Annex A to Procedural Order No. 17
IN THE MATTER OF AN ARBITRATION ICSID Case No. ARB/12/14 and ARB/12/40
UNDER THE ICSID RULES
B E T W E E N:
CHURCHILL MINING PLC
PLANET MINING PTY LTD
Claimants
-and-
THE REPUBLIC OF INDONESIA
Respondent
______
CLAIMANTS' SECOND REQUEST FOR PRODUCTION
OF DOCUMENTS IN DOCUMENT AUTHENTICITY PHASE
______
1. INTRODUCTION
1.1 The Republic of Indonesia (the "Respondent" or the "State") is hereby requested to produce the Documents described below to Churchill Mining PLC and Planet Mining Pty Ltd (the "Claimants").
2. GENERAL OBSERVATIONS
2.1 On 11 March 2015, two days before the Claimants were due to file their document production request in accordance with the schedule for the document authenticity phase set out at Annex 1 to the Tribunal's letter dated 4 March 2015 (the "Claimants' First DPR"), the State applied for leave to submit additional documents, including witness statements and a further handwriting examination report, into evidence ("State's Application for Leave").
2.2 While the Claimants did not oppose the State's Application for Leave, they reserved their rights to make further requests for the production of Documents in respect of the items of evidence that were to be subject of the State's Application for Leave (Claimants' First DPR, para. 4.1).
2.3 On 3 April 2015, the State submitted a supplemental witness statement for each of Mr. Ishak and Ms. Nurohmah, and a witness statement for each of Bambang Setiawan and Chaerul Djalil.
2.4 On 27 April 2015, the State submitted Mr. Epstein's fourth forensic handwriting examination report dated 27 April 2015 ("Fourth Handwriting Examination Report").
2.5 In the exercise of the rights they reserved, the Claimants now file this second document production request (the "Claimant's Second DPR") in response to the additional forgery allegations asserted by the State in its Application for Leave and its supporting documents, the witness statements and the Fourth Handwriting Report.
3. KEY TERMS AND EXPRESSIONS
3.1 The following terms as used in this Request shall have the meaning ascribed to them below. All other capitalised terms used but not defined in this Request shall have the meaning ascribed to them in the Parties' Statements and in the Claimants' First DPR.
a) "Claimants' First DPR" or "First DPR" means the Claimants' first document production request dated 13 March 2015;
b) "Claimants' Second DPR" or "Second DPR" means the Claimants' second document production request dated 29 April 2015;
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c) "Ridlatama Borrow-for-use Recommendations" means the following letters:
i. Recommendation letter from Mr. Ishak as Regent of East Kutai to RTM's application for a borrow-for-use permit dated 29 December 2009; and
ii. Recommendation letter from Mr. Ishak as Regent of East Kutai to RTP's application for a borrow-for-use permit dated 29 December 2009.
d) "Ridlatama Technical Considerations" means the following letters:
i. Letter from Bambang Setiawan, Director General of Mineral, Coal and Geothermal at the MEMR, to the Ministry of Forestry relating to technical considerations for RTM's borrow-for-use application dated 22 September 2010;
ii. Letter from Bambang Setiawan, Director General of Mineral, Coal and Geothermal at the MEMR, to the Ministry of Forestry relating to technical considerations for RTP's borrow-for-use application dated 22 September 2010;
iii. Letter from Bambang Setiawan, Director General of Mineral, Coal and Geothermal at the MEMR, to the Ministry of Forestry relating to technical considerations for IR borrow-for-use application dated 22 September 2010; and
iv. Letter from Bambang Setiawan, Director General of Mineral, Coal and Geothermal at the MEMR, to the Ministry of Forestry relating to technical considerations for INP borrow-for-use application dated 22 September 2010.
e) "Ridlatama Seriousness Bond Requests" means the following letters:
i. Letter from Mr. Ishak as Regent of East Kutai regarding "Payment of Provisioning of Territory [sic] Fixed Contribution and Capability Security" addressed to IR and dated 4 December 2007; and
ii. Letter from Mr. Ishak as Regent of East Kutai regarding "Payment of Provisioning of Territory [sic] Fixed Contribution and Capability Security" addressed to INP and dated 4 December 2007.
3.2 Each reference to a corporation or natural person shall be deemed to include that corporation's or person's agents, lawyers, representatives and any other person who acted or purported to act on that corporation's or person's behalf.
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3.3 With regard to certain requests herein, in order to clarify what is referred to, citations are given to relevant statements by the parties or relevant exhibits to those statements. Such citations should not be construed to limit the relevance of such requests.
4. REQUEST TO PRODUCE
4.1 For each of the Documents requested, the State is asked to produce all responsive documents within its possession, custody or control. For the avoidance of doubt, such documents include any document that is in the possession, custody or control of any other person and that the State is entitled (together or separately), legally, contractually or otherwise, to obtain upon request, in the original or in copy form.
4.2 The Claimants confirm that, to the best of their knowledge and belief, none of the Documents requested below are in their possession, custody or control.
5. GENERAL OBSERVATIONS TO THE STATE'S OBJECTIONS
5.1 The Claimants' responses to the State's specific objections are in the Redfern schedule that follows. However, the Claimants make the following general observations on the State’s objections dated 4 May 2015 and 20 May 2015.
