INTERNATIONAL COURT OF ARBITRATION

OF THE INTERNATIONAL CHAMBER OF COMMERCE

MATTER No. 20050/ASM
______________________________________________
BETWEEN:
PRESCRIPTION DATA AG (Switzerland)
Claimant
v.
1. IMS HEALTH INCORPORATED (United States of America)
2. IMS HEALTH DO BRASIL Ltda. (Brazil)
3. IMS HEALTH SERVICIOS DE INFORMAO Ltda. (Brazil)
4. PHARMA SA (Argentina)
5. IMS HEALTH ARGENTINA SA (Argentina)
6. IMS HEALTH BOLIVIA SRL (Bolivia)
7. IMS AG (Switzerland)
8. ASESORAS IMS HEALTH CHILE LIMITADA (Chile)
9. CAPACITACIONES IMS HEALTH CHILE LIMITADA (Chile)
10. OPERACIONES CENTRALIZADAS LATINOAMERICANA LIMITADA (Chile)
11. INTERDATA SA (Colombia)
12. DATANDINA ECUADOR SOCIEDAD ANNIMA (Ecuador)
13. ASSERTA CENTRO AMRICA MEDICIN DE MERCADOS SA (Guatemala)
14. IPP INFORMACIN PROMOCIONAL Y PUBLICITARIA SA DE CV (Mexico)
15. IMS HEALTH PARAGUAY SRL (Paraguay)
16. IMS HEALTH DEL PER SA (Peru)
17. IMS REPBLICA DOMINICANA SA (Dominican Republic)
18. IMS HEALTH URUGUAY SA (Uruguay)
19. PMV DE VENEZUELA (Venezuela)
Respondents
v.
1. CLOSE-UP SA (Argentina)
2. LIDER FILE SA (Argentina)
3. PRESCRIPTION DATA BOLIVIA SA (Bolivia)

4. PHARMA MARKET PUBLICAES LTDA (Brazil)

5. PHARMA SERVICES COMERCIAL LTDA (Brazil)
6. LEADER UP SISTEMAS LTDA (Brazil)
7. DATA PHARMA DE CHILE LTDA (Chile)
8. CLOSE UP COLOMBIA LTDA (Colombia)
9. PRESCRIPTION DATA ECUADOR SA (Ecuador)
10. PRESCRIPTION DATA CENTROAMERICANA SA (Guatemala)
11. CLOSE UP INTERNATIONAL INC. (United States of America)
12. DATA PHARMA COMPANY SA (Uruguay)
13. PHARMA DATA MEXICO, SA DE CV (Mexico)
14. PRESCRIPTION DATA PARAGUAY SA (Paraguay)
15. PRESCRIPTION DATA DEL PER SA (Peru
16. INTERACTIVE MARKETING INFO IMI CA (Venezuela)
Additional Parties
__________________

Claimant's Reply
__________________
Buenos Aires, September 22, 2015

TABLE OF CONTENTS OF PRESCRIPTION DATA AG's REPLY

I.
The IMS World Review in 2013 in Brazil...........................................................................1
II.
Commercialization Means Marketing. IMS Commercialized Prescription Data During
the Life of the Non-Compete Agreement....................................................................................11
III. Censomed and Influence Mapping Are Prescription Data Products. Censomed and
Influence Mapping Compete with Close Ups Prescription Data Products..............................14
(a) Censomed Is a Prescription Data Product...............................................................14
(b) Influence Mapping. Its Characteristics and Competition with Close Up Products.
...................................................................................................................................18
IV. The Agreements with COFEPRIS Also Involved a Non-Compete Violation..................24
V. IMS Changes Strategy: From the Nullity of the Non-Compete Clause to Discussing the
Extent Thereof. ..........................................................................................................................26
VI. The Scope of the Non-Compete Obligation......................................................................27
VII. The Arbitral Tribunal Must Resolve the Conflict Exclusively According to the Law
Selected by the Parties................................................................................................................30
................................................................................................................................................
30
(a) The Parties Chose the Applicable Law. That Is the Law That the Arbitral Tribunal
Must Apply to Resolve the Conflict..........................................................................30
(b) In the Alternative, Brazilian Legislation Does Not Provide the Solution Indicated
by IMS.......................................................................................................................35
VIII. IMS Acted Maliciously. Extension of Its Liability Arising from Tortious Actions.........43
IX. Close Ups Decision to Compete in the Sales Data Business. Causation and Rebuttal of
the Criticisms against Claiming Damages.................................................................................49
X. Admissibility of the Claim seeking a Refund of the Price................................................59
XI. The Tribunals Jurisdiction...............................................................................................62
XII. The Groundless Demand by IMS to Provide Documentary Evidence.............................69
XIII. Prayer for Relief................................................................................................................72

I. Introduction
1.
2.
3.

4.
5.

6.

The Claimant Prescription Data (Close-Up) has shown that the

Respondents (IMS) breached the Framework Agreement and
must be held liable for this breach.
As Close-Up claimed in its Claimants Memorial, those breaches
occurred in several countries in Latin America and particularly in
Brazil and Mexico.
Before the expiration of the non-compete period, IMS entered the
Prescription Data market by means of public announcements
aimed at attracting customers and disseminating its entry into the
market; the announcement of the imminent launch of prescription
data products; the performance of market analyses other than
mere internal research studies; the establishment of contacts with
potential customers the objective of which was to generate
expectations, attract customers and affect the business of Close
Up; the dissemination of prescription data products such as
Influence Mapping, including the prescription offering; holding
meetings with suppliers, which constituted a clear link in the
collection and production of data and prescription data products;
and the signing of contracts relative to prescription data other than
a mere audit.
All of these actions constituted actual competition and breached
the second clause of the Framework Agreement.
IMS is, better than anyone best, familiar with those breaches and
attempts to defend itself by means of false assertions and
misrepresentations. In other words, as a first line of defense, it
denies everything and, in the alternative, distorts the facts and the
law.
Thus, it states flippantly that no means of evidence has been
provided to prove [the allegations of Close-Up]1. This
imputation is as categorical as it is false. Close Up proved the
breaches by means of documentsthe presentation made at the

1Respondents Counter-Memorial, Paragraph 3.

2013 World Review in Brazil, the contracts signed in Mexico,

minutes and e-mailsand the statements of witnesses2.
7.After denying everything, IMS started on a long path of
misrepresentations. Below we will just mention some of them.
8. First, it tries to disguise its breaches by qualifyingfor example
its conduct in Brazil as mere preparatory actions for the
development of a product, by qualifying the contracts signed with
COFEPRIS as consulting contracts in which, furthermore, it
alleges that it did not collect prescription data; or by describing
Influence Mapping and Censomed as products that did not
provide information on prescription activities or collect
prescription data.
9. Second, IMS tries to generate terminological confusion based on
inappropriate translations of terms that, in the Framework
Agreement, were drawn up in Spanish. The Respondents
maintained that the term comercializacin translates the English
word commercialization and the latter, in turn, would refer
strictly to the act of selling.
10. The term comercializar in Spanish should be translated as
marketing in English and is a much broader concept than the
mere act of selling. The Framework Agreement refers to
commercialization and does not restrict the non-compete concept
to the mere act of selling the product. The concepts of selling and
commercialization are not synonymous. World Review 2013 in
Brazil and other activities carried out by IMSmarket analyses,
contacts
with
customers
and
suppliersconstituted
commercialization actions banned by the Framework Agreement.
11. Third, IMS wants to blur the concept of Prescription Data. The
Framework Agreement is clear in this regard: even if IMS
obtained data from a source other than its own prescriptionsas
2 IMSs demand for evidence exceeds any parameter of reasonableness. It would appear to be
attempting to get Close Up to submit a document with a declaration of acknowledgment of guilt
by IMS. Generally, whoever breaches a non-compete obligation tries to hide his breaches. And
IMS did everything in its power: it concealed the existence of additional presentations at the
World Review 2013 and, to date, has not fulfilled its obligation to produce the contracts the
delivery of which it should have arranged for, according to the provisions in the
communications by the Arbitral Tribunal dated August 11 and 19, 2015thereby affecting due
process and preventing Close Up from being able to prove additional breaches by IMS.

12.

13.
14.

15.

it acknowledges having done, it breached the Framework

Agreement, inasmuch as it did not use them to perform consulting
work, but in the Prescription Data Business.
Fourth, IMS is attempting to invoke a legal system, other than the
one agreed to in the alternative by the parties, with the excuse that
a rule of public policy would be violatedthe nature of which as
such and not as a rule of international public policy it does not
provebecause supposedly Close Up would be claiming that the
non-compete obligation would extend for seven years and not five
as set forth in the Framework Agreement.
Any discussion in this area aims to shift the focus of attention.
Close Up contends that the obligation was breached in the course
of the five-year period contractually agreed to.
Fifth, IMS attempts to ignore the damage caused by its breaches
and, in any event, argues that its actions and omissions were not
deliberate. All of this in order to hide its contractual fraud and
limit its liability to the clauses set forth in the Framework
Agreement.
The attempt is pointless. These were deliberate actions intended
to compete effectively with Close Up in the Prescription Data
Business, irrespective of the obligations assumed. It is even
bordering on the absurd to even think that a sophisticated
company such as IMS would enter the Prescription Data Business
out of negligence or recklessness, without a voluntary and
informed decision of what it was doing and the consequences
thereof under the Framework Agreement.
II.

The IMS World Review in 2013 in Brazil

16. At the IMS World Review eventwhich IMS acknowledges it

holds annuallyheld in 2013 in Brazil, IMS announced the
launch of its Prescription Data business, advising the market of its
entry and its new area and products.
17. The statements of the Respondents witnesses (Albuquerque,
40 et seq.; Freire, 3 et seq. and Paletta, 24 et seq.) are false.

18. As the witness Paulo Murilo de Paiva confirms in his rebuttal

statement3, what happened at the IMS World Review occurred as
reported by the Claimant in the Claimants Memorial.
19.Specifically, Murilo de Paiva states that:
(i) What was announced at the IMS World Review 2013 was
not an organizational change (as maintained by Paletta,
33), but the entry of IMS into the Prescription Data market;
(ii) It did not incur any confusion about what happened
inasmuch as there was a question-and-answer period about
this announcement, and
(iii) A presentation shorter than the one shown in the course of
the event was distributed among the participants and the
customers also took away an explanatory brochure with
information on the offer per se and a longer explanation of
the product.
20. In turn, it is noteworthy that neither the Respondents nor their
witnesses were able to rebut that, at the World Review held in
Brazil in 2013, a specific presentation about Influence Mapping 4
was exhibited. As for characterizing Influence Mapping as a
Prescription Data product, we refer to what is set forth in this
reply, 77 et seq., and to the rebuttal report prepared by the
expert witness Pedraza5.
21.Murilo de Paivas statements are also directly related to the
reaction the customers hadan issue IMS remained silent about
in the Respondents Counter-Memorial. In the memorandum
attached to Exhibit C-12, it was duly recorded how the
announcement by IMS of its entry into the Prescription Data
market, which occurred at the IMS World Review 2013 in Brazil,
had impacted the customers.
22. That memorandum provided customer data and who their contact
person at Close Up was, as well as the comments received from
those customers, such as: during the business meeting they had
with Close Up to renew the contract they have with us today, they
will cease to renew it claiming that they were going to wait a little
3 See Attachment CT-6.
4 See Exhibit C-10.
5 Attachment CP-7.

longer to find out the amounts in the competitors proposal; it

is already negotiating with IMS for the sale of prescription data;
IMS would be making an international acquisition of
prescription data; the IMS new business manager assured that
he is working on the collection of prescription data; IMS is
hiring his former workmates, who worked at Inestra and
developed the prescription data product Inestra launched in the
past.
23. The words of witness Guzmn in his rebuttal statement (CT-8)
should be added to this, inasmuch as Abrafarma and the pharmacy
chains knew that IMS was getting into the Prescription Data
business. This fact was especially admitted by the witness Nilton
Paletta ( 36).
24. So there is no doubt about what IMS announced to the market in
July 2013: its entry into the Prescription Data business.
25. Meanwhile, but always in connection with what happened at the
IMS World Review 2013 in Brazil, it is important to note that
IMS denies the existence of presentations or brochures other than
what the Claimant was able to accessand which was attached as
Exhibits C-10 and C-12.
26. However, it is important to note that in paragraph 73 of the
Respondents Counter-Memorial, IMS attached the following slide:

27. Compare this slide with the one shown at the IMS World Review
2013 in Brazil, which was attached by the Claimant in Exhibits C10 and C-11 and by the Respondents in Exhibit R-20:

28. From a mere comparison of the two, it can be noted that, in the
slide included in paragraph 73 of the Respondents CounterMemorial, there was included the caption Prescription
Offering under the Influence Mapping features, which caption
we have highlighted with a red circle in this submission for a
better identification thereof. This mention, Prescription
Offering, does not appear in the slide that was circulated after
the IMS World Review 2013 in Brazil.
29. As the Claimants argued in their Memorial, there was more than
one presentation related to the announcement of IMSs entry into
the Prescription Data business. Indeed, in paragraphs 194/197 of
the Claimants Memorial, the Claimant alleged the following:
194. Indeed, the PowerPoint presentation circulated by
IMS to its potential Prescription Data Business customers
is more general than the one shown at the World Review
2013, since it only referred, in the last slide, to the Rx
Offering as a new product, but without further
information about it.

