IN THE MATTER OF AN ARBITRATION UNDER THE
NORTH AMERICAN FREE TRADE AGREEMENT
- and -
THE ARBITRATION RULES OF THE
UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW (1976)
- between -
JOSHUA DEAN NELSON, IN HIS OWN RIGHT AND ON BEHALF OF TELE FÁCIL
MÉXICO, S.A. DE C.V., AND JORGE LUIS BLANCO
(the “Claimants”)
and
THE UNITED MEXICAN STATES
(the “Respondent”)
ICSID Case No. UNCT/17/1
PROCEDURAL ORDER NO. 6
Tribunal
Dr. Eduardo Zuleta (President)
Mr. V.V. Veeder, QC (Arbitrator)
Mr. Mariano Gomezperalta Casali (Arbitrator)
Secretary of the Tribunal
Ms. Sara Marzal Yetano
9 May 2018
[Page 2]
1. On 3 April 2018 Claimants submitted to Respondent their second request for documents.
2. On 17 April 2018 Respondent submitted its responses to Claimants’ second request for documents.
3. On 24 April 2018 Claimants submitted their replies to Respondent’s responses. By that time, Respondent had already produced certain undisputed documents and Claimants were looking forward to receiving more. No Redfern Schedule was presented to the Tribunal at that time.
4. On 1 May 2018 Claimants requested that the Redfern Schedule be transmitted to the Tribunal because outstanding disputes between the parties were still pending in connection with requests No. 1, 2, 6 and 7.
5. The Tribunal has reviewed Claimants’ requests for document production, Respondent’s responses and Claimants’ replies, all of which appear in the Redfern Schedule attached to this Procedural Order.
6. Respondent did not object to Claimants’ requests No. 3, 4 and 5 of the Redfern Schedule. Therefore, the Tribunal is not required to issue a decision on the aforementioned requests and will only decide on requests No. 1, 2, 6 and 7 (the “Disputed Document Requests”).
7. Pursuant to Article 3.7 of the IBA Rules, the Tribunal may order the production of documents if it determines, inter alia, that:
(i) the issues that the requesting Party wishes to prove are relevant to the case and material to its outcome; (ii) none of the reasons for objection set forth in Article 9.2 [of the IBA Rules] applies; and (iii) the requirements of Article 3.3 [of the IBA Rules] have been satisfied.1
8. The inquiry into the relevance and materiality of the documents requested must be performed on a case by case basis, considering the information available. After carefully conducting this analysis, the Tribunal is not persuaded that Claimants’ document requests No. 1 and 2 are sufficiently relevant and material to the present case.
1 2010 IBA Rules on the Taking of Evidence in International Arbitration, Article 3.7 (“IBA Rules”). ↩
[Page 3]
9. Claimants’ justification for document requests 1 and 2 is that Respondent has raised issues of Mexican law (specifically, the prohibition of “double transit” and the non-discrimination principle) and that if Respondent pretends to rely on them, it must produce all documents supporting that law, including documents showing that the laws have been put in practice and documents describing the same conclusion that Respondent reached.2
10. The Tribunal does not agree with Claimants. Respondent has presented a legal defense and has invoked norms and principles to support such legal defense. It is therefore a matter of determining whether these norms and the principles apply in the manner invoked by Respondent. Claimant does not explain why the documents mentioned in requests 1 and 2 are relevant and material to the legal defense presented by Respondent. In addition, the Tribunal agrees with Respondent in that requests 1 and 2 lack specificity and do not comply with Article 3.3(a) of the IBA Rules.
11. As to requests 6 and 7, the Tribunal considers that such requests, as clarified by Claimants in the Redfern Schedule, could be relevant and material to the case and comply with the specificity requirement of Article 3.3(a) of the IBA Rules.
12. In light of the above, after having reviewed carefully the observations submitted by the Parties and having considered each document request in light of Respondent’s legitimate interest and the reasonableness of the burden placed on the latter, taking into account all the relevant circumstances, including the fundamental principle of the integrity of the arbitral process, the Tribunal unanimously decides to:
13. Accept, in accordance with the foregoing reasons, Claimants’ document production requests No. 6 and 7 with the scope provided for in the attached Redfern Schedule.