5.2 First, the Claimants did not object to the State's 11 March 2015 application for leave to introduce further documents, witness statements and an expert report (State's Further Application). However, the Claimants reserved their rights to make further requests for the production of Documents in respect of the items of evidence that were to be subject of the State's Application (Claimants' First DPR, para. 4.1) and the State did not object to that reservation (nor could it). In these circumstances especially, the State cannot (and should not) now oppose the Claimants' right to seek documents to test the allegations made by the additional documents introduced by the State.
5.3 Second, the State asserts that the Claimants' Second DPR is "untimely and inadmissible to the extent that it calls for documents on the basis of facts that were available to them prior to their First Production Request dated 13 March 2015" (State's 4 May 2015 letter, para. 1). The State's position is that the Claimants should have been sufficiently informed of the particulars of the State's additional allegations of forgery when the State applied to submit additional documents but before the actual witness statements and expert report were submitted (which did not occur until 3 April 2015 and 27 April 2015, respectively).
5.4 This is not a fair position for the State to take. The Claimants had to wait for the State to specify the irregularities it alleges exist on the face of the disputed Ridlatama Technical Considerations before they could make any request for the production of comparators and other test documents. The same is true of the Ridlatama Seriousness Bond Requests. Indeed, if the Claimants had requested documents purely on the basis of what the State said in its Further Application, they might well have failed the test for specificity set out in Article 9.2 of the
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IBA Rules – a test noted by the State in its 23 March 2015 letter ("The Request must identify each document or category of documents with precision.").
5.5 The Claimants emphasise also that they filed the Second DPR one day after receiving Mr Epstein's fourth handwriting examination report, which set out – for the first time – Mr. Epstein's conclusion that Mr. Setiawan's signatures on the Ridlatama Technical Considerations are "mechanically produced using an Autopen technology" (Mr. Epstein's fourth handwriting report at para. 1 of Findings).
5.6 Third, the State asserts that with respect to the Claimants' Second DPR Nos. 1, 2, 3 and 5, the "Claimants have known about the disputed Governor's Recommendations and MEMR Technical Considerations since September and October 2014" (State's 4 May 2015 letter, para. 3). In assessing the strength of this assertion, it is worth recalling exactly what the State said in its Forgery Dismissal Application of 24 September 2014. In the State's Forgery Dismissal Application, the State alleged only that the following documents had been "forged and fabricated":
5.6.1 the East Kutai Coal Project mining undertaking licences for general survey and exploration issued by H. Awang Faroek Ishak (in his capacity as Regent of East Kutai) in 2007-2008 to each of (i) PT Ridlatama Trade Powerindo, (ii) PT Ridlatama Tambang Mineral, (iii) PT Ridlatama Investama Resources, and (iv) PT Investmine Nusa Persada (collectively, the "Ridlatama Companies") (State's Forgery Dismissal Application, para. 25);
5.6.2 four certification letters dated 8 April 2008 issued by Mr. Ishak (in his capacity as Regent of East Kutai) in respect of the Ridlatama Companies (State's Forgery Dismissal Application, para. 26 (i));
5.6.3 four certificates of legality dated 8 April 2008 issued by Mr. Ishak (in his capacity as Regent of East Kutai) in respect of the Ridlatama Companies (State's Forgery Dismissal Application, para. 26 (ii));
5.6.4 four letters of recommendation dated March 2010 issued by Mr. Ishak (in his capacity as Governor of East Kalimantan) to the Ministry of Forestry in relation to the issuance of "Borrow-for-Use Permits" for the Ridlatama Companies (State's Forgery Dismissal Application, para. 26 (iii)); and
5.6.5 four "Reenactment Decrees" dated 14 May 2010 issued by H. Isran Noor (in his capacity as Regent of East Kutai) to the Ridlatama Companies in relation to previously revoked mining exploitation licences (State's Forgery Dismissal Application, para. 26 (iv)).
5.7 Later, the State felt compelled to file four additional witness statements (two from new witnesses) and one expert report to add documents to its "forged and fabricated" list. It is self-evident from the fact that the State filed these expansive new materials that, in the first round
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of document production (following the Forgery Dismissal Application), the Claimants did not have enough information to request the documents they now seek.
5.8 If the State is implying that the Claimants have somehow gained by waiting to request these documents, nothing could be further from the truth.
