In the matter of an arbitration under the UNCITRAL Arbitration Rules
between
1. GRAMERCY FUNDS MANAGEMENT LLC
2. GRAMERCY PERU HOLDINGS LLC
Claimants
v.
THE REPUBLIC OF PERU
Respondent
PROCEDURAL ORDER No. 3
(ON DOCUMENT PRODUCTION)
ARBITRAL TRIBUNAL
Prof. Juan Fernández-Armesto (Presiding Arbitrator)
Mr. Stephen L. Drymer
Prof. Brigitte Stern
SECRETARY OF THE TRIBUNAL
Ms. Marisa Planells-Valero
ASSISTANT TO THE PRESIDENT
Dr. Luis Fernando Rodríguez
Paris, July 12, 2018
[Page 2]
5. Allocation of costs............................................................................................................. 10
[Page 3]
1. This arbitration arises between Gramercy Funds Management LLC and Gramercy Peru Holdings LLC [“Gramercy” or “Claimants”] and the Republic of Peru [“Peru” or “Respondent”] under the United States-Peru Free Trade Agreement signed on April 12, 2006 [the “Treaty”]. Claimants and Respondent shall be jointly referred to as the Parties.
2. On May 22, 2018, the Tribunal and the Parties executed the Terms of Appointment, and on June 29, 2018, the Tribunal issued the Procedural Order No. 1.
3. Paragraph 11 of the PO 1 provides that the document production phase, if requested by any Party, shall be conducted in accordance with a procedural order issued by the Arbitral Tribunal after consultation with the Parties.
4. On July 2, 2018, the Tribunal circulated a draft Procedural Order No. 3, on document production, seeking the Parties’ comments. The Parties submitted their positions on July 9, 2018.
5. The following Procedural Order sets out the Tribunal’s decisions after consultation with the Parties.
[Page 4]
6. The document production phase, if requested by any Party, shall proceed in accordance with the Procedural Calendar attached as Annex I to the Procedural Order No. 1 [“PO 1”].
7. The Parties agree to be guided by the International Bar Association Rules on the Taking of Evidence in International Arbitration (2010) [“IBA Rules”] for the production of documents in this arbitration.
8. The “Definitions” section of the IBA Rules includes the following definition of document:
““Document’ 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”.
9. The same definition will be used in this Order and must be used by the Parties in their requests for document production.
10. The Parties shall submit a Document Production Schedule [“DPS”], using the draft model attached hereto as Annex I. For each Document (or category of Document) a single Document Request shall be completed. Document Requests shall be numbered sequentially. The Parties are kindly requested, to adhere to the word limit defined for each cell.
11. The Tribunal recommends that the number of Document Requests per Party does not exceed 25. A Party planning to make more than 25 Document Requests shall announce it two weeks before the submission of the DPS Request (as per the Procedural Timetable), explaining the reasons and need for a number higher than recommended.
12. Each Party will deliver its DPS directly to the counterparty, without copying the Tribunal.
13. Each requested Document must meet the following requirements [“R”]:
14. The description must be in sufficient detail to identify the requested Document.
15. If the request is for a category of Documents, the following additional requirements must be met:
1 Art. 3.3 (a) (i) and (ii) IBA Rules. ↩
[Page 5]
16. Any request which does not comply with these requirements shall be rejected in limine.
17. The requesting Party must prove that the Documents are relevant to the case and material to its outcome by identifying the specific paragraph in its submission for which evidentiary support by way of document production is requested.
18. Any request which does not comply with this requirement shall be rejected in limine.
19. Documents
will, as a general rule, be considered relevant.
20. It is not for a Party to disprove, by way of document requests directed to the counterparty, allegations for which the counterparty bears the burden of proof, since failure to discharge such burden will by itself lead to dismissal. Production with the purpose of disproving the counterparty’s allegations will only be ordered in exceptional circumstances.
21. The requesting Party must aver that the Documents sought are not in its possession, custody or control, and explain why it assumes that the Documents are in the
2 Arts. 3.3 (b) and 9.2 (a) IBA Rules. ↩
3 Art. 3.3 (c) (i) and (ii) IBA Rules. ↩
[Page 6]
possession, custody or control of the counterparty. The request will be rejected, if the Documents are located in the premises or under the control of a third party, to which the requesting Party has access.
22. The IBA Rules provide for a number of objections to the production of Documents. Further to alleging failure to satisfy any of the previously established requirements (R1 to R3), a Party may object to a request for production in the following cases [“O”]4:
23. A requested Party may invoke privilege with regards to Documents prepared by or addressed to counsel, pertaining to the provision of legal advice, and given or received with the expectation that such Documents would be kept confidential.