195. However, the PowerPoint presentation shown at

World Review 2013 was more complete and specific than
the one circulated to IMSs potential customers, as it also
contained a special presentation for prescriptions.
196. Thus, it is clear that it was IMSs intention that
there would only emerge a presentation different from the
one it actually showed at the event, thereby attempting to
take care that a presentation it knew to be openly in
breach of the Framework Agreement would not circulate.
IMS not only breached the obligation stipulated in the
Framework Agreement, but also sought to hide that
situation by circulating among its customers (who were
also customers of the Sales Data Business) a version
different from the presentation given by limiting it.
197. Proof of this is the e-mail received by the engineer
Andreas Strakos, of Close-Up, from Josiel Florenzano
(attached as Exhibit C-11), who informed him that he had
received the e-mail from IMS with a PowerPoint
presentation that included the reference to the
Prescription Data Business. It was just a retouched,
shortened version of what was projected at the event
[footnotes omitted].
30. What was thus stated in the Claimants Memorial and denied by
IMS has now become evident in the Respondents CounterMemorial: there were presentations other than the one sent to the
customers and the prescription offering was included among
the features of Influence Mapping. Compare the existence of this
presentation, which expressly mentions the prescription offering,
which was not included in the presentation the Claimant was able
to access, with what was said by the Respondents when
responding to the request for the production of documents sent by
the Claimant:
After having carried out a diligent search, the
Respondents confirm that the complete
PowerPoint of the IMS presentation at the World
Review 2013 is already in the possession, custody
or control of the Claimant and was submitted as

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Annex IV of the Request for Arbitration filed by the

Claimant.
No other version of the PowerPoint presentation
was shown at the IMS World Review held in So
Paulo, Brazil, on July 2, 2013.
The underlining was added in this submission.
31. This shows, by means of the same evidence provided by the
Respondents, that what they claimed at that time is false: the
presentation in the possession of the Claimant is not the only one;
IMS itself is proving it. There is no more compelling evidence
than that provided by the party itself.
32. Also, consequently, the allegations in the Respondents CounterMemorial 4 and 74are false:
4. The only document Close Up submits in an attempt to
lay the basis for its main claim, whereby it maintains that
IMS had breached the non-compete obligation in Brazil,
is a PowerPoint slide shown at the World Review event
held in the Brazil in July 2013, on which it based its
Request for Arbitration 18 months ago. Since then that
single slide has not changed: it does not constitute a
breach of the non-compete clause, as it neither constitutes
commercialization of a prescription data offering. In fact,
it does not even mention the existence of a prescription
data product.
74. There was no presentation or discussion on any
prescription data product or discussion related thereto.
Following the event, the attendees only received a copy of
the PowerPoint presentation that have been shown during
the presentation by Mr. Paletta (and other speakers).
The emphasis was added in this submission.
33. Inasmuch as it has been shown that IMS itself has shown that
there was more than one presentation and that, in one of them, it
was reported that Influence Mapping includes the prescription
offering, let us see what the Respondents themselves said in their
Counter-Memorial on Prescription Data 28, 29 and 159:
28. The prescription data are specifically related to the
act of the physician prescribing a drug to a patient. These

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data differ from another type of data, such as sales data

related to the transaction of selling the drugs (or other
consumer health goods), and the data collected in the
research of the primary marketPrimary Market
Research (PMR) (resulting from interviews with
physicians), or sources of publicly available information,
such as the Internet.
29. Prescription data referred to data collected from a
medical prescription. . . .
159. It is then clear that, for the purposes of the
Framework Agreement, Prescription Data are data that
originate in medical prescriptions or script. The medical
prescription (or script) is the basic component of the
products acquired by the drug laboratories in the
Prescription Data Business. It then follows that the
information relating to physicians and their prescriptionwriting activities not resulting from medical
prescriptions was not encompassed by the non-compete
obligation.
The underlining belongs to the submission.
34. Finally, in paragraphs 170/1 of the Respondents Memorial, they
said the following:
Again, Influence Mapping does not collect prescription
data. On its own, Influence Mapping cannot tell the drug
companies anything about the prescribing habits of
physiciansfor example, what medication they prescribe
and to whom.
171. As a result of the foregoing, Influence Mapping is
excluded from the Prescription Data Business and the
non-compete obligation provided for in the Second Clause
of the Framework Agreement.
The underlining was added in this submission.
35. The transcribed passages show that IMS, in the Respondents
Counter-Memorial, maintained that: (i) Prescription Data
originate in the prescription the physician writes the patient; (ii)
that prescriptions are basic components for the Prescription Data

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business, and (iii) Influence Mapping does not collect

Prescription Data.
36. Although in this reply it will be shownsee 56that
Prescription Data does not only originate in prescriptions and that
it was expressly stipulated in the Framework Agreement when the
collection possibility was expandedincluded in the noncompete obligationto any source, let us return to the slide
shown in paragraph 73 of the Respondents Counter-Memorial
the one that, according to IMS, does not exist, since the only
one in existence is the one in the possession of Close Up:

37. As can be seen in the area highlighted in red - added by this

presentation for better reading, Influence Mapping actually
collects prescription data.
38. For the time being, it suffices to point out that IMS lied when it
maintained that there was no presentation other than the one the
Claimant was able to obtain from its customers, as well as the fact
that this circumstance fits exactly what Close Up claimed: the
presentation that was circulated to the customers was different,

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inasmuch as it is summarized, from the one shown at the IMS

World Review 2013 held in Brazil. So then, as shown to us by the
Respondents, there was another presentation in which specific
reference was made to the prescription offer. In addition, there
was a more extensive presentation, as stated by the witness
Murilo de PaivaCT-4, 8.
39. As for the specific content of this presentation that the
Respondents have included in the Respondents CounterMemorial, in paragraph 61 et seq. of this reply, it will be shown
why Influence Mapping is a Prescription Data product and there
the words relating to the prescription offering mentioned by the
slide in question will be considered.
III.

Commercialization
Means
Marketing.
IMS
Commercialized Prescription Data During the Life of
the Non-Compete Agreement and Breached This
Agreement.

40. At the IMS World Review in Brazil in 2013, IMS committed an

act of competition and commercialization, thus violating the noncompete obligation stipulated in the Framework Agreement.
41. The Respondents base their defense on an unacceptable word
game. They attempt to argue that the term comercializacin
translates the English word commercialization and, the latter, in
turn, would refer strictly to the act of selling.
42. The term comercializar in Spanish should be translated as
marketing and is a much broader concept than the mere act of
selling. Selling involves the transfer of ownership of something in
exchange for a price. Commercialization is a complex process
involving a variety of actions the purpose of which is to place a
product in a position to achieve the final selling stage. The
concepts of selling and commercialization are not synonymous in
common parlance, and much less in the area of trade and
business.
43. In their rebuttal report (CP-6), the expert witnesses Galli and
Maltagliatti emphasize that there is no confusion as to the terms
of marketing and commercialization, but that they are used as

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synonyms in the Spanish-speaking market6. The experts prove,

supported by the specialized literature, that what was stated by the
expert Stremersch is wrong when he maintained that what was
done at the IMS World Review was not an act of
commercialization according to the definitions commonly
accepted in the literature on marketing (Respondents CounterMemorial, 120; Stremersch, 31). Nevertheless, it is important
to stress that Stremersch himself refers to the literature on
marketing.
44.In turn, the experts stress that companies work to create a strong,
favorable and unique image in the mind of the consumers. This
positioning strategy takes shape through a variable
commercialization tactic, which is communication, like that
performed by IMS at the World Review 2013 in Brazil.
45. The expert witnesses Galli and Maltagliatti rebut the erroneous
conceptualization made by the expert witness Stremersch
inasmuch as he likens commercialization to sales. In this
connection, the latter state that selling is just the tip of an iceberg.
Marketing or commercialization seeks to get the customer ready
to buy, but this involves researching, accordingly, the customers
needs. Commercialization involves a strategic market analysis
process for the purpose of orienting the decisions of an
organization to it. The concept defined by Stremersch attempts to
reduce marketing solely to the dimension of the action,
underestimating the analytical dimension (strategic marketing).
To implement the analysis stage, organizations analyze the
market, define the target, distinguish themselves and, finally,
build their positioning strategy by using a variable marketing
tactic, communication. The market analysis, in this case, occurred
through the visits made to the customers, which aspect, although
6 In their report, the experts prove that in the university programs of study taught in Argentina,
the undergraduate courses that include the marketing discipline with their respective curricula,
call the program of study Licentiate in Commercialization. The academic units consulted
explain that the terminology in English cannot be included in the name of the program of
studies in order for this curriculum to be approved by the National Commission of University
Evaluation of Accreditation. In their report, the experts attach or referred to the
commercialization curriculum, where it can be noted that the objective of the studies taught to
the students is marketing, not the selling of products.

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IMS tries to deny, cannot succumb to its own contradiction; in

paragraph 70 of the Respondents Counter-Memorial, it was
clearly stated that IMS collected the expectations of the customers
regarding the Prescription Data products. And, it should be added,
to satisfy them, it announced its premature entry into the
Prescription Data business. This makes it possible to rebut the
statements of the expert Stremersch, who described those
meetings as initiation or development actions (paragraph 31 of his
report).
46. It also shows that the allegations of IMS are false to the extent
that it says that Close Up is relying on a single reference in a
single slide (Respondents Counter-Memorial, 99)7.
47.Clearly, IMSs communication decision carried out at the World
Review 2013 in Brazil constituted an act of commercialization,
generated a change in the environment, since, among other issues,
negotiation with the customers was limited by the generation of
expectations raised by it.
48. The experts add that the creation of a business unit establishes a
corporate and business strategy aimed at taking advantage of
market opportunities. The fact that a business unit was created
demonstrates an action typical of business planning. Planning is
basic marketing notion. Therefore, by performing a marketing act,
an act of commercialization is being performed.
49. In conclusion to the report by the expert witnesses, it should be
considered that they specifically rebut Stremersch, to make it
clear that commercialization is not selling; it is an activity or
group of entities and procedures for creating, communicating,
delivering and exchanging offerings that have value for
consumers, customers and society in general. IMS has planned all
of its actions, so it has carried out commercialization-marketing
by making use of the variables necessary for commercial
planning.
50. The experts also conclude that, undoubtedly, there was
competition in the market, so that the non-compete obligation was
7 The falsehood of the statements by IMS is also evidenced by what the witnesses called by the
Respondent declare and which can be seen in the notes attached as Exhibit C-12, about which
IMS said nothing in the Respondents Counter-Memorial.

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not honored. This makes it possible to rebut the arguments by

IMS to the effect that the act prohibited by the Framework
Agreement should mean an act of competition and that, in this
case, there werent any (Respondents Counter-Memorial, 115).
IV.

Censomed and Influence Mapping Are Prescription

Data Products. Censomed and Mapping Influence
Compete with Close Ups Prescription Data Products.

51. Censomed and Influence Mapping are products of the

Prescription Data Business.
(a)Censomed. Its Features and Competition with Close Ups
Products.
52. IMS attempts to create confusion by claiming that Censomed is
like a telephone directory of physicians, that it only contains
demographic information related to physicians8.
53.Immediately afterwards, it lists the eight items of data provided by
Censomed. Most of the data, as acknowledge by IMS, contained
by Censomed are obtained from medical prescriptions.
54. Indeed, the prescription displays the name of the physician, his
specialty, the CRM (number granted by the Regional Medical
Board), CRM (State Medical Register), the physicians address,
telephone and mobile numbers, if available, and the professionals
e-mail address. In other words, most of the information contained
in Censomed is identical to that found in medical prescriptions.
55. The argument advanced by the Respondents is so improbable that
they outline another defense that also fails to exempt them from
liability.
56. The fact is that arguing that the information contained in
Censomed is not even collected from the prescriptions involves
attempting to ignore what is stipulated in the Framework
Agreement in which it was stipulated that the Prescription Data
Business: refers to: a) the collection (obtainment and gathering
of Prescription Data in any form and from any source or origin,
8 See paragraph 160 of the Respondents Counter-Memorial.

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by any means and for any objective9 - the emphasis was added
in this submission. Below, the Framework Agreement gives a list
of Prescription Data products.
57.Similarly, the Framework Agreement defines the Prescription Data
as [t]he data on any product prescribed with all of its attributes,
physician data associated with prescriptions or prescribing
activities and any type of data collected from medical
prescriptions, and/or used for the production of Prescription
Data Products10. The emphasis was added by this submission.
58.The following emerges from this: (i) that the parties did not restrict
themselves to establishing a list of products, (ii) but that they put
into writing at least two very broad definitions, (iii) one, which
refers to prescriptions or prescribing activities and all kinds of
data related to medical prescriptions, (iv) which refers to any data
to the extent that they are used for the production of prescription
products, and (v) another, which provides for the collection of
Prescription Data from any source or origin and in any shape.
59. From the foregoing, it emerges that, even if IMS has obtained
those data from a source other than its own prescriptionsas it
acknowledges having done, it breached the Framework
Agreement, since it did not use them to engage in consulting
work, but in the Prescription Data Business.
60. The Respondents, tendentiously, would have Murilo de Paivas
statement likened to an acceptance regarding the lack of
commercialization of Censomed by IMS.
61. The number of actions carried out by IMS that do not mean
instances of commercialization proves surprising. It seems more
an altruistic partnership then a powerful major corporate group
whose holding company is listed on the New York Stock
Exchange.
62. Thus, in IMSs own words, Censomed was not commercialized,
since it was delivered free of charge. Specifically it said that
. . . it has always existed. This is not sold. This item of data is
also noteworthy inasmuch as it was never commercialized . . . it
was not a significant competitive activity for Close Up. Thus,
9 See Annex I of the Framework Agreement, Definitions.
10 See Annex I of the Framework Agreement, Definitions.

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63.
64.
65.
66.

according to the interpretation by the Respondents, making a

product of the Prescription Data Business available to the
customers does not involve breaching a non-compete obligation,
but it would have been a breach to sell it.
Clearly, this is an entirely bad faith interpretation that cannot be
well received and, therefore, this defense proffered by IMS
should also be rejected.
Furthermore, it has been seen that commercialization means
marketing, so that IMSs insisting that commercialization is
selling is rebuttable.
Furthermore, the products not being sold does not mean that it
does not generate a benefit for IMS and that it constitutes an
important part of its commercialization strategy.
The expert witness Pedraza, in his rebuttal report (CP-7), states:
Albuquerque himself mentions Censomed, which, as
Paulo Paiva states, is taken from the files of the
physicians and, by cross-checking the files, they
obtained a qualified file, which logically has the
physicians who prescribe the most, which are the ones
visited by the sales force of the pharmaceutical
laboratories.

