IN THE MATTER OF AN ARBITRATION UNDER THE NORTH AMERICAN FREE  TRADE AGREEMENT AND THE AGREEMENT BETWEEN THE UNITED STATES OF  AMERICA, THE UNITED MEXICAN STATES, AND CANADA 

-and 

THE ARBITRATION RULES OF THE UNITED NATIONS COMMISSION ON  INTERNATIONAL TRADE LAW (1976) 

-between 

AMERRA CAPITAL MANAGEMENT, LLC, 

AMERRA AGRI FUND, L.P.,  

AMERRA AGRI OPPORTUNITY FUND, L.P., AND 

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, ON BEHALF OF THE  JPMORGAN CHASE RETIREMENT PLAN 

(the “Claimants”) 

and 

THE UNITED MEXICAN STATES 

(the “Respondent”) 

ICSID Case No. UNCT/23/1 

PROCEDURAL ORDER NO. 5 

Members of the Tribunal 

Prof. Albert Jan van den Berg, Presiding Arbitrator 

Mr. Eduardo Siqueiros T., Arbitrator 

Prof. Jorge Viñuales, Arbitrator 

Secretary of the Tribunal 

Ms. Mercedes Cordido-Freytes de Kurowski, Legal Counsel, ICSID 

Assistant to the Tribunal 

Ms. Emily Hay 

March 13, 2024

Amerra Capital Management LLC et al v. United Mexican States 

(ICSID Case No. UNCT/23/1) 

Procedural Order No. 5 

I. PROCEDURAL BACKGROUND 

1. On February 29, 2024, in accordance with Section 15.6.4, and the Procedural Timetable attached  as Annex A of Procedural Order No. 1 dated May 11, 2023 (“PO 1”), as amended by Procedural  Order No. 4 dated November 29, 2024, the Parties submitted to the Tribunal their respective  requests for production of documents with the supporting Redfern Schedule (“Requests”). 

2. In their Requests, the Parties reflected: (i) the documents or category of documents requested,  with indication of the relevance and materiality according to the requesting party; (ii) the  reasoned objections to the document production request (by the objecting party); and (iii) the  response to objections to the document production request (by the requesting party). 

II. APPLICABLE RULES GOVERNING DOCUMENT PRODUCTION 3. Regarding documentary evidence, Section 14.1 of PO 1 provides: 

“For matters concerning the gathering or taking of evidence that are not  otherwise covered by a procedural order issued by the Tribunal, the UNCITRAL  Rules or NAFTA Chapter 11, the Tribunal may refer to the IBA Rules on the  Taking of Evidence in International Arbitration (2020) (the “IBA Rules”) for  guidance as to the practices commonly accepted in international arbitration, but  it shall not be bound to apply them.”  

4. Under Section 15 of PO 1, which is incorporated by reference, the Parties agreed on the terms  and conditions that would apply to the production of documents in the present case. 

5. In particular, Section 15.6.6 of PO 1 provides: 

“The Tribunal shall rule on any such application. Documents ordered by the  Tribunal to be disclosed shall be produced in accordance with the schedule set  out in Annex A of this Order.”  

6. Article 3(3) of the IBA Rules provides: 

“A Request to Produce shall contain: 

(a) (i) a description of each requested Document sufficient to identify it, or 

(ii) a description in sufficient detail (including subject matter) of a narrow and  specific requested category of Documents that are reasonably believed to exist; in the  case of Documents maintained in electronic form, the requesting Party may, or the  Arbitral Tribunal may order that it shall be required to, identify specific files, search 

Amerra Capital Management LLC et al v. United Mexican States 

(ICSID Case No. UNCT/23/1) 

Procedural Order No. 5 

terms, individuals or other means of searching for such Documents in an efficient and  economical manner; 

(b) a statement as to how the Documents requested are relevant to the case and material  to its outcome; and 

(c) (i) a statement that the Documents requested are not in the possession, custody or  control of the requesting Party or a statement of the reasons why it would be  unreasonably burdensome for the requesting Party to produce such Documents, and  

(ii) a statement of the reasons why the requesting Party assumes the Documents  requested are in the possession, custody or control of another Party.” 

7. Article 9(2) of the IBA Rules provides: 

“The Arbitral Tribunal shall, at the request of a Party or on its own motion,  exclude from evidence or production any Document, statement, oral testimony or  inspection for any of the following reasons: 

(a) lack of sufficient relevance to the case or materiality to its outcome; 

(b) legal impediment or privilege under the legal or ethical rules determined by  the Arbitral Tribunal to be applicable; 

(c) unreasonable burden to produce the requested evidence; 

(d) loss or destruction of the Document that has been shown with reasonable  likelihood to have occurred; 

(e) grounds of commercial or technical confidentiality that the Arbitral Tribunal  determines to be compelling; 

(f) grounds of special political or institutional sensitivity (including evidence that  has been classified as secret by a government or a public international  institution) that the Arbitral Tribunal determines to be compelling; or 

(g) considerations of procedural economy, proportionality, fairness or equality  of the Parties that the Arbitral Tribunal determines to be compelling.” 

III. TRIBUNAL’S CONSIDERATIONS AND ORDER 

8. The Tribunal adopts the definition of “Document” under the IBA Rules, i.e., “a writing,  communication, picture, drawing, program or data of any kind, whether recorded or maintained 

Amerra Capital Management LLC et al v. United Mexican States 

(ICSID Case No. UNCT/23/1) 

Procedural Order No. 5 

on paper or by electronic, audio, visual or any other means”. 

9. With respect to Respondent’s objection that “text messages, communications by message  applications like WhatsApp, Skype, or telegram, audio recordings” have a private nature, the  Tribunal does not consider such communications to be excluded from the definition of Document  under the IBA Rules. As such, where relevant to a document production request, responsive  documents may include such communications held by an individual who is a representative of a  Party (therefore being in the possession, custody or control of that Party), provided that the  communication contains content that is responsive to the document request and is therefore  relevant to the Parties’ dispute. Should specific privacy considerations arise in relation to a  particular communication, the requested Party may seek directions from the Tribunal. 

10. The Tribunal has reviewed the Requests under the guidance of the IBA Rules, and after due  deliberation, has decided on each request for the reasons and with the limitations set forth under  the last column titled “Decision (Tribunal)” of the Redfern Schedules attached as Annex A (Decisions on Claimants’ Requests to Produce Documents) and Annex B (Decisions on  Respondent’s Requests to Produce Documents) to this Procedural Order. 

11. Pursuant to Section 15.9 of PO 1, “Documents shall be made available to the requesting party  by the due date using a suitable means of electronic communications, including a secure share  site, and shall not be sent to the Tribunal Secretary.” 

12. In accordance with the Procedural Timetable (Annex A to PO 1), as amended by Procedural  Order No. 4 dated November 29, 2024, both Parties shall simultaneously produce the documents  hereby ordered by the Tribunal on April 15, 2024

On behalf of the Tribunal, 

 [Signed

Prof. Albert Jan van den Berg 

President of the Tribunal 

Date: March 13, 2024

End