24. In general, a Document needs to meet the following requirements in order to be granted special protection under legal privilege6:
25. A requested Party may also invoke privilege with regards to Documents prepared by or for a Party or their representative or counsel in anticipation of litigation or arbitration. For the avoidance of doubt, drafts, working papers, or any other documentation created by an expert, and any communications between the expert and a Party or its counsel, for purposes of providing expert evidence in litigation or arbitration, shall be privileged from production and shall not be produced in the arbitration.
26. A requested Party may also invoke privilege regarding Documents prepared in connection with settlement negotiations7, including
4 Art. 3.5 IBA Rules. ↩
5 Art. 9.2 (b) IBA Rules. ↩
6 Vito G. Gallo v. The Government of Canada, NAFTA-UNCITRAL, Procedural Order No. 3, April 8, 2009, para. 47. ↩
7 Art. 9.3 (b) IBA Rules. ↩
[Page 7]
27. In case an objection under O1 is raised, the requested Party must (at the time it delivers the non-contested Documents) choose between one of the following options:
28. Any discussion regarding the extent and appropriateness of the Privilege Log, of the redaction or of the confidentiality undertaking will be settled by the Tribunal.
29. The requested Party may object to the production of Documents on the basis that it would impose an unreasonable burden. In making its decision, the Tribunal will weigh time and cost of producing the Documents against their expected evidentiary value. The Tribunal may also reduce the scope of production to avoid unreasonable burden.
30. The requested Party may object to the production of Documents if it shows, with reasonable likelihood, that they have been lost or destroyed, or do not exist for other reasons.
31. A Party may request that a Document should not be produced, alleging compelling grounds of technical or commercial confidentiality.
32. In case an objection under O4 is raised, the requested Party must (at the time it delivers the non-contested Documents) choose between one of the following options:
8 Art. 9.2 (c) IBA Rules. ↩
9 Art. 9.2 (d) IBA Rules. ↩
10 Art. 9.2 (e) IBA Rules. ↩
[Page 8]
33. Any discussion regarding the extent and appropriateness of the Privilege Log, of the redaction or of the confidentiality undertaking will be settled by the Tribunal.
34. A Party may request that a Document should not be produced, alleging grounds of special political or institutional sensitivity (including evidence that has been classified as secret by a government or a public international institution) that the Tribunal determines to be compelling.
35. In case an objection under O5 is raised, the requested Party must (at the time it delivers the non-contested Documents) choose between one of the following options:
36. Any discussion regarding the extent and appropriateness of the Privilege Log, of the redaction or of the confidentiality undertaking will be settled by the Tribunal.
37. Documents will not be ordered to be produced when the Tribunal finds considerations of procedural economy, proportionality, fairness or equality of the Parties that it determines to be compelling.
38. On the date identified in the Procedural Calendar, each Party shall return directly to the counterparty the initial DPS, indicating which requests it will voluntarily comply with, and which requests it rejects [“DPS Response”],
11 Art. 9.2 (f) IBA Rules. ↩
12 Art. 9.2 (g) IBA Rules. ↩
[Page 9]
39. On the same date, each Party shall produce all “Non-Contested Documents” which have been requested (together with the DPS Response and the Privilege Log, identifying the date, the issuer, the recipient and a summary description of any Document or part of a Document for which privilege is claimed, and drafted in accordance with Annex II). Non-Contested Documents shall only be delivered to the requesting Party, without copying the Tribunal. The requesting Party may marshal any of these Non-Contested Documents as evidence with the following written submissions.
40. On the date identified in Procedural Calendar, the requesting Party shall file a response to the Objections O1 through O6 raised by the counterparty. The requesting Party may withdraw or limit its requests on account of the Objections raised. The requesting Party may additionally object to the extent and appropriateness of the Privilege Log or the redaction of Documents produced by the counterparty.
41. The requesting Party shall formalize its response in the DPS [“DPS Response to Objections”].
42. For the avoidance of doubt, the requesting Party shall refrain from replying to the arguments raised by the requested Party regarding Requirements R1 to R3.
43. On that same date, each Party shall submit its DPS (including its own requests, the objections of the counterparty, its own responses to the objections and the counterparty’s Privilege Log) to the Tribunal.
44. The Tribunal will endeavour to issue its decision by the date established in the Procedural Calendar. Such decision will be formalized in the requesting Party’s DPS.
