claimant's request for the production of ......1. pursuant to paragraph 5.1 of the tribunal’s...

PCA CASE N° 2016-39/AA641

ARBITRATION UNDER THE RULES OF ARBITRATION OF THE UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW

GLENCORE FINANCE (BERMUDA) LTD

-v-

PLURINATIONAL STATE OF BOLIVIA

CLAIMANT'S REQUEST FOR THE PRODUCTION OF DOCUMENTS ON

QUANTUM

23 A UGUST 2019

Claimant

Respondent

(INCLUDING BOLIVIA' S OBJECTIONS OF 6 SEP'IEMBER 2019 AND CLAIMANT'S REPLIES OF 20 SEPTEMBER 2019)

{I) Freshfields Brockhaus Deringer us LLP

601 Lexington A venue 31st Floor New York

New York 10022 United States of America

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FERRE RE Avenida San Maitin, No 155

Edificio Ambassador Business Center, Piso 18 Equipetrol

Santa Cmz de la Siena Bolivia

1. Pursuant to paragraph 5.1 of the Tribunal’s Procedural Order No 1 of 31 May 2017 and the Annex of the Tribunal’s Procedural Order No 7 of 29 July 2019, Claimant hereby submits its Requests for the Production of Documents (Requests).1 These Requests are submitted in the form of a Redfern Schedule following the model attached to the Tribunal’s Procedural Order No 2 of 31 January 2018 as Annex 2, and are consistent with the IBA Rules on the Taking of Evidence in International Arbitration (2010) (IBA Rules).2

2. The Requested Documents, as defined below, are relevant to the case and material to its outcome, for the reasons explained below.

3. The Requested Documents are not within Claimant’s possession, custody, or control. Claimant reasonably assumes that the Requested Documents exist and are within the possession, custody, or control of Respondent, because the Requested Documents were created by or for Respondent, and/or provided to Respondent (and not to Claimant), and/or should be kept and maintained by Respondent in the ordinary course of business. To the extent that the Requested Documents did exist but are said to no longer exist and/or be in Respondent’s possession, custody, or control, Respondent should identify such Documents and the circumstances in which they are said to have been lost and/or destroyed and/or to have left Respondent’s possession, custody, or control. To the extent that the Requested Documents ought to have been generated by Respondent in the ordinary course of business, but were not so generated, Respondent should identify such Documents and the reasons why they were not so generated.

4. Documents in Respondent’s possession, custody, or control include documents in the possession, custody, or control of Respondent, State organ, and/or State-owned entities, parent entities, holding companies, affiliates, subsidiaries, and any company or other entity or person controlling, under common control and/or controlled by, managed by or otherwise affiliated with such organs and companies, including their respective State organs, principals, officers, directors, employees, representatives, or agents during the time periods relevant to these Requests. For the avoidance of doubt, Documents in Respondent’s possession, custody, or control include Documents in the possession, custody, or control of State organs and entities at the relevant time(s), and also Documents that may be in the possession, custody, or control of the entities that currently oversee, own in whole or in part, and/or beneficially own the Tin Smelter, the Antimony Smelter, the Tin Stock and the Colquiri Mine.

5. Claimant requests that responsive documents be numbered by Respondent and produced in an electronic form sufficient to identify each separate document, document families (eg, e-mails and their attachments) and the relationship between documents within a family (eg, multiple attachments to an e-mail). In addition, in the event that the native files of the Requested Documents exist (eg, files with Microsoft Excel or Microsoft Outlook format), Claimant requests that Respondent produce said files in their native format.

1 All capitalized terms not defined herein have the meaning ascribed in the Glossary included in Claimant’s Rejoinder on Jurisdictional Objections dated 22 January 2019.

2 IBA Rules, Articles 3(2) and 3(3).

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6. Claimant reserves the right to amend or supplement these Requests in light of the documents produced (or not produced) by Respondent. Claimant also reserves the right to amend or supplement these Requests should Respondent seek to raise any new allegations or produce any additional evidence.

Definitions

7. As used in these Requests:

“26 de Febrero Cooperative” means the Cooperativa Minera 26 de Febrero Ltda.

“Bolivia” or “Respondent” means the Plurinational State of Bolivia.

“Claimant’s Experts” means Compass Lexecon, Roscoe Postle Associates Inc and architect Ms Gina Russo.

“Colquiri” means Compañía Minera Colquiri SA.

“Colquiri Lease” means the lease agreement for the Colquiri Mine between the Ministry of Trade, Comibol, Colquiri and Comsur dated 27 April 2000.

“Colquiri Mine” means the tin and zinc mine in the town of Colquiri.

“Comibol” means the State-owned Corporación Minera de Bolivia.

“Comsur” means the Bolivian-based Compañía Minera del Sur SA.

“Concentrator Plant” means the concentrator plant of the Colquiri Mine.

“Document” means a writing or recording of any kind, whether recorded on paper, electronic means, audio or visual recordings, or any other mechanical or electronic means of storing or recording information under Bolivia’s possession, custody or control, including, but not limited to, e-mails, faxes, correspondence, memoranda, working drafts, loose and pad notes, presentations, internal files, guidelines, charts, advertising or reporting material, contemporaneous meeting notes, minutes and analyses, advice or recommendations, records of discussions or deliberations, draft decisions or assessments, orders or instructions, however retained, and whether or not prepared by Respondent. Documents recorded on “electronic means” include Documents that are readily accessible from computer systems and other electronic devices and media, Documents stored on servers and back-up systems, and electronic Documents that have been software deleted. Any reference to “Documents” includes drafts of those Documents.

“EMC” means the State-owned Empresa Minera Colquiri.

“EMV” means the State-owned Empresa Metalúrgica Vinto.

“Expert Report of Compass Lexecon” means the expert report prepared by Mr Manuel Abdala and Ms Carla Chavich of the firm Compass Lexecon dated 15 August 2017.

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“Expert Report of Diego Mirones” means the expert report prepared by Mr Diego Mirones Venegas dated 17 December 2017.

“Expert Report of Econ One” means the expert report prepared by Mr Daniel Flores of the firm Econ One Research Inc dated 18 December 2017.

“Expert Report of RPA” means the expert report prepared by Messrs Graham Clow and Richard Lambert of the firm Roscoe Postle Associates Inc dated 15 August 2017.

“Expert Report of SRK” means the expert report prepared by Mr Neal Rigby of the firm SRK Consulting (U.S.) Inc dated 18 December 2017.

“Glencore Bermuda” or “Claimant” means Glencore Finance (Bermuda) Ltd.

“Government” means the government of Bolivia, including its political subdivisions, entities, departments, agencies and organs, as well as the Ministry of Mining, Comibol, EMC and EMV.

“Lazcano I” means the First Witness Statement of Eduardo Lazcano dated 15 August 2017.

“Ministry of Mining” means the Ministry of Mining and Metallurgy of Bolivia.

“Moreira I” means the First Witness Statement of David Alejandro Moreira dated 17 December 2017.

“Old Tailings Plant” means the plant to exploit the old tailings of the Colquiri Mine.

“Requested Documents” means the Documents requested by Claimant pursuant to these Requests.

“Sinchi Wayra” means Sinchi Wayra SA, formerly known as Comsur.

“SoC” means Claimant’s Statement of Claim, including the Claimant’s Response to the Respondent’s Request for Bifurcation dated 15 August 2017.

“SoD” means Respondent’s Preliminary Objections, Statement of Defence, and Reply on Bifurcation dated 18 December 2017.

“Tin Smelter” means the Vinto tin smelter—the largest tin smelter in Bolivia.

“Villavicencio I” means the First Witness Statement of Ramiro Villavicencio dated 18 December 2017.

“Vinto” means Complejo Metalúrgico Vinto SA.