67. Now, then, the witness Murilo de Paiva explains the crosschecking of files: although it [Censomed] is not sold for a price,
all of the customers who deliver their medical files to IMS receive
another file, but which is qualified with more information, since
the cross-checking of the industrys files is poured into it, which is
precisely the objective pursued by Censomed.
68. Cross-checking files is a product expressly banned by the
Framework Agreement (see Definition of the Prescription Data
Business).
69. Similarly, as stated by the same witness in his rebuttal statement,
Censomed was used by IMS for purposes other than to provide
input to the INTE:
Censomed has three practical uses, which are public
knowledge: (i) Define who are the most qualified
physicians; (ii) rate these physicians within each

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specialty, and (iii) serve as a basis for other products such

as Influence Mapping.
In this way, a customer who does not contract for Close
Ups Data products can access data on the key physicians
or prescribers by using Censomed as a tool.
When I refer to key physicians, they should be
understood to be those who are of interest to the
laboratories because of being the ones most visited by the
laboratories; similarly, they are rated, as I said, also
according to their specialty. The laboratories are
customers of products like Censomed, since they allow
them to direct their promotional strategy to the most
qualified physicians, namely, those who lead the ranking
of physicians most visited by the laboratories, which
appear in the files of the industry.
One of the items of data collected by Censomed, by
cross-checking medical files, is the number of visits that
the doctors receive by the industry of the laboratories
Thus, for example, if a cardiologist appears in the files,
he appears as having been visited 40 times. The better the
prescribing physician is, the more he is visited. . ..
70. Thus, of the eight data items displayed by Censomed, the last one,
i.e., Number of manufacturers participating in Censomed that
have the physicians same registration number, is the one that
enables the laboratories to do without Close Ups Prescription
Data products.
71. The fact is that the laboratories, knowing the number of visits
received by the physicians from the other laboratories, will easily
be able to deduce that this is owing to the fact that he is the best
prescriber.
72. Therefore, it is false to define Censomed as a telephone
directory of physicians, since Censomed makes it possible to
sort physicians by their specialty and the number of visits they
have received from the laboratories; with these data in hand,
contracting with Close Up for its Prescription Data products can
be dispensed with.

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73. Thus, it is appropriate to wonder, if Censomed were a mere

telephone directory of physicians, what would be the sense in
the laboratories sending in their own data and receiving a file
enriched by IMS? How is a higher rating given to that file?
74. The answer is simple, it cross-checks the number of visits made
by the rest of the laboratories to the physician in question and that
IMS collects and keeps for itself and then sends back to the
laboratory contracting for Censomed. Thus, it can detect who are
the physicians most visited by their competitors. By knowing this
information, the only thing it will have to do will be to imitate its
competitors, since they are the ones who are telling it who the key
prescribers are.
75. The foregoing would be impossible without the existence of
Censomed. And it can be seen, this way, that this is not a product
that just feeds INTE.
76. In light of the foregoing, it should be concluded that Censomed
competes with Close Ups Prescription Data products.
(b)
Influence Mapping. Its Features and Competition with
Close Ups Products.
77. Regarding Influence Mapping, the Respondents stated that . . . it
is a system that creates a map of geographic locations and
connections between the physicians establishing their potential
for influencing their peers (Respondents Counter-Memorial,
170).
78. The first thing one should ask oneself is what kind of influence
among physicians does Influence Mapping measure.
79. Interestingly, the Respondents do not clarify this in the
Respondents Counter-Memorial. The simply say that Influence
Mapping aims to provide information to the Laboratories
regarding physicians who are major influences in connection with
pathology, therapeutic class and geography (Ibid.).
80. Now, then, if IMSs confusing explanation is supplemented with
Mr. Albuquerques testimony, i.e., that Influence Mapping enables
the laboratories to direct resources toward physicians who can

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influence other physicians to use the customers products, it

offers a glimpse of the true usefulness of Influence Mapping.
81. The fact is that, after Mr. Albuquerques statement, the only thing
left to ask oneself is: How do physicians use the customers
products?
82. The answer is clear and simple: by prescribing them.
83. Carefully the witnesses provided by the Respondents and the
Respondents Counter-Memorial omit clarifying this aspect,
which shows the true nature of Influence Mapping.
84. Note that IMS never denied that that was the objective of
Influence Mapping. This was categorically argued in the
Claimants Memorial.
85. Precisely, the aim of Influence Mappingto determine which
physicians are important when it comes to influencing the
prescribing activity their colleaguesis that of the Prescription
Data Business. Therein lies the competition carried out by IMS.
Let the Framework Agreement be recalled: [t]he data on any
prescribed product with all of its attributes, the data on
physicians associated with prescriptions or prescribing activities,
and every type of data collected from medical prescriptions
and/or used for the production of Prescription Data Products
11
.
86.The Respondents were not even able to attempt to rebut the
foregoing in view of how obvious this is.
87. In addition, it is appropriate to point out thatas acknowledged
by the RespondentsInfluence Mapping uses the data possessed
by Censomed, which are Prescription Data, as explained above.
88. Regarding the comments made by the Claimant in the Claimants
Memorial when it stated that the customers might be seduced into
replacing the products of the companies that do business under
the Close Up trademark with Influence MappingClaimants
Memorial, 215, what was asserted is corroborated.
89. The fact is that a laboratoryparticularly a small one with a
limited budgetwill have the alternative of replacing the Close
Ups products with Influence Mapping. This makes it possible to
11 See Annex I of the Framework Agreement, Definitions.

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90.
91.

92.
93.
94.

95.

96.

rebut the allegations to the contrary by IMS (Respondents

Counter-Memorial, 173).
Thus, with Influence Mapping the laboratories will know which
physicians to visit to get them to prescribe their products without
the need to hire Close Ups services for these purposes.
This is a logical argument that does not require any evidence.
This way, if, by means of Influence Mapping, the physicians who
influence the prescribers are identified, knowing what each
physician prescribes can be dispensed with. The fact is that the
laboratories are interested in knowing what each physician
prescribes in order to direct their sales activities efficiently. With
Influence Mapping, the laboratories know how to efficiently
direct their sales efforts by identifying how each one of them
influences the prescribing activities.
Therein lies the competition.
One example will clarify it even further.
Let us assume that laboratory 1 manufactures drug X. If that
laboratory wants to know the prescription level of its product, it
will be able to do so with the Close Up products. It will be able to
know how many specialists prescribe it, in which geographical
area, for which pathology, etc. In this way, the laboratory will be
able to direct its sales efforts to get the physicians of a given
specialty, geographical area, etc., to prescribe drug X.
Now, then, let us assume that laboratory 1 decides to hire
Influence Mapping. It will also be able to know how its
medication X is being prescribed. The fact is that IMS will enable
it to know which physician influences the others to get medication
X to be prescribed in a given specialty, geographical area, etc., in
short, including which physicians are influenced and prescribe it.
In other words, in the words of the witness Albuquerque, how is
the medication being used?
The purpose of Influence Mapping and Close Ups Prescription
Data products is the same. What is different is the work
methodology, but in the end both products enable the laboratories
to know where to target their sales efforts in order to obtain more
prescriptions from their physicians.

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97. IMS itself acknowledges, by promoting Influence Mapping, that:

It is important not to underestimate the influence of the nontraditional stakeholders on decision-making and prescribing
within healthcare organizations (the emphasis is that of this
submission)12.
98.Moreover, IMS, in its explanation of Influence Mapping, makes a
list of key questions to be used as a guide to find out the true
influence of a person. The first question one should ask oneself is
the following: Is this person considered an expert who
influences others regarding therapy decision or drug
selection?13
99.It is obvious that Influence Mapping is a product whose objective
is to determine how physicians exert influence for the prescribing
of one or another drug (i.e., how to use it, as the witness
Albuquerque acknowledges) and that is why it competes with
Close Ups Prescription Data Business products.
100.Similarly, the statement by Murilo de Paiva is noteworthy:
Censomed is used, in turn, as the basis for Influence
Mapping, which is a product that competes directly with
that of Close Ups Target. This is so because Target shows
who the key prescribers are while Influence Mapping
points out the key prescribers and the relationships that
exist between them and other physicians and even
identifies physicians who, without being prescribers (for
example, a university professor or an on-call physician at
a hospital), influence prescribing physicians.
It should be clear here that a physician only uses the
customers products by prescribing them. The use made by
physicians of the products is by prescribing them. It is not
possible to talk about another type of use and therein lies
the interest of the customers in determining who are the
most influential physicians. Influence is related to the
12 See Exhibit C-20, which consists of the explanation that IMS itself gives of Influence
Mapping on its website http://www.imshealth.com/imshealth/Global/Content/Document/Sales
%20and%20Marketing%20Effectiveness
%20TL/Stakeholder_Influence_Mapping_Secondary_Care_PME.pdf
13 Exhibit C-20.

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prescription; i.e., which physicians are going to influence

others in their own specialty in prescribing products.
Then, through Influence Mapping, it can be determined
who are the most influential physicians in each specialty.
By reporting on the leading physicians in each area,
Influence Mapping lets the industry know with whom to
deal for the purpose of making the business more efficient,
inasmuch as the latter will then influence the other
physicians. The influence I am referring to is the influence
on prescribing.
101.No further comments are needed on the matter.
102.The expert Pedraza, in his rebuttal report (CP-7), soundly
contradicts the statements by the expert Stremersch;
Dr. Stefan Stremersch has determined and questioned
whether their product does not make it possible to identify
or contain data defined as Prescription Data by only
referring to those influenced by the KOLs. Now, then, we
wonder, without having physician data (with all their
attributes), how the product can determine which
prescribing physicians are influenced?
The answer appears on its own; furthermore, the expert
himself gives it to us when, in his report that, for certain,
is in a language that only tries to confuse matters, he says
that . . . (the prescription data) are used to support sales
calls to certain physicians and physician profiles (Expert
Report #68) and then in relation to Influence Mapping he
argues that . . . the sales representatives can use these
relationships when they make their sales visits (Expert
Report #72), which visits the industry obviously make to
their prescribers for the most part.
103. As the expert Pedraza concludes in his rebuttal report (CP-7):
In this connection, it is clear that Influence Mapping
contains prescription data, since in this way laboratories
will have information on which physicians are prescribers
and, especially, as an important item of information, their
specialty.
104. The expert adds that:

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This is in line with the presentation given by IMS at

World Review in 2013 . . . when in slide 2 it mentions
Influence Network of all of the physicians [the Spanish
translation is ours] and, in the pyramid that contains a
mapping approach, it includes the influenced physicians,
who obviously are those who prescribe under the
influence of the opinion leaders and KOLs:

This image denotes that the ones influenced are the

prescribers whose data is contained in the product.
Along these lines in the same presentation referred to in
slide 1, the reference to the Professional action site (the
Spanish translation is ours) can be seen, which is nothing
but data taken from a physicians file.
105. Likewise, Pedraza clearly rebuts the expert Stremersch:
Dr. Stremersch argues (Expert Report #56) that
Influence Mapping is a product that does not consist of
prescription data, since, for it, sources of access to raw
data are not used, in other words, prescriptions from
pharmacies or a prescription audit.
Where the information to sell the prescription product is
obtained is not the point of the discussion; competition

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exists regardless of whether the data are self-reported by

the laboratories, come out of CENSOMED or are
obtained from sources other than medical prescriptions.
Thus, Close Up itself, for its prescription products, also
uses information that it does not obtain from the
prescription collected at pharmacies.
106.To what has been said, there should be added that, as has been
shown above ( 36), in the slide provided by the Respondent
itself, Influence Mapping includes a prescription offering. This
is consistent with what has been reportedalso by IMSin the
graphic reproduced in Dr. Pedrazas rebuttal reportand also
above, 104 in which reference is made to the prescription
pads of the influenced physicians.
107.Influence Mapping, undoubtedly, is a product that competes
openly with the Prescription Data Business products in an even
more obvious way than Censomed.
V. The Contracts with COFEPRIS Also Involved a Breach of
the Non-Compete Agreement.
108.IMS also infringed the non-compete obligation stipulated in the
Framework Agreement by signing, through its subsidiary IPP,
Informacin Promocional y Publicitaria, S.A. de C.V.
respondent no. 13 in this arbitral procedurewith the Federal
Executive Branch of Mexico through the Federal Commission for
Protection from Health Risks of the Ministry of Health
(COFEPRIS), contracts whose objectives are related to the
Prescription Data business14.
109.Monthly presentations that IMS allegedly submitted to
COFEPRIS (provided by it in Exhibits R-12 and R-12a) were not
accompanied by any objective element to back up their
truthfulness.

14 Both contracts were attached as Exhibit A-1, together with the expanded claim, submitted
on February 20, 2015.

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110. Nevertheless, from them it emerges that IMS collected data15 by

means of interviews with physicians and pharmacies, mentioning
as sources June 2002 IMS Health Data and Antibiotic Tracker
Week 47, 12. There is no indication therein that the source
consisted of prescriptions provided by COFEPRIS nor was it
demonstrated by means of presentations given by IMS in the
aforementioned Exhibits R12 and R12a where sources such as
COFEPRIS itself are mentioned.
111. It should be noted that in no passage do the contracts with
COFEPRIS establish what IMS claims, namely, that the data to be
analyzed by IMS were provided by COFEPRIS.
112.Note, as well, that, under these contracts, IMS undertook to write
special software adapted to the needs of the Commission; this
software should have been written on the basis of IMS DataView
which, as noted, contains samples of prescriptions (see Contract
295-11, page 3unnumberedof the annex and contract 287-12,
Technical Annex, E). In turn, IMS would extract prescriptions
from INTE to set up a different database in relation to the
prescription of antibiotics.
113.This way, it can be observed that the information contained in the
INTE is used outside of that product and for prescription data
specifically. And, in addition, this confirms that there is no
evidence to show that the information was provided by
COFEPRIS; therefore, the fact that the contract objectives require
from IMS the collection of Prescription Data takes precedence.
114.Indeed, these contracts stipulate that IMS would collect data that
indisputably are Prescription Data (first clause a) of Contract 29511 and Technical Annex of Contract 287-12), as well as the fact
that IMS would do a cross-check of information from the
medical prescriptions with the dispensation (first clause c) and
Technical Annex, page 1, respectively). Therefore, this was not a
consulting business, but data collection to provide a service
related to prescribing activities.
115.The foregoing shows that IMS has breached the non-compete
obligation, bearing in mind that in the Framework Agreement it
15 This shows that the allegation by IMS is false when arguing that the activity displayed under
those contracts did not involve the collection of data (Respondents Counter-Memorial, 188).