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1 2 3 4 5 6 7
No. Req. Documents or Relevance and Materiality According to Responses/ Objections to Reply to Objections to Tribunal's Decision Party Category of Requesting Party Document Request Document Requests Documents Requested
Reference to Comments Submissions
I. Ridlatama Borrow-for-use Recommendations
1. Cl. All Mr. Ishak states in his The State claims that First, there is no reason The Claimants will not NO DECISION recommendations second witness it is "absolutely clear" why Claimants could not proceed further with this REQUIRED issued by the statement that he did that the Borrow-for- have included this request request at this stage. Governor of East not sign, issue or Use in their First Production However, the Claimants Kalimantan to the authorize the issuance Recommendations Request. Claimants have reserve their rights to Ministry of Forestry of the Borrow-for-use "were all forgeries" known since September renew this request in the in support of Recommendations (State's Application 2014, at the latest, that the merits phase of the borrow-for-use (Ishak Second WS, for Leave, pg. 3). Respondent is disputing the proceedings. permit applications paras. 6-7). Further, the State alleged Governor’s during the Relevant alleges that PT ICD Recommendations in Period. Further, Mr. Epstein supplied to the Ex. C-220 (Respondent’s states in his Fourth Bawasda auditors Application to Dismiss Handwriting "another fabricated dated 24 September 2014, Examination Report document" (State's ¶ 26; Second Epstein that Mr. Ishak's Application for Report dated 15 September signatures appearing Leave, pg. 3). The 2014, p. 8). The on the Borrow-for- State also alleges that challenged use this "shows the Recommendation dated 29 Recommendations modus operandi December 2009 (which "are from the same utilized by the was identified on 11 March Autopen model that Ridlatama 2015) is virtually identical produced the Companies in to the forged previously identified fabricating recommendations in Ex. C- disputed signatures" supposedly official 220. Accordingly, (Fourth Handwriting documents and calls Claimants have been on into question the notice about the forged
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Examination Report, good faith of Governor’s Findings, para. 3). Claimants in relying Recommendations for at upon those least eight months. documents for the Mr. Epstein’s relevant purposes of this conclusion in the Fourth arbitration" (State's Report at page 5 is that the Application for disputed signatures of Leave, pg. 3). Mr. Ishak appearing on the two purported The Documents recommendations for RTM requested are relevant and RTP dated 29 and material because December 2009 (exhibits they will allow for R-144 and R-145) are from the contested the same Autopen model Ridlatama Borrow- that produced the for-use previously identified Recommendations to signatures on the four be compared to recommendations for borrow-for-use RTM, RTP, INP and IR recommendations dated 11 March 2010 and validly-issued by 22 March 2010 (Ex. C- Mr. Ishak. This 220), referred to in the comparison will, in Second Epstein Report. turn, allow for the The request is burdensome authenticity of the coming at this late date. Ridlatama Borrow-
for-use Second, the request for “all Recommendations to recommendations” from be properly 2007 to June 2010 (the evaluated. “Relevant Period”) is overly broad and calls for recommendations issued when Mr. Ishak did not hold the position of Governor.
Third, whereas this request is untimely, burdensome
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and overly broad, the request is also improper because it seeks documents that contain commercial information protected from production under Rule 9(2)(e) of the IBA Rules.
Fourth, without waiving the above objections, on 4 May 2015, Respondent already produced Mr. Ishak’s signed recommendations issued in 2009-2010 for Nusantara’s borrow-for-use permits. Claimants cannot show a need for additional documents, since the produced documents provide a sufficient basis for any comparison that they wish to make. II. Ridlatama Technical Considerations
2. Cl. Laws, statutes, Mr. Djalil states that According to the First, the request as The Claimants have NO DECISION policies, guidelines, each document or State, in addition to formulated by Claimants is reviewed the Regulation of REQUIRED rules, regulations, letter issued by the the allegedly forged both vague and overbroad, the Minister of Energy and manuals, MEMR needs to be signatures, the and not limited to the Mineral Resources memoranda or other made in accordance Ridlatama Technical standards referred to in Mr. Number 52 Year 2006 Documents setting with "the standards Considerations Djalil’s witness statement. regarding Official out the procedure, prescribed by the display "other Correspondence and whether public or MEMR Regulation, indications that [they] Second, without waiving Archives ("Regulation internal, by which from the form of the are not authentic" this objection, on 4 May 52") produced by the State. officials, employees letter, letterhead and which include a 2015, Respondent However, Regulation 52 or agents of the numbering, to the number of alleged produced Regulation of the does not mention any of MEMR prepared, stamp and paper used departures from the Minister of Energy and the specific "standards drafted, executed "standards prescribed Mineral Resources Number prescribed by the MEMR"
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and issued technical for each letter" (Djalil by the MEMR 52 Year 2006 regarding including "the form of the considerations in WS, para. 10). Regulation" as set out Official Correspondence letter, letterhead and support of borrow- in the Annex to Mr. and Archives. numbering" or the "stamp for-use permits in Djalil's witness and paper" (Djalil WS, Additionally, 2009 and 2010. statement (State's para. 10). Respondent will produce Application for the Attachment to Leave, pg. 5; Djalil The Claimants look Regulation of the Minister WS, paras. 17-21 and forward to receiving and of Energy and Mineral Annex). reviewing the Attachment Resources Number 52 Year to Regulation 52. 2006 regarding Official The Documents Correspondence and requested are relevant Archives. and material to determine what the "standards prescribed by the MEMR Regulation" were in 2009 and 2010. These Documents are necessary in order to establish whether the Ridlatama Technical Considerations deviated from these standards.
