Poštová banka, a.s. and ISTROKAPITAL SE v. Hellenic Republic
(ICSID Case No. ARB/13/8)
PROCEDURAL ORDER NO 3
Eduardo Zuleta, President of the Tribunal
Brigitte Stern, Arbitrator
John M. Townsend, Arbitrator
Secretary of the Tribunal
Martina Polasek
Poštová banka, a.s. and ISTROKAPITAL SE v. Hellenic Republic
(ICSID Case No. ARB/13/8)
Procedural Order No. 3
Page 2 of 6
1. Pursuant to Section 14.1 of Procedural Order No. 1 Respondent should file its request for
production of documents related to the issues of jurisdiction on January 10, 2014 and
Claimants should produce documents by January 24, 2014.
2. On January 14, 2014 Respondent submitted a letter informing the Tribunal that the
Parties had agreed that Claimants would make any objections to Respondent’s requests to
produce by January 15, 2014. Respondent would then submit its responses to any such
objections to produce by January 17, 2014 in a Redfern Schedule to be filed with the
Tribunal that same day for resolution of any remaining disputes between the Parties.
3. On January 17, 2014 Respondent submitted a Redfern Schedule for the production of
documents related to the issues of jurisdiction. The Redfern Schedule, comprising 17
categories of documents to produce, included Respondent’s initial request, Claimants’
objections and Respondent’s reply to Claimants’ objections. The Redfern Schedule also
listed Claimants’ general objections to Respondent’s request as well as Respondent’s
general objections to Claimants’ objections.
4. Together with the Redfern Schedule, Respondent submitted a letter to the Tribunal
indicating that no ruling was necessary in relation to requests 1, 3, 7 and 13 and that the
Parties have a dispute over the remaining requests, which is for the Tribunal to decide.
5. The Tribunal notes that in its objections to requests 2, 5, 8, 9, 10, 12, 14, 15 and 16,
Claimants offered to produce certain documents, and Respondent replied by narrowing
the corresponding request for production of documents.
6. Claimants objected to the production of documents in request 6 and Respondent
narrowed the request for production.
7. With respect to request 11, Claimants offered to produce certain documents and
Respondent maintained its original request.
8. Claimants objected to the production of documents in requests 4 and 17, and Respondent
maintained its requests as originally submitted.
9. On January 21, 2014, Claimants submitted a letter to the Tribunal responding to the
narrowed requests for production of documents that had been presented by Respondent
on January 17, 2014. Claimants maintained their objections to requests 4, 11 and 17, and
presented responses to Respondent’s narrowed requests 2, 5, 6, 8, 9, 10, 12, 14, 15 and
16.
10. In response to this letter, Respondent requested an additional opportunity to present
replies on Claimants’ responses. The Tribunal considered that it already had sufficient
information to assess the request for document production on the issues of jurisdiction Poštová banka, a.s. and ISTROKAPITAL SE v. Hellenic Republic
(ICSID Case No. ARB/13/8)
Procedural Order No. 3
Page 3 of 6
and that no further submissions are necessary.
11. In this Procedural Order, the Tribunal addresses the requests for the production of
documents with respect to which there is a pending dispute between Claimants and
Respondent. The Tribunal will first determine the applicable standards, and then issue its
decision on the requests to produce documents relevant to jurisdiction.
The Applicable Standards
12. The Tribunal recalls that this arbitration is governed by (i) the ICSID Convention, (ii) the
2006 ICSID Arbitration Rules (hereinafter the “Arbitration Rules”), and (iii) the
Procedural Rules as set out in Procedural Order No. 1. Moreover, paragraph 15.1 of
Procedural Order No. 1 states that: “Production of documents shall be governed by
Article 3 of the International Bar Association Rules on the Taking of Evidence in
International Arbitration (2010)” (hereinafter the “IBA Evidence Rules”), except where
inconsistent with this Procedural Order or any later order of the Tribunal, in which case
the orders of this Tribunal shall prevail.”
13. Since the Parties have clearly agreed that the production of documents be governed by
Article 3 of the IBA Evidence Rules, the Tribunal shall apply these standards.