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Redfern Schedule for Document Requests

No. Documents or category Relevance and materiality, incl. Reasoned objections to Response to Decision of documents requested references to submission document production objections to (Tribunal)

(requesting Party) (requesting Par ty) request document (objecting Party) production

References to Comments request Submissions, (requesting

Exhibits, Party) Witness

Statements or Expe11 Reports

I. D OCUMENTS RELATING TO THE COLQUIRI M INE AND THE COLQUIRI L EASE

1. Complete copy of the soc, irir 269-270 There is a dispute between the Reguest for EMC Bolivia's Request annual operations reports Lazcano I, irir 36-

Part ies as to whether the Re11orts for year·s 2016 objections to granted as (eg, M emoria Anual or

40 Colquiri Mine had sufficient and 2018 Claimant's r efor mulat

Anuario) of EMC for the resources and reserves to In limine, Claimant's Request 1 ar e ed by

following years: (i) 2016, Expert Report of justify Claimant's valuation justification for this

without merit Claimant. and (ii) 2018; as well as RP A, iJiJ 86, 90-95 of the Colquiri Mine based on request suggests that and should be those of Comibol for the Expert Report of its forecasted production until Bolivia submitted EMC denied for the following years: (i) 2012, Compass Lexecon, the termination of the reports (R-338, R-348 following (ii) 2013, (iii) 2014, (iv) ir 52

Colquiri Lease in 2030 (Soc, and R-233) to support reasons: 2016, and (v) 2018. ifif 269-270; SoD, iii! 645, its position regarding Reguest for the SoD, ifi! 645, 790- 790-793).

793 "the Colquiri Mine 's annual In its previous submissions, resources and reserves, 011erations

Moreira I, iii! 66- Bolivia introduced into the and the life of the re11orts of 67 record EMC's annual reports Mine". Claimant's EMC for years

Expert Report of for 2014, 2015 and 2017 suggestion is false. 2016 and 2018

SRK, iii! 43-44 (R-338, R-348 and R-233, Neither Bolivia nor its

In limine,

Expert Report of respectively), which contain experts relied on the Claimant notes information concerning EMC reports to that --contrary Econ One, ii 36 reserves and resources of the estimate the Mine's Colquiri Mine for each of resources and/or

to Bolivia's contention-

those years. These confirm reserves, or the Mine's Claimant never that the Requested productive life. suggested that

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Documents contain information relevant to the case and material to its outcome, because they pertain to the accuracy of the Parties’ claims and assumptions regarding the Colquiri Mine’s resources and reserves, and the life of the Mine. However, Bolivia has only provided selected reports.

Claimant notes that it has undertaken a reasonable search for the Requested Documents in public sources and was able to find only EMC’s report for 2012-2013.

In any case, Bolivia objects to Claimant’s request because Claimant has failed to establish how the Documents Requested would be relevant to its case and material to the outcome (IBA Rules, Arts. 3(3)(b) and 9(2)(a)).

One, Claimant submits in the arbitration that the Mine Lease’s valuation date should be 29 May 2012 (Statement of Claim, ¶ 255). The Parties agree on the definition of FMV and, thus, that a willing buyer would only have had access to information available as of the valuation date to value the Mine Lease. As explained by Claimant’s experts from Compass Lexecon, “[i]n assessing FMVs, we use an ex-ante approach to valuation which means that […] we use all information and expectations on the value of the assets as known as of their respective dates of [alleged] expropriation […]”) (emphasis

Bolivia submitted EMC’s 2014, 2015 and 2017 annual operations reports (R-338, R-348, R-233) as exhibits in this arbitration for any particular reason. As is clear from Claimant’s justification for its Request 1, Claimant’s position is merely that said reports (R-338, R-348, R-233) “contain information concerning reserves and resources of the Colquiri Mine” for each of 2014, 2015 and 2017. Furthermore, Bolivia’s submission of EMC’s annual operations reports for 2014, 2015 and 2017 in this

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added) (Compass arbitration (R-Lexecon Repo1t , ii 32; 338, R-348, R-Quadrant Repo1t , ii 32). 233) is in itself

Given that the sufficient to

Documents Requested establish the relevance and

pe1tain to a period after materiality of the Mine Lease's

valuation date proposed the Requested

by Claimant, they Documents.

cannot be relevant to EMC's repo1ts Claimant's case. for the years

Two, EMC, under the 2016 and 2018

State control, cannot be are necessaiy

used as a proxy to to complete the record and determine what would provide the full Colquiii - under context for the Glencore's control -info1mation (or a willing buyer's) provided in

had done had it continued to operate

Bolivia's Exhibits R-the Mine. EMC is a 338, R-348 and State-owned company

(thus subject to R-233.

different incentives and In any event, economics than a Claimant has private company) established that which has an unlimited EMC's annual

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(requesting Party) (requesting Party) request document (objecting Party) production




time horizon to recover operations its investments (it is not repo1ts for limited by a lease years 2016 and contract expiiy date) 2018 are and is not requfred to relevant to pay royalties. respond to Therefore, EMC's post Bolivia's own June 2012 data (such as ex post that contained in the arguments: Documents Requested)

First, as is based on ve1y Bolivia different assumptions conectly and is therefore not relevant to Claimant's

states, the Prut ies agree

case. that Colqufri Three, the lack of should be relevance of the valued on the Documents Requested basis of its is ftuther confirmed by FMV as at the the fact that, although, date of as confnmed by valuation, and Claimant, the EMC that a willing repo1ts pe1taining to buyer would years 2012 and 2013 only have had are publicly available access to (Claimant "was able to info1mation find only EMC's available as at reports for 201 2- the date of

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2013"), Claimant did valuation. not rely on any of these Claimant reports or referenced maintains this them in any of its prior position. submissions in this However, arbitration. For instance, Claimant did

Bolivia

not use the information frequently

in these reports to refers to the Colquiri

assess the "accuracy of Mine's

[its} claims and performance

assumptions regarding after the

the Colquiri Mine 's valuation date

resources and in order to reserves" (which is

argue that such now, misleadingly, the

performance basis used by Claimant

supports its to justify its request for allegations (see other, post-valuation

SoD, ifi! 794, date EMC reports).

799, 807, 816, Reuuest for Comibol 820, 829, 836; Re11orts for years 2012, Morell-a I, iii! 2013. 2014. 2016 and 32, 35-38, 43, 2018 53-54, 59, 66-

Bolivia objects to 67, 69, 72-75,

Claimant's request 80, 94; Expert

because Claimant has Report of SRK, 11~ 23, 25, 44,

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failed to establish how 49, 54-55, 62, the Documents 76, 81 , 95; Requested would be Expe1t Repo1t relevant to its case and ofEconOne, material to the outcome irir 40, 45). (IBA Rules, Alts. Bolivia should 3(3)(b) and 9(2)(a)). not be allowed One, Claimant has not to cheny pick even attempted to which ex post explain why Comibol's data is annual operations available in repo1ts would be this arbitration, relevant to its case or and which is material to the outcome not. of this dispute. Indeed,

Second, the Claimant does not mention these repo1ts at

Requested Documents are

all in the justification relevant to for its request. respond to In any case, given that Bolivia's Comibol owns several allegation that mines in Bolivia, any Claimant's Comibol repo1t would reliance on the contain info1mation "use and well beyond the scope replenish" of this dispute. This method is not confnms the lack of appropriate to

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relevance of the estimate the Documents Requested Colquiii and ftnther shows that Mine 's Claimant's request rese1ves and amounts to a fishing resources expedition. (SoD, iii! 645,

Two, as explained 790-793;

above, Claimant Expe1t Report

submits that the Mine of SRK, iii! 43-

Lease should be valued 44; Expe1t

as of 29 May 2012 and Report of Econ

the Paities agree that a One, ii 36).

willing buyer would Specifically, only have had access to the Requested info1mation available Documents ai·e as of the valuation date relevant insofar to value the Mine as they provide Lease (Compass info1mation on Lexecon Repo1t , ii 32; the Colquiri Quadrant Repo1t , ii 32). Mine 's Given that the resources and Documents Requested rese1ves in pe1tain to a period after each year that the valuation date, they the Colquiri are neither relevant to Mine was Claimant's case nor under Bolivia's

management,

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material to the outcome following its of this dispute. nationalization.