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was stipulated in the second clause thereof that this obligation

encompassed data processing and support.
116.Finally, what is stated by IMS is conceptually wrong with regard
to the fact that Close Up did not prove damage, since the parties
stipulated a penalty clause in the Framework Agreement;
accordingly, under Article 656 of the Civil Code [t]o request the
penalty, the obligee is not required to prove that he has suffered
damages, nor may the obligor release himself from satisfying it by
proving that the obligee has not suffered any harm16.
VI.IMS Changes Strategy: From the Nullity of the NonCompete Clause to Discussing the Extent Thereof.
117.It is important to note the profound strategy change practiced by
IMS in the Respondents Counter-Memorial.
118.In the Terms of Reference signed by the Arbitral Tribunal and the
parties and approved by the Court, the issues at stake to be
resolved were listed. Specifically regarding the validity of the
non-compete obligation stipulated in the Framework Agreement,
the following was specified at the request of the Respondents:
4. If the exclusion of the application of regulatory
frameworks and administrative jurisprudence set forth in
the NINTH Clause of the Framework Agreement and all
of the transactions related thereto is void and illegal
because of infringing peremptory rules and Public Policy
applicable to the case and unavailable to the parties.
5. If the SECOND Clause of the Framework Agreement,
inasmuch as it establishes a non-compete period of five
(5) years, is null and inapplicable to the case because of
exceeding the two-year period set forth in the matter by
the regulatory framework and administrative decisions of
Public Policy applicable to the matter and unavailable by
the parties.
The underscoring belongs to this reply.
16 http://www.Infoleg.gob.ar/infolegInternet/anexos/10500009999/109481/texactley340_libroII_S1_tituloXI.htm; the foregoing without prejudice to the
higher compensation sought by the Claimant since IMS acted maliciously.

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119.The inclusion of these issues at stake, as mentioned, was at the

behest of the Respondents, who in their answer to the request for
arbitration, specifically drafted a chapter entitled The NonCompete Clause Is Unenforceable- V.B.
120.Notwithstanding this, in the Respondents Counter-Memorial,
they abandoned this erroneous line of argument.
121.Doubtless, it responded to the solid arguments that the Claimant
set forth in Chapter IV of Claimants Memorial: the non-compete
obligation is perfectly valid.
122.The change of direction applied by IMS derived from the fact that
in the Counter-Memorial it attempted to base its defense on the
fact that the Claimant distorts the scope of the non-compete
obligation and, on the basis thereof, it would violate Brazilian
law. Below, the Claimant will rebut both issues.
VII.The Scope of the No-Compete Obligation.
123.The scope of the non-compete obligation is clear enough. In the
Counter-Memorial, the Respondents attempt to distort what is
claimed by the Claimant in Claimant's Memorial. Their strategy is
to find an excuseit is clear that it is just an excusein order to
force an allegation of nullity, after having abandoned without any
explanation the nullity defense they had invoked in the answer to
the request for arbitration.
124.The new position assumed by the Respondents is supported in the
following considerations 132/5:
132.The non-compete obligation was stipulated in
Second Clause of the Framework Agreement for a Period
of Restriction of five (5) years, the expiration date of
which was March 31, 2014.
133. However, the forced interpretation of the clause that
Close Up attempts to do by considering to be covered by
the non-compete clause the preparatory activities prior to
the commercialization of a product would actually extend
the restriction period of the non-compete clause by raising
it from five to seven years. This is so since, as
acknowledged by Close Ups witness Guzmn, the

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preparatory actions, namely, the period between the

conception of a product and its launch, can take up to a
year. Similarly, Close Ups expert states that it takes two
years to develop and launch a product on the market.
134. Under such a groundless assumption, IMS would
not have been authorized to operate in the Prescription
Data Business not after the period of five (5) years agreed
to on March 31, 2014, but only after seven (7) years from
the signing of the Framework Agreement or, minimally, six
(6) years.
135. If Close Ups criterion is accepted to the extent that
the Non-Compete Clause not only prohibited the actual
competition but the preparatory actions as well, it would
lead to, in actuality, the extension of the non-compete
period beyond the maximum limit permitted by the
applicable legal systems (both the Brazilian system, where
Close Up situates the main breaches, and the Argentine
system, which is the law governing the agreement).
125.The Claimant confirms the words of the witness Guzmn in his
statementAttachment CT-2: 6.4.with regard to the time
involved in the development of a Prescription Data product. This
is also reflected in Mr. Giulianelli rebuttal statement, attached as
CT-7, 14.
126.However, this witness explains that there are more expedient
choices that ultimately depend on investment and the amount of
resources allocated to the project, or even by means of the
acquisition of historical data, which could be done in a single
daythe emphasis belongs to this presentation. This statement
by the witness rebuts the biased reinterpretation IMS aims to
make of the Claimants allegations.
127.Indeed, the statement by Close Up does not imply that IMS had to
wait one or two years after the expiration of the term of the noncompete obligation to re-enter the market, but, from the very day
of the expiration of said term, IMS was in a position to begin
competing; for example, by buying historical data or beginning to

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develop its product and announcing at the same time its entry into
the business.
128.A different issue is how much time IMS would have to invest to
have a competitive product. The witness Giulianelli explains it
clearly: that length of time depends on the degree of investment
and resources IMS applied to the development of its new product;
furthermore, the possibility of starting to compete could occur
immediately if IMS acquired a portfolio of historical data.
129.This way, the circumstance that the Framework Agreement would
prevent IMS from engaging in activities it describes as
preparatoryand which, in reality, as it turns out from the
rebuttal report prepared by the experts Galli and Maltagliatti 17,
were commercialization actions and in violation of the noncompete clausedoes not involve an extension of the term of the
non-compete obligation.
130.From the above, it is clear that there is no possibility of construing
Close Ups allegations to the effect that it attempts to extend the
non-compete clause to more than five years: at the end of the five
years, IMS was in a position to compete. In fact, it is consistent
with the Claimants statements to the effect that the
commercializationin the technical sense presented by the
experts Galli and Maltagliattiinvolved a breach of the noncompete obligation. This, together with the statements given by
the witness Giulianelli, shows that, in Close Ups position, there
exists a varied list of actions against IMS that would involve
competing in the Prescription Data business, which proves that
IMSs attributing to the interpretation by Close Up a time
extension of the non-compete obligation is absolutely wrong.
131.With this explained, it will be demonstrated below that the
statements given by the Respondents regarding the treatment that
Brazilian law confers upon the non-compete obligation is also
wrong.
VIII. The Arbitral Tribunal Must Resolve the Conflict
Exclusively According to the Law Selected by the Parties.
17 See Attachment CP-6.

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(a)The Parties Chose the Applicable Law. That Is the Law That
the Arbitral Tribunal Must Apply to Resolve the Conflict.
132.IMS aims to create confusion from multiple perspectives.
133.Faced with the reality of the facts, the Respondent attempts to
distort as well the applicable law. As the facts do not bear them
out, it seeks to shape the law to create an artificial exit. IMS
argues that the Framework Agreement and the behavior charged
against IMS regarding the violations in the Prescription Data
Business that occurred in Brazil are subject to the rules of public
policy of that country.18
134.In other words, IMS aims to wipe out the Framework Agreement
and the rules of law agreed to by the parties with a pen stroke.
135.The position of IMS is pointless and groundless: (i) the argument
that the Respondent is attempting to generate is entirely
irrelevant, since Close Ups claim does not involve extending the
non-compete obligation beyond the five years agreed to in the
Framework Agreementas has already been demonstrated in the
previous chapter; and (ii) the present dispute must be resolved in
accordance with the terms of the Framework Agreement and,
alternatively, under Argentine law to the extent agreed upon in the
ninth clause of the aforementioned agreement.
136.As already shown above in Chapter VI, IMSs position is entirely
wrong in that it argues that Close Up is seeking the temporary
extension of the non-compete obligation beyond what was
stipulated. That is why the foregoing shows that the invocation of
the Brazilian legislation by IMS is pointless. No discussion
appears in the case about the length of the non-compete
obligation. The only thing at issue is whether IMS breached this
obligation before the five-year term, i.e., prior to March 31, 2014.
137.Notwithstanding the above, in any event, even assuming the
hypothetical casealready deniedthat it could be considered
that Close Ups claim breaches a rule of public policy set forth in
Brazilian legislationthe one that provides for a maximum of
five years for non-compete obligations, the Arbitral Tribunals
mandate is clear.
18 Respondents Counter-Memorial, 142.

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138.IMS cannot legitimately claim to replace what has been expressly

agreed to and ask the Arbitral Tribunal to resolve the caseat
least, the claims related to the breaches incurred in Brazilin
accordance with the invoked rules of Brazilian public policy.
139.The Tribunal must resolve this dispute in accordance with the
Framework Agreement and, alternatively, under Argentine law
with the exclusions agreed to by the parties to exercise their
choice of laws and material autonomy. It is noteworthy that, in the
Terms of Reference (VIII), the ninth clause of the Framework
Agreement was transcribed, which sets forth what is claimed
here: the relationship is governed alternatively by Argentine law
with the exclusions stipulated therein. In paragraph 33 of the
Terms of Reference, what the parties could claim with regard to
the validity and effect of all or part of the aforesaid clause was
left untouched, but the parties were not empowered to invoke
rules of a legislation that the parties had not chosen to resolve
their dispute.
140.It is not a function of the Arbitral Tribunal to deviate from the
mandate of the parties and apply a legal system different from the
one invoked for the sake of preserving the validity and
enforceability of the award, in this case, in Brazil (still assuming
as correct IMSs argument, which it isnt). The Tribunal would
thereby incur the defect of failure to apply the applicable law and
similarly would exceed its jurisdiction. The obligation of the
arbitrators to act diligently with a view to preserving the validity
of a possible award does not extend to the point that they can
ignore what the parties have expressly agreed to.
141.In this connection, it has been said:
Assume, for example, that an arbitrator rejects a breach
of contract claim on the grounds that the contract is
illegal in the place of performance. By preemptively
denying the claim, the arbitrator may well save the award
from being refused enforcement in the place of
performance. However, this rejection will also prevent the
claimant from obtaining relief in other countries that
would not otherwise give any effect to the mandatory rule
in question. If the parties have not authorized application

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of that mandatory rule, the result will be to reverse the

merits of the case in the interest of preventing only partial
unenforceability19.
142.When the arbitrators resolve disputes, it is not possible for them
to anticipate the rules of public policy that might be relevant in
the process of recognizing and enforcing an award 20. In the
present case, assuming that IMS refused to comply voluntarily
with the award, it is not possible to anticipate which jurisdiction
Close Up will turn to in order to request the forced execution and
much less the fact that the Arbitral Tribunal hador had not
departed from what was agreed to by the parties with the
objective of applying a alleged rule of public policy.
143.That is why it has been noted:
[T]he arbitrator has no warrant for acting outside the
parties agreement out of a concern that they are avoiding
a mandatory rule. The very fact that different national
courts may take different positions toward the
enforceability of the same International contract
highlights the fact that no single nation can rule the world
of transnational commerce.
. . .
The situation would become more complicated . . . if the
arbitrator applied a mandatory rule in a way that actually
changed the outcome of the dispute. In the event that a
court determined that the arbitrator lacked jurisdiction to
apply the rule and that that circumstance constituted a
ground to overturn the award, that action would constitute
a much more direct rebuke.
. . .
[A]rbitrators would still do best to focus on responsibly
applying the law they believe applicable by virtue of the
parties agreement, regardless of the implications that
19 DONOVAN, Donald F. and GREENAWALT, Alexander K.A., Chapter 1: Mitsubishi After
Twenty Years: Mandatory Rules Before Courts and International Arbitrators in Julian D.M.
Lew and Loukas A. Mistelis (eds), Pervasive Problems in International Arbitration,
International Arbitration Law Library, Volume 15 ( Kluwer Law International; Kluwer Law
International, 2006), pp. 11-60, p. 58.
20 Idem, p. 58.

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agreement may have on the enforceability of an award,

and even if that means that they must ignore otherwise
applicable mandatory rules. In so doing, they will better
serve the interests of the international arbitral system and,
ultimately, the protections of the mandatory rules as
well21.
144.IMS also seems to attempt to introduce a new claim. The
Respondent argues, suddenly, that the Framework Agreement
would be invalid because it had been executed in the Argentine
Republic in order to violate the laws of a foreign nation, in this
case, Brazil22. It bases its particular argument on Article 1208 of
the Civil Code currently in effect at the time of the disputed facts
(Civil Code). According to IMS, Argentine law refers to the
applicable Brazilian law, which limits to five years the
admissibility of non-compete clauses23.
145.The argument of the Respondent should be rejected for several
reasons.
146.First, Article 1208 of the Civil Code is not applicable to this
dispute. Clause 9 of the Framework Agreement, by providing the
alternative application of Argentine law, excluded the rules of
conflict of the international system of private law.
147.Second, the parties, by declaring Argentine law applicable
alternatively to the Framework Agreement, expressly excluded
the application of the Competition Protection Act of Argentina.
Surprisingly, IMS attempts to have the competition protection act
of Brazil applied. If the parties excluded those specific rules of
law that they declared to be alternatively applicable to the
Framework Agreement, even more so should it be considered that
the rules governing the protection of competition of a legal
system that the parties did not declare to be applicable are not
applicable.
148.Third, Article 1208 constitutes an assumption of fraud in the law
that has not been defined in this case. The definition of fraud
under the law requires that a law of international public policy be
21 Idem, pp. 58-60.
22 Respondents Counter-Memorial, 136-141.
23 Respondents Counter-Memorial, 140.

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violated and that the parties intended to evade the application of

this law by electing another legal system. Neither of these two
factors is met in this case.
149.IMS has not establishedsimply because it could not do sothat
the rule of Brazilian law that imposes a maximum period of five
years for non-compete obligations constitutes a rule of
international public policy. What is true is that it is not part of the
peremptory rules of international public policy, as will be shown
below.
150.The Respondent has also failed to establish the common intention
of the parties to avoid the application of Brazilian public policy
law. As case law clearly points out, in cases of prohibited evasion,
a voluntary factor clearly aimed at the artificial creation of the
conditions necessary to justify the application of a more favorable
law system must be involved. Thus, it has been said, by way of
example, that [i]n order to achieve its purposes, i.e., to evade
the normally competent law and achieve the application of a
another more favorable legal system, they alter willingly and
maliciously the point of connection used by the rule of the choice
of laws, change their domiciles, change the location of an asset,
grant a will away from their domicile, acquire a new nationality,
etc. Then arises the problem of the validity or nullity of the act
accomplished in this way24.
151.In this case, the alternative election of the applicable law
corresponded to a reasonable connection between the Framework
Agreement and the chosen law.
152.The Framework Agreement has a defined territorial scope. It
covers the countries of Latin America, specifically including
Argentina, Brazil, Colombia, Mexico, Venezuela, Costa Rica, El
Salvador, Guatemala, Nicaragua, Panama, Belize, French Guiana,
Guyana, Honduras, the Dominican Republic, Ecuador, Chile,
Peru, Bolivia, Paraguay and Uruguay.
153.In this context, Close Up and IMS agreed to a single legal system
to govern the relationship between the parties. This was an
international transaction and legal certainty, the practice of
24 DERAMO, Mara R., DREYZIN DE KLOR, Adriana and SANTUCCIONE, Gabriela,
Defrauding the Law in International Private Law, La Ley 1995-C, 1207.