3. Cl. All technical Mr. Setiawan states The form and content First, Claimants are As to the first point, the GRANTED AS considerations that holders of of the Ridlatama incorrect in stating that Claimants wish to clarify NARROWED DOWN ("internal records mining rights who Technical MEMR’s Technical that, as noted by the State, version" and apply for forestry Considerations have Considerations in respect MEMR technical As to admissibility, the external versions permits related to the been put in issue by to borrow-for-use permits considerations are Tribunal notes that in its sent to document mining activities of the State. are addressed to mining addressed to the Ministry Letter of 9 October 2014 recipients), and any exploration and license holders. They are of Forestry, although they the Respondent indicated relevant exploitation, are The Documents addressed to the Ministry are provided to the mining that, as a result of “recent attachments to such required to request a requested are relevant of Forestry, which issues licence-holders for their inquiries”, it had identified technical technical and material because borrow-for-use permits, borrow-for-use permit Exhibits C-252 to C-255 as considerations, consideration from they will allow for and copied to applicants. applications. “additional suspect” and from the Director the Director General the contested In any event, Claimants “forged letters” since (i) General of Mineral, of Mineral and Coal cannot show a need for
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Coal and of MEMR (Setiawan Ridlatama Technical additional technical However, the Claimants do the signatures were Geothermal of the WS, para. 8). Considerations to be considerations for not accept the State’s identical and (ii) the NIP MEMR addressed compared to other comparison purposes assertion that they have of Mr. Setiawan was to mining licences Mr. Setiawan also technical because they now have already received the wrong (see Respondent’s holders in East asserts that he never considerations that such documents. Without documents requested. The Letter of 9 October 2014, Kutai in furtherance authorised anyone to were issued by the waiving any objections, Claimants requested all p. 3, n. 12). In addition, the of applications for sign or place his MEMR in 2009 and Respondent has already MEMR technical Respondent filed on 13 forestry permits in signature on 2010. This produced, on 4 May 2015, considerations, but the October 2014 the Third 2009 and 2010. Ridlatama's comparison will, in responsive documents of State only produced (on 4 Expert Report of Mr. Technical turn, allow for the the Nusantara companies, May 2015) Nusantara's Epstein indicating that the Considerations authenticity of the which allow for the MEMR technical signatures of Mr. Setiawan (Setiawan WS, para. Ridlatama Technical Ridlatama MEMR considerations. in Exhibits C-252 to C-255 9). According to him, Considerations to be Technical Considerations were identical and MEMR never used properly evaluated. to be properly evaluated. While it is true that mechanically made. any automated Nusantara's MEMR mechanical device or Second, Claimants have technical considerations However, the Respondent signature stamps to known about the disputed are a sub-set of the only filed the Witness sign letters (Setiawan MEMR Technical technical considerations Statements of Messrs. WS, para. 9). Considerations since being requested here, they Setiawan and Djalil on 3 October 2014 are plainly insufficient to April 2015, which identify In addition to the (Respondent’s letter dated serve as a set of various new allegedly forged 9 October 2014, n. 12, comparator documents for “irregularities” in Exhibits signatures, Mr. citing exhibits C-252 to C- testing what Mr. Setiawan C-252 to C-255, including Setiawan and Mr. 255, R-131 and R-139; and Mr. Djalil say about in respect of the initials, Djalil set out the Third Epstein Report dated the required format of a stamps, and attachments numerous alleged 13 October 2014). MEMR technical (see Setiawan WS, ¶¶ 14- "irregularities" Accordingly, Claimants consideration. 16, and Djalil WS, ¶¶ 15- identified on the have been on notice about 21). Ridlatama Technical the forged MEMR As to the second point, Considerations Technical Considerations, please see Section 5 above Accordingly, the request is (Setiawan WS, paras. and irregularities in those (General Observations to deemed admissible. 11-16; Djalil WS, Considerations, for seven the State's Objections). paras. 15-21 and months. They should have As to the merits of the Annex). included this request in As to the third point, the request, the requested their First Production Claimants are happy to documents appear prima Request. narrow this request by facie relevant, although the It is unfair to place the limiting it to the year 2010. request seems too broad. burden on Respondent to The Tribunal notes that the Respondent already
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conduct a new search for As to the fourth point, the produced Nusantara’s documents at this late date. Claimants are happy to MEMR Technical confer with counsel for the Considerations. Third, Claimants’ request State regarding the use of is overbroad in requesting the confidentiality regime Under the circumstances, documents from the 2009- applicable to the first the Tribunal can see the 2010 period, when the document production merit of the Claimants’ disputed MEMR Technical phase for the documents request for a larger set of Considerations are dated sought under this request. comparator documents. 22 September 2010 (exhibits C-252 to C-255). Therefore, the Tribunal It should be noted that grants this request as these disputed letters narrowed down by the documents were dated 4 Claimants to the year months after the revocation 2010. of the mining undertaking licenses and 1 month after Finally, the confidentiality commencement of the regime applicable to the proceedings at the first document production Samarinda State request shall apply to Administrative Court in responsive documents August 2010. containing sensitive information. Fourth, whereas this request is untimely, burdensome and overly broad, the request is also improper because it seeks documents that contain commercial information protected from production under Rule 9(2)(e) of the IBA Rules. 4. Cl. All applications for In her second witness The State relies on First, Claimants The Claimants do not GRANTED AS borrow-for-use statement dated Ms. Nurohmah's misrepresent the propose to engage with all FURTHER permits received by 31 March 2015, statements set out in Respondent’s submissions of what the State has said NARROWED DOWN the Ministry of Ms. Nurohmah her first and second with respect to the in response to this request, Forestry for general corrects her first witness statements incompleteness of the as much of the State’s