Three, as explained Third, above, EMC cannot be Bolivia's used as a proxy to argument that determine what would Claimant did Colquiii - under not rely on the Glencore's control - EMC reports (or a willing buyer) had for the years done had it continued 2012 and 2013 to operate the Mine. notwithstand-Therefore, the data in ing thefr the Comibol reports availability in pertaining to EMC's public sources operation of the is non sequitur. Colquiii Mine cannot As explained be relevant to Claimant's case.

above, Claimant had

In any case, Bolivia no reason to confirms that Comibol rely on ex post did not publish annual information operations reports (e.g. and data until Memoria Anual) for the Bolivia years 2012, 2013, introduced 2014, 2016 and 2018. arguments

relying on such ex post

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info1mation and data in this arbitration. Claimant's Reply on Quantum will be Claimant's first opportunity to respond to Bolivia's ex post arguments.

Reguest for the annual 012erations re1201ts of Comibol for years 2012, 2013, 2014. 2016 and 2018

Claimant notes Bolivia's confnmation that Comibol did not publish annual

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operations repo1ts for the years 2012, 2013, 2014, 2016 and 2018.

*** For the aforemention-ed reasons, Claimant respectfully requests that the Tribunal order Bolivia to produce complete copies of the annual operations reports (eg, Memoria Anual or Anuario) of EMC for the following years: (1)

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2016, and (iz) 2018.

2. Documents relating to the soc, irir 269-270 There is a dispute between the Bolivia objects to Bolivia's Request rese1ves and/or resources of

Lazcano I, iii! 36-Pait ies as to whether the Claimant's request objections to granted.

the Colquiri Mine between 40 Colquiri Mine had sufficient because Claimant has Claimant's 30 May 2012 and 14 resources and rese1ves to failed to establish how Request 2 are October 2019, including but Expe1t Repo1t of justify Claimant's valuation the Documents without merit not limited to resource and RP A, iJiJ 86, 90-95 of the Colquiri Mine based on Requested would be and should be rese1ve repo1ts, estimations, Expe1t Repo1t of its forecasted production until relevant to its case and denied for the audits and/or statements, as Compass Lexecon, the tennination of the material to the outcome following well as independent ii 52 Colquiri Lease in 2030 (Soc, (IBA Rules, Alts. reasons: feasibility evaluations. ifi! 269-270; SoD, iii! 645, 3(3)(b) and 9(2)(a)).

First, as For the sake of

SoD, ifi! 645, 790- 790-793). One, Claimant submits explained in completeness, this catego1y

793 The Requested Documents in the ai·bitration that relation to

includes all Documents that Moreira I, iii! 66- contain info1mation relevant the Mine Lease's Request 1, coITespond to the 67 to the case and material to its valuation date should above, Bolivia desc1iption provided above, Expe1t Repo1t of outcome, because they pe1tain be 29 May 2012 coITectly states regardless of whether or not SRK, iii! 43-44 to the accuracy of the Pa1t ies' (Statement of Claim, ii that the Pait ies their titles include the te1ms claims and assumptions 255). The Pa1t ies agree agree that "rese1ves" (solely), Expe1t Repo1t of regai·ding the Colquiri Mine's on the defmition of Colquiii "rese1ves and ore," "ore Econ One, ii 36 resources and rese1ves, and FMV and, thus, that a should be rese1ves and mineral the life of the Mine. willing buyer would valued on the resources," or any other only have had access to basis of its variations. info1mation available FMV as at the

as of the valuation date date of to value the Mine valuation, and Lease. As explained by that a willing

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Claimant's expe1ts buyer would from Compass only have had Lexecon, "[i}n access to assessing FMVs, ~ info1mation use an ex-ante available as at ff{2."{2.roach to valuation the date of which means that[. . .] valuation. we use all information Claimant and expectations on the maintains this value of the assets as position. known as o[their However, rese.ective dates o[ Bolivia lallegedl exe.ro{2.riation frequently [. .. }") (emphasis

refers to the added) (Compass

Colquiii Lexecon Repo1t , 1 32; Mine's Quadrant Repo1t , 1 32). pe1fo1mance Given that the after the Documents Requested valuation date pe1tain to a period after in order to the Mine Lease's argue that such valuation date, they pe1fo1mance cannot be relevant to suppo1ts its Claimant's case or allegations (see material to the outcome SoD, 11 794, of the dispute. 799, 807, 816,

820, 829, 836; Morell-a I, ~~

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Two, the lack of 32, 35-38, 43, relevance of the 53-54, 59, 66-Documents Requested 67, 69, 72-75, is ftuther confirmed by 80, 94; Expe1t the fact that, although, Report of SRK, as confnmed by irir 23, 25, 44, Claimant, the EMC 49, 54-55, 62, repo1ts pertaining to 76, 81 , 95; years 2012 and 2013 Expe1t Repo1t are publicly available ofEconOne, and "contain irir 40, 45). information concerning Bolivia should resenies and resources not be allowed of the Colquiri Mine to cheny pick for each of those years" which ex post (see Request 1 above),

data is neither Claimant nor its available in expe1ts have used this this arbitration, info1mation to assess and which is "the Colquiri Mine 's

not. resources and resenies, and the life of the The Requested Mine". Therefore, as Documents are with EMC repo1ts for therefore years 2012-2013 , other relevant to post-valuation date provide a info1mation on the complete Colquiii Mine's pictme of the

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resources and reserves Colquiri is also irTelevant to Mine's Claimant's case. performance

after the date of valuation, which Bolivia has put in issue.

Second, as also explained in relation to Request 1, above, Bolivia's argument that Claimant did not rely on the EMC reports for the years 2012 and 2013 notwithstand-ing their" availability in public sources is non sequitur.

As explained above,

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Claimant had no reason to rely on ex post info1mation and data until Bolivia introduced arguments relying on such ex post info1mation and data in this arbitration. Claimant's Reply on Quantum will be Claimant's first opportunity to respond to Bolivia's ex post arguments.

*** For the aforemention-ed reasons,

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Claimant respectfully requests that the Tribunal order Bolivia to produce the Documents requested in Request 2.

3. Documents relating to the SoD, if 799 There is a dispute between the Bolivia objects to Bolivia's Request technical desc1iptions of Moreira I, iii! 23,

Pait ies as to whether Claimant's request for objections to granted. either or both the San Jose 29, 30, 42 Claimant's expansion plans the following reasons: Claimant's winze and the Victoria for the Colquiri Mine would

First, Claimant has Request 3 are winze (R-37), including but Expe1t Repo1t of have resulted in the

failed to demonstrate without merit not limited to Documents SRK, if 57 production levels forecasted

that the Documents and should be relating to their respective Expe1t Repo1t of by Claimant. In pait iculai-, Requested ai·e not in its denied for the engineering, blueprints, Econ One, if 31 Respondent alleges that there possession, custody or following designs, and the operating were bottlenecks inside the control (IBA Rules, reasons: manuals for the installed Colquiri Mine - such as the Alt. 3(3)(c)(i)) yet they First, Claimant machine1y and equipment capacities of the San Jose and pe1tain to operations notes that, to in each of them. Victo1ia winzes- that were

not addressed in the p1ior to 2012. suppo1t its

expansion plan for the One, Claimant justifies arguments

Colquiri Mine (SoD, if 799; its request with regai·ding the

Moreira I, irir 23, 29, 30, 42). reference to Bolivia's alleged existence of

The Requested Documents asse1tion that "there

bottlenecks were bottlenecks inside ai·e relevant to the case and affecting the

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material to its outcome, because they are relevant to assessing the production capacity of the Colquiri Mine.

the Colquiri Mine – such as the capacities of the San José and Victoria winzes”. Claimant alleges that the Documents Requested will enable it to assess “the production capacity of the Colquiri Mine”.