45. Each Party shall produce all “Contested Documents”, in compliance with the decision adopted by the Tribunal, on the date established in the Procedural Calendar. Contested Documents shall only be delivered to the counterparty, without copying the Tribunal. The receiving Party may marshal any of such Contested Documents as evidence with the following written submissions.
46. If the requested Party has raised, and the Tribunal has accepted, objections O1, O4 or O5 with regard to certain Documents, the requested Party may opt between delivering together with the Contested Documents a Privilege Log (identifying the date, the issuer, the recipient and a summary description of any Document or part of a Document for which privilege is claimed, and drafted in accordance with Annex II) or redacted Documents.
[Page 10]
47. On the same date, each Party will deliver to its counterparty and to the Tribunal, the following “Affidavits”:
48. If a Party, without satisfactory explanation, and in contravention of the Tribunal’s instructions, fails to produce a Document, the Tribunal may infer that such Document is adverse to the interest of that Party. Likewise, if a Party absent satisfactory explanation fails to deliver any of the Affidavits, the Tribunal will make appropriate inferences.
49. In its decision on costs, the Tribunal shall make a special allocation of costs with regard to the Document production exercise, taking into consideration the reasonableness of Requests and Objections, each Party’s willingness to produce the Documents under its control and the relative success of each Party.
50. Parties shall identify separately in their statements of costs those incurred in preparing their DPS Requests and DPS Responses, and those incurred in the search and delivery of requested Documents.
Signature
Juan Fernández-Armesto
Presiding Arbitrator
Place of Arbitration: Paris, France
Date: July 12, 2018
[Page 11]
ARMESTO & ASOCIADOS
ÁRBITROS
Procedural Order No. 3 – Annex I
DOCUMENT PRODUCTION SCHEDULE
Gramercy v. Peru – UNCT/18/2
| Requesting Party: | Requested Party: | |
| Document Request No. 1. | ||
| R1: Description of requested Documents (max. 200 words) | ||
| Requesting party | Requested party | Tribunal |
| Time frame of issuance | ||
| R2: Relevance and materiality (max. 250 words) | ||
| Requesting party | Requested party | Tribunal |
| Reference in Memorial (paras.) | ||
| R3: Not in possession of requesting party (max. 100 words) | ||
| Requesting party | Requested party | Tribunal |
| O1: Legal or settlement privilege (max. 250 words) | ||
| Requested party | Requesting party | Tribunal |
| O2: Production is unreasonably burdensome (max. 200 words) | ||
| Requested party | Requesting party | Tribunal |
| O3: Loss or destruction (max. 100 words) | ||
| Requested party | Requesting party | Tribunal |
| O4: Technical or commercial confidentiality (max. 200 words) | ||
| Requested party | Requesting party | Tribunal |
| O5: Special political or institutional sensitivity (max. 250 words) | ||
| Requested Party | Requesting party | Tribunal |
| O6: Production affects fairness or equality of procedure (max. 100 words) | ||
| Requested party | Requesting party | Tribunal |
| Tribunal’s Decision | ||
[Page 12]
Add request
[Page 13]
Gramercy v. Peru – UNCT/18/2
Annex II to Procedural Order No. 3
PRIVILEGE LOG
Requesting party:
Requested party:
| Doc. No. | Date of issuance | Author/Sender | Recipient(s), including any individuals in copy | Brief description of the Document or Category of the Documents | Objection |
|---|---|---|---|---|---|
[Page 14]
Gramercy v. Peru – UNCT/18/2
Annex II to Procedural Order No. 3
[Page 15]
Gramercy v. Peru – UNCT/18/2
Annex III to Procedural Order No. 3
AFFIDAVIT
My name is , of . This Affidavit is issued in accordance with Procedural Order No. [...] in the arbitration between Gramercy Funds Management LLC and Gramercy Peru Holdings LLC against the Republic of Peru (UNCT/18/2). Terms defined in Procedural Order No. [...] have the same meaning when used in this Affidavit.
I declare that, to the best of my knowledge and belief:
Date:
[Page 16]
Gramercy v. Peru – UNCT/18/2
Annex IV to Procedural Order No. 3
AFFIDAVIT
My name is , external legal counsel of . This Affidavit is issued in accordance with Procedural Order No. [...] in the arbitration between Gramercy Funds Management LLC and Gramercy Peru Holdings LLC against the Republic of Peru (UNCT/18/2). Terms defined in Procedural Order No. [...] have the same meaning when used in this Affidavit.
I declare that:
Date: