specific time period that are or should be in the Respondent’s possession, custody, or control because |
not established the relevance of the documents they request for the outcome of the dispute. The Claimants have not established that, in this case, it is necessary to resort to complementary means of interpretation under the VCLT. On the |
Annex 14-C of the USMCA and which is materially different from Mexico’s understanding of the legacy investment provision at the time it was negotiated and finalized. Request No. 14 is relevant and material to Respondent’s allegations that the Tribunal lacks Jurisdiction ratione voluntatis because it will confirm Respondent’s negotiating positions and understanding of the USMCA’s legacy investment |
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| request is specific to documents in the possession, custody, or control of the Ministry of Economy, Ministry of Foreign Affairs, or the Office of the President the United Mexican States or its legal department, exchanged from May 2017 to the entry into force of the Agreement on July 1st, 2020, between the Government of Mexico and the United States or the Canadian Government relating to the negotiation of |
they directly involve Respondent officials, personnel and representatives. Claimants do not have access to, or possession, custody, or control of the requested documents. |
contrary, the Respondent has verified that the general rule of treaty interpretation established in Article 31 of the VCLT is applicable and sufficient in this case. The Claimants justify their Request by considering that it is “relevant and material to Respondent’s allegations that the Tribunal lacks Jurisdiction ratione voluntatis because the USMCA replaced NAFTA on July 1st, 2020 and at that time Mexico was not |
provision contained in Annex 14-C upon the USMCA’s entry into force is opposite of the position of Mexico in this proceeding and contrary with the plain text of the USMCA. The Vienna Convention on the Law of Treaties allows recourse to supplementary means of interpretation – i.e., negotiating history, as embodied by the Requested Documents herein – to confirm the meaning of the |
|||
| the investment chapter of USMCA, including Chapter 14 of USMCA. |
subject to the obligations provided in NAFTA Article 1105”. It is clear that the Claimants’ Request is not limited to the issues it seeks to justify, but rather covers documents “in connection with the negotiation of the investment chapter of the USMCA, including Chapter 14 of the USMCA, its Annexes and the Negotiating Protocol (including previous iterations of those provisions). It is evident that the Claimants’ Request |
Treaties as intended by the Parties. See VCLT Article 32; Claimants’ Counter- Memorial at ¶¶ 231- 232. Claimants take note of the documents produced by the Respondent to date in good faith. However, based on a preliminary review of those documents, Claimants believe Mexico can produce the complete set of documents that fully responds to our |
||||
| is extremely general and ambiguous, which would generate an unreasonable burden for the Respondent since a search would have to be carried out without having any specific parameter or information and is unrelated to. The Claimants do not provide further information regarding who the “representatives from Mexico, the United States of America, or Canada” referred to in this Request are, even though they were |
request in this regard. |
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| able to do so due to the position of their witness. This Request consists of a fishing expedition and is contrary to Article 3(3)(a) and (b) and Article 9(2)(a) and (c) of the IBA Rules. Finally, as noted in General Objection 4, the documents requested by the Claimants are— or should be— in their possession, custody or control, or they have the possibility of obtaining them through their own witness. |
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| However, the Respondent, in good faith, produces the documents found in the files of the Ministry of Economy related to the negotiation of Chapter 14 of the USMCA. |
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| 15 | All documents, including, but not limited to, negotiating documents, proposals, or positions; explanatory statements or other explanatory material; discussion documents; preparatory works; |
Responde nt’s Memorial on Jurisdictio n at ¶ 52, 77, 84; Claimants’ Counter- Memorial at ¶¶ 107- 113, 194- 199, 220, |
The requested documents are relevant and material to Respondent’s allegations that the Tribunal lacks Jurisdiction ratione voluntatis because the USMCA replaced NAFTA on July 1st, 2020 and at that time Mexico was not subject to |
Respondent objects to Claimants’ Request 15 and incorporates mutatis mutandis the objections to Request 14. |
For efficiency Claimants incorporate here by reference their responses to the objections for Request No. 1, 2, and 4 along with their General Responses, which apply mutatis mutandis. |
Denegado: Las Demandantes no han demostrado, prima facie, que los trabajos preparatorios sean de asistencia para el Tribunal, y la solicitud es irrazonablemen te amplia. |
| reports; minutes; draft documents; emails; and other electronic or non- electronic materials) in the possession, custody, or control of the Ministry of Economy, Ministry of Foreign Affairs or the Office of the President the United Mexican States or its legal department, codifying, reflecting, discussing, or explaining the Government of Mexico’s negotiating position and/or understanding during the negotiation of USMCA re garding |
232-237; Witness Statement from Mr. Kenneth Patrick Smith Ramos at ¶¶ 20-28 |