- 12 - survey, exploration witness statement. (despite these being Ridlatama applications. response pertains to issues As to admissibility, the and exploitation She now states that inherently Incompleteness is not itself that will be addressed in Tribunal notes that Ms. mining activities in the Ridlatama Group contradictory) for the alleged to be a fraud, and the merits of this Nuromah addressed for the East Kutai in 2010. applied for borrow- allegation that the the lack of original or arbitration. first time the 2010 for-use permits twice, Ridlatama Group legalized MEMR Technical applications for borrow- not only on 9 perpetuated the Considerations in the The Claimants note, for-use permits in her September 2009 but alleged fraud by applications did not lead to simply, that all they seek Second Witness Statement also on 13 April providing incomplete a detection of forgery. here is a temporal dated 31 March 2015 (see 2010. applications for This was clearly explained expansion of the Nuromah 2nd WS, ¶¶ 11- borrow-for-use by Respondent in response Tribunal’s existing order in 12) . Accordingly, the According to Ms. permits (Forgery to Claimants’ 13 March respect of the Claimants' request is admissible. Nurohmah, Dismissal 2015 document request First DPR No. 37 so that Ridlatama's first Application, para. 32; no. 37. the scope of disclosure is As to the merits, the applications (9 Sep State's Application aligned with the Tribunal recalls that in 2009) were for Leave, pg. 5). Second, Dra. Nurohmah’s allegations the State is PO16 it limited the incomplete, not two witness statements are making now (i.e. one more production to documents because the The Documents not “inherently year to cover the second of 2009 because Ms. Ridlatama companies requested are relevant contradictory”. Her two borrow-for-use permit Nurohmah’s written only submitted to establish whether statements indicated that application in 2010). testimony only addressed photocopies of the the Ridlatama Ridlatama’s borrow-for- the 2009 applications for MEMR technical Group's borrow-for- use applications -the 9 For the record, the borrow-for-use permits in considerations, but use applications were September 2009 (“2009 Claimants also take issue her First Witness because the in fact incomplete as application”) and the 13 with the State’s allegation Statement (see Annex A, Ridlatama companies compared to other April 2010 (“2010 that they have Request No. 37). In light did not submit these similarly situated application”) were misrepresented the State’s of Ms. Nuromah’s new technical companies that incomplete for several submissions. In the State’s explanations and the fact considerations at all successfully applied reasons, one of which was Forgery Dismissal that Ridlatama’s second (Nurohmah Second for such permits. the absence of original or Application, the State application was filed in WS, para. 11). Ms. legalized MEMR Technical accused the Ridlatama April 2010, the Tribunal Nurohmay also In their First DPR, Considerations (First Group of "perpetuating the accordingly extends the claims that the Claimants Nurohmah WS, ¶ 13 and alleged fraud [by] period to include Ridlatama's second requested these accompanying exhibits; providing incomplete responsive documents for applications (13 April Documents for the Second Nurohmah WS, applications for borrow- the first six months of 2010) were also purposes set out ¶ 11 and accompanying for-use permits". If a 2010. incomplete because above (Claimants' exhibits). document is said to be a they too did not First DPR No. 37). The correction made in the perpetuation of a fraud, the Finally, the confidentiality include technical The Tribunal Second Nurohmah WS allegation of fraud must regime applicable to the considerations determined that this clarified that there were no first document production document request, request shall apply to
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(Nurohmah Second while prima facie MEMR Technical attach to that document responsive documents WS, para. 12). relevant, was overly Considerations in the 2009 too. containing sensitive burdensome. As such, application. The Second information. the Tribunal limited Nurohmah WS added that the production of the 2010 application did responsive not contain MEMR documents to the year Technical Considerations 2009. either. Those clarifications do not warrant a search for Given the fresh “all applications” for allegations of forgery borrow-for-use permits by the State, in received by the Ministry of particular Ms. Forestry in 2010. Nor does Nurohmah's that warrant a re- assertions regarding consideration of the the Ridlatama Tribunal’s earlier ruling Group's second set of that production should be applications for limited to 2009 documents. borrow-for-use permits made on Third, Respondent has 13 April 2010, the produced applications for Claimants request borrow-for-use permits in these Documents for connection with mining the year 2010. activities in East Kutai received by the Ministry of Forestry in 2009, which is when the first Ridlatama applications were submitted. Those 2009 documents should be sufficient for Claimants’ purposes, particularly since the 2010 application was a re-submission of Ridlatama’s original application. Moreover, without waiving objections, on 4 May 2015,
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Respondent produced borrow-for-use applications of the Nusantara companies submitted to the Ministry of Forestry in 2010 and 2011.
Fourth, there are no “fresh allegations of forgery” with regard to the MEMR Technical Considerations in either Second Nurohmah WS, or in any part of Respondent’s submission of 3 April 2015 concerning the alleged MEMR documents. Respondent had clearly identified these documents as forged in October 2014 (Respondent’s letter dated 9 October 2014, n. 12, citing exhibits C-252 to C-255, and submitted the Third Epstein Report dated 13 October 2014, concerning those documents; See also Respondent’s letter dated 11 March 2015, Section B, filed before Claimants’ first document production request).