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international trade and best practices of the professional practice

of their legal counsel required agreeing to a uniform system vis-vis the innumerable laws that might prove applicable if the parties
had allowed the issue to the application of the rules of conflict of
the various legislations in Latin America.
154.Thus, the parties resorted to legislation that had relevant contacts
with the transaction; it was known by the persons who negotiated
the Framework Agreement and by their legal counsel: Argentine
law, with the scopes agreed to in the ninth clause of the
Framework Agreement. An intent at defrauding the law cannot be
seen in this choice, as IMS now timidly attempts to introduce.
155.What is more, the Respondent (i) attempts, for the sole purpose of
personal gain, to go against its own actions and invoke its own
stupidity to argue the nullity of a contract clause that it negotiated
and consented to and (ii) doing so, without saying anything about
the legal consequences arising from its sudden invocation of a
case of defrauding the law and not even offering to make the
appropriate restitutions to Close Up.
156.For these reasons, it should be concluded that the Arbitral
Tribunal should resolve this dispute solely in accordance with the
Framework Agreement and alternatively Argentine law, with the
scope granted by the parties in the ninth clause of said agreement.
(b)
In the Alternative, Brazilian Legislation Does Not
Provide the Solution Indicated by IMS.
157.Then, as was anticipated, it will be shown that IMS misconstrues
Brazilian law.
158.IMS filed an opinion by Professor Calixto Salomo Filho to prove
that it has not violated the non-compete clause provided for in the
agreement between the parties because of having taken merely
preparatory measures to launch a new product on the prescription
market. The main arguments presented by Professor Calixto are
summarized as follows:
(i) The non-compete clause must be construed restrictively;
(ii) According to CADE case law, non-compete clauses should not
exceed five years. Thus, considering that the period between the

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preliminary market assessment phase and actual introduction of

the product on the market is long (1-2 years), if it is prevented
from carrying out the preliminary investigation phase before the
five-year period expires, this means extending the non-compete
clause from 6 to 7 years;
(iii) Mere announcements of future projects or preparatory actions
for the development of a future product do not constitute an act of
competition from the technical point of view of Antitrust Law.
The existence of competition can only be admitted when there has
been an actual implementation of the offer.
159.Next, we will show that, contrary to the findings set out by IMS
and its expert, the Respondent violated the Agreement, even if it
is considered that it only took preparatory measures25which, in
fact, constitute commercialization actions under the Framework
Agreementfor the launch of a new product before the end of the
expiration of the term provided for the non-compete clause
between the parties.
160.Non-compete clauses are accepted by Brazilian competition law.
161.Provision by the Civil Code, Title IIProtection of the Buyer of
a Business Establishment, which reads: Article 1147. In the
absence of express authorization, the seller of the establishment
cannot compete with the buyer during the five years following the
transfer.26
162.Despite the restrictive interpretation attributed to the non-compete
clause, it cannot be asserted that this position is absolute in its
nature. A longer ban on competition was admitted in special
cases. In this regard, the Commissioner Roberto Augustos
Castellanos Pfeiffer affirmed, within the scope of Concentration
Act No. 08012.001066/2001-8927, which was resolved in 2002,
that:
Among the special circumstances that lead the European
Commission to admit clauses with a duration in excess of
25 As has been seen, it engaged in commercialization actions.
26 Article 1147 of the Code. Inasmuch as there was no express authorization, the transferor of
the business cannot compete with the buyer during the five years following the transfer.
Available at: //www.iberred.org/sites/default/fiIes/codigo-civil-brasil.pdf.
27 Vote cast by the Commissioner Luiz Fernando Schuartz in the record of Administrative Case
No. 08012.007042/2001-33. Attachment CL-25.

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the standard time periods accepted by it, they come into

existence when it is shown that the loyalty of the sellers
customers will be retained for a length of time in excess of
those time periods.
. . .
Likewise, CADE evaluates the reasonableness of the
duration of those clauses by analyzing them on a case-bycase basis. Thus, the cases in which the Plenary Session
sets a period in excess of five years. . . . There are also
cases in which a 10-year term is considered
reasonable . . . based on the long maturity of the
investment.
. . .
On the basis of two outgoing votes that, in the absence of
CADE case law, they traditionally allow non-compete
clauses to have a duration of five years; this does not
mean that this is the only term accepted. This is so,
inasmuch as there is a precedent that has allowed a term
of ten years in acquisitions involving long-investment
processes . . . .
163.As can be seen, notwithstanding the fact that CADE has defined
the parameters for the acceptance of non-compete clauses, the
particularities of each specific case cannot go without being
analyzed. For this reason, as has been mentioned, although CADE
considers a term of 5 years as a reasonable period for this type of
clause, the specific situations for each specific case should be
taken into consideration.
164.Therefore, the exceptionality allowed in light of the particularities
of each specific case is what leads to the conclusion that, despite
the fact that non-compete clauses receive a restrictive treatment,
we cannot talk about an absolute treatment. Much less could it be
said that Brazilian law considers the issue to be a matter of
international public policy.
165.Nevertheless, in this case it is possible to observe that the time
limit established by CADE case lawfive yearswas actually
adopted by the parties in the Framework Agreement.

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166.The period of the preliminary assessment phase of the market is

included in the non-compete clause, so that the time between this
stage in the actual introduction of the product on the market does
not involve extending the five-year non-compete period.
167.As is known, while the Respondent itself admits, IMS did an
assessment of the market during the validity of the non-compete
clause28. It consisted of investigating the extent of the market, the
type of data available, the costs, the activities engaged in by
potential competitors, how a differential would be established for
its product in relation to those existing on the market. As if that
were not enough, IMS announced the companys plans to create
new prescription business units in 2014-2015. The second clause
of the Framework Agreement was specific in that IMS had agreed
not to engage in directly or indirectly any of the activities
encompassed within the Prescription Data business.
168.However, it is clear that the alleged preparatory actions carried
out by IMS were not limited to investigations and internal
development; the company expanded its investigations to its
customers in general.
169.According to Professor Calixto, these preparatory actions do not
constitute an act of competition, since the product was not offered
on the market. That argument is incorrect, as we will explain
below.
170.First, as is known, the non-compete clauses are analyzed by the
competition-protection authorities in order to prevent the
limitation arising from the clause from resulting in a violation of
an economic nature. As mentioned, it is necessary to find a
balance between freedom of contract and free competition.
171.The interest protected by Article 36, Chapter I, of Law
12,529/2011 (Competition Protection Act of Brazil; Attachment
RL-1) states quite clearly: free competition or free enterprise.
That is to say, agents are afforded freedom to engage in economic
activities, but with the imposition of limits on their actions in
order to shape their behavior in the market.
172.In this regard, the aforementioned Article 36, Chapter I, of Law
12,529/2011 states that the potential effects to be produced by the
28 Witnesses Freire, 7/8 and Paletta, 23.

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practice under analysis will be considered for the purposes of

competition. This means that the law seeks to cover actions that,
in the future, may cause prejudice competition.
173.In line with the jurisprudence of CADE, it can be said that the
offenses in the economic area have a twofold nature under the
aforementioned Article 36. On the one hand, the infringement in
the economic area of behaviors that have an objectively set
purpose, as effects provided for under the same rule; and,
furthermore, those in which the great possibility that some effect
might occur is verified29.
174.Thus, it is verified that, even assuming that the product was not
offered on the market, the act is characterized as an act of
29 According to the vote cast by the Commissioner Luiz Fernando Schuartz in the record of
Administrative Proceeding No. 08012.007042/2001-33 (in this case, Article 20 of Law 884/94
is mentioned, which was reproduced in Article 36 of Law 12,529/11): . . . the sentence of
Article 20 defines the concept of twofold violation of the economic order: the violation is
characterized by the presence (i) of the objectively set purpose that some of the effects
mentioned in the paragraphs occur; (ii) of the high probability that some of those effects will
occur. In the first case, the intentional nature of pursuing an effect with that conduct
predominates; in the second, an objective risk, which is associated with the occurrence of that
effect. . . . Under Brazilian law, therefore, one violation of the economic order has to be proven
by the existence of both things; in other words: that, although the purpose is objectively set by
the agent as behavior to produce one of the effects set forth in Paragraphs I to IV of Article 20,
the probability also has to exist that his conduct produces one of those effects. . . . The
requirement of the purpose set by the agent as his conduct, i.e., the obtainment of one of the
effects listed in the paragraphs of Article 20, that is, an objective way, accounts for the
objective that, for the existence of a violation, the obtainment of an effect by the agent, by
means of his conduct, must be possible. This objection is admissible, but absolutely trivial,
when here the attempt is to reaffirm, also for antitrust law, the maxim that there cannot be
impossible torts (as, for example, there is no murder when someone fires a gun at an individual
who was already dead). The objection ceases to be trivial; it does not become inadmissible
when what is attempted thereby is to support the position that a line of conduct barely violates
Article 20 because the probability is high that it will produce one of the effects mentioned
therein. The inadmissibility lies in the fact that the objection ignores the twofold structure of
Article 20 and likens one type of possibility to another. The possibility required for the
condemnation of behavior the objective of which is the production of one of the effects of
Article 20 is a possibility in a weak sense, i.e., not in the sense of exclusive impossibility (or of
impossible crime, as defined in Article 17 of the Criminal Code); since the possibility
required for the condemnation of a line of conduct that can produce one of those effects and a
possibility that, in another sense, namely, the strong sense of the high objective probability of
a high risk that, once the conduct has been engaged in, that effect is produced (emphasis
added; see Attachment CL-25).

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competition in view of the high possibility that effects occur, so

that it will be covered by antitrust legislation.
175.Therefore, IMSs preparatory actions generated a potential effect
on the Prescription Data market, since, by announcing the arrival
of a new business unit, doing a market analysis, contacting
suppliers and potential customers30, and announcing the
imminence of new products, an expectation was created among
the customers31.
176.It should be noted that these probable effects are even more
relevant when the one who announces the entry is an economic
agent with a very high participation in the market of potentially
supplementary products, that already possesses the know-how of
the product in other countries and with knowledge of all of its
potential customers, since these are its customers in the sales data
business.
177.The potentialities of the effects vary, in the sense of altering the
dynamics of the behavior of the products customers, inasmuch as
it is a credible economic agent with market expertise and
reputation, which facilitates its entry. Therefore, the potentiality
of its effects is undeniable.
178.Thus, considering that the non-compete clauses are inserted
within the scope of the competition and in the competition
protection act in situations of potential effects, it can be
concluded that IMS breached the clause provided in the
agreement, even accepting for the sake of argument that this
involved preparatory actions. This makes it possible to rebut the
arguments of IMS in that IMSs actions did not involve actions of
competition (Respondents Counter-Memorial, 115).
179.In line with the above, it should be noted that the effecteven
when considered potential, as the case may begenerated on the
market with the announcement of a new product by IMS can also
be demonstrated by the practice acknowledge internationally,
called vaporware. This is a classical theory aimed at influencing
30 See the rebuttal statement of the witness Guzmn, who mentions that, during the months of
September and October 2013, the Abrafarma association knew about the IMSs entry into the
prescription data business (CT-_).
31 It should be noted once again what appears in Exhibit C-12 and the statement by the witness
Strakos - Attachment CT-1.

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expectations: announce the arrival of a product to freeze or at

least alter the sales dynamics of their rivals.
180.This practice has been debated in the United States in the case of
Microsoft v. IBM. The investigation conducted by the FTC
analyzed, inter alia, vaporware practices, which consisted of
evaluating how premature announcements of new versions of the
Microsoft operating system impacted so as to dissuade the users
of other systems.
181.In this case, IMS, in the context of its market investigations,
clearly announced the arrival of a new product in order to
influence expectations, alter the dynamics and prejudice the sales
of Close Up International.
182.As has been discussed, IMS possesses a recognized reputation
and a quite similar market expertise and has an extensive
customer base in other productsin addition, they are the same
customersbecause prescription data and sales data compete in
the same products.
183.Accepting, for the sake of argument, that IMS engaged in
preparatory actions for the development of a product (in reality,
commercialization actions), doubtless the dynamics of the market
are altered. In particular, these actions create the expectation of an
agent with reputation in the market, so as to affect:
(i) renewals of medium- and long-term contracts;
(ii) alter the dynamics of price negotiation;
(iii) anticipate contract cancellations, and
(iv) alter the business bargaining power that exceeds the prize
clause, such as the length of the contract (contracting that would
be for five years could be negotiated for one), the contracting of
other supplementary products, etc.
184.Undeniably, even before the actual sale of the product, the
announcement of the entry of a new product into the market
effects the dynamics of the business, which involves the breach of
the principle protected by the non-compete clause.
185.Thus, it is considered that the purpose of the non-compete clause
is to protect the viability of the business; it is then clear that a
practice attempts to or actually prejudices the competitors sales
through commercialization actions renders unviable or impedes

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the operation of the protected business and, therefore, breaches

the contract stipulation.
186.In this context, it is worthwhile mentioning a decision by the
Superior Court of Justice that, when discussing a non-compete
clause, it shows a clear concern for the diversion of trade:
Indeed, the restriction on competition in the national
legal environment, in which free private initiative governs,
is exceptional and involves the constitutionally imposed
coexistence between the freedoms of initiative and
competition. (Fazzio Junior, Waldo. Manual of Business
Law. 15th ed. So Paulo: Atlas, 2014, p. 769). Thus, a
priori, the possibility of expanding the contract restriction
could be considered, inasmuch as the admission by the
legislature itself of the possibility of contracting in order
to deviate from the legal mechanism reveals the
enhancement of freedom of contract with regard to the
subject.
In addition, it is important to stress the legislatures
concern about protecting the efficiency of competition
during the potential parasitic distorting conduct caused
by diversion of trade.
Thus, this same concern, with potentially negative effects
on competition, provide doctrinal and ideological support
to establish a ban on restoration in cases of transfer of
business. The aforementioned ban becomes part of the
national legal system by means of Article 147 of the 2002
Civil Code 2002, which reads: . . . And, in fact, the ban on
the establishment of competition between companies that
voluntarily join together for both to share earnings, as
well as an extension of that demand for a reasonable
period, in order to enable the clientele to shift is part of a
line of conduct shaped by objective good faith32.
187.Therefore, the possible preparation for the launch of a new
product or business areaaccepting IMSs comments for the
sake of argument, since, as has been demonstrated, there are
32 Brazil, Superior Court of Justice, 05/05/2015, SPECIAL APPEAL: REsp 1203109 MG
2010/0127767-0, Rapporteur: Judge MARCO AURELIO BELLIZZE, Attachment CL-26.

