1. Summary of the case and the questions to be decided by the ICSID Tribunal
In an ongoing arbitration between Gran Colombia Gold Corp and the Republic of Colombia under the Free Trade Agreement between Canada and Colombia (FTA) (ICSID Case No. ARB / 18/23), the Tribunal (consisting of President Jean E. Kalicki, Professor Bernard Hanotiau and Professor Brigitte Stern) issued a procedural order on the parties’ requests for documents of September 28, 2021 (the PO).
The PO provides useful guidance on general principles and best practices during the drafting phase of international arbitration. In setting the standards expected by the parties, the court sought to reduce the burden on the parties and the court of the document creation process and prevent it from becoming lengthy and inefficient.
The PO resulted from the parties’ failure to reach an agreement on the drafting process after exchanging the traditional drafting requests, replies and responses. Both parties disagreed with most (if not all) of the other’s requests, with the Claimant raising a general objection to the Respondent’s requests for confidential documents and the Respondent denying nearly all of the Claimant’s requests on the grounds that some of the “the documents requested may contain information that is subject to legal impediments under Colombian law“Neither party had made significant attempts to assist the other in narrowing their requests for documents, even though the tribunal had previously issued a procedural order to that effect.
In addition to presenting its responses to the parties ‘respective requests for documents in annexes, the court issued the PO to deal with issues relating to secrecy, confidentiality and disclosure obligations of the parties and their legal advisers, which go beyond the scope of the parties’ individual requests for documents.
2nd PO. of the ICSID Tribunal
Document creation in general
With regard to document preparation in general, the court reiterated its decision in one of its previous procedural orders that the parties are required to act in good faith, which requires them to both formulate close and specific requests for documents in the first instance and to cooperate in the process Process of obtaining such wordings in relation to the other party’s demands.
Since each of the parties in that earlier order had objected to the other’s motions because they were too broad or excessively burdensome, the court ordered that they should examine and indicate whether there were narrower wording of the motions they were making would face ready to meet. In the PO the Tribunal noted that the Claimant had made some efforts in this regard (even if this did not always lead to an agreement between the parties), but that the Respondent accused the Respondent of not agreeing to any of the requests and of not proposing stricter wording as required.
The court found that the parties’ failure to comply with this obligation meant that it was solely for the court to limit the scope of the document requests to ensure that the relevant and essential documents were presented without placing undue burdens on the parties. With some frustration, the tribunal declared that it was.expressly tried to avoid through the established processâIn its previous Rules of Procedure.
In order to confirm that its production orders apply only to non-privileged material, the Tribunal has chosen to apply the privilege set out in Article 9 (3) (a) of the IBA Rules for the Taking of Evidence in International Arbitration, according to which the parties are not required to to create or create documents, communications or declarations (or parts thereof) “in connection with and for the purpose of providing or obtaining legal advice“. In the opinion of the court, this provision constitutes a”common sense understanding of legal privilege generally rooted in considerations of fairness common to many legal traditionsâAnd in adopting this standard, the Tribunal hoped to both avoid later disputes over the scope of the applicable privilege and to ensure that the parties were treated equally.
Although the Tribunal found that the Free Trade Agreement, in its definition of “confidential information“in Article 838”Information that is privileged under any party’s law or otherwise protected from disclosure“(ie national law) was not convinced that the parties could demonstrate that each potentially applicable national law had adopted a definition of privilege that differed significantly from that set out in the IBA rules.
The Tribunal also reminded the parties that privileges should be obtained by referring to specific passages of documents, rather than extrapolating a decision to an entire document (if not appropriate), and that non-privileged portions of documents should be produced.
Of particular concern to all parties to an ongoing arbitration was the notice by the arbitral tribunal that it refused to instruct either party to draw up a privilege record detailing each document / sub-document for which the privilege was asserted that of Legal counsel for the parties is expected:
- act in good faith in making the confidentiality decisions and, based on their own examination of the documents, come to their own conclusions as to whether documents are protected by legal secrecy, rather than relying on the assertions of their instructing client in this regard;
- Use good faith and reasonable care in demonstrating that no response documents exist; and
- double-check your previous statements if the other party gives specific reasons for the fact that responsive documents actually exist.
