## Facts

- A group of companies led by Tidewater Inc. and Tidewater Investment S.R.L. (collectively, Tidewater) made investments in maritime service companies operating in Venezuela.
- In February 2010, Tidewater commenced ICSID arbitration alleging Venezuela unlawfully expropriated Tidewater’s investments without compensation.
- Tidewater asserted ICSID jurisdiction on two alternative bases: (i) Article 22 of Venezuela’s Investment Law, alleged to constitute standing consent to ICSID arbitration, and (ii) the Barbados–Venezuela bilateral investment treaty (BIT), invoked through Tidewater Investment S.R.L., a company formed under Barbados law.
- Venezuela disputed jurisdiction, contending Article 22 was not standing consent to ICSID arbitration and arguing Tidewater Investment S.R.L. was incorporated primarily to obtain access to ICSID arbitration, amounting to treaty abuse.
- The tribunal was constituted under the ICSID Convention and Arbitration Rules (President Prof. Campbell McLachlan QC; arbitrators Dr. Andrés Rigo Sureda and Prof. Brigitte Stern).
- Before jurisdiction was decided, the parties exchanged document requests and agreed to use the IBA Rules on the Taking of Evidence as guidance for production.
- Disputes arose over several categories of documents, including: (i) Tidewater’s requests for Venezuela’s internal documents concerning the preparation and drafting of Article 22; (ii) Venezuela’s requests for documents concerning the formation of Tidewater Investment S.R.L. and related share transfers; and (iii) Venezuela’s requests for documents identifying the services underlying Tidewater’s claimed accounts receivable.
- The tribunal issued Procedural Order No. 1 to resolve the contested production requests.

## Issues

1. What standard should the tribunal apply under ICSID procedure (with the IBA Rules as guidance) to decide whether requested documents must be produced?
2. Should Venezuela be ordered to produce internal state materials concerning the preparation and drafting of Article 22 of the Investment Law, when that provision is invoked as alleged consent to ICSID arbitration?
3. Should Tidewater be ordered to produce corporate formation and share-transfer documents relating to Tidewater Investment S.R.L. where Venezuela alleges restructuring aimed at gaining treaty protection?
4. Should Tidewater be ordered, at this stage, to produce documents identifying the services underlying claimed accounts receivable tied to the alleged expropriation?

## Decision

- The tribunal treated the IBA Rules as guidance and applied a demanding production threshold, requiring a showing that requested documents were necessary, relevant, and material to issues in dispute; broad or speculative requests were not granted.
- On Tidewater’s requests to Venezuela, the tribunal granted some requests but denied others; it refused to order broad production of internal governmental drafting materials for Article 22 where the request was not shown to meet the necessity/relevance/materiality standard.
- On Venezuela’s first request (documents relating to incorporation of Tidewater Investment S.R.L. and transfer of shares), the tribunal granted targeted production of specific corporate and transactional documents bearing on Venezuela’s jurisdiction objections, while rejecting overbroad aspects that went beyond what was justified.
- On Venezuela’s second request (documents identifying services underlying the accounts receivable), the tribunal ordered limited, focused production to clarify the factual basis of the receivables, but declined to compel expansive production that was disproportionate to what was needed for the issues then in dispute.

## Legal Principles

- ICSID arbitration does not provide for general, US-style discovery; a party seeking production must identify documents with sufficient specificity and connect them to issues the tribunal must decide.
- Even when the parties look to the IBA Rules for guidance, an ICSID tribunal may confine production to documents shown to be necessary, relevant, and material, and may deny requests that amount to a fishing expedition.
- Requests for internal state legislative preparation and drafting materials may be denied where the requesting party does not show why such internal records are needed to decide a legal question that can be addressed on the basis of the text and other publicly available materials.
- Where jurisdiction is challenged on nationality or restructuring grounds, corporate formation, ownership, and share-transfer documents can be ordered produced if the request is narrowly framed and tied to the jurisdiction objections.
- Tribunals may order limited production touching on factual components of the claim (such as the basis for accounts receivable) when doing so is reasonably necessary and not unduly burdensome, while trimming requests that are too broad.

## Conclusion

Procedural Order No. 1 resolved competing pre-jurisdiction document requests by applying a strict standard of necessity, relevance, and materiality (with the IBA Rules as guidance), denying broad demands for Venezuela’s internal drafting records on Article 22, and ordering targeted production from Tidewater on corporate structuring and the factual support for claimed accounts receivable.


Tidewater Inc. v. Venezuela, ICSID Case No ARB/10/5, Procedural Order No 1 on Production of Documents (Mar. 29, 2011), IIC 486 (2011)