The bottlenecks referred to by Bolivia are those existing at the time of Glencore’s operations of the Mine (Statement of Defence, ¶ 799). The San José and Victoria winzes were already operating inside the Mine when Glencore operated it (before June 2012), as confirmed by Figure 7 of RPA’s Report. Claimant is thus requesting Documents that it already has (e.g., “technical descriptions” of the winzes it operated; “operating manuals for the installed machinery and equipment in each of [the winzes]” it operated; etc.) and, in any event, that it does not need to assess the constraints of the winzes in light of its

San José and Victoria winzes in the Colquiri Mine, Bolivia relies on Exhibit R-37, which is a document that was prepared by Comibol in 2017 (SoD, ¶ 799; Moreira I, ¶¶ 23, 29, 30, 42).

The Requested Documents are thus relevant to respond to Bolivia’s allegations based on the information and statements contained in R-37.

Second, considering that Exhibit R-37 was created by Comibol in 2017, approximately five years after the nationalization of the Colquiri Mine, it is evident that the Requested

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experience operating Documents are them. not in

Two, RP A has further Claimant's

confnmed having all possession,

the technical data about custody or

the winzes. control.

RPA's report contains a There is no basis for very detailed Bolivia's

description of the position that, technical characteristics of the Victoria winze because " [t]he

("[the] winze is two Documents

meters by five meters Requested .. .

and is a timber-lined pertain to

rectangular three-Bolivia 's burden of

compartment proof, ...

configuration. [ .. .] Ore Claimant has is hoisted in two tonne no right to

bottom-dump skips [ .. .] level intervals in the request their

Victoria winze are 40 production."

m, increasing to 65 m Bolivia's

for the deep section of argument is

the mine[ .. .] the ramps disingenuous

are generally considering that Bolivia

constructed with itself has

dimensions of 3.5 m x requested

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3.5 m") (RPA Repo1t, documents irir 101-103). from Claimant

RPA's repo1t fmther that pe1tain to Claimant's states that, while burden of operating the Mine, the proof. Glencore Group made

investments to deepen *** the San Jose winze

For the (RPA Repo1t , iJiJ 120- aforemention-121), thus confinning

ed reasons, that Claimant has both technical data and

Claimant

knowledge of the San respectfully

Jose and Victoria requests that

winzes. the Tribunal order Bolivia

Three, exhibit R-37, a to produce the letter dated December Documents 2017 and referenced by requested in Claimant, already Request 3. includes all relevant technical info1mation on the winzes. The document has two sub-sections, titled "Caracterfsticas tecnicas winche cuadro Victoria" and

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"Caracterfsticas tecnicas winche cuadro San Jose". Each of these sub-sections details, among others, (i) the power of the winzes' engines, (ii) the capacity and speed of the winzes, (iii) the depth they can reach, (iv) the brand, type and length of the cables in the winzes, etc. This info1mation more than suffices for Claimant and its expe1ts to assess the capacities and constraints of the Victo1ia and San Jose winzes it operated prior to 2012.

Second, neither Claimant nor its expe1ts rely in any way on the San Jose and Victo1ia winzes for their valuation. Rather, as acknowledged by

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Claimant, it was Bolivia who refened to the constraints posed by the winzes and how they would prevent the Mine from reaching the production capacities forecasted by Claimant. The Documents Requested thus pe1tain to Bolivia's burden of proof, and Claimant has no right to request their production.

Third, even if Claimant's request pe1tained to Documents prepared after the reversion of the Mine Lease in June 2012 (which is not clear from Claimant's request, as it does not indicate a time pe1iod), the Documents Requested would still not be relevant to Claimant's case or

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material to the outcome (IBA Rules, Arts. 3(3)(b) and 9(2)(a)) because a willing buyer would only have had access to info1mation available as of the valuation date to value the Mine Lease (Compass Lexecon Repo1t, if 32; Quadrant Repo1t, if 32).

4. Clment technical flowsheet SoD, ifif 759, 799 There is a dispute between the Bolivia objects to Bolivia's Request of the Concentrator Plant,

Lazcano I, iii! 22-Patt ies as to whether Claimant's request for objections to granted.

including a description of 24

Claimant 's expansion plans the following reasons: Claimant's its mass balance. for the Colquiri Mine would

First, Claimant has not Request 4 are

Moreira I, iii! 32- have resulted in the established how the

without merit 38 production levels forecasted

Documents Requested and should be

Expe1t Repo1t of by Claimant. In pait iculai',

would be relevant to its denied for the

SRK, iii! 26, 39, Respondent alleges that there case and material to the

following

55-58 were bottlenecks inside the

outcome (IBA Rules, reasons: Colquiri Mine - such as the

Alt s. 3(3)(b) and First, as alleged technical limitations 9(2)(a)). explained in of the Concentrator Plant-that were not addressed in the Claimant submits in the

relation to

expansion plan of the Colquiri arbitration that the Request 1, above, Bolivia

Mine (Lazcano I, iii! 22-24; Mine Lease's valuation conectly states

US3399265/2 107427-0022 - XXll -

SoD, ¶¶ 759, 799; Moreira I, ¶¶ 32-38).

The Requested Documents are relevant to the case and material to its outcome, because they are relevant to assessing the production capacity of the Colquiri Mine.

date should be 29 May 2012 (Statement of Claim, ¶ 255). The Parties agree on the definition of FMV and, thus, that a willing buyer would only have had access to information available as of the valuation date to value the Mine Lease. As explained by Claimant’s experts from Compass Lexecon, “[i]n assessing FMVs, we use an ex-ante approach to valuation which means that […] we use all information and expectations on the value of the assets as known as of their respective dates of [alleged] expropriation […]”) (emphasis added) (Compass Lexecon Report, ¶ 32; Quadrant Report, ¶ 32).

Given that the Documents Requested pertain to a period after the Mine Lease’s valuation date proposed by Claimant (“current technical flowsheet of the Concentrator Plant […]”) (emphasis added), they cannot be relevant to Claimant’s

that the Parties agree that Colquiri should be valued on the basis of its FMV as at the date of valuation, and that a willing buyer would only have had access to information available as at the date of valuation. Claimant maintains this position.

However, in its submissions, Bolivia and its experts refer to the Concentrator Plant’s performance after the date of valuation in order to argue that such performance supports its allegations (see SoD, ¶¶ 799, 807, 816, 820, 836; Moreira I, ¶¶ 32, 35-38; Expert Report

US3399265/2 107427-0022

- xxiii -






case or mate1ia1 to the of SRK, iii! 49, outcome of this 55, 62; Expe1t dispute. Repo1t of Econ

Claimant confinns the One, ii 40).

lack of relevance of Bolivia should post-valuation date not be allowed info1mation when it to cheny pick seeks to justify its which ex post request based on data is Respondent's available in statements about the this arbitration, "bottlenecks inside the and which is Colquiri Mine [. . .] - not. such as the alleged The Requested technical limitations of Documents are the Concentrator relevant to Plant''. As already provide a explained, the stated

complete bottlenecks are those existing at the time

picture of the Concentrator

Glencore was operating Plant's the Mine. pe1fo1mance Second, Claimant has after the date failed to establish that of valuation, the Documents which Bolivia Requested are not in its has put in issue

US3399265/2 107427-0022 - XXlV -






possession (IBA Rules, in this Alt. 3(3)(c)(i)). arbitration.

As mentioned above, Second, for the Claimant justifies its reasons request with reference explained to Bolivia's assert ion above, the that "there were Requested bottlenecks inside the Documents Colquiri Mine - such pertain to the as the alleged technical technical limitations of the characteristics Concentrator Plant". of the Claimant alleges that Concentrator the Documents Plant after the Requested will enable Colquiri Mine it to assess "the was production capacity of nationalized. the Colquiri Mine" . Such

Given that Bolivia Documents are

addressed the not within

bottlenecks inside the Claimant's

Mine at the time custody,

Glencore was operating possession or

it, Claimant is control. There is no basis for requesting Documents Bolivia's that it already has and,

in any case, that it does

US3399265/2 107427-0022 - xxv -

No. Documtnts or cattg01-y Rtltvanct and matt1iallty, incl. Reasontd objtctions to Rtsponst to Dtcision of documtnts rtqutsttd refertncts to submission document production objtctions to (Tribunal)

(rtqutsting Party) (requesting Party) request document (objecting Party) production

References to Commtnts request Submissions, (requesting

Exhibits, Puty) Witness


not need to assess the allegation to limitations of the the contnuy. Concentrator Plant in *** light of its experience operating the Mine. For the

aforemention-ed reasons, Claimant respectfully requests that the Tribunal order Bolivia to produce the Documents requested in Request 4.