the obligations provided in NAFTA Article 1105. Specifically, Respondent’s communications that go to its understanding of the USMCA’s legacy investment provisions contained in Annex 14-C upon the USMCA’s entry into force are material to Claimants’ position that the USMCA Parties intended the legacy investment provision to extend NAFTA’S substantive obligations for the |
||||
| all provisions included in the investment chapter of USMCA, including Chapter 14 of USMCA and its Annexes, and the Negotiating Protocol of the USMCA (including previous iterations of the relevant provisions). The documents referred in this request relate to documents generated from May 2017 to the entry into force of the Agreement July 1st, 2020, reflecting or discussing the Respondent’s |
term of the legacy provision, i.e., until July 1, 2023. This request concerns a narrowly defined category of documents within a specific time period that are or should be in the Respondent’s possession, custody, or control because they directly involve Respondent officials, personnel and representatives. Claimants do not have access to, or possession, custody, or control of the requested documents. |
|||||
| position in the negotiation of the investment chapter of the USMCA, including Chapter 14 of the USMCA and Annex 14-C and explaining the outcomes of that negotiation for purposes of implementing the Agreement. |
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| 16 | All documents, including, but not limited to, talking points, briefing materials, testimony, reports, written responses to questions, notes, correspondence |
Memorial on Jurisdictio n at ¶ 52, 77, 84; Counter – Memorial at ¶¶ 107- 113, 194- |
The requested documents are relevant and material to Respondent’s allegations that the Tribunal lacks Jurisdiction ratione voluntatis because the USMCA |
Respondent objects to Claimants’ Request 16 and incorporates mutatis mutandis the objections to Request 14. |
Contrary to Respondent’s arguments, the Requested Documents comply with IBA Rules 3(3) (a) and (b), and 9(2)(a) and (b) and Rule 15.4 from PO1. |
Denegado: Las Demandantes no han demostrado que los documentos internos del Gobierno de México sean |
| (whether by email, letter, or any other medium), or other documents) used or prepared by or on behalf of any agency, official, or employee of the Executive Branch of Mexico’s Government in connection with any discussion with, presentation to, testimony before, or communications: (a) to or with trade associations or unions, including the “cuarto de a lado” as the private sector advisory group and |
199, 220, 232-237, Witness Statement from Mr. Kenneth Patrick Smith Ramos at ¶¶ 20-28 |
replaced NAFTA on July 1st, 2020 and at that time Mexico was not subject to the obligations provided in NAFTA Article 1105. Specifically, Respondent’s communications regarding its understanding of the USMCA’s legacy investment provisions contained in Annex 14-C upon the USMCA’s entry into force is material to Claimants’ position that the USMCA Parties intended the legacy investment provision |
The Claimants do not provide further details regarding who are the “trade associations or unions, including the “cuarto de a lado” as the private sector advisory group and officials or members thereof”, or what they refer to in this Request, although they could have, due to the position of their witness. This Request is a fishing expedition and is contrary to Article 3(3)(a) and (b) and Article 9(2)(a) and (c) of the IBA Rules. |
Claimants specifically indicated for this request: (i) the sender, (ii) the recipient, (iii) the subject matter of the documents requested, and (iv) a specific time period or range of dates that is reasonable and relevant with regards to the issues discussed in this case. Mexico, represented by the Ministry of the Economy, is presumably well- |
relevantes para cuestiones de interpretación, o que sean de ayuda para el Tribunal. |
|
| officials or members thereof; or (b) to or with congressional committees, congressional staff, advisory members from the Senate or Senators during the process to report the progress in negotiations and for purposes to submit the Agreement for Senate approval; (c) regarding any or all provisions included in the investment chapter of USMCA, including Chapter 14 of USMCA and its Annexes, and the |
to extend NAFTA’S substantive obligations for the term of the legacy provision, i.e., until July 1, 2023. This request concerns a narrowly defined category of documents within a specific time period that are or should be in the Respondent’s possession, custody, or control because they directly involve Respondent officials, personnel and representatives. Claimants do not have access to, or possession, custody, or control of the |
In this regard, assuming without conceding that the documents with “trade associations or unions, including the “cuarto de a lado” as the private sector advisory group and officials or members thereof” existed, these will most likely contain sensitive commercial information of said companies, which is protected by Article 9.2(e) of the IBA Rules, as it constitutes privileged information. |
aware how private sector advisory group, “Cuarto de A Lado” or “Cuarto de Junto” works in coordination with the government during trade negotiations. They are also aware that trade association of Mexico includes “Consejo Coordinador Empresarial”, “Confederación de Cámaras Industriales de los Estados Unidos Mexicanos, CONCAMIN”, at minimum. What it is evident is that Respondent is unwilling to produce |
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| USMCA Negotiating Protocol (and any previous iterations these provisions). The documents referred in this request relate to documents generated from May 2017 to the entry into force of the Agreement July 1st, 2020, in possession of Mexico’s government including Mexico’s Congress or Senate, reflecting or discussing the Respondent’s position during the negotiation of the investment chapter |
