Common use of Justifications Clause in Contracts

Justifications. Mexico noted at paragraph 363 of the Statement of Defense that: “[n]either the Business Plan nor ▇▇. ▇▇▇▇▇▇’▇ email mentions Competitive Tandem Services at all. In fact, it appears that this line of business was conceived in 2017 –after the Claimants submitted their Notice of intent and Notice of Arbitration– in order to maximize the claim for damages.” Mexico went on to quote a document prepared in May 2017 that appears to support that view: It is important to point out that the final dimensions of the proposed project must be tied to a modeling study that reveals, in the light of the real fixed telephony traffic flowing between Telmex and the rest of the Public Telecommunications Networks (RPTs), what the final magnitude of this project will be and that it is within the legal and regulatory framework armor of what is proposed (this last [point] must be included in the modeling to be done). So that it can be incorporated in the end in the financial damages model in the NAFTA claim with the confidence that it is dully grounded and supported, which will contribute to increase the credibility of what is to be presented to the International Arbitral Panel and evidently will increase the amount of the claim. [Emphasis added] The requested documents are relevant to the case and material to its outcome as they will show: (i) whether or not there was a plan to offer Competitive Tandem Services in Mexico, and if so, (ii) whether contemporaneous projections, studies and analysis are consistent with the claim for damages arising from this line of business. They will also provide important insight into the legality of the intended line of business (also a contentious point) and how exactly it was intended to operate. This information will assist the Respondent’s damages and legal experts to further elaborate on their opinions to rebut the Claimants’ evidence. If Tele Fácil did in fact intend to offer these services (i.e., Competitive Tandem Services) it is reasonable to assume that the requested documents exist and are in the possession, custody or control of the Claimants as they would have been prepared and kept in the ordinary course of business. The requested documents are not in the Respondent’s custody or control.

Justifications. Mexico noted at At paragraph 363 55 of the Statement SoC, the Claimants state that “in considering the formation of Defense that: “[n]either a telecommunications company, Messrs. Blanco, Nelson, and Sacasa hired the Business Plan nor ▇▇. law firm Bello, Gallardo, Bonequi y ▇▇▇▇▇▇’▇ email mentions Competitive Tandem Services at all. In fact, it appears that this line of business was conceived in 2017 –after the Claimants submitted their Notice of intent and Notice of Arbitration– in order to maximize the claim for damages.” Mexico went on to quote a document prepared in May 2017 that appears to support that view: It is important to point out that the final dimensions of the proposed project must be tied to a modeling study that revealsS.C. (“BGBG”), in the light Mexico City, to [inter alia] develop a clear understanding of the real fixed telephony traffic flowing between Telmex and the rest of the Public Telecommunications Networks (RPTs), what the final magnitude of this project will be and that it is within the legal and regulatory framework armor requirements necessary to undertake the various lines of what is proposed (this last business that were being considered.” At paragraph 151 the Claimants further state that “[point…] must be included in Tele Fácil’s founders, together with their legal counsel, continued to keep a close eye on the modeling to be done). So regulatory reforms, and how those reforms might impact their business.” The Respondent submits that it can be incorporated in the end in the financial damages model in the NAFTA claim with the confidence that it is dully grounded and supported, which will contribute to increase the credibility of what is to be presented to the International Arbitral Panel and evidently will increase the amount of the claim. [Emphasis added] The requested documents are relevant to the case and material to its outcome as they will show: (i) whether or not there was a plan outcome. The requested documents are needed to offer Competitive Tandem Services in Mexico, and if so, (ii) whether contemporaneous projections, studies and analysis are consistent with determine the claim for damages arising from this line of business. They will also provide important insight into the legality impact of the very substantial reform that occurred in the years following the incorporation of Tele Fácil, in particular, the impact over the intended line scope of the Claimant’s operations in Mexico (the Claimants contend that their business (also a contentious point) plan was amended to take advantage of the new business opportunities that the reform offered – see section II.E); the Claimant’s understanding of IFT’s role and how exactly it was intended powers concerning the resolution of interconnection disputes between operators, such as the one that ensued with Telmex; and the decision to operatesubmit the disagreement with Telmex to IFT for resolution in July 2014 shortly after the PEA Declaration. This information will assist Procedural Order No. 5 The requested documents are not in the possession, custody or control of the Respondent’s damages and legal experts to further elaborate on their opinions to rebut the Claimants’ evidence. If Tele Fácil did in fact intend to offer these services (i.e., Competitive Tandem Services) it is reasonable to assume The Respondent reasonably believes that the requested documents exist and are in the possession, custody or control of the Claimants as they would have been prepared as part of the due diligence prior to their investment in Mexico and kept in response to the ordinary course extensive reform of businessthe Telecommunications regulations in Mexico in 2013-2014. The requested documents are not in Moreover, as stated at ¶¶ 55 and 151 quoted above, the Respondent’s custody or controlClaimants acknowledge that it was their interest to develop a clear understanding of the legal framework and “to keep a close eye on regulatory reforms”.