Fifth, neither of the Ridlatama 2009 and 2010 applications to the Ministry of Forestry attached
- 15 - recommendations from MEMR. The forged MEMR recommendations were attached to Churchill’s letter to the Ministry of Forestry dated 1 July 2011 (Second Nurohmah WS, ¶¶ 13-14 and Ex. R-155), which was more than a year after the mining undertaking licenses were revoked. Therefore, the requested documents – “all applications for borrow- for-use permits received by the Ministry of Forestry” – are irrelevant to the question of authenticity of the alleged MEMR’s Technical Considerations.
Sixth, whereas this request misrepresents Respondent’s arguments, seeks information which is irrelevant to the question of authenticity and is overly broad, the request is improper because it seeks documents containing commercial information protected from production under Rule 9(2)(e) of the IBA Rules.
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5. Cl. All Documents Mr. Djalil states that The Documents First, Claimants already These documents must be GRANTED executed and issued "other letters signed requested are relevant have sufficient documents provided. by Mr Setiawan on by Mr. Setiawan both and material as signed by Mr. Setiawan As to admissibility, the 21, 22 and 23 before and after 22 comparators: they that are sufficient to act as The Claimants could have Tribunal notes that, September 2010. September 2010 will enable the comparators. One such requested all of Mr. although the Respondent indicate that Mr Claimants and the document dated 21 Setiawan’s correspondence indicated in its Letter of Setiawan was using Tribunal to compare September 2010 is found in for a month (or more) on 9 October that the NIP his new NIP at that and examine the Ex. R-157. Other either side of the critical (state’s employee’s time" (Djalil WS, manner in which responsive documents are date (22 September 2010), identification number) of para. 17). documents were found in exhibits R-131 but they did not. Instead, Mr. Bambang Setiawan executed by Mr. and R-139. They show the the Claimants kept their used in the suspect Setiawan on the date NIP used in December request extremely narrow – documents was wrong (see the allegedly forged 2009 and October 2010 – to just one day on either Respondent’s Letter dated Ridlatama Technical before and after the date of side of the disputed 9 October 2014, p. 3, Considerations were the forged Technical signature day. And the n. 12), the Witness issued, as well as one Considerations. Djalil WS, State will not even give the Statement of Mr. Djalil of day before and one ¶¶ 13, 17, 20 referred to Claimants that much. 3 April 2015 elaborates on day after such date those exhibits. this point (see Djalil WS, (these additional days This is disappointing, ¶¶ 17 and 18). being necessary to Second, Respondent especially considering that assure that an identified forgery of the the Claimants’ did not Accordingly, the request adequate set of MEMR Technical oppose the State’s can be deemed admissible. comparator Considerations in October application to introduce the documents is 2014 (Respondent’s letter further documents from On the merits, the request provided). dated 9 October 2014, which this request flows. is specific and appears n. 12, citing exhibits C-252 prima facie relevant. to C-255, R-131 and R- On any view, it is not 139; Third Epstein Report appropriate for the State to dated 13 October 2014). be the sole judge of the Accordingly, Claimants sample that is to be used to have been on notice about test its allegations with the forged MEMR respect to Mr. Setiawan’s Technical Considerations, technical considerations, and irregularities in those and that is exactly what the Considerations, for seven State is trying to do. months. There is no reason why Claimants could not As to the first point, the have included this request State claims that three of in their First Production
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Request. It is unfair to its exhibits include place the burden on responsive documents that Respondent to conduct an should be sufficient for additional search for purposes of comparing documents at this late date, them to the allegedly particularly when forged Ridlatama Borrow- comparator documents for-Use Technical have been in Claimants’ Considerations. That is possession for many both incorrect and months. unreasonable.
Out of the three exhibits (R-157, R-131 and R-139) only one letter is dated 21, 22 or 23 September 2010 (see page 2 of Exhibit R- 157). The other letters signed by Mr Setiawan are dated in 2009 (except one which is dated October 2010).
The State has put at issue the form and format of Mr. Setiawan's signatures and NIP numbers as provided on a letter dated 22 September 2010. As such, the purpose of this request is not to receive any letter signed by Mr. Setiawan, but letters signed by Mr Setiawan immediately before and after the date in question of the alleged forgery.
As to the second point, please see Section 5 above
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(General Observations to the State's Objections).