2 Redfern Schedule, Claimants’ Justification of Request No. 1 (stating that “Respondent argues in its Statement of Defense (¶ 387) that ‘current laws do not allow . . . ‘double transit.’” . . . Having taken this position in formal pleadings, Respondent should be required to produce all evidence of the IFT’s actions, opinions, reports and other information in this regard”); Redfern Schedule, Claimants’ Reply to Request No. 1 (arguing that “Respondent has made a legal argument” and therefore “Respondent should be able to produce the very documents Respondent itself relied upon to make these assertions, as well as documents that evidence the claimed prohibition”); Redfern Schedule, Claimants’ Justification of Request No. 2 (stating that “Respondent argues in its Statement of Defense in ¶ 386 that in the event that Tele Facil obtained a rate with a non-preponderant carrier that was lower than the “Telmex Rate,” “Telmex would have been able to request the same rate to Tele Facil under the non-discrimination principle.” Having taken this position in formal pleadings, Respondent should be required to produce evidence of the IFT’s actions, opinions, reports and other information in this regard”); Redfern Schedule, Claimants’ Reply to Request No. 2 (arguing that “Respondent has made a legal argument” and therefore, “Respondent should be able to produce the documents Respondent relied upon to support that argument, as well as those document that either show that argument put in practice by the IFT or that describe that same conclusion.”). ↩
[Page 4]
14. Reject Claimants’ document production requests No. 1 and 2 for the reasons explained above.
15. Respondent shall have until 31 May 2018 to produce to Claimants the documents that they must produce under this Procedural Order.
16. The procedural calendar for the phase following this document production shall be that established in the Procedural Time Table and Document Production Schedule in Annexes 1 and 2 of Procedural Order No. 1, as amended by the Parties.
[ Signed ]
Mr. Eduardo Zuleta Jaramillo
(President)
On behalf of the Tribunal
[Page 5]
Joshua Dean Nelson, in his own right and on behalf of Tele Fácil México, S.A. de C.V. and Jorge Luis Blanco v. The United Mexican States
ICSID Case No. UNCT/17/1
Respondent’s Responses and Objections to Claimants’ Second Request for Production of Document
Pursuant to Items 18.7 to 18.9 of Procedural Order No. 1 (PO 1), the Respondent hereby submits its response to the Claimant’s second Request for Documents (RFD) submitted on 3 April 2018.
As noted in the Respondent’s objections to the Claimants’ Frist RFD, Item 18.5 of P01 provides that each request shall comply with the requisites established in Article 3(3) of the IBA Rules on the Taking of Evidence in International Arbitration dated 29 May 2010 (IBA Rules). Additionally, the description of a category of documents shall include a date or range of dates and the subject matter insofar as possible. Furthermore, under Item 18.9 of P01 objections to the production of a document or category of documents shall be justified on one or more of the grounds identified in Article 9(2) of the IBA Rules.
The Respondent objections are based on Article 9(2) subparagraph(s) (a) and (c) of the IBA Rules. The following grounds of objection are raised in the Redfern Schedule and rather than repeating these objections in each category of documents, the reference to the following grounds of objection in the Redfern Schedule should be read together with narrative that follows below.
The Respondent objects to Requests 1, 2 on the grounds that they lack the specificity required by Item 18.5 of the PO1 which embodies article 3(3)(a)(ii) of the IBA Rules.
The category of documents in Requests 1 and 2 is described as “Any documents in IFT’s possession [...] regarding [...]” certain matters. These requests do not describe a “narrow and specific category of documents that are reasonably believed to exist”. There are no references to dates or date ranges, authors, recipients, type of documents sought³, subject matter or any other parameter that would enable the Respondent to narrow the search.
Thus, in order to comply with these requests, the Respondent would have to review practically all documents within IFT’s possession (thousands of documents) in order to determine whether they
3 The requests state that they “include” certain types of documents such as “orders, fines, administrative procedures, reports, memoranda, internal communications, emails, notes and any other documents in any form”. ↩
[Page 6]
contain references to the matters identified in such requests. This would be overly burdensome for the Respondent and an impossible task to accomplish within the established timeframe for document production. The Respondent therefore also objects to these requests under Article 9(2)(c) (unreasonable burden to produce the requested evidence).
