The arbitral tribunal in Amerra Capital Management LLC and others v. United Mexican States (ICSID Case No. UNCT/23/1) recently issued a procedural order in relation to document production.
The case is a pending legacy NAFTA claim in which the investors assert that Mexico breached the fair and equitable treatment provisions of NAFTA and expropriated their investments, taking the form of two mortgages on real estate in the State of Sinaloa.
In its Procedural Order No. 5 (made public on 11 June 2024), the arbitral tribunal, consisting of Professor Albert Jan van den Berg (presiding arbitrator), Mr Eduardo Siqueiros T. and Professor Jorge Viñuales indicated that the production of relevant documents extended to the production of relevant text messages and audio recordings.
Mexico had objected to the production of “text messages, communications by message applications like WhatsApp, Skype, or telegram, audio recordings” on the basis that such documents were of a private nature, and so not apt to production. However, the parties had earlier agreed that the Tribunal would be guided by the IBA Rules on the Taking of Evidence in International Arbitration (2020) (the “IBA Rules”) (Procedural Order No. 1, 11 May 2023). As such, the Tribunal followed the broad definition of “Document” found in the IBA Rules: “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.”
Therefore, no special protection from production could be afforded to instant messages and audio recordings: If such documents are within the possession, custody or control of a party, are responsive to requests for production, and there are no grounds to object to their production, such documents should be duly produced.
The necessary implication of this is that such documents would need to be collected and then reviewed for responsiveness. Not all parties will welcome a result that looks like common law court disclosure. Parties may want to consider whether to modify the application of the IBA Rules so often applied in boilerplate passages of a Terms of Reference or Procedural Order No. 1, or opt instead use other soft law instruments such as the Prague Rules whose starting point is that “generally, the arbitral tribunal and the parties are encouraged to avoid any form of document production, including e-discovery” (Rules on the Efficient Conduct of Proceedings in International Arbitration, Article 4.2).
Of course, WhatsApp messages, transcripts of voicemails and other communications are frequently exhibited as documentary evidence in international arbitration, and there are any number of interesting questions that can arise in relation to the production of instant messaging conversations.
For example, the arbitral tribunal in Dominicana Renovables, S.L. v. Dominican Republic, ICC Case No. 23364/JPA was faced with a request by the Respondent that it order the Claimant to produce a particular “complete and faithful string of WhatsApp messages.” The Dominican Republic argued that it was entitled to the full chain of WhatsApp messages on the basis that the Claimant had already exhibited some WhatsApp messages in the chain in question, which constituted a partial exhibition of the document.
The Dominicana Renovables tribunal denied the Respondent’s request, noting that in the case of WhatsApp messages, “it is not possible to affirm that the conversations held between two people on that system constitute a single document, since there is not necessarily any unity between them.” As such only the particular messages which were responsive needed to be produced (Procedural Order No. 7, as recited in the Final Award dated 20 January 2021, paragraph 43).
With an eye to risk management, the Amerra tribunal’s decision that text messages, communications by messenger applications, video calls, and audio recordings are disclosable in principle is a good reminder that whatever sense of privacy a smartphone gives, the communications and information stored on it is potentially disclosable, where relevant to a dispute and where that device is in the possession, custody or control of a party.