6. Cl. The "registry Mr. Djalil states that The State's evidence First, this request is The Claimants are willing GRANTED AS books" or other "all outgoing refers to various overbroad and seeks to narrow their request NARROWED DOWN similar Document documents of MEMR MEMR registry documents that are here so that the State need maintained by the are recorded in the books. irrelevant to the issues in only provide copies of the As to admissibility, the MEMR during registry books" this Arbitration. In MEMR registry book for Tribunal notes that Mr. 2009 and 2010. (Djalil WS, para. 10). The BPK relied on response to Respondent’s the three days covered by Djalil provides new the MEMR's register 13 March 2015 document Request 5 above (21, 22 explanations on the when it concluded request no. 29, Claimants and 23 September 2010, MEMR registry books in that the general confirmed that there were i.e. the disputed signature his Witness Statement of survey licences of no Technical day and one day on either 31 March 2015 (see Djalil RTM and RTP were Considerations from side). WS, ¶ 10). registered with the MEMR in 2009 for the MEMR (BPK Report, “EKCP”, and that the 22 For the same reasons as Accordingly, the request is R-32 Attachment 3, September 2010 Technical explained above under admissible. pg. 2). In their First Considerations were the Request 5, these DPR, the Claimants only ones allegedly issued documents must be As to the merits, the made a request for in connection with the provided if the Claimants Tribunal notes at the outset such a registry (the Ridlatama’s applications are to be able to test what that the Respondent has State has yet to for borrow-for-use permits. the State and its witnesses stated that it will produce provide this say about Mr. Setiawan’s Consequently, register the MEMR register book document to the technical considerations. books for 2009 and for all for 22 September 2010 and Claimants) of 2010 are not relevant “to for 15 October 2010. (Claimants' First In addition, the Claimants the question of whether or DPR No. 35). are happy to accept the not the MEMR issued the The Tribunal finds the State’s offer of a copy of Ridlatama Technical requested documents, as Mr. Djalil now states the MEMR registry book Considerations [dated 22 narrowed down, to be that the MEMR has September 2010] (as these page for 15 October 2010. prima facie relevant and registry books that would have been recorded sufficiently specific. record outgoing in the registry books” documents such as (Claimants’ Comment on While the Respondent technical the Relevance). offered to produce the considerations issued MEMR register book for by the MEMR (Djalil Second, Respondent’s 22 September 2010, the WS, para. 10). evidence is that the Tribunal is of the view that numbers in the alleged the production of the 22 September 2010
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It is not clear whether Technical Considerations MEMR register book for the registry books (exhibits C-252 to C-255) 21 September and 23 referred to by the belong to other letters September is warranted BPK are the same as signed by Mr. Setiawan on under the circumstances. those referred to by 15 October 2015 (Djalil Accordingly, the Tribunal Mr Djalil, but the WS, ¶ 18, citing Ex. R-139; orders the production of context would Respondent’s letter dated copies of the MEMR indicate that they are 9 October 2014, n. 12, registry book covering the different registry citing Ex. R-139). dates of 21 and 23 books – one September 2010. Accordingly, Respondent pertaining to mining will produce the MEMR undertaking licences, Finally, the confidentiality register book for 22 and the other one regime applicable to the September 2010. pertaining to forestry first document production Respondent will also permits and related request shall apply to produce the MEMR documentation. responsive documents register book for 15 containing sensitive October 2010, recording Accordingly, the information. the letters found in Ex. R- Document requested 139. is relevant and
material to the Third, whereas this request question of whether is otherwise overly broad, or not the MEMR encompassing records and issued the Ridlatama information that are Technical irrelevant to the question of Considerations (as authenticity, the request is these would have also improper because it been recorded in the seeks documents that registry books contain commercial referred to by information protected from Mr. Djalil). production under Rule 9(2)(e) of the IBA Rules. 7. Cl. A complete digital Mr. Djalil explains The Document First, this request is The Claimants will not NO DECISION image of the that all incoming requested is relevant patently overbroad in that it proceed further with this REQUIRED database generated documents are and material to the calls for documents request at this stage. and maintained by recorded in a issue of whether or unrelated to Ridlatama and However, the Claimants MEMR recording database at the not the Ridlatama Claimants and having no reserve their rights to all incoming Technical renew this request in the
- 20 - documents between MEMR (Djalil WS, Considerations were relevance at all to this merits phase of these May 2009 and May para. 10). in fact submitted to Arbitration. proceedings, at which 2010. the MEMR with the point this database will be According to Ms relevant borrow-for- Second, Respondent’s highly relevant. Nurohmah, use applications. evidence is that MEMR, as Ridlatama's first and This, in turn, goes to the authority that issues second applications the wider issue of certain Technical were incomplete whether the Considerations, did not because they did not Ridlatama Technical issue the Technical include the Ridlatama Considerations were Considerations dated Technical valid and authentic. 22 September 2010. The Considerations request misconstrues (Nurohmah Second Respondent’s submissions WS, paras. 11-12). by stating that relevance of the requested documents is in “whether or not the Technical Considerations were in fact submitted to the MEMR” (emphasis added). The requested documents are irrelevant to whether MEMR issued the Technical Considerations dated 22 September 2010.
Third, in any event, the request is overly broad in calling for “all incoming documents between May 2009 and May 2010.” The alleged Technical Considerations of MEMR (exhibits C-252 to C-255) all refer to Ridlatama’s applications for Technical Considerations dated 27 May 2010. Therefore, if Claimants’ purpose is to ascertain whether or not the
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applications for “Technical Considerations” were in received by MEMR, the only relevant period is the end of May 2010.
Fourth, Claimants should not be permitted to require additional production by Respondent when Claimants have failed to comply with the Tribunal’s orders to produce Ridlatama’s applications for the Technical Considerations (PO No. 16, ¶ 18(2), granting Request Nos. 37-40; Id., Annex B, Request Nos. 37-40).