The Claimant purports to justify requests 1 and 2 by stating as follows:
“Having taken this position in formal pleadings, Respondent should be required to produce evidence of the IFT’s actions, opinions, reports and other information in this regard”
Put simply, this does not explain why the request for a broad category of documents is necessary for the Claimants’ Reply or material to the outcome of the case. Put another way, it is nothing more than a fishing expedition.
Redfern Schedule
| Request No. | 1 |
|---|---|
| Document / Category of Documents: |
Any documents in the IFT’s possession, including orders, fines, administrative procedures, reports, memoranda, internal communications, emails, notes and any other documents in any form, regarding “double transit” (as this term is used by Respondent in its Statement of Defense) prohibition. |
| Justification: | The requested documents are relevant to the case and material to its outcome. Respondent argues in its Statement of Defense (¶ 387) that “current laws do not allow indirect interconnection through more than one intermediary, which is informally known as “double transit.” Respondent further relies on the Witness Statement of Mr. Sostenes Diaz Gonzalez who states in ¶ 98 of his Statement that “in Mexico, double transit is not allowed, this is, traffic of one network being indirectly delivered through two or more intermediaries.” To support his argument, Mr. Diaz statement cites Section 8.7 of the “DECREE by which the Plenary of the Federal Telecommunications Institute issues the Rules of Number Portability and modified the Fundamental Technical Plan of Numbering, and the Fundamental Technical Plan of Signaling and the operative specifications for the implementation of portability of geographic and non-geographic numbers.” Having taken this position in formal pleadings, Respondent should be required to produce all evidence of the IFT’s actions, opinions, reports and other information in this regard. |
[Page 7]
| The requested documents are not in the possession, custody or control of the Claimants. The requested documents, if they exist, would be in the possession, custody and control of the Respondent. | |
| Objections: | The Respondent objects to the requests on the grounds of lack of specificity (i.e., failure to comply with Article 3(3)(a)), and lack of materiality (i.e objection based on Article 9(2)(a)) as explained in the general objections to this Request for Documents.
Notwithstanding this objection, after a diligent search, the Respondent has identified the following responsive documents and has no objection to their disclosure:
|
[Page 8]
| Reply: |
Respondent’s objection regarding lack of specificity is unfounded. The request for documents in the IFT’s possession regarding “double transit” (as used in Respondent’s Statement of Defense) does not imply “hav[ing] to review practically all documents within IFT’s possession (thousands of documents) in order to determine whether they contain references to the matters identified in such request.” Respondent has made a legal argument at ¶ 387 of its Statement of Defense that “current laws do not allow indirect interconnection through more than one intermediary, which is informally known as “double transit.” Respondent’s witness, Sostenes Diaz Gonzalez, makes a similar argument in his witness statement at ¶ 98 (“However, in Mexico, double transit is not allowed, that is, the traffic of one network is delivered indirectly to another through two or more intermediaries.”) Respondent should be able to produce the very documents Respondent itself relied upon to make these assertions, as well as documents that evidence the claimed prohibition. Respondent objects that there are no dates or date ranges. However, the temporal range of the documents is defined by Respondent’s own assertion. As noted above, Respondent cites Section 8.7 of the “DECREE by which the Plenary of the Federal Telecommunications Institute issues the Rules of Number Portability and modified the Fundamental Technical Plan of Numbering, and the Fundamental Technical Plan of Signaling and the operative specifications for the implementation of portability of geographic and non-geographic numbers” in support of its assertion. The date of this Decree thus establishes the beginning of the date range. Logically, the end of the date range is the date Claimants submitted their Notice of Arbitration, namely, September 26, 2016. Respondent’s objection regarding lack of materiality is implausible in light of the fact that Respondent itself raised the issue of “double transit” as part of its defense. Respondent has argued in its Statement of Defense in ¶ 387 and through its witness Mr. Diaz Gonzalez at ¶ 98 of his Witness Statement, among other places, that Claimants’ claim for damages ignores a supposed double transit prohibition. If Claimants’ request is not material, then neither is Respondent’s defense. Respondent’s document production is a hollow gesture. Both documents listed by Respondent above are publicly available and already in possession of Claimants. |
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[Page 9]
| Tribunal’s decision: |
Denied. The Tribunal is not convinced that the documents requested are sufficiently relevant to the case and material to its outcome (IBA Rules, Arts. 3.7(i) and 9.2(a)). Moreover, this request lacks specificity (IBA Rules, Article 3.3(a)). |