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actions of commercialization and competitionby IMS before

the expiration of the non-compete clause, as provided in the
agreement, breached the agreement. The measures taken by IMS
overstep the limits of clauses of this type vis--vis their main
objectives and the second clause of the Framework Agreement, in
particular.
188.Finally, it has been shown that the biased interpretation that IMS
attributes to Close Up regarding the scope of the non-compete
clause, from whence arises its possible nullity under Brazilian
law, is, in addition, inadmissible.
IX. IMS Acted Maliciously. Extension of Its Liability Arising
from Tortious Actions.
189.The breach of contract can be attributed to fault or the tortious
intent of the contracting party (or its subsidiaries).
190.The systematic inclusion of tortious intent as a factor for
assigning damages has not caused major difficulties in Argentine
case law, given the fact that, as a rule, fault is sufficient to be
liable. However, in exceptional cases, proving tortious intent is
necessary; for example, to go above the caps of some scheduled
compensations33. Since IMS contends that compensation for
damages and reimbursement of the price (which it qualifies as a
penalty clause) is not admissible, the Claimant will rebut this
criticism by demonstrating that, inasmuch as the breach was
malicious, it is proper for IMS to reimburse the price and
compensate for the losses and damages that its conduct caused.
191.According to the provisions of Article 521 of the Code in force at
the time of the facts, tortious intent existed, If the non-fulfillment
of the obligation was malicious.
192.Malice in a breach of contract, within the category of bad faith,
then consisted of the deliberate failure to fulfill the debt34.
33 TOBAS, Jos W. and DE LORENZO, Federico, Fraud in Civil Law. Proposals for a Notion
in Eclipse. LL 2001-C-1102., Attachment CL-27.
34 ALTERINI, Atilio A., AMEAL, Oscar J. and LPEZ CABANA, Roberto M. Civil and
Commercial Obligations Law, Fourth Edition Updated, Buenos Aires, 2008, Abeledo Penot, p.
211. Attachment CL-28.

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6

193.Most case law considers that tortious intent exists with a knowing
or deliberate breach, even if there is no intention to cause
damage35. This is a matter of a planned breach, with bad intent;
failure to comply while able to do so36.
194.This implies that the debtorwhether tortious or maliciousis
liable for the immediate and necessary consequences and for the
mediate consequences provided for or foreseeable (such as, for
example, the extent whereby the damages occur).
195.Engaging in commercialization actions, as what happened at the
World Review 2013 in Brazil, the actions in search of information
among customers, negotiation with the latteras reported by
Close Ups sales employees in the memorandum provided as
Exhibit A-12and the signing of contracts with COFEPRIS are
not actions committed out of mere negligence, but with deliberate
intent.
196.To the above there must be added that, in the final part of Article
1724 of the Civil and Commercial Code of Argentina (CCC, in
force since 08/01/2015), the following is provided: [t]ortious
intent exists owing to the intentional production of damage or
with gross disregard for the interests of others.37
197.The aforementioned rules are sufficient to understand that a
breach of the non-compete obligation by IMS has been deliberate,
with utter disregard for the rights of the Claimant and,
accordingly, is malicious. We will give the reasons in detail
below.

35 TRIGO REPRESAS, Flix A. and CAZEAUX, Peter N., Law of Obligations, Buenos Aires,
1987, publisher Librera Editora Platense SRL, Vol. 1, p. 313, and its extensive case law
citations in favor of this position (Attachment CL-29). This makes it possible to revive what is
it directly argued by IMS (Respondents Counter-Memorial, V.B.2).
36 National Chamber of Civil Appeals, Courtroom E, 07/02/1986, Cabrera Enrique A. v. Pinto
Kramer Martin, La Ley 1986-E-206-1; Attachment CL-30.
37 Article 1724: Subjective factors. Fault and tortious intent are subjective assignment
factors. Fault lies in the omission of due diligence depending on the nature of the obligation
and the circumstances of the persons, time and place. It encompasses recklessness, negligence
and incompetence in the art or profession. Tortious intent exists owing to the intentional
production of damage or with gross disregard for the interests of others. Available at:
http://www.infoleg.eob.ar/infolegInternet/anexos/235000-239999/235975/norma.htm#23

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198.The agreement entered into, even if it is an agreement between

companies, exists in an area with few providers who, in turn, are
those that have the technical expertise.
199.According to the documentation provided by IMS in the CounterMemorial to the complaint, it emerges that it stated, falsely, its
determined and clear intent to fulfill the no-compete clause.
200.Thus, for example, Annex R-7 contains the e-mail sent by Jeff
Ramage, dated March 25, 2011, to Liliana Gary, where he sends
the following: I also understand that Close Up has some
concerns about IMSs plans in the prescription data space in
Latin America. We can assure you that IMS has every intention of
honoring its obligations under the five-year non-compete clause
in our earlier agreement from 2008. You should feel free to
contact me if you have any concerns about our compliance with
this contractual obligation (Underscoring added).
201.Following this line of statements, we can mention Annex R-8, in
which Liliana Gary sends an e-mail to Nilton Paletta on April 6,
2011, stating: some of the concerns I shared with you at that
meeting have been dispelled, after the reaffirmation that Gary
had received from IMS.
202.Furthermore, in Annex R-15, we found the e-mail that Harvey A.
Ashman sent to Norberto Bonaparte on December 10, 2012,
reconfirming that they would continue fulfilling the non-compete
obligation, as follows: . . . IMS has and will continue to comply
with all applicable legal and contractual obligations. . . . I can
assure you that we will continue to honor our obligations under
the December 1, 2008 agreement, including the obligation not to
re-enter the prescription data business in Latin America prior to
March 31, 2014 (underscoring added).
203.Dwelling on this e-mail is worthwhile. It answers two e-mails
sent by Norberto Bonaparte (which were added as Exhibits R-13
and R-14). Note that Harvey Ashmans answer reflects this, since
it starts by saying: Dear Dr. Bonaparte: I am writing in
response to your December 5th e-mail messages to Ari Bousbib
and Nilton Paletta.

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204.Then, the contents of the answer are those transcribed above, in

which IMS assures that it will continue fulfilling its non-compete
obligation.
205.This shows that IMS wants to take the background out of context
when in its Counter-Memorial it says that Dr. Bonapartes e-mails
did not contain any claim of breach of the non-compete obligation
( 66). So erroneous is this assertion that the IMS employee who
answered Dr. Bonaparte, as has been seen, perfectly understood
the claim and answered him. The fact that the answer was false
constitutes grounds for the tortious intent attributed to IMS.

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206.IMSs behavior is of note here: through its formal notifications it

told Close Up to remain calm; that it would not violate the noncompete obligation; it expressly said so.
207.However, these statements were disingenuous. That is why
tortious intent follows, from that conduct surrounding its own acts
for a very specific event that is closely tied to the agreement
executed by the parties.
208.Moreover, IMS made specific threats to enter the prescription data
business if Close Up did not agree to sell it the company. When it
refused, it followed through on its threat. It is clear that these
actions of IMS were deliberate.
209.In addition, IMS obscured the existence of differing presentations
that it made in the IMS World Review in 2013 in Brazil. We have
already shown that there was a different slide than the one that
IMS claimed was the only one; and therein it indicated that the
Influence Mapping contains prescription offers. In other words,
Prescription Data, including based on the limited, unfounded view
that IMS has argued in that regard.
210.The Framework Agreement set out penalties for breach and also
limits on those penalties (clause 6.3). Furthermore, it contains a
limited liability clause (clause 6.4).
211.In its relevant section, clause 6.3 stipulates that: ()
Additionally, in the event of nonfulfillment of the obligations set
out in clause two (NON-COMPETE OBLIGATION), and
whenever this nonfulfillment is not fully corrected during the
Correction period stipulated for this situation, the SELLER shall
refund the price charged in accordance with clause three. If the
breach is limited to a few specific countries, the partial price set
for each country in Annex III shall be applied, up to the maximum
price set out in clause three.
212.Clause 6.4 states that: [n]one of the parties shall be liable for
breaches whose cause is attributable to acts of god, force
majeure, sovereign acts, acts by the other party or third parties
for which the Parties should not be liable (the Grounds for
Exemption), nor shall the liability exceed a total of five million
U.S. dollars (US$ 5,000,000), except in cases of not remedying a

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malicious breach. Said limitation does not extend to the

SELLERs liability for the liabilities or obligations related to the
SELLERs Prescription Data business that herein are not
transferred to the BUYER nor limited in any way.
213.Argentinas Civil Code in force when the facts occurred that gave
rise to this proceeding contain several provisions about limited
liability clauses.
214.First, article 507 states that: [t]he debtors tortious intent may
not be waived upon entering into an obligation.38 This principle
obviously arises from the same concept of an obligation, since if
the latter constitutes a relationship that forcibly subjects the
debtor to perform a given legal duty, then there would not be any
obligation that is free from the debtors mere desire not to comply
with the filing39.
215.In support of this regulation, Argentine doctrine states that clauses
exonerating liability for tortious intent are violations of a clear
principle of legal logic: if obligations are established to be
fulfilled, then it is contrary to their very nature that upon their
stipulation, the possibility is provided for their deliberate breach
and those who do so are held harmless of this liability40.
216.Continuing along said line of doctrinal thought, this would be a
case of partial nullification, that is, the contractual clause that
establishes this exemption would be null and void, but it would
not affect the obligations validity41.
217.For its part, article 1743 of the CCC stipulates that: [t]hey are
likewise invalid if they exempt in advance, in part or in full, the
damages suffered due to the tortious intent of the debtor or the
persons for which they should be liable.42 Here, since tortious
intent worsens the legal systems response to the agent engaging
38 Other prohibitions are set out in articles 162, 184, 204 and 206 of the Commercial Code;
2232 of the Civil Code in force at the time of the facts.
39 BUSTAMANTE ALSINA, Jorge, Teora General de la Responsabilidad Civil, Ninth Edition
Expanded and Updated, Buenos Aires, 1997, Abeledo-Perrot, p. 335. Attachment CL-31.
40 BELLUSCIO, Augusto C. and ZANNONI, Eduardo A., Cdigo Civil y Leyes
Complementarias Comentado Anotado y Concordado Buenos Aires, Editorial Astrea, 1993,
p. 586, Attachment CL-32.
41 BELLUSCIO, Augusto C. and ZANNONI, Eduardo A., Cdigo Civil y Leyes
Complementarias Comentado Anotado y Concordado Buenos Aires, 1993, Editorial Astrea,
p. 586, Attachment CL-32.

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in it, it is clear that in such case a preliminary agreement is null

and void if the party exempts its contracting party of liability in
the course of a obligation situation.43
218.These rules apply to a penalty clause that is insufficient to cover
all the damages caused by the debtors deliberate or clearly
unscrupulous conduct.
219.Article 655 of the CC in force at the time of events stated that:
[t]he penalty or fine imposed in the obligation enters in place of
the indemnity of losses and interests whenever the debtor has
entered into arrears; and the creditor shall not be entitled to
further indemnity, even if it proves that the penalty is not
sufficient indemnification. This regulation set out a limiting
effect on reimbursement, in the normal cases of breach
attributable to a debtor for its mere negligence44.
220.This limit may be raised if tortious intent is proven. An
overwhelming majority view in Argentine doctrine45 and
jurisprudence states that the immutability of the penalty is
relative, given that it may be reduced pursuant to article 656, and
in certain exceptional cases, though lacking an expressed
regulation, the possibility is acknowledged of granting a remedy
for damages beyond the amount of the negotiated fine; but this
will only occur in cases of a malicious breach, or when the
penalty, as proven, is tiny or absurdly small.46 Likewise,
jurisprudence states that: [t]he terms of article 655 of the Civil
Code notwithstanding, it is admissible, in the case of a malicious
breach of an obligation, for the penalty clause not to act as a
42 Article 1743: Subjective factors: Fault and tortious intent are subjective assignment factors.
Fault consists of omission of due diligence based on the nature of the obligation and the
circumstances of the persons, the timing and the place. It encompasses recklessness, negligence
and malpractice in an art or profession. Tortious intent occurs as a result of intentionally
causing harm or gross disregard for the interests of others.
43 LORENZETTI, Ricardo L. Cdigo Civil y Comercial de la Nacin, Comentado, Arts. 1614
a 1881, Buenos Aires, 2015, Editorial Rubinzal & Culzoni, pp. 508 and 511, Attachment CL33.
44 TRIGO REPRESAS, Flix A. Derecho de las Obligaciones, 3rd Edition, Buenos Aires,
1987, Editorial Librera Editora Platense SRL, p. 506, Attachment CL-29.
45 TRIGO REPRESAS, Flix A. Derecho de las Obligaciones, 3rd Edition, Buenos Aires,
1987, Editorial Librera Editora Platense SRL, p. 506, Attachment CL-29.
46 Cmara Nacional Civil, Sala F, 06/06/1989, Inversora Castagnino SA v. Macchi, Cecilia
L., La Ley 1989-D, 540, Attachment CL-34.