Fifth, whereas this request is overly broad, impermissible, and seeks to obtain irrelevant records, the request is also improper because it seeks documents that contain commercial information protected from production under Rule 9(2)(e) of the IBA Rules. III. Ridlatama Seriousness Bond Requests
8. Cl. All instructions by Mr. Ishak states that The Documents First, the request is vague The State's allegation is GRANTED AS the Regency of East he "never provided requested are relevant and overly broad as to the that Mr Ishak did not sign FURTHER Kutai or any of its instructions to mining and material to categories of the the Ridlatama Seriousness NARROWED DOWN agencies, companies to pay a determine how documents requested (“all Bond Requests because he representatives or seriousness bond or mining licence instructions . . . in "never provide[s] As to admissibility, the agents, including other payment holders were relation . . . to payment instructions to mining Tribunal notes that, in his
- 22 - the Mining and obligation in a informed of their obligations” (emphasis companies to pay a Second Witness Statement Energy Bureau, to mining area. The obligations to comply added). seriousness bond or other of 31 March 2015, Mr. mining licence holder of a mining with any payment payment obligation". Ishak provides new holders in relation licence is under an requirements Second, in seeking testimony as regards the to the holders' obligation to comply imposed on them as production of “[a]ll In this request the issuance of instructions to mining licence with any payment mining licence instructions by the Claimants are simply pay seriousness bonds or payment obligations" (Ishak holders. This Regency of East Kutai or trying to ascertain who other payment obligations obligations, Second WS, para. examination, will, in any of its agencies, issues such payment (see Ishak 2nd WS, ¶ 11). including, but not 11). turn, allow for the representatives or agents, requests if not Mr. Ishak. limited to the authenticity of the including the Mining and Accordingly, the request is seriousness bond Ridlatama Energy Bureau,” Claimants The Claimants are happy admissible. and dead rent, Seriousness Bond are requesting documents to narrow this request by during 2007 and Requests to be that are irrelevant to the limiting it to requests to As to the merits, the 2008. properly evaluated. issues in this Arbitration. pay seriousness bonds by Tribunal notes at the outset Respondent’s evidence is the Regency of East Kutai, the Respondent’s In addition, the that the Regent did not and or any of its agencies, representation that the Documents requested would not issue specific representatives or agents Regent does not issue are relevant and instructions to mining during 2007 and 2008. instructions in relation to material to Mr Ishak's companies to pay payment obligations, and credibility as a seriousness bond and dead As to the State's third that no responsive witness. rent. Respondent does not objection, the Claimants’ documents exist in this dispute that the Mining document request does not respect. However, the Bureau issued instructions mention "the Regent", but Claimants’ request is not to pay such obligations. rather "the Regency" limited to instructions of Therefore, production of (emphasis added). the Regent, but of the payment instructions by the Regency, it being Mining Bureau or by any As to the fourth point, it is undisputed that responsive other “agencies, true that the State has documents exist in this representatives or agents” already produced one respect. of the Regency of East document that is Kutai would be irrelevant responsive to this request – The requested documents to whether the Regent this being the Regency’s appear to be prima facie himself issued the disputed 2008 request for payment relevant. However, even as instructions. by Nusantara of applicable narrowed down by the fees. However, one Claimants, the request is Third, responsive document is obviously still too broad, in particular documents – payment because none of the instructions issued by the disputed mining licences Regent – do not exist, was issued prior to May
- 23 - because the Regent would insufficient as a 2007. Accordingly, the not issue such instructions. comparator set. Tribunal orders production of documents for the Fourth, without waiving As to the fifth point, the period of May to any objections, on 28 April Claimants are happy to December 2007. 2015, Respondent narrow this request by produced responsive limiting it to the year 2007. Finally, the confidentiality documents issued for the regime applicable to the Nusantara companies by As to the fifth point, the first document production the Mining Bureau of East Claimants are happy to request shall apply to Kutai. Please see the List confer with counsel for the responsive documents of Documents of the State regarding the use of containing sensitive Nusantara Group, the confidentiality regime information. including items 167, 170, applicable to the first 171. document production phase for the documents Fifth, the request is overly sought under this request. broad as to the time period. At issue are purported Regent’s instructions dated 4 December 2007 (found in exhibits C-92 and C-93). In response to Respondent’s document request no. 7, Claimants failed to produce similar Regent’s instructions in connection the alleged May 2007 mining licenses.
Sixth, whereas this request is overly broad, vague, and seeks to obtain irrelevant documents, the request is also improper because it seeks documents that contain commercial information protected from
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production under Rule 9(2)(e) of the IBA Rules.
Respondent’s Note dated 19 May 2015:
Any documents which are produced by Respondent in response to Claimants’ Second Request for Production of Documents (“Claimants’ Second Request”) or pursuant to any order of the Tribunal concerning Claimants’ Second Request, and which are stamped or marked “Confidential” by Respondent, shall be treated as Confidential Documents, which means that they shall be covered by the terms of the Confidentiality Agreement executed by the Parties on 30 April 2015. Respondent requests that Claimants confirm that they and their Counsel will treat all such documents as Confidential Documents.
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