Whether the parties were able to oppose the submission of confidential documents, the tribunal has to answer the general objections of the parties to the requests for documents from the other for reasons of confidentiality in circumstances in which the FTA (i) is a party claiming confidentiality , assumed, had no understanding of the burden of naming the confidentiality of these documents with special features; (ii) addresses confidentiality issues by restricting the parties’ disclosure of each other’s documents beyond the scope of the arbitration; and (iii) authorize the court to establish specific procedures to protect certain confidential information, if any.
On this basis, the Tribunal took the view that the parties’ general objections to confidentiality did notBasis for an overarching restriction of disclosure for the purposes of this caseâAnd therefore declined to accept such objections.
3. Disclosure in legal disputes under the Code of Civil Procedure
The approach taken by the Tribunal in the PO is not dissimilar to the approach currently being taken to produce documents in legal proceedings in England and Wales under Practice Direction 51U of the Civil Procedure Rules (PD 51U).
PD 51U places a similar emphasis on cooperation between the parties and ensuring that disclosure does not go beyond what is necessary to resolve issues fairly and efficiently. Paragraph 2.3 states that the parties and their representatives “cooperate and support the court“agree or determine the scope of the disclosure required as efficiently as possible, and paragraph 2.4 provides that the disclosure”directed to the facts of the proceedings“, the scope of the disclosure not”wider than appropriate and proportionate [â¦] to solve these problems fairly [â¦]“In addition, the legal representatives of a party should”Liaison and cooperation with the legal representatives of the other parties to the proceedings [â¦] to promote reliable, efficient and inexpensive disclosure, including through the use of technology“(PD 51U section 3.2 (3)).
Finally, the arbitration tribunal’s expectation of confidence in the legal counsel (in relation to privilege provisions and allegations that addressable documents do not exist) is comparable to the various obligations that parties and their legal representatives owe the court in relation to the disclosure process under PD 51U. In particular, the lawyer should “Act honestly about the process of disclosing and reviewing documents disclosed by the other party” and “perform a review to satisfy yourself that any party’s claim to privilege arising from disclosure of a document is being properly asserted and that the reason for the privilege is adequately substantiated“(PD 51U paragraphs 3.2 (4) and 3.2 (5)).
4. Key takeaways for parties in arbitration
Formulation of requests for documents
The PO emphasizes that the parties should be careful not to make too extensive requests for documentation unless they can be reasonably justified with specific reasons. The parties should generally work together in narrowing each other’s drafting needs and it can be difficult for them to justify a failure. Overly broad motions combined with a failure to propose and agree more appropriate, narrower motions results in arbitration tribunals placing the burden of finding alternative language, which is unlikely to be well received.
As a practical matter, the parties may consider adopting (or at least referring to) the CIArb Protocol for E-Disclosure in International Arbitration at an early stage in the process. As this Protocol provides in its Article 1, the Contracting Parties may consider and “to discuss the storage and disclosure of electronically stored documents at the earliest possible point in time and to agree on the scope and type of production“. This may include agreeing on search terms (possibly along with date ranges and custodians) at the beginning of the document creation process to avoid disputes about the scope of the creation by both parties.
Privilege claims and objections to the submission of confidential documents
Parties and legal counsel should refer to the guidelines listed above regarding their good faith and due diligence obligations when identifying privileged material and claiming that no relevant documents exist.
The PO also points out that arbitration tribunals cannot be persuaded by general objections to document creation requests made by parties just because the requested documents “secret“without adequate reasoning. The Tribunal’s reasoning which found that”[t]The nature of disclosure mandates is that they require the production of material that would not normally be shared outside the company or governmentâ, Suggests that objections of this kind, which are raised without adequate clarification, can be dismissed.
Compliance with the procedural instructions
The parties to arbitration should also ensure that any specific procedural / drafting approach provisions contained in previous procedural orders are followed (such as the arbitral tribunal’s obligation to cooperate and the instruction to propose stricter language requests for documents).