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[Page 10]
| Request No. | 2 |
|---|---|
| Document / Category of Documents: |
Any documents in the IFT’s possession, including orders, fines, administrative procedures to impose sanctions, reports, memoranda, internal communications, emails, notes and any other documents, regarding the “principle of non-discriminatory treatment” (as that phrase is used by Respondent in its Statement of Defense). |
| Justification: |
The requested documents are relevant to the case and material to its outcome. Respondent argues in its Statement of Defense in ¶ 386 that in the event that Tele Facil obtained a rate with a non-preponderant carrier that was lower than the “Telmex Rate,” “Telmex would have been able to request the same rate to Tele Facil under the non-discrimination principle.” Having taken this position in formal pleadings, Respondent should be required to produce evidence of the IFT’s actions, opinions, reports and other information in this regard. The requested documents are not in the possession, custody or control of the Claimants. The requested documents, if they exist, would be in the possession, custody and control of the Respondent. |
| Objections: |
The Respondent objects to the requests on the grounds of lack of specificity (i.e., failure to comply with Article 3(3)(a)) and lack of materiality (i.e. objection based on Article 9(2)(a)), as explained in the general objections to this Request for Documents. Notwithstanding this objection and the fact that the principle of non-discriminatory treatment is embodied in the LFTyR, after a diligent search, the Respondent has identified the following responsive documents and has no objection to their disclosure:
|
[Page 11]
| Reply: |
Respondent’s objection regarding lack of specificity is unfounded. The request for documents in the IFT’s possession regarding the principle of “non-discriminatory treatment” (as used in Respondent’s Statement of Defense) does not imply “hav[ing] to review practically all documents within IFT’s possession (thousands of documents) in order to determine whether they contain references to the matters identified in such request.” Respondent has made a legal argument a number of paragraphs, including ¶ 386, of its Statement of Defense, that “Telmex would have been able to request the same rate to Tele Facil under the non-discrimination principle.” Respondent should be able to produce the documents Respondent relied upon to support that argument, as well as those document that either show that argument put in practice by the IFT or that describe that same conclusion. The date of the requested documents is limited by its very nature. As Respondent concedes, the relevant non-discriminatory principle is embodied in the FTBL. The FTBL was enacted in July 14, 2014, and marks the beginning of the date range. As with Request No. 1, logically, the end of the date range is the date Claimants submitted their Notice of Arbitration, namely, September 26, 2016. Respondent’s objection regarding lack of materiality is implausible in light of the fact that Respondent itself raised the issue of “non-discriminatory treatment” as part of its defense. Respondent has argued in its Statement of Defense in ¶¶ 14 and 386, and through its witness Mr. Diaz Gonzalez at ¶ 63 of his Witness Statement, as well as through its legal expert Mr. Rodrigo Buj Garcia at ¶49, among other places, that Claimants’ claim for damages ignores the non-discrimination principle. If Claimants’ request is not material, then neither is Respondent’s defense. Respondent’s document production is a hollow gesture. Both documents listed by Respondent above are publicly available and already in possession of Claimant. |
|---|---|
| Tribunal’s decision: |
Denied. The Tribunal is not convinced that the documents requested are sufficiently relevant to the case and material to its outcome (IBA Rules, Arts. 3.7(i) and 9.2(a)). Moreover, this request lacks specificity (IBA Rules, Article 3.3(a)). |
[Page 12]
| Request No. | 3 |
|---|---|
| Document / Category of Documents: |
All documents relied upon by Analysys Mason in preparation of their expert report, in their native versions. In cases where there is an Excel version of the document, please provide the Excel version. These documents include, but are not limited to, the following information listed in Exhibit B of Analysys Mason’s report:
|
| Justification: |
All documents relied on by the Respondent’s experts are ipso facto relevant to the case and material to its outcome. They are necessary to properly understand, evaluate and corroborate assertions made in the expert report and the expert’s assessment of damages. Moreover, pursuant to Article 5(2) of the IBA Rules (which apply in this case as per section 20.3 of Procedural Order No. 1) the expert reports shall contain inter alia: the “[d]ocuments on which the Party-Appointed Expert relies that have not already been submitted shall be provided.” This includes all the documents listed in Exhibit B of Analysys Mason’s report entitled “Anexo B Fuentes documento Analysys Mason.” The requested documents are not in the possession, custody or control of the Claimants. The requested documents should be in the possession, custody and control of the Respondent. |
[Page 13]
| Objections: |
The Respondent has identified and does not object to the production of the following responsive documents:
|
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[Page 14]
Under P01 production of undisputed documents are due four weeks from the date of the request, consequently the Respondent has until 1st May to produce the above mentioned documents. Counsel for the Claimant requested the Respondent to expedite Claimant’s request for production of the files on which Analysys Mason’s valuation report is based. The Claimant’s Counsel proposed to follow Article 5(2)(e) strictly going forward and acknowledged the importance of having the documents in which the valuation is based as available for opposing party. The Respondent agreed to produce the request for documents related to Analysys before 1st May. |
|
| Reply: | Claimants provide no reply at this time. |
| Tribunal’s decision: |
Considering Respondent’s Response and Claimants’ Reply, no decision from the Tribunal is required. |
[Page 15]
| Request No. | 4 |
|---|---|
| Document / Category of Documents: |
All international interconnection agreements relied upon by Analysys Mason in preparation of their expert report, contained in Exhibit A (Anexo A-Acuerdos de tarifas de terminación internacional). These documents include, but are not limited to, the following information listed in Exhibit A of Analysys Mason’s report:
|
| Justification: |
All documents relied on by the Respondent’s experts are ipso facto relevant to the case and material to its outcome. They are necessary to properly understand, evaluate and corroborate assertions made in the expert report and the expert’s assessment of damages. The requested documents are not publicly available in the IFT’s Public Registry of Concessions, or could not be found pursuant to the information provided by Analysys Mason. Moreover, pursuant to Article 5(2) of the IBA Rules (which apply in this case as per section 20.3 of Procedural Order No. 1) the expert reports shall contain inter alia: the “[d]ocuments on which the Party-Appointed Expert relies that have not already been submitted shall be provided.” This includes all the documents listed in Exhibit A of Analysys Mason’s report entitled “Anexo A Acuerdo de tarifas de terminación internacional.” The requested documents are not in the possession, custody or control of the Claimants. The requested documents should be in the possession, custody and control of the Respondent. |
[Page 16]
| Objections: |
The Respondent has identified and does not object to the production of the following responsive documents:
|
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[Page 17]
|
[Page 18]
Under P01 production of undisputed documents are due four weeks from the date of the request, consequently the Respondent has until 1st May to produce the above mentioned documents. Counsel for the Claimant requested the Respondent to expedite Claimant’s request for production of the files on which Analysys Mason’s valuation report is based. The Claimant’s Counsel proposed to follow Article 5(2)(e) strictly going forward and acknowledged the importance of having the documents in which the valuation is based as available for opposing party. The Respondent agreed to produce the request for documents related to Analysys before 1st May. |
|
| Reply: | Claimants provide no reply at this time. |
| Tribunal’s decision: |
Considering Respondent’s Response and Claimants’ Reply, no decision from the Tribunal is required. |
[Page 19]
| Request No. | 5 |
|---|---|
| Document / Category of Documents: |
All international interconnection agreements relied upon by Sostenes Diaz Gonzalez in preparation of his witness statement. These documents include, but are not limited to, the following information listed in Exhibit 2 of Mr. Diaz’s witness statement:
|
| Justification: |
All documents relied on by the Respondent’s experts are ipso facto relevant to the case and material to its outcome. They are necessary to properly understand, evaluate and corroborate assertions made in the expert report and the expert’s assessment of damages. The requested documents are not publicly available in the IFT’s Public Registry of Concessions, or could not be found pursuant to the information provided by Analysys Mason. The requested documents are not in the possession, custody or control of the Claimants. The requested documents should be in the possession, custody and control of the Respondent. |
[Page 20]
| Objections: | The Respondent does not object to the production of documents responsive to this request (same documents offered in response to Request 4). |
|---|---|
| Reply: | Claimants provide no reply at this time. |
| Tribunal’s decision: |
Considering Respondent’s Response and Claimants’ Reply, no decision from the Tribunal is required. |
[Page 21]
| Request No. | 6 |
|---|---|
| Document / Category of Documents: |
Documents containing a description of the following variables contained in the IFT’s Market Model for interconnection rates 2015-2016 ( http://www.ift.org.mx/politica-regulatoria/modelo-de-costos-utilizado-para-determinar-las-tarifas-de-interconexion-aplicables-al-ano-2015-2016 ):
The description should include information to identify to what operator the traffic corresponds to, what operator originates the traffic, and what operator terminates the traffic. |
| Justification: |
All documents relied on by the Respondent’s experts are ipso facto relevant to the case and material to its outcome. They are necessary to properly understand, evaluate and corroborate assertions made in the expert report and the expert’s assessment of damages. Moreover, pursuant to Article 5(2) of the IBA Rules (which apply in this case as per section 20.3 of Procedural Order No. 1) the expert reports shall contain inter alia: the “[d]ocuments on which the Party-Appointed Expert relies that have not already been submitted shall be provided”. This includes all the documents listed in Exhibit 2 of Mr. Sostenes Diaz’ witness statement. The requested documents are not in the possession, custody or control of the Claimants. The requested documents should be in the possession, custody and control of the Respondent. |
[Page 22]
| Objections: |
To the extent that the request refers to documents relied upon by the Respondent’s experts, those documents are already covered by Request 3 (“All documents relied upon by Analysys Mason in preparation of their expert report [...]”) and will be provided in response to that request. In particular, the following three documents relate to IFT’s Market Model for interconnections rates 2015-2016:
To the extent that the request refers to other documents, the Respondent objects on the grounds that:
The Respondent will further observe that this appears to be a request for information, hence, the clarification that “[t]he description should include information to identify to what operator the traffic corresponds to, what operator originates the traffic, and what operator terminates the traffic”. The Claimants are not entitled to request information, but rather existing documents in possession of the Respondent. |
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[Page 23]
| Reply: |
Respondent wrongfully categorizes Claimants’ request as a request for information, instead of a request for documents. Claimant is clearly requesting “Documents containing a description of the following variables contained in the IFT’s Market Model for interconnection rates 2015-2016...” Analysys Mason’s report contains several assumptions deriving from its interpretation of those variables by giving them definitions and/or values that are not contained in the model. Specifically, Analysys Mason criticizes Dr. Mariscal’s report in ¶¶ 100-103 by giving a different definition of the abovementioned variables. However, Analysys Mason provides no support for those allegations, and the models it relies on provide no distinct interpretation. Claimants’ damages experts have indicated that the IFT cost models relied on by Analysys Mason do not contain information that allows them to understand the meaning of the referred variables in accordance to Analysys Mason’s interpretation. It is worth mentioning that Analysys Mason is the consulting firm contracted by IFT in past years to develop the market studies and costs models that IFT uses to determine regulated rates in case of interconnection disagreements. Analysys Mason’s report contains interpretations of the mentioned variables with no documentary support, or at least not publicly available documentary support. Accordingly, Claimant is hereby requesting any document that would support Analysys Mason’s interpretation or definition of the variables. This documentation is relevant for Claimants’ experts to be able to reply to Analysys Mason’s criticism of their damages estimation. Unless Analysys Mason discloses the non-public information relied on to interpret the above-mentioned variables, it is not possible to respond to the criticisms contained in their report. Claimants maintain that its request is sufficiently specific and relevant, since Respondent has conceded that Analysys Mason relied on that model for its damages report, and should be able to produce documents that contain descriptions to support the expert’s assumptions. |
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[Page 24]
| Tribunal’s decision: |
Granted to the extent that the request refers to documents relied upon by the Respondent’s experts. The Tribunal agrees with Respondent in that Claimants are only entitled to request existing documents. Moreover, the Tribunal notes that Respondent has already identified a number of responsive documents to this request. The Tribunal requests Respondent to confirm that it has undertaken and will undertake a good faith effort to search for all documents that are responsive to this request and inform Claimants and the Tribunal accordingly. |
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[Page 25]
| Request No. | 7 |
|---|---|
| Document / Category of Documents: |
Regarding the IFT’s Market Model for interconnection rates 2018 ( http://www.ift.org.mx/politica-regulatoria/modelos-de-costos-utilizados-en-el-acuerdo-de-condiciones-tecnicas-minimas-2018 ):
|
| Justification: |