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limit on the indemnity owed, but rather that the debtor must
repair all the damages caused to the creditor, even when this
exceeds the numerically predetermined amount.47
221.In light of the above, we are able to classify IMSs breach as
deliberate. Consequently, pursuant to the rules stated above,
conventional limits on liability do not apply, either through
limited liability clauses or as a result of the negotiated penalty
clause. In the end, the rules of full reparation apply, and Close Up
may claim all the damages that it proves to have suffered in a
proper causal relationship with the breach, in addition to the
penalty clause.
222.Moreover, one must bear in mind that malicious intent extends
liability to remote consequences; article 521 of the CC states it
thusly: [i]f nonperformance of the obligation were malicious,
the damages and interests will also encompass remote
consequences. Therefore, this allows IMSs allegation to be
refuted regarding the temporal extension of damages caused by its
violation of the non-compete obligation.
X. Close Ups decision to compete in the sales data business.
Causality and rebuttal of the criticism against claiming
damages
223.The Respondents question that a causal relationship exists
between their violation of the non-compete obligation, 198,
227, 242 of the Respondents Counter-Memorial; for his part, the
expert witness, Stremersch, states the same thing in 10, 76, 80,
93.
224.In this line of defense, several erroneous arguments are used
that the Claimant shall refute point by point below.
225.In the first place, the Respondents allege that Close Up has not
been able to demonstrate that it has suffered losses, nor that it has
made any investment that it would not have otherwise lost or
endured ( 198).
47 Cmara Nacional de Apelaciones en lo Comercial, Sala B, 3/11/1996, Ply, S.A. v.
Conelmec, S.R.L. s/ordinario, MJ-JU-E-10140-AR, EDJ10140, Attachment CL-35.

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226.The Claimant has demonstrated that, in order to mitigate the

damages that violation of the non-compete obligation has caused
it, it decided to enter the sales data market witness Guzmn,
subsection 3, CT-2; meeting minutes from 12/22/2012;
Attachment R-16, submitted by the Claimant during the discovery
phase.
227.The Respondents claim is false that Close Up decided to enter the
sales data business before any of IMSs breaches of contract had
taken place, since the meeting minutes that record the adoption of
the decision to enter said market is after the threat of breach that
Mr. Nilton Paletta made to Messrs. Guzmn and Strakos.
228.Indeed, both Paletta 12 along with Guzmn 2.4 and
Strakos 10 agree that they met in November of 2012;
specifically, on the 27th of that month and year Guzmn, 2.4. It
was at that time that Paletta uttered the threat of violating the noncompete obligation Guzmn, 2.6; Strakos, 11. That is, IMSs
threat was prior to Close Ups decision to enter the sales data
market.
229.For his part, another witness, Gary, notes that prior to Close Ups
decision to enter the sales data business there was concern that
the intention existed to dismantle in some way the sales contracts
non-compete clause, so we decided to travel to see Nilton Paletta
in So Paulo on March 20, 2011; see Attachment CT-9, 8. This
same witness refers to other facts of a similar nature, noting that
they were three years prior to the expiration of the non-compete
clause, 19, that is, in 2011.48
230.Furthermore, the relationship between breach of the non-compete
obligation and Close Ups decision to enter the sales data business
was explained by the witness Gary; see Attachment CT-9:
28. On the other hand, all of Nilton Palettas threats to
begin competing with 50% discounts, and whatever
anticompetitive practice exists, also created a logical fear
that he was going to destroy the market, and in the end,
our company, as they had already done with innumerous
competitors globally, which is why if there were any
48 There is no dispute among the parties that the non-compete expired on March 31, 2014.

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alternatives as good as the one that Nilton Paletta was

posing, it was worth being heard.
29. Undoubtedly, that was one of the biggest damages and
most difficult to calculate that caused us to launch the
prescriptions early, and it was why Close Ups entire
leadership was dedicated to figuring out how to counter
IMSs attacks, how to be one of the few competitors that
was able to survive IMSs onslaught globally, instead of
recovering the major investment that we had made upon
buying the prescription data business.
()
36. The one thing for sure is that we found out that Nilton
Paletta was using these negotiations to debilitate us even
more with respect to the data providers, customers and
employees, and to prevent our launch in sales.
The underlining was added herein.
231.In the second place, it is not true that Close Up would have had to
have faced the same costs or losses if it had decided to enter into
the sales data business at any other time.
232.It is worth noting the rebuttal testimony provided by the witness,
Giulianelli Attachment CT-7 regarding this point, in which he
expresses the harm caused by IMS regarding Close Ups
positioning in terms of price level and the recovery of investments
made:
6. The business plan, from the acquisition in 2008 of
IMSs prescription business, was based on price growth
that in the fifth year would enable us to come out strong in
the event that IMS was planning to compete.
7. In that sense, the goal was to recover the major
investment that had been made upon acquiring IMSs
prescription data business, in such a way that upon
arriving in the fifth year of the non-compete period with a
price level that would enable us to be well-positioned with
a more up-to-date audit of prescriptions and with
innovative technology.
8. That meant seeking to secure a high negotiation-based
price from customers for the fifth year. That was due to

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Close Up International selling its products at a given

price. That price is the basis that is used as a reference for
future negotiations and so on. This dynamic was
specifically encountered in the case of Close Up
Internationals prescription data business until the middle
of 2013. As of that date, this dynamic was interrupted;
Close Up International could no longer follow its pricing
policy. The renewal of contracts in 2013 was heavily
dependent upon the announcement of IMSs entry into the
business. The prejudicial effects were not limited to the
contractual renewals from that year in particular. They
went well beyond. The price of the 2013 renewals was a
negotiated price based on a scenario of announced
competition with IMS, less than the one that had been
negotiated in a scenario in which IMS had fulfilled its
commitments and abstained from entering the prescription
data market early. The price for future renegotiations was
also dependent upon the extent to which it used a base
price the one from 2013 affected by IMSs breaches. In
other words, in each successive negotiation, the price that
was used as a basis for the negotiation was already
affected by that interruption of the upward business cycle,
caused by IMS.
9. It is important to point out that the strategy was not just
a price increase, but also to grow the sample and improve
the product that would accompany said increase. A clear
example of that is the launch of Megabase in 2011, which
was so important. Megabase involves a considerable
increase in the data given to our customers. In that regard,
one must bear in mind that the audit of prescriptions was
based on data from a statistical sample, which is why
increasing the volume of data from that sample increases
the quality of the final product. This was a major
investment that Close Up International had made during
the non-compete period and whose recovery was
significantly affected by IMSs breach.

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233.This means that by entering the prescription data business early

and by surprise, IMS prevented Close Up from earning a return on
investment and the positioning that it legitimately aspired to attain
as a result of the non-compete obligation. The statements made by
Giulianelli as a factual witness is confirmed by the experts, Galli
and Maltagliatti, in the fifth point of their rebuttal report
(Attachment CP-6).
234.On another front, IMS has sought to support its arguments on a
supposed opinion by an expert witness, Stermersch, to justify
more precisely, to timidly outline that the alleged damages
might be due to the customers lack of satisfaction with Close
Ups products: Respondents Counter-Memorial, 242.
235.However, it should be pointed out that Stremerschs allegations
are merely hypothetical the customers willingness to pay is
lower if the customer receives a service that is of a lower quality
that desired49 and clearly dubious: [it is] possible that at least
part of the low growth in the low-growth renewed contracts has
occurred due to said customers not being fully satisfied with their
prescription data service.50 Our emphasis added.
236.Moreover, one must also keep in mind that the mere speculation of
the expert witness, Stremersch, is refuted by the testimony given
by Giulianelli regarding the investment efforts that Close Up
made to improve its data prescription products: supra 214, 9.
237.On this point, the Respondents stated that: the customers had
complained to IMS that it ought to pursue more complete
solutions, that is, solutions that integrated both the sales data and
the prescription data, and that the quality of Close Up
Internationals data the only ones available on the Brazilian
market lacked coverage and quality. (Respondents CounterMemorial, 70).
238.To sustain this claim, the Respondents relied on the statement
made by Mr. Albuquerque, who testified that: the customers
also complained about the quality of Close Ups data. In their
opinion, Close Ups coverage was insufficient, such that the data
were tendentious (due to the fact that, in some regions, too many
49 Stremersch, 83.
50 Idem.

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data came from pharmacies that sold specialized medications)

and that the final product did not undergo quality control (for
example, at times Close Up mistakenly gathered sales data
instead of prescription data). I dont recall the specific details of
those conversations, but I recall having spoken with Sanofis staff
about the poor quality of Close Ups data.
239.Given the above, IMSs defensive strategy culminates by stating
that: the dissatisfaction with Close Ups services (which, as
Professor Stermersch highlights, is comfortably identified by
academic studies as the most important cause of customer
desertion, whose specialty of causing desertion is ten times more
likely than the entry of a new competitor on the market)
(Respondents Counter-Memorial, 260).
240.Finally, the Respondents argue that the cause of the damages
claimed by Close Up () was merelyits clients lack of
satisfaction with its products.
241.IMS thus suggests that Close Up had neglected its market while
the Framework Agreement was in force, and that is why it had
suffered the losses that it claims were caused by IMSs early entry
onto the prescription data market, in violation of the Framework
Agreement.
242.However, the above does not match up with the events that
occurred, given that it fails to consider that Close Up engaged in
heavy product development while the Framework Agreement was
in force.
243.Indeed, from 2008 to 2014, Close Up launched products in the
prescription data business, such as Prescribers (2009) and (ii)
Close Up Analyzer (2011)51. The launch of the aforementioned
products alone proves the falsehood of IMSs claims.
244.But, in addition, what is even more important is that Close Up
expanded its range of products; such as the example of the
development of the so-called Megabase (2011)52.
245.Furthermore, Close Up has a high degree of satisfaction among its
customers. That is, far from being a company that preferred to rely
on a non-compete clause, Close Up developed new products and
51 See Attachment C-21.
52 Rebuttal statement given by the witness Giulianelli, 9-10 (CT-7).

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strived to improve the quality of its existing ones. That is why it

achieved the growth rate noted in Giulianellis statement and the
report on the valuation of damages and the rebuttal report,
submitted as CP-8.
246.Regarding the prices that Close Up charges, please note that the
witness, Guzmn, in his rebuttal testimony CT-8 argues that,
in order to maintain its leadership position Close Up charged its
customers fair prices. It was never abusive, and the customers
from every country in Latin America recognize and value it as
such.
247.Returning to the criticism that Stremerschs report deserves for
being based on merely hypothetical considerations, and also for
expressing his opinion in a clearly dubious way, the statements
made by the witness, Guzmn, in his rebuttal statement (CT-8) are
worth repeating here to demonstrate the highly efficient,
competitive nature of Close Ups management: Inestra is a
company that began competing in the prescriptions market in
2004. During the companys first and second years, Inestra took
between 10 and 12 continuing contracts with customers from us.
As a result of profound improvements made to our statistics and
products, we managed to recover nearly all of these accounts
again in 2006 and 2007.53
248.Finally, it must be noted that the expert, Stresmersch, failed to
consider that the breakeven point in the uninterrupted growth of
Close Ups business in the prescription data business came
specifically as of July 2013, that is, when the IMS World Review
from that year came out in Brazil, in which it made its
announcement of entering into said market. Thus, if one were to
follow the experts logic, in July of 2013, suddenly all of Close
Ups customers noticed the deficient quality of its products, and
additionally, the pharmaceutical market had entered into
recession.
249.Given all of the above, one must conclude that Close Up
maintained active product development and a high level of
satisfaction among its clientele, which are specific factual
53 Then, in this same witness statement, he explained why the majority shareholder of Inestra
decided to sell the company to Close Up.

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circumstances that allow one to emphasize the merely abstract and

baseless nature of the expert Stresmerschs statements.
250.This is clearly the case, such that once a year, in Brazil, a Quality
Committee is organized where the Claimant gathers its customers
in order to gauge the industrys needs, so that the year after it can
show the development of the improvements made to its products.
All of this can be seen in the example attached regarding 2013
(see Attachment C-21).
251.On another front, the Respondents mistakenly argue that the
Claimant has not proven the existence of any of the damages that
they are seeking, 226.
252.On this point, it should first be noted that the Claimant requested
the delivery of certain documentation that, despite the decisions
issued by the Arbitral Court, IMS refused to hand over 54. Without
limitation to the difficulties that this improper situation caused
Close Up, the Claimant hereby notes the relevant reservations
regarding this attitude of the Respondents. This fact
notwithstanding, it asks the Arbitral Court to infer that such
documentation is contrary to IMSs interests (see article 9:4 of the
IBA Rules on Gathering Evidence in International Arbitration,
whose application was set out in 41 of the Terms of Reference).
253.In the second place, the statements made by the witness,
Giulianelli (see Attachment CT-7), refute that statement by IMS in
the following terms, in addition to those transcribed above:
11. IMS directly threatened the possibility of recovering
our investments (including the possibility of recovering the
investment that we had made to buy the prescription data
business from IMS), as we were unable to finish passing
on to prices the cost of acquiring that business and the
improvements and new prescription products that we made
over the course of time in which we were protected by the
agreement with IMS. What IMS did was to alter our
investment recovery strategy.
54 It should be noted, on this point, that the belated and unfounded arguments made by IMS in
its presentations on August 11 and 19, 2015, were disregarded by the Arbitral Court in its
decisions on August 13 and 20, 2015. Therefore, IMS has never complied with delivery of the
documentation as ordered by the notification from the Arbitral Court on August 6, 2015, item
(ii).

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12. In addition thereto, we had to make a heavy investment

in 2013, sooner than planned, in the commercial
department, by raising wages, hiring new people, and the
associated costs thereof, such as the larger volume of
visits to customers. That was due to our having received
comments from customers about IMSs premature entry
into the prescription data business. Therefore, the
negotiations being done to renew contracts with customers
required an additional effort to the one being made. That
effort is reflected in the investment into the commercial
department to which I referred.
254.IMS has questioned the growth rate that Close Up has used as a
basis for calculating the damages whose indemnity this
proceeding is seeking ( 238).
255.On this point, the witness, Giulianelli (see Attachment CT-7),
refutes the Respondents claims:
21. The calculation of damages is based on the growth
that Close Up International had been experiencing. To do
this calculation, which is an average, we took into account
the billing from 2008 to 2013. No biased criterion was
used of favoring customers who had larger growth, for
instance; rather, the average obtained is the exact result of
what occurred with the billing from Close Up
Internationals prescription data business in Brazil, from
2008 to 2013.
256.Finally, the rebuttal report on the valuation of damages
accompanies this reply as CP-8.
257.It shows that:
(i)Close Ups growth rate was 11.75% until IMS violated the noncompete obligation. That rate experienced a decline as of the
moment when IMS announced its entry into the prescription
data market.
This statement can be proven by information from Close Ups
billing, and the variation from all contracts was included,
whether negative or positive for the Claimant.