US339926512 107427-0022 - XXVI -

No.

5.

Documents or category Relevance and materiality, incl. Reasoned objections to Response to Decision of documents requested references to submission document production objections to (Tribunal)





Documents containing soc, ir 52 There is a dispute between the In limine, Bolivia Bolivia's Request and/or refening to any Lazcano I, iii! 31-

Pait ies as to the feasibility of denies that the 4- objections to granted. plans by EMC and/or

33 Claimant's plan to build and pai·agraph online news Claimant's

Comibol to build a new operate the Old Tailings Plant a1t icle referenced by Request 5 are concentrator plant and/or to Expert Report of (Soc, ii 52; SoD, iii! 625, 637, Claimant ("Firman without merit recondition the existing Compass Lexecon, 653). contrato para la and should be Concentrator Plant for the irii 26, 50, 56-57

When announcing the construcci6n de la denied for the processing of old tailings Expert Report of conclusion of a contract to Planta Concentradora following from the Colquiri Mine, RP A, iii! 28-41 , build a new concentrator plant de Colquiri'') relates in reasons: including but not limited to 55-63, 129, 157 for the Colquiri Mine on or

any way to the First, Claimant

any feasibility studies, ai·ound 15 April 2019, EMC's reprocessing of tailings notes in limine minutes of meetings and C-61; C-91

general manager confirmed from the old tailings that Bolivia resolutions of EM C's and SoD, ifi! 625, 637, that one of the plants in the dam in the Colquiri grossly Comibol's boai·ds of 653 Colquiri Mine would be used Mine and, much less, mischai·acteri-directors relating to any

Moreira I, iii! 56- for the reprocessing of old that it suggests that zes the news such plans, internal and

tailings. 3 EMC would cai1y out a1ticle external consultants reports, 59, 83, 90 such reprocessing. As referenced in

business plans and any Expert Report of Thus, the Requested Bolivia has footnote 3. The

other forecasts and projects Econ One, iii! 45- Documents are relevant to the demonstrated, the Old news ait icle relating to any such plans. 47 case and material to its Tailings Reprocessing expressly notes outcome, because they ai·e Project "ha[d] been that, "[ e ]l Expert Report of relevant to assessing the evaluated several times

SRK, if 95 feasibility of Claimant's plan over the last four gerente de la

decades (e.g., by empresa

Minproc in 1988 and Colquiri,

"Fi.Iman contrato para la constmcci6n de la Planta Concentradora de Colqufri," Exito Noticias, 15 April 2019, available at https ://www.exitonoticias.com. bo/articulo/ economia/finnan-contrato-construccion-planta-concentradora-colqufri/20190415100110024278 .html.

US3399265/2 107427-0022 - xxvn -

to build and operate the Old Tailings Plant.

PAH in 2004) and, still, no one has invested on it […]” because the Project is not economically viable (Statement of Defence, ¶ 653).

Bolivia objects to Claimant’s request for the following reasons:

First, Claimant fails to establish how the Documents Requested would be relevant to its case and material to the outcome (IBA Rules, Arts. 3(3)(b) and 9(2)(a)).

One, Claimant submits in the arbitration that the Mine Lease’s valuation date should be 29 May 2012 (Statement of Claim, ¶ 255). The Parties agree on the definition of FMV and, thus, that a willing buyer would only have had access to information available as of the valuation date to value the Mine Lease. As explained by Claimant’s experts from Compass Lexecon, “[i]n assessing FMVs, we use an ex-ante approach to valuation

Sabino Arando, citado en un boletín institucional, remarcó la importancia del contrato, tomando en cuenta que, con esa planta [the new concentrator plant at the Colquiri Mine], serán dos: una que trabajará con el dique de colas y otra con la producción de la mina.” It is clear from that statement that the plant that will “work with the tailings dam” will be used to reprocess the old tailings, whereas the other plant will be used for the Colquiri Mine’s production.

In any event, several other news articles

US3399265/2 107427-0022

- xxviii -

No.

4






which means that[. . .] confnm that we use all information the recent and expectations on the contract for the value of the assets !Ji. constrnction of known as o[their a new rese.ective dates o[ concentrator [alleg,edl exll,rOll,riation plant at the [. .. }") (emphasis Colquiii Mine added) (Compass does relate to Lexecon Repo1t , ii 32; the Quadrant Repo1t , ii 32). reprocessing of

Because the tailings from

Documents Requested the old tailings dam at the refer to EMC's and/or Colquiii Mine,

Comibol's cunent plans to build a new and that EMC

concentrator plant is planning to

and/or to recondition cany out such

the existing reprocessing. 4

Concentrator Plant (as Second, as confnmed bv explained in

"Se finn6 el contra.to con la. ernpresa. Carlos Caballero SRL para la. constmcci6n de la planta. concentra.dora de 2.000 tonela.da.s por dia. en Colquiri", COMIBOL Press Release, 12 April 2019, available at http://wwv.r.cornibol.gob.bo/index.php/24-noticias-inicio/2130-se-fnmo-el-contrato-con-la-ernpresacarlos-caballero-srl-pa.ra-la.-construccion-de-la-planta.-concentradora.-de-2-000-tonelada.s-por-dia.-en-colquiri; "Bolivia. seeks partner for Colquiri expansion," Intema.tional Tin Association, 12 May 2016, available at https://v.rwv.•.intemationaltin.org/bolivia-seeks-partner-for-colquiri-expa.nsion/; "Contract signed for new plant at Colquiri," Intema.tiona.l Tin Association, 4 November 2016, available at https://v.rwv.•.intemationa.ltin.org/contra.ct-signed-for-new-plant-atcolqui.ri/.

US3399265/2 107427-0022 - XXlX -






Claimant's reference to relation to a news article dated 15 Request 1, Ap1il 2019), these above, Bolivia Documents cannot be conectly states relevant to Claimant's that the Patt ies case or mate1ial to the agree that outcome of this Colquiii dispute. should be

Two, EMC cannot be valued on the basis of its used as a proxy to FMV as at the determine what would date of Colquiii - under valuation, and Glencore's control -

(or a willing buyer's) that a willing

had done had it buyer would

continued to operate only have had

the Mine. EMC is a access to

State-owned company info1mation available as at (thus subject to the date of different incentives and valuation.

economics than a private company) Claimant

maintains this which has an unlimited position. time horizon to recover

its investments (it is not However, limited by a lease Bolivia has contract expiiy date) argued in this and is not requiI'ed to arbitration that

US3399265/2 107427-0022 - xxx -






pay royalties. the project to Therefore, any alleged build and plans by EMC post operate the Old June 2012 (valuation Tailings Plant date) in relation to the '"has been Mine cannot be evaluated relevant to Claimant's several times case. over the last

Three, Claimant four decades

requests Documents (e.g., by

concerning EMC's or Minproc in 1988andPAH Comibol's alleged in 2004) and, cun ent plans "to build still, no one

a nett1 concentrator has invested on

plant and/or to it ... ' because

recondition the existing the Project is

Concentrator Plant for the processing of old

not

tailings from the economicall'J!,

Colquiri Mine" in an viable" (SoD, ii attempt to demonstrate

653).