All documents relied on by the Respondent’s experts are ipso facto relevant to the case and material to its outcome. They are necessary to properly understand, evaluate and corroborate assertions made in the expert report and the expert’s assessment of damages. Moreover, pursuant to Article 5(2) of the IBA Rules (which apply in this case as per section 20.3 of Procedural Order No. 1) the expert reports shall contain inter alia: the “[d]ocuments on which the Party-Appointed Expert relies that have not already been submitted shall be provided”. This includes all the documents listed in Exhibit 2 of Mr. Sostenes Diaz’ witness statement. The requested documents are not in the possession, custody or control of the Claimants. The requested documents should be in the possession, custody and control of the Respondent. |
[Page 26]
| Objections: |
To the extent that the request refers to documents relied upon by the Respondent’s experts, those documents are already covered by Request 3 (“All documents relied upon by Analysys Mason in preparation of their expert report [...]”) and will be provided in response to that request. In particular, the Respondent identifies the following documents regarding the IFT’s Market Model for interconnection rates 2018
To the extent that the request refers to other documents, the Respondent objects on the grounds that:
The Respondent has no further documents falling within this request. |
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[Page 27]
| Reply: |
Respondent wrongfully categorizes Claimants’ request as a request for information instead of a request for documents. Claimant is requesting “documents containing information to support the conclusion that Telmex’s off-net traffic represents 27% of the total traffic for 2018”; and “documents confirming whether the 2018 Market Model contains real data (updated and observed data in the market) for prior years, or whether the data contained in this model are estimates or projected information.” Analysys Mason’s report contains several assumptions deriving from the IFT’s Market Model for interconnection rates 2018. Specifically, Analysys Mason criticizes Dr. Mariscal’s report in ¶¶ 100-103 due to a different interpretation of the variables and data contained in the model. However, Analysys Mason provides no support for those allegations, and the models it relies on provide no distinct interpretation. As already mentioned, Analysys Mason is the consulting firm contracted by IFT in past years to develop the market studies and costs models that IFT uses to determine regulated rates in case of interconnection disagreements. Analysys Mason’s report contains the referred assumptions with no documentary support, or at least not publicly available documentary support. Claimants’ damages experts have indicated that the IFT cost models relied on by Analysys Mason do not contain information that allows them to conclude that “Telmex’s off-net traffic represents 27% of the total traffic for 2018” nor clarification if the information contained in the 2018 Market Model uses real data or projected information. Accordingly, Claimants hereby request any document that would support Analysys Mason’s interpretation or definition of these issues. This documentation is relevant for Claimants’ experts to be able to reply to Analysys Mason’s criticism of their damages estimation. Unless Analysys Mason discloses the non-public information relied on to interpret the above-mentioned variables, it is not possible to respond to the criticisms contained in their report. Claimants maintain that its request is sufficiently specific and relevant, since Respondent has conceded that Analysys Mason relied on that model for its damages report, and should be able to produce documents that contain descriptions to support the expert’s assumptions |
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[Page 28]
| Tribunal’s decision: |
Granted to the extent that the request refers to documents relied upon by the Respondent’s experts. The Tribunal notes that Respondent has already identified the responsive documents to this request and that it has “no further documents falling within this request.” The Tribunal requests Respondent to confirm that it has undertaken to search for the documents that are responsive to this request and inform Claimants and the Tribunal accordingly. |
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Claimants’ Additional Note
During Claimants’ review of Respondent’s Statement of Defense, and after April 3, 2018 when Claimants submitted their second request for documents, Claimants noticed that Mr. David Gorra Flota’s witness statement did not include copies of several confirmations of criteria that he references in paragraphs 13 to 16 of his witness statement, which, he stated, were publicly available via the IFT’s website.
On April 20, 2018, Claimants invited Respondent to produce all documents cited by Mr. Gorra in paragraphs 14, 15 and 16 of his witness statement that are not, in fact, publicly available; namely, those referred to in paragraphs 14.d, 14.e, 14.f, 14.g, 14.h, 16.b, 16.c, 16.d, 16.e, 16.f, and 16.g of his witness statement.
Claimants appreciate Respondent’s email message dated April 24, 2018 in which Respondent agreed to cooperate in satisfying Claimants’ request. While we anticipate Respondent’s full cooperation on this matter, we reserve the right to raise this issue before the Tribunal should its intervention become necessary.