14. For the purposes of this Order, the following are the relevant provisions of Article 3 of
the IBA Evidence Rules:
(i) Article 3.3:
“A Request to Produce shall contain:
(a) (i) a description of each requested Document sufficient to identify it, or
(ii) a description in sufficient detail (including subject matter) of a
narrow and specific requested category of Documents that are
reasonably believed to exist; in the case of Documents maintained in
electronic form, the requesting Party may, or the Arbitral Tribunal may
order that it shall be required to, identify specific files, search terms,
individuals or other means of searching for such Documents in an
efficient and economical manner;
(b) a statement as to how the Documents requested are relevant to the case
and material to its outcome; and
(c) (i) a statement that the Documents requested are not in the possession,
custody or control of the requesting Party or a statement of the reasons Poštová banka, a.s. and ISTROKAPITAL SE v. Hellenic Republic
(ICSID Case No. ARB/13/8)
Procedural Order No. 3
Page 4 of 6
why it would be unreasonably burdensome for the requesting Party to
produce such Documents, and
(ii) a statement of the reasons why the requesting Party assumes the
Documents requested are in the possession, custody or control of
another Party”.
(ii) Article 3.5:
“If the Party to whom the Request to Produce is addressed has an objection
to some or all of the Documents requested, it shall state the objection in
writing to the Arbitral Tribunal and the other Parties within the time ordered
by the Arbitral Tribunal. The reasons for such objection shall be any of those
set forth in Article 9.2 or a failure to satisfy any of the requirements of
Article 3.3”.
(iii) Article 3.7:
“Either Party may, within the time ordered by the Arbitral Tribunal, request
the Arbitral Tribunal to rule on the objection. The Arbitral Tribunal shall
then, in consultation with the Parties and in timely fashion, consider the
Request to Produce and the objection. The Arbitral Tribunal may order the
Party to whom such Request is addressed to produce any requested
Document in its possession, custody or control as to which the Arbitral
Tribunal determines 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 applies; and (iii) the
requirements of Article 3.3 have been satisfied. Any such Document shall be
produced to the other Parties and, if the Arbitral Tribunal so orders, to it”.
(iv) Article 9.2
“The 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 for any of the following reasons:
(a) lack of sufficient relevance to the case or materiality to its outcome;
(b) legal impediment or privilege under the legal or ethical rules determined
by the Arbitral Tribunal to be applicable;
(c) unreasonable burden to produce the requested evidence;
(d) loss or destruction of the Document that has been shown with
reasonable likelihood to have occurred;
(e) grounds of commercial or technical confidentiality that the Arbitral
Tribunal determines to be compelling; Poštová banka, a.s. and ISTROKAPITAL SE v. Hellenic Republic
(ICSID Case No. ARB/13/8)
Procedural Order No. 3
Page 5 of 6
(f) 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 Arbitral Tribunal determines to be
compelling; or
(g) considerations of procedural economy, proportionality, fairness or
equality of the Parties that the Arbitral Tribunal determines to be
compelling”.
15. According to Article 3 of the IBA Evidence Rules, the Tribunal shall order the
production of documents whenever (i) the issues that the Party wishes to prove are
relevant to the case and material to its outcome; (ii) the reasons for objections set forth in
Article 9.2 of the IBA Evidence Rules do not apply and (iii) the Request to Produce was
made in conformity with the requirements of Article 3.3 of the IBA Evidence Rules.
16. The Tribunal has carefully considered the 17 categories of documents the production of
which is sought by Respondent, as well as the objections lodged by Claimants in regards
to these requests, Respondent’s replies to such objections and Claimants’ responses to
Respondent’s narrowed requests. The Tribunal notes the Parties’ efforts to agree on these
requests for document production. Upon request by Respondent and with the interest of
adhering to the procedural schedule set forth in Procedural Order No. 1, the Tribunal has
conducted this assessment expeditiously. Based on its conclusions, the Tribunal issues
the following order.
Order
17. For the reasons set forth in the Redfern Schedule attached as Annex A to this Order, the
Tribunal:
A. Does not make any decision on requests for production 1, 3, 7 and 13, in light of the
Parties’ agreement on the scope of these requests.
B. Grants Respondent’s requests, as narrowed in the Redfern Schedule submitted on
January 17, 2014, in regards to requests 2, 5, and 6, as specified in the Redfern
Schedule.
C. Grants Respondent’s requests, as narrowed in the Redfern Schedule submitted on
January 17, 2014 and considering Claimants’ comments and confirmations, in regards
to requests 9, 10, 12, 14 and 15, as specified in the Redfern Schedule.
D. Partially grants Respondent’s request 8, as specified in the Redfern Schedule. Poštová banka, a.s. and ISTROKAPITAL SE v. Hellenic Republic
(ICSID Case No. ARB/13/8)
Procedural Order No. 3
Page 6 of 6
E. Grants Respondent’s requests 4, 11, 16 and 17, as specified in the Redfern Schedule.
F. Production of documents on the issues relative to jurisdiction shall be completed by
January 24, 2014, as indicated in section 14.1 of Procedural Order No. 1.
_____________________
Eduardo Zuleta
President of the Tribunal
Date: January 22, 2014
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