the ''feasibility of The Requested Claimant's '{2.lan to Documents are build and operate the thus relevant to Old Tailings Plant" respond to (emphasis added). Bolivia's

allegations. EMC's

US3399265/2 107427-0022 - XXXl -






This is a non sequitur. characteristics EMC's or Comibol's as a State-cmTent plans, i.e. 7 owned years after the Mine company Lease's reversion, cannot change cannot se1ve as a basis this to justify the feasibility conclusion, of "Claimant's and there is no [alleged] plans" as of basis for the reversion date. Bolivia's

Second, Claimant has suggestion to

failed to establish that the contrary.

the Documents Third, the Requested ar·e not in its Requested possession (IBA Rules, Documents ar·e Alt . 3(3)(c)(i)). not within

If, as explained above, Claimant's

Claimant is seeking to custody,

obtain Documents to possession or

assess the feasibility of control.

its own (alleged) pre- Contrary to reversion date plans to Bolivia's reprocess old tailings at contention, the Mine, by definition Claimant is and taking at face value clear·ly not their pmpo1ted seeking to relevance, Claimant obtain

US3399265/2 107427-0022 - XXXll -






should ah·eady have the Documents to documents necessruy to assess the pe1fo1m such feasibility of assessment. Indeed, its own plans Documents "relevant to to reprocess assessing the feasibility old tailings at of Claimant's plan" the Colquiii must have been Mine. prepru·ed by Claimant Instead, or by someone else at Request 5 Claimant's request.

expressly Bolivia notes that there is, at least, one refers to

"Docu.men ts feasibility study

containing prepru·ed by Colquiii and/or

S.A. in 2004 in referring to connection with the

reprocessing of old any plans bv EMC and/or

tailings at the Colquiri Comibol to

Mine (RP A Repo1t , iJ build a new 13; RPA-13).

concentrator plant and/or to recondition the existing Concentrator Plant for the processing of old tailinf!S

US3399265/2 107427-0022 - xxxm -

No. Documtnts or cattg01-y Rtltvanct and matt1iallty, incl. Reasontd objtctions to Rtsponst to Dtcision of documtnts rtqutsttd refertncts to submission document production objtctions to (Tribunal)

(rtqutsting Party) (requesting Party) request document (objecting Party) production

References to Commtnts request Submissions, (requesting

Exhibits, Puty) Witness


from the Colquiri M;ne ... " , which cannot be in Claimant's custody, possession or control.

*** For the aforemention-ed reasons, Claimant respectfully requests that the Tribunal order Bolivia to product the Documents requested iu Request 5.

US339926512 107427-0022 - xxxiv -






II. D OCUMENTS RELATING TO VINTO AND THE T IN SMELTER

6. Documents showing the soc, ir 259 There is a dispute between the Bolivia objects to Bolivia's Request gross quantities and the

Expert Report of Parties as to whether Claimant's request for objections to granted.

quality of all tin RPA, if 194

Claimant's Experts' the following reasons: Claimant's concentrates produced in assumptions regar·ding the

First, Claimant's Request 6 are

Bolivia between 2007 and Expert Report of quality of tin concentrates that request is not

without merit 2017 that were used as the Compass Lexecon, Vinto would have processed

sufficiently "narrow and should be basis for the tin production ir 79 in the Tin Smelter in the but- and specific" (IBA denied for the statistics reported in Chart SoD, ifif 662, 862-

for scenarfo ar·e conect (Soc, Rules, Alt. 3(3)(a)(ii)).

following No. III.1 of the Dossier 863 if 259; SoD, iMf 662, 862-863; reasons: Estadisticas de/ Sector Villavicencio I, iii! 68-70). One, Claimant

First, Minero Metalurgica 1980- Villavicencio I, iii!

The Requested Documents misrepresents Bolivia's

Claimant's 2017 published by the 67-71 position in this Ministry of Mining. 5 ar·e relevant to the case and

arbitr·ation. Bolivia has request is Expert Report of material to its outcome, "narrow and SRK, if 98 because they pertain to the

never said that "the specific", as

quality of tin R-57 to R-67, accuracy of Bolivia 's

concentrates in Bolivia required by the

R-78 allegation that the quality of decreases over time" IBA Rules. tin concentr·ates in Bolivia

(emphasis added). Bolivia denies decreases over time (SoD, iii! Rather, Bolivia has that it has 662, 862-863; Villavicencio I,

stated that the grades of argued that the irii 68-70). the concentr·ates quantity of tin Claimant notes that the processed by the Vinto concentrates in Ministry of Mining has Tin Smelter have Bolivia was

See Dossier Estadisticas del Sector Minero Metalfugico 1980-2017, pp 55-56, available at http://wwv.r mineria.gob.bo/revista/pdf/20190111-12-1-14.pdf.

US3399265/2 107427-0022 - xxxv -

published the Dossier Estadísticas del Sector Minero Metalúrgico 1980-2017,6 reporting the net quantities of tin produced in Bolivia between 1980 and 2017. This necessarily implies that the Requested Documents exist as they are the basis for the statistics reported by the Ministry of Mining in said dossier.

Claimant further notes that it has undertaken a reasonable search for the Requested Documents in public sources and was not able to find them.

decreased over time (Statement of Defence, ¶ 862). This misunderstanding explains Claimant’s unduly broad request.

Two, there is no correlation whatsoever between the Documents Requested and the justification given by Claimant to support this request.

Indeed, Claimant requests Documents concerning “[…] all tin concentrates produced in [the territory of] Bolivia”, but justifies such request with reference to the specific dispute between the Parties, which is limited to the tin concentrates that “Vinto would have processed in the Tin Smelter in the but-for scenario” (emphasis added). Given that Bolivia has approx. 70 tin producers working in around 600 different mines,7 Claimant’s request would require the production of thousands of Documents related to

insufficient to support Claimant’s production forecasts, or that the quality of tin concentrates in Bolivia decreases over time.

However, in its Statement of Defense, Bolivia clearly stated that “Claimant’s experts’ production forecasts are … untethered from the reality of the tin market in Bolivia” because, allegedly: (i) “[Claimant] ignores the fact that there is a lack of sufficient tin concentrates in the Bolivian market” (SoD, ¶ 858); and (ii) “the Tin Smelter acquires concentrates

US3399265/2 107427-0022

- xxxvi -






matters well beyond from different this dispute. sources and

Claimant's request thus with different

amounts to a fishing grades, it is

expedition and wrong to assume that

producing the grades will Documents Requested

would be unreasonably rema;n constant ;n

burdensome (IBA t;me." (SoD, ii Rules, Art. 9(2)(c)). 863).

Second, Claimant fails Bolivia thus to establish how the clearly argues Documents Requested that the would be relevant to its quantity of tin case and material to the

outcome (IBA Rules, concentrates in Bolivia is not Arts. 3(3)(b) and sufficient to 9(2)(a)). support

One. the Parties agree Claimant's that the Vinto Tin valuation, and Smelter should be that the quality valued as of 8 Februruy of tin

6 See Dossier Estadisticas del Sector Minero MetallJ.rgico 1980-2017, pp 55-56, available at http://www mineria.gob.bo/revista/pdf/20190111-12-1-14.pdf.

7 Opinion, "Minas de estafio umcas en el mundo es tan en Bolivia," press article (available at http://www.opi.nion.eom.bo/opinion/articulos/2013/0419/noticias.php?id=92295).

