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ARBITRATION UNDER
CHAPTER ELEVEN OF THE NAFTA
AND THE UNCITRAL ARBITRATION RULES
BETWEEN
VITO G. GALLO
Claimant
AND
GOVERNMENT OF CANADA
Respondent
PROCEDURAL ORDER NO. 2 [Amended]
10 February 2009
ARBITRAL TRIBUNAL
Professor Juan Fernández-Armesto (President)
Professor Jean-Gabriel Castel
J. Christopher Thomas, Q.C.
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The Arbitral Tribunal issues this
This Procedural Order rules on the documentary requests (I) clarifying preliminary issues raised by the parties and (II) deciding on each of the disputed documentary requests.
1. Each party has claimed that (a) the documents so far produced by the other party are, to a large extent, unorganised; (b) privilege has been asserted over an unspecified number of documents; (c) some of the requested documents are not in its possession, but rather in the possession of third parties; and (d) there is a possibility of late production.
The Arbitral Tribunal will provide guidance on each of these claims and allegations.
2. Basically, Claimant argues that Canada presented its documents in a disorganised manner, without separate tabs or table of contents whilst Canada alleges that it is Claimant who has produced numerous documents which are neither described nor organised in any particular manner.
3. The Tribunal considers that, to be useful to the parties, documents have to be appropriately organised. Depending on the circumstances, different systems of organisation may be appropriate. The Arbitral Tribunal requests both parties to cooperate in good faith and to jointly solve their respective difficulties and to jointly
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report on the outcome. The Tribunal hopes that both parties will be able to resolve the issue without further guidance from the Tribunal.
4. The parties have claimed that an unspecified number of documents are client/attorney privileged and/or are of special political and institutional sensitivity. Regarding privileged documents, Claimant has offered to exchange comprehensive privilege logs and Canada is willing to produce an amended Redfern Schedule that identifies the privilege claimed where such information was omitted, provided that Claimant also identifies each privilege claimed and corrects the other deficiencies in its response to Canada's Redfern Schedule.
5. The Arbitral Tribunal takes note of the parties' positions and requests both parties to prepare a log for all documents in respect of which they claim client/attorney privilege and/or special political and institutional sensitivity. The Arbitral Tribunal asks both parties to confer before 23 February 2009 and to reach an agreement regarding the structure and preparation of such log.
6. Such log shall be prepared by each party and delivered to the other party no later than 4.00 pm 3 March 2009, and each party shall then have until no later than 4.00 pm 6 March 2009 to set out its observations in writing as to the other's claims which it contests. The party claiming privilege shall then be free to make a short observation in reply, to be filed no later than 4.00 pm 10 March 2009. At that point, the Tribunal shall decide on any claims of privilege which remain contested.
7. Each party has objected to the production of certain documents arguing that such documents are not in its possession, but in that of third parties and, thus, the party claims to be unable to compel such third parties to produce the requested documents. In particular, this objection has been raised by Canada as regards municipalities and certain individuals and by Claimant as regards 919841 Ontario Inc. and the Limited Partnership for the purposes of this arbitration.
8. The Arbitral Tribunal considers that, in this respect, in addition to entities which may be controlled by a party, there may be entities or persons with whom a party has a relationship which is relevant for the purposes of this arbitral processing. The duty of production extends to the entities controlled by each party. Furthermore, good faith also imposes a duty of best efforts to obtain documents that are in the possession of entities or persons with whom or with which the party the subject of the request has a relevant relationship.
9. The Tribunal will not decide at this point within which category each of the disputed third parties falls. The Tribunal simply takes note of Canada's offer to use its best efforts and write to certain municipalities to request that they voluntarily produce certain documents in this arbitration. The Arbitral Tribunal expects Claimant to carry out the same offer in relation to the documents in the possession
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of 919841 Ontario Inc., the alleged successor of the limited partners, and the Limited Partnership.
10. If the above instructions fail to resolve any current disagreements, either party may apply to the Arbitral Tribunal for further direction.
11. Canada has referred to the possibility of needing an extension of time to provide certain documents in the possession of third parties, which might, in any case, be privileged.
12. The Arbitral Tribunal understands that given the complexity of some of the requests, some flexibility may be necessary. Both parties are requested to cooperate in good faith in order to adapt the schedule of the arbitration and to jointly report on the outcome. The Tribunal hopes that both parties will be able to solve the issue without further guidance from the Tribunal.
13. The Arbitral Tribunal will (a) first analyse the 21 document categories requested by Claimant to which Canada has objected; and (b) then analyse the 18 document categories requested by Canada to which Claimant has objected.
Further to I.(c) above, Canada is required to contact the City of Toronto in order to obtain the requested documents.
The Arbitral Tribunal is of the opinion that only the final pricing agreements and subsequent addenda and modifications are relevant.
Canada is required to contact the City of Toronto in order to obtain the requested relevant documents. See I.(c) above.
The Arbitral Tribunal is of the opinion that the requested documents are only relevant if related to municipalities referred to by Claimant as the “GTA municipalities".
1 The requests have been summarised; each decision covers the full original request ↩
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Canada is required to contact the City of Toronto and the Regions of York, Peel and Durham in order to obtain the requested documents. See I.(c) above.
The Arbitral Tribunal takes note that, according to Canada, no more documents exist, apart from those already produced.
The Arbitral Tribunal takes note that, according to Canada, there are no such documents in its possession.
The Arbitral Tribunal is of the opinion that this request lacks relevance for the adjudication of the case.
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The Arbitral Tribunal takes note that Canada invokes solicitor-client privilege. In accordance with I.(b) above, Canada shall itemise these documents in its privilege log.
The Arbitral Tribunal takes note that, according to Canada, it has produced all non-privileged documents. In accordance with I.(b) above, Canada shall itemise these documents in its privilege log.
c), g), 1), m) and o): The Arbitral Tribunal does not think that documents from Mr. Rabbior, Mr. Dhalla, the Ministry, Mr. Campbell or Mr. Reitzel are relevant. d), e), f), i) and k): The Arbitral Tribunal takes note that, according to Canada, all non-privileged documents have been produced. In accordance with I.(b) above, Canada shall itemise these documents in its privilege log.
The Arbitral Tribunal takes note that, according to Canada, it has produced all non-privileged documents. In accordance with I.(b) above, Canada shall itemise these documents in its privilege log.
The Arbitral Tribunal takes note that, according to Canada, it has produced all non-privileged documents. In accordance with I.(b) above, Canada shall itemise these documents in its privilege log.
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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The Arbitral Tribunal takes note that, according to Canada, it has produced all non-privileged documents. In accordance with I.(b) above, Canada shall itemise these documents in its privilege log.
The Arbitral Tribunal takes note that, according to Canada, it has produced all non-privileged documents. In accordance with I.(b) above, Canada shall itemise these documents in its privilege log.
The Arbitral Tribunal is of the opinion that these documents are relevant for the adjudication of the case. Since Canada has claimed to have produced all non-privileged responsive documents, in accordance with I.(b) above, Canada shall itemise these documents in its privilege log.
The Arbitral Tribunal finds that this request puts a heavy burden on Canada, who would have to contact all government MPP, as well as on all third parties that would be involved. The request is denied.
The Arbitral Tribunal takes note that Canada claims to have produced all non-privileged documents and/or invokes solicitor-client privilege. In accordance with I.(b) above, Canada shall itemise these documents in its privilege log
The Arbitral Tribunal orders that Claimant produce these documents, but the category of documents to which this order applies is narrowed down to all agreements or contracts signed.
2 The requests have been summarised; each decision covers the full original request. ↩
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The Arbitral Tribunal orders Claimant to produce all documents, if any, showing the dates and amounts of capital Mr Gallo invested in the Enterprise, the Limited Partnership or 919841 Ontario Inc. by way of loans or contributions of capital.
The Arbitral Tribunal orders Claimant to produce all documents, if any, showing whether Mr. Gallo paid any expenses on behalf of the Enterprise, the Limited Partnership or 919841 Ontario Inc. in the aforementioned time period.
The Arbitral Tribunal orders Claimant to produce all documents, if any, showing whether Mr. Gallo made a non-financial contribution to the Enterprise, the Limited Partnership or 919841 Ontario Inc.
The Arbitral Tribunal orders Claimant to produce all documents, if any, concerning payments to be received and retained by Mr. Gallo from the Enterprise, the Limited Partnership or 919841 Ontario Inc.
The Arbitral Tribunal is of the opinion that Canada has not shown the involvement of Nick and Roseanne Cortelluci, Tony Nalli and Simmy Shnier in relation to matters raised in this arbitration. None of the foregoing persons has been mentioned in the Statement of Defence. The request with regard to these persons is accordingly rejected.
Martyn Murdoch and Gordon Acton have acted as counsel and for this reason the request with regard to them is also rejected.
The Arbitral Tribunal accepts the request as regards the rest of the listed persons, including any corporation or other entity with which each individual is associated.
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As regards the scope of the production, the Arbitral Tribunal narrows down the documents to be produced to those which affect ore relate to Mr. Gallo's claimed ownership and control of the Enterprise.
The Arbitral Tribunal considers that for the purposes of this request, Claimant includes both Mr. Gallo and the Enterprise.
The Arbitral Tribunal accepts Claimant's offer to provide a redacted version of Mr. Gallo's tax returns.
The Arbitral Tribunal orders that Claimant produce these documents, but narrowing the category to agreements or contracts signed. As regards documents not directly in possession of Claimant, the Arbitral Tribunal refers to I (c) above.
The Arbitral Tribunal orders Claimant to produce these documents. As regards documents not directly in possession of Claimant, the Arbitral Tribunal refers to I (c) above
The Arbitral Tribunal takes note that Claimant has produced Document 355 which, according to Claimant, is responsive to these requests.
The Arbitral Tribunal is of the opinion that the requested documents are relevant. All documents in Claimant's possession should be produced. As regards documents not directly in possession of Claimant, the Arbitral Tribunal refers to I (c) above.
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The Arbitral Tribunal does not see the relevance of these documents for the adjudication of the case.
The Arbitral Tribunal finds that the only relevant documents are those concerning the name of the ultimate shareholders of 919841 Ontario Inc. from 26 June 2002 – 5 February 2008. These should be produced. As regards documents not directly in possession of Claimant, the Arbitral Tribunal refers to I (c) above
The Arbitral Tribunal finds that the only relevant documents are those dated from 26 June 2002 – 5 February 2008. These should be produced. As regards documents not directly in possession of Claimant, the Arbitral Tribunal refers to I (c) above
The Respondent has not shown the relevance of these documents and the request is accordingly denied.
The Arbitral Tribunal orders Claimant to present all internal valuations, if any, of the Adams Mine, made at any time prior to this arbitration, for the purposes of a purported sale of or investment in the Adams Mine.
14. As provided for in Procedural Order no. 1, the parties are to present the documents, the production of which has been ordered in this Procedural Order no. 2, no later than 27 February 2009.
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[signed]
Juan Fernández-Armesto
[signed]
Jean-Gabriel Castel
[signed]
John Christopher Thomas