requested documents. |
or even search documents that are in Respondent’s possession, custody, or control and that are relevant to the reasonable requests by Claimants that squarely relate to a significant portion of Respondent’s jurisdictional objections in this case. |
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| of USMCA, including Chapter 14 of USMCA and Annex 14-C and explaining the outcomes of that negotiation for purposes of implementing the Agreement. |
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| 17 | All documents and records, including, but not limited to, talking points, briefing materials, testimony, reports, written responses to questions, notes, correspondence (whether by email, letter, or any other medium), or other documents) used or |
Claimants’ Counter- Memorial at ¶ 9 |
This request is relevant and material to Claimants’ demonstration of the deeply embedded corruption within Mexico’s judiciary and the Government of Mexico’s explicit acknowledgment of this corruption |
Respondent objects to Request 17 for the reasons given in the objections to Requests 1 and 2. In plain terms, Request 17 is irrelevant to the outcome of the Jurisdictional Objections raised by Mexico. |
Request No. 17 is This request is not, |
Denegado: no se ha demostrado que sea relevante para las objeciones jurisdiccionale s. |
| prepared by or on behalf of any agency, official, or employee of the Executive Branch of Mexico’s Government in connection with recently-passed reforms on the judiciary, insofar as these records and communications relate to deliberations on the corruption of the Mexican judiciary relating to specific cases, including but not limited to TV Azteca or Grupo Salinas cases, or other international |
through attempts at recent reforms. This request concerns a narrowly defined category of documents within a specific time period that are or should be in the Respondent’s possession, custody, or control because they directly involve Respondent officials, personnel and representatives. Claimants do not have access to, or possession, custody, or control of the requested documents. |
Furthermore, Request 17 would be onerous, and would create an unreasonable burden on the Respondent. When talking about “Executive Branch of Mexico’s Government”, the Claimants seem to forget that the Executive Branch is made up of thousands of public officials. This clearly demonstrates how generic and ambiguous Request 17 is. Mexico reiterates that this Request 17 constitutes a fishing |
The recent actions and initiatives by the former President, the current President of Mexico, and the Congress to amend the Constitution with the objective to address the longstanding corruption practices in the Mexican Judiciary Power is well known globally. For efficiency Claimants incorporate here by reference their responses to the objections for Request No. 1, 2, |
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| investment dispute settlement cases impacted by corruption in the Mexican judiciary. |
expedition. Furthermore, Request 17, and the alleged justifications, are offensive to the Mexican State and an abuse of investor- State arbitration. |
and 4 along with their General Responses, which apply mutatis mutandis. |
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| 18 | All documents and records, including, but not limited to, talking points, briefing materials, testimony, reports, written responses to questions, notes, correspondence (whether by email, letter, or any other |
Claimants’ Counter- Memorial at ¶ 9 |
This request is relevant and material to Claimants’ demonstration of the deeply embedded corruption within Mexico’s judiciary and the Government of Mexico’s explicit acknowledgment of this corruption |
Respondent objects to Claimants’ Request 18 and incorporates mutatis mutandis the objections to Request 17. It cannot go unnoticed that Request 18 is offensive and a |
Request No. 18 is This request is not, |
Denegado: no se ha demostrado que sea relevante para las objeciones jurisdiccionale s. |
| medium), or other documents) used or prepared by or on behalf of any member of Congress or congressional staff member in the Senate or lower house of Congress, in connection with recently-passed reforms on the judiciary, insofar as these records and communications relate to deliberations on the corruption of the Mexican judiciary relating to specific cases, including but not limited to TV Azteca or Grupo |
through attempts at recent reforms. This request concerns a narrowly defined category of documents within a specific time period that are or should be in the Respondent’s possession, custody, or control because they directly involve Respondent officials, personnel and representatives. Claimants do not have access to, or possession, custody, or control of the requested documents. |
document production phase of an investment arbitration cannot be used by apparent plaintiff investors to raise serious accusations against a sovereign State. |
offense to the Respondent. The recent actions and initiatives by the former President, the current President of Mexico, and the Congress to amend the Constitution with the objective to address the longstanding corruption practices in the Mexican Judiciary Power is well known globally. For efficiency Claimants incorporate here by reference their responses to the objections for |
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| Salinas cases, or other international investment dispute settlement cases impacted by corruption in the Mexican judiciary. |
Request No. 1, 2, and 4 along with their General Responses, which apply mutatis mutandis. |
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