05339926512 107427-0022 - xxxvii -






2007 (Statement of concentrates Claim, iJ 255; (as reflected by Statement of Defence, their grades) in ii 655). They also agree Bolivia on the definition of decreases over FMV and, thus, that a time (see also willing buyer would Villavicencio I, only have had access to iii! 68-70). info1mation available Bolivia thus as of the valuation date to value the Vinto Tin

cannot now

Smelter. As explained pretend that Claimant's by Compass Lexecon, request for

"[i}n assessing FMVs, Documents

we use an ex-ante pe1taining to

ff{l."{2.roach to valuation these which means that[. . .] allegations -we use all information and and expectations on the specifically value of the assets as those that were known as o[their

used as the resll,ective dates o[ basis for the tin lallegedl exll,rOll,riation production [. .. }") (emphasis

statistics in added) (Compass

Chait No. III.l Lexecon Repo1t , ii 32; of the Dossier Quadrant Repo1t , ii 32). Estadfsticas

del Sector

US3399265/2 107427-0022 - XXXVlll -






Given that the Minero Documents Requested Metalurgico pe1tain to a period after 1980-2017 the Vinto Tin Smelter's published by valuation date, they the Ministiy of cannot be relevant to Mining -is Claimant's case. " unduly broad''

Two, while the or constitutes a

justification given by fishing

Claimant only relates to expedition.

the quality of Claimant is concenu·ates ("[t} here simply is a dispute [. . .] requesting regarding the q,uality of Documents tin concentrates that that are Vinto would have necessa1y for processed'' (emphasis Claimant and added)), its request also its expe1ts to includes documents respond to "showing the gross Bolivia's own quantities [. . .] of all tin allegations. concentrates" produced

Second, in Bolivia (emphasis Bolivia added). Claimant has

conectly states not even alleged the

that the Patt ies relevance and the agree that the

materiality of Tin Smelter

US3399265/2 107427-0022 - XXXIX -






documents pe1taining should be to quantities. valued as at 8

Third, even if Bolivia Febrnaiy 2007,

had stated (which it has and that a

not) that "the quality of willing buyer would only

tin concentrates in have had Bolivia decreases over time" (emphasis access to

info1mation added), establishing available as at this would be Bolivia's the date of burden of proof. valuation for

Claimant has no right the Tin to request the Smelter. production of Claimant documents concerning maintains this Bolivia's burden of position. proof. However, Bolivia frequently refers to the Tin Smelter's pe1fo1mance after the date of valuation in order to argue that such pe1fo1mance

US3399265/2 107427-0022 - xi -






suppo1ts its allegations (see SoD, ifi! 856, 858, 862, 872; Villavicencio I, iii! 42, 48-59, 65-66, 69-70, 87; Expe1t Repo1t of SRK, iii! 98, 101).

Bolivia should not be allowed to cheny pick which ex post data is available in this arbitration, and which is not.

Fmthe1more, as explained above, Bolivia cannot argue that the Requested Documents relate "to

US3399265/2 107427-0022 - xli -






matters well beyond this dispute" when Bolivia itself put the issues of both the quantity and the quality of tin concentrates in Bolivia in dispute in this arbitration (SoD, iii! 662, 862-863; Villavicencio I, iii! 68-70).

There is no support for Bolivia's position that "Claimant has no right to request the production of documents concerning Bolivia 's

US3399265/2 107427-0022 - xiii -

burden of proof.” Bolivia’s argument is disingenuous considering that Bolivia itself has requested documents from Claimant that pertain to Claimant’s burden of proof.

***

For the aforemention-ed reasons, Claimant respectfully requests that the Tribunal order Bolivia to produce the Documents requested in Request 6.

7. Documents created between 8 February 2007 and 14 October 2019 that evidence EMV’s criteria and considerations when purchasing tin concentrates for processing at the Tin Smelter, including but not limited to resolutions and minutes of meetings of the

SoC, ¶ 259

Expert Report of RPA, ¶ 194

Expert Report of Compass Lexecon, ¶ 79

SoD, ¶¶ 662, 862-863

There is a dispute between the Parties as to whether Claimant’s Experts’ assumptions regarding the quality of tin concentrates that Vinto would have processed in the Tin Smelter in the but-for scenario are correct (SoC, ¶ 259; SoD, ¶¶ 662, 862-863; Villavicencio I, ¶¶ 67-71).

Bolivia objects to Claimant’s request for the following reasons:

First, Claimant’s request is not sufficiently “narrow and specific” (IBA Rules, Art. 3(3)(a)(ii)).

Bolivia’s objections to Claimant’s Request 7 are without merit and should be denied for the following reasons:

Request granted as reformulated by Claimant.

US3399265/2 107427-0022

- xliii -






board of directors, internal Villavicencio I, iii! The Requested Documents Claimant requests First, emails, public and private 67-71 are relevant to the case and Documents that Claimant's tenders and bids, and quotes

Expert Report of material to its outcome, "evidence EMV's request is

requested and/or received SRK, iJ98 because they pertain to criteria and "narrow and

from EMV's suppliers of EMV' s decision-making considerations when specific", as tin concentrates. R-57 to R-67, process when determining the purchasing tin required by the

R-78 quality of concentrates to be concentrates [ .. . }" IBA Rules. purchased for processing at (emphasis added). The

Notwithstand-the Tin Smelter. terms "criteria and

ing and considerations" are not only undefined, but

without prejudice to the vague and extremely above,

broad (e.g., EMV's Claimant

"considerations when reformulates its

purchasing tin Request 7 as concentrates" basically follows: means anything that

''Documents was taken into

created consideration by

between 8 anyone at EMV when February 2007

purchasing tin [one day prior concentrates).

to the To be able to identify expropriation] the Documents and 14 Requested, Bolivia October 2019 would have to review [the date for each and every the Part ies' Document prepar·ed by production of

US3399265/2 107427-0022 - xliv -






EMV in the regular documents course of business, as pursuant to potentially any of these Procedural Documents could OrderNo. 7] reflect "the criteria and that evidence considerations" of EMV's criteria EMV when purchasing and tin concentrates. considerations

Fmthe1more, given that regarding the

Claimant's request also rz.rice and

includes "quotes riualitJ!. o[.tin concentrates

requested and/or rz.urchased (pr received from EMV's

suppliers of tin rz.rocessing, at the Tin concentrates" (even if Smelter. these were not accepted including but by EMV), Bolivia's not limited to search would also have resolutions and to include Documents

that did not result in a minutes of

tin concentrates meetings of the

purchase transaction. board of directors,

Claimant's request internal clearly amounts to a emails, public fishing expedition and and private producing the tenders and Documents Requested bids, and

US3399265/2 107427-0022 - xiv -






would be unreasonably quotes burdensome (IBA requested Rules, Alt. 9(2)(c)). and/or

Second, Claimant fails received from

to establish how the EMV's

Documents Requested suppliers of tin

would be relevant to its concentrates."

case and material to the Second, outcome (IBA Rules, Bolivia Alts. 3(3)(b) and conectly states 9(2)(a)). that the Pruties

One, the Pruties agree agree that the Tin Smelter that the Vinto Tin should be

Smelter should be valued as of 8 Febmruy

valued as at 8

2007 (Statement of Febma1y 2007,

Claim, ii 255; and that a

Statement of Defence, willing buyer

ii 655). They also agree would only

on the definition of have had

FMV and, thus, that a access to info1mation willing buyer would available as at

only have had access to the date of info1mation available valuation to

as of the valuation date to value the Vinto Tin

value the Tin

Smelter. As explained Smelter. Claimant

US3399265/2 107427-0022 - xlvi -






by Compass Lexecon, maintains this "[i}n assessing FMVs, position. we use an ex-ante However, G'(2J2.roach to valuation Bolivia which means that[ .. .]

frequently we use all information refers to the and expectations on the Tin Smelter's value of the assets as pe1fo1mance known as o[their

after the resrz.ective dates o[ valuation date lallegedl exrz.rorz.riation in order to [. .. }") (emphasis

argue that such added) (Compass pe1fo1mance

Lexecon Repo1t , if 32; suppo1ts its Quadrant Repo1t , if 32). allegations (see Given that the SoD, ifif 856, Documents Requested 858, 862, 872; pe1tain to a period after Villavicencio I, the Vinto Tin Smelter 's ir 42, 48-59, valuation date 65-66, 69-70, ("Documents created 87; Expe1t between 8 February Report of SRK, 2007 and 14 October irir 98, 101). 2019 [ ... }"), they Bolivia should cannot be relevant to not be allowed Claimant's case or

to cheny pick which ex post

US3399265/2 107427-0022 - xlvii -






material to the outcome data is of this dispute. available in

Two, "EMV's criteria this arbitration,

and considerations and which is

when purchasing tin not.

concentrates ffeom 8 Specifically, in February 2007 connection onwards] " (emphasis with Request 7, added) are entirely Bolivia argues inelevant because, that the grades inespective of what of tin these "criteria and concentrates considerations" may processed at be, there is no the Tin Smelter guarantee that a willing after the date buyer would have of valuation followed those same decreased over "criteria and time, considerations" when suggesting that purchasing tin this trend concentrates in the would have future. been taken into

Three, Claimant account by a

justifies this request by willing buyer on the date of alluding to the Pa1ties' valuation

dispute "regarding the (SoD, iii! 662,

quality of tin 862-863;

US3399265/2 107427-0022 - xlviii -






concentrates that Vinto Villavicencio I, would have processed irir 68-70). in the Tin Smelter in The Requested the but-for scenario", Documents and states that the will help Documents Requested elucidate the would be relevant and

reasons for this material "because they trend, and in pertain to EMV's pa1ticular, decision-making establish process when whether determining the quality considerations of concentrates to be other than the purchased for alleged processing at the Tin unavailability Smelter." This justification fails on its

of high grade tin

own terms. Claimant concentrates in does not explain why Bolivia drove

EMV's "decision- EMV's making process" would

purchase of be of any relevance to lower grade tin the quality of the tin concentrates concentrates that EMV after the date purchases. The lack of of valuation, clarity of Claimant's

such that the justification fmther Tin Smelter 's confirms that, as pe1fo1mance

US3399265/2 107427-0022 - xlix -






indicated above, this underEMV's request amounts to a management fishing expedition. after the date

Third, Claimant's of valuation is

request is contraiy to not

Alt. 3(3)(c)(i) of the representative

IBA Rules as it of Vinto's

includes public FMV as at the date of documents (''public valuation.

[. . .] tenders and bids") - which, by definition, The Requested are accessible to Documents ai·e Claimant. therefore

relevant to respond Bolivia's allegations.

Third, Claimant is not in custody, possession or control of the Requested Documents.

Bolivia ai·gues that Claimant is in

US3399265/2 107427-0022 - I -






possession, custody and control of the requested public tenders and public bids.

Claimant confnms that it has conducted a reasonable search for the requested public tenders and public bids in public sources, and that it was unable to locate those documents.

*** For the aforemention-ed reasons, Claimant respectfully

US3399265/2 107427-0022 - Ii -






requests that the Tribunal order Bolivia to produce Documents created between 8 February 2007and14 October 2019 that evidence EMV's criteria and considerations regarding the price and quality of tin concentrates purchased for processing at the Tin Smelter, including but not limited to resolutions and minutes of meetings of the board of

US3399265/2 107427--0022 - Iii -

No.

III.

8.

8






directors, internal emails, public and private tenders and bids, and quotes requested and/or received from EMV's suppliers of tin concentrates.

D OCUMENTS RELATING TO THE ANTIMONY SMELTER 8

Note PGE/DESP/SPDRLE Expert Report of Respondent submits two Claimant has failed to Claimant No action No 1046/17of10 Diego Mirones, iii! report s produced by the Omro establish how the takes note of by November 2017. 34, 49 and Municipality in November Document Requested Respondent's Tribunal

footnotes 15, 21 and December 2017 in would be relevant to its agreement to required.

DM-04, DM-05 support of the cadastral value case or material to the produce the that the Respondent assigns to outcome (IBA Rules, the Antimony Smelter (DM- Alt. 3(3)(b) and

Claimant notes that Bolivia has agreed to produce or conduct a reasonable search for the Requested Documents relating to the Antimony Smelter. This being the case, while Claimant rejects Bolivia' s arguments as to the relevance and materiality of the Requested Documents in Section III of this Redfem Schedule, it does not find it necessruy to ru·gue the point further and refers to its reasoned justification for the con-esponding Requests.

US3399265/2 107427-0022 Ii ..

- 11 -






04, DM-05). These repo1ts 9(2)(a)). Indeed, Requested were produced in response to Claimant's justification Document. the request made to the contains no explanation Municipality by the whatsoever as to how Respondent in Note the Document PGE/DESP/SPDRLE No Requested will assist 1046/17 dated 10 November Claimant in proving its 2017. case or how it may

The Requested Documents impact the outcome of

are therefore relevant and this dispute.

mate1ial to understanding the Without prejudice to full context of the info1mation the foregoing, and in provided by the Omro the spirit of Municipality in the repo1ts cooperation, Bolivia with exhibit numbers DM-04 agrees to produce the and DM-05. Document Requested.

9. Technical sheet (hoja Expe1t Repo1t of Respondent submits a repo1t Claimant has failed to Claimant No action tecnica) drafted by Diego Mirones, ii produced by the Omro establish how the takes note of by Architect Monica Condo1i 34 and footnote 15 Municipality in December Document Requested Respondent's Tribunal Valdez, referenced in the

DM-05 2017 in suppo1t of the would be relevant to its agreement to r equired.

repo1t submitted by cadastral value that the case or mate1ial to the produce the Respondent as Exhibit DM- Respondent assigns to the outcome (IBA Rules, Requested 05. Antimony Smelter (DM-05). Alt . 3(3)(b) and Document.

This repo1t indicates that it 9(2)(a)). Indeed, was produced as a Claimant's justification complement to a previous contains no explanation repo1t produced by the whatsoever as to how

US3399265/2 107427-0022 - liv -






Municipality, on the basis of a the Document "Technical Sheet" or "hoja Requested will assist tecnica" produced by Ms Claimant in proving its Condo1i Valdez. case or how it may

The Requested Document is impact the outcome of

therefore relevant and this dispute.

mate1ial to understanding the Without prejudice to full context of the info1mation the foregoing, and in provided by the Omro the spirit of Municipality in the report cooperation, Bolivia with exhibit number DM-05. agrees to produce the

Document Requested.

10. Method for the valuation of Expe1t Repo1t of Respondent submits an Claimant has failed to Claimant No action real estate, 2004, by Diego Mirones, iii! undated repo1t entitled establish how the takes note of by Consultora Banientos. 40, 89 and "Marco Te6rico," presumably Document Requested Respondent's Tribunal

footnotes 19, 35 produced by its valuation would be relevant to its agreement to required .

DM-15 (refened expe1t Mr Diego Mirones case (IBA Rules, Alt. produce the

to as "Annex 16") Venegas, in suppo1t of the 3(3)(b) and 9(2)(a)). Requested cadastral value that the Its justification says Document. Respondent assigns to the nothing as to how the AIItimony Smelter (DM-15). Document Requested The "Marco Te6rico" will assist Claimant in includes up to 34 footnotes proving its case. citing the Requested Without prejudice to

the foregoing, and in the spirit of

US3399265/2 107427-0022 - Iv -






Document authored by cooperation, Bolivia Consultora Banientos. agrees to produce the

The Requested Document is Document Requested.

therefore relevant and mate1ial to assessing the content and credibility of the Expert Repo1t of Diego Mirones.

11. Legible copy of exhibit Expe1t Repo1t of Respondent produced an Bolivia will conduct a Claimant No action DM-10. Diego Mirones, ii illegible copy of the exhibit reasonable search with takes note of by

12 and footnote 2 numbered DM-10. a view to producing the Respondent's Tribunal

DM-10 (refened Document Requested. agreement to required.

to as "Annex 11 ") conduct a reasonable search with a view to producing the Requested Document.

12. Legible copy of exhibit Expe1t Repo1t of Respondent produced an Bolivia has reviewed Claimant No action DM-14. Diego Mirones, ii illegible copy of the exhibit exhibit DM-14 and takes note of by

12 and footnote 3 numbered DM-14. notes that only the Respondent's Tribunal

DM-14 (refened second page of the agreement to required .

to as "Annex 15") document is difficult to conduct a read. reasonable

search with a

US3399265/2 107427-0022 - lvi -






Thus, Bolivia will view to conduct a reasonable producing the search with a view to Requested producing a legible Document. copy of this document.

US3399265/2 107427--0022 - lvii -