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The growth rate that Close Up had experienced refutes any

claim of inefficient business management.
(ii) There was indeed an increase in cost in the sales data
business. The claim is not the total, but rather the difference.
(iii) The discount rate applied was conservative, to the detriment
of the Claimant.
(iv) The Brazilian market did not suffer any restrictions. In fact,
IMSs own figures demonstrate that.
(v) It is correct to exclude from the calculation of damages those
customers regarding whom Close Up did not suffer from
IMSs interference.
(vi) The five-year period to project losses is reasonable.
(vii)Total damages were US$ 24,024,852, plus interest, and they
break down as follows:
a. Refund of US$ 5 million (plus interest) as a result of
article 6 of the Framework Agreement;
b. Indemnity for damages and losses caused to
PRESCRIPTION DATA, quantified at US$ 19,024,852
(plus interest), according to the following grouping:
c. Drop in earnings due to changes to sales prices that
affect contract renewals in 2013 and 2014 (US$
6,698,294);
d. Drop in earnings caused by delays in renewing
agreements and cancelled agreements in 2015 (US$
6,390,477);
e. Postponement of investments in the sales data business
(US$ 1,878,123);
f. Increase in costs to gather information from the
pharmaceutical chambers in the sales data business
(US$ 4,057,958).
XI. Admissibility of the claim seeking a refund of the price
258.In its Counter-Memorial, IMS argues that the negotiated penalty
should be lowered by virtue of article 656 of the CC in force at the

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time of the events, and for its part, prorated for the periods during
which IMS fulfilled the non-compete obligation55.
259.With respect to decreasing the penalty, the Respondent limits itself
to mentioning the cases set out by the aforementioned article 656 56
for it to be admissible, without even arguing much less proving
that said situations exist in this case.
260.Said article states that the penalty may be lowered when its
amount is out of proportion to the seriousness of the offense that it
is punishing, given the amount of the payments and other
circumstances in the case, and whenever it amounts to taking
abusive advantage of the debtors situation. None of that has
occurred.
261.In the first place, the seriousness of the offense can be seen in the
estimate of damages caused, which totals US$ 19,024,852, much
more than the US$ 5,000,000 negotiated in the penalty clause,
which is why alleging disproportion is indefensible.
262.In the second place, the penalty clause specifically used the
amount of payments, as stated in Clause 6.3 of the Framework
Agreement (The SELLER shall reimburse the price charged in
accordance with clause three). Again, the supposed disproportion
does not exist.
263.In the third place, there are no special circumstances that merit a
decrease in the negotiated penalty. On the contrary, the
Respondent has maliciously not fulfilled its obligations and now
seeks, through arguments lacking any grounds, to excuse itself
from fully complying with the negotiated penalty.
264.Finally, and in light of the above, it cannot be construed as either
taking advantage or an abuse; IMS is the one that has maliciously
breached the agreement.

55 Respondents Counter-Memorial, 205 and 206.

56 Article 656: In order to request the penalty, the creditor is not required to prove that it has
suffered losses, nor may the debtor exempt itself from satisfying it, proving that the creditor has
not suffered any loss. Judges may, however, lower penalties when their disproportionate
amount to the seriousness of the offense that they are punishing, given the amount of the
payments and other circumstances in the case, take abusive advantage of the debtors
situation. Available at: http://www.infoleg.gov.ar/infolegInternet/anexos/105000109999/109481/texactly340_libroII_S1_tituloXI.htm

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265.There are likewise no legal grounds for the Respondents intention

to prorate the amount of the penalty for the periods in which it
alleges to have complied. This argument is based on a basic
conceptual error that makes it unfounded.
266.One must bear in mind, as Argentine legal theory holds:
"[] within the traditional classification of obligations
from their nature (to give, to do, or to refrain from doing
Art. 495, Civil Code)..., the non-compete agreement shall
be deemed an obligation to refrain from doing []"57
267.The very nature of the non-compete obligation, insofar as an
obligation to refrain from doing, impedes a partial performance. The
obligation entailed not competing for five years under penalty of
restituting the contract value, and that obligation was breached.
The Respondent seeks the application of Article 660 of
268.
the Civil Code to an obligation to refrain from doing,
although its own wording can only apply to obligations of to
do or to give. Thus, its counter-memorial mentions that "if
one undertakes to build a ten-block road and in case of
default the debtor must pay a certain sum of money; if only
five blocks are built, the debtor will pay half of the projected
sum under a penalty clause".58 This example is utterly
inappropriate, as will be seen.
269.In this regard, Argentine scholars have held:
i) "[. . .] The obligations to refrain from
doing, by their nature, are not subject to
delay; only impropriety of language can
make us say that in
them the debtor falls into arrears, as there
exists direct breach"59
ii) Although the Code is silent about it, it is
57 PAOLANTONIO, Martn E., "Las clusulas de no competencia", La Ley, 201 0-A , p. 49;
Attachment CL-36
58 Respondent's Counter-Memorial, 208.
59 BUERES, Albetto J. and HIGHTON, Elena J., Cdigo Civil y normas complementarias. Anlisis doctrinario y
jurisprudencial, Volume 2A, Buenos Aires, 1995, Hammurabi, p. 566; Attachment CL-37

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clear that the point is governed by art. 625.

The debtor's default must be preserved for as
long as required by the obligation and in the
manner intended by the parties to be carried
out,60
iii) "In these obligations, the mere
performance of the act, which the debtor has
undertaken not to do; will put him in default,
without any prior notification. The reason for
this is that, in this scenario, if the act is
performed, the breach does not mean a delay,
but the absolute non-performance [. . .}.
In obligations to refrain from doing, all
arguments on default must be discarded,
because they cannot admit delay, but one
can only say that either the debtor fulfills or
the debtor breaches."61
270.

The doctrinal opinions are included in Article 815 of

the Civil and Commercial Code (CCC), as follows:

Indivisible deliverables. The performance outcomes of
obligations shall be considered indivisible:
[. . .]
c) to refrain from doing."
271.Article 813 CCC likewise defines obligations to refrain from
doing, as those "not subject to partial performance."
Therefore, to claim that one has partially performed an
obligation to refrain from doing is wholly unfounded.
272.Finally, let us recall that the Framework Agreement provides
that if the breach takes place in Argentina, Brazil, Mexico,
Chile or Venezuela a total breach or unenforceability event
60 LLAMBAS, Jorge J., Tratado de Derecho Civil. Obligaciones. Volume 11-A, 2a Edicin, Buenos Aires, 1976, Abeledo
Perrot, p. 29 1; Attachment CL-38.
61 CAZEAUX, Pedro N. and TRIGO REPRESAS, Flix A., Derecho de las Obligaciones, 3rd Edition, La Plata, 1989,
Librera Editorial Platense, p. 117; Attachment CL-29

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would be deemed to have occurred (Clause 6.2). Therefore,

given that there have been breaches in Brazil and Mexico the
breach is total, and IMS shall therefore restitute the full
price.
XII.

Jurisdiction of the Tribunal

273.In its communication of July 3, 2015, the Respondents raised

an idea of attributing the alleged addition of new claims onto
the Claimant's Memorial to the Claimant; the purpose of
these claims would fall outside the scope of the arbitration
clause.

274.

In procedural order No. 3, the Tribunal assumed that

the "issues raised by the Respondent's brief of alleged new

claims are matters closely linked to the merits, and cannot as
such be substantiated or decided beforehand" 3. a).
275.

In the same procedural order, the Tribunal also

invited the Respondent "to reproduce, profile and complete

the allegations and petitions on this matter in its own CounterMemorial" 3. b)276.

Finally, it granted the opportunity to the Respondents

to "answer such allegations and petitions in their second

Memorial" 3. c).
277.

Based on the decision of the Tribunal, the Claimant shall

consider, then, if the Respondents, in their Counter-Memorial,

have provided arguments to support the alleged excess in the
arbitral jurisdiction, to further develop the position of the

6
6

Claimant.
278.

In their Counter-Memorial, the Defendants have said a

few comments on the issue, specifically expressed in

paragraphs 17, 62 278/80 63 and 286/7. 64
279. In these brief reflections, the Respondents seek to establish an
alleged partial lack of jurisdiction of the Arbitral Tribunal with
the understanding that the claims related to the sales data business
would be of contractual nature and would bear no relation to the
Framework Agreement, thus falling outside the scope of the
arbitration clause.
280. In this false basis, the Respondents cited paragraph 287 of their
counter-memorial, a "Tribunal decision of August 8, 2015." It is
worth noting that the Claimant is unaware that the Tribunal
adopted a resolution on that date; it seems inferable, however, that
62 Also, Close-Up presents four claims related to alleged damages sustained as a result of having to
compete with IMS on the prescription data business andeven more notablyalso in the sales data
business. However, IMS has always been active in the sales data business, something not even
contemplated in the Framework Agreement, and as such it exceeds the jurisdiction of this Tribunal. "

63 "Finally, the claimed items are clearly of contractual nature, and thus outside the jurisdiction of the
Arbitral Tribunal. As was stated in our presentation of July 3, 2015, these arbitration proceedings are
based on the Framework Agreement, which is only circumscribed to the Prescription Data Business, with
not a single obligation related to the Sales Data Business, a business entirely different from the
Prescription Data Business and unrelated to the Framework Agreement. 279. Close-Up claims
concerning losses in the Sales Data Business are not only completely unfounded and false, but also
unrelated to the Framework Agreement, and fall, outside the arbitration clause. 280. Therefore, any claim
related to the Sales Data Business is foreign to the arbitration clause and to the competence and
jurisdiction of the Tribunal."
64 "Further, this claim should be dismissed because, as discussed in subparagraph e) above (paras. 278280), the tribunal lacks jurisdiction to hear claims concerning the Sales Data. 287. In fact, Additional
reasons to question the Tribunal's jurisdiction in claims for alleged "interference." Ifcontrary to its
submissions to the Tribunal and the Tribunal's decision of August 8 201 5Close-Up tried to point to the
"interference in negotiations" and not to a breach to the Framework Agreement, as the real cause of its
alleged losses, then the Tribunal lacks jurisdiction to decide the claim, since it is not derived from or
related to the Framework Agreement, which deals exclusively with Prescription data. Close-Up has not
even attempted (i) to express what rules or provisions were violated by the alleged interference of IMS
(i.e., extra-contractual interference or unfair competition rules in the relevant jurisdictions), or (ii) to
determine that the Tribunal would have competent jurisdiction to interpret and apply such rules and order
award damages if it considers that the rules have been breached. Consequently, this claim must be
dismissed."

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the Respondents have wanted to refer to the procedural No. 3, of

July 7, 2015, mentioned above, or rather the communication of
August 7, 2015, whereby the Arbitral Tribunal found that the
Claimant had not added any new claims following the signing and
approval of the Terms of Reference. Otherwise, this party
specifically requests to be delivered the decision of August 8,
2015 and be allowed to exercise the rights to which it is entitled.
281. In broaching the allegations that the Respondents brought
regarding the alleged (partial) lack of jurisdiction of the Arbitral
Tribunal, it should be mentioned that the arbitration clause
underlying this arbitration was drafted in sufficiently broad
terms: [a]ll disputes arising of or in connection with the
present contract shall be finally settled under the Rules of
Arbitration of the International Chamber of Commerce by three
arbitrators appointed in accordance with these Rules. As
shown below, the clause uses a wording deemed broad in legal
theory in such a way as to cover all differences between the
parties.
282. The Federal Law of Switzerland (seat of arbitration: Zurich), in
its rules of private international law relating to international
arbitration, provides that "[a]ny dispute of financial interest may
be the subject of an arbitration"65 thus covering the extracontractual claims connected to the arbitration clause.
283. In this regard, the doctrine of arbitration practice in Switzerland
holds, as to the scope of arbitration clauses, that:
"[The] [a]rbitration clauses that establish
the arbitration for any disputes arising out
of or in connection with a contract' are
65 Federal Statute on Private International Law of December 18, 1987.

Chapter Twelve: International Arbitration. Art. 177.

Translated from the German, French and Italian official languages by Daniele Favalli and Cecilia Flores Rueda. Available at:
http://www.arbitrationch.org/dl/33eb65e6 l l4be80f5d3a66e66dc9b3fllPRG spanish.pdf; Attachment CL-3.

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8

generally deemed broad in scope not only

for contractual claims, but for extracontractual claims or unjust enrichment,
provided they are connected to the
contract."66
284. Swiss courts follow the same guideline. The Swiss Federal Supreme
Court in its decision 4C.40/2003/rnd of May 19, 2003 ruled that:
[i]f the parties to an agreement seek
arbitral jurisdiction for any disputes, it is
appropriate that this rule applies not only
to the provisions of the framework
agreement, but to all subsequent legal
relationships of the parties" 67
285. The provisions in Swiss legislation, legal theory and case-law are
relevant for the purposes of ascertaining the scope of jurisdiction of
the Arbitral Tribunal, in view that, as noted above, Swiss law is the
lex arbitri, whereas the seat of arbitration, Zurich, is located in that
countrysee Framework Agreement, Clause Nine; Terms of
Reference, IX.
286. The importance of the seat of arbitration is enshrined in international
doctrine. Such lex arbitri is the one used to examine the scope of the
arbitration clause and the arbitrability of the proceedings. Thus, authors
such as Craig, Park and Paulsson have argued that:
[u]nder Article V(1)(a) of the New York
Convention
on
the
Recognition
and
Enforcement of Foreign Arbitral Awards, the
arbitration agreement is examined by the law
chosen by the parties or, in the absence of such
provision, by the law of the seat of the
arbitration. Since the law applicable to the
arbitration clause is rarely subject to
stipulation, it is no surprise that most of the
decisions of national courts under the New York
66 Brtsch, Philippe and PETTI , Angelina M., Chapter 3 The Arbitration Agreement in Elliott Geisinger and Nathalie Voser
(eds), International Arbitration in Switzerland, A Handbook for Practitioners (Second Edition), 2 nd edition ( Kluwer Law
International; Kluwer Law Intemational 2013), p. 36; Attachment CL-40.
67 Swiss Federal Supreme Court, DFT 116 Ia 56; DFT 129 III 675; Decision 4C.40/2003 of May,19,2003; Attachment CL-41.

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Convention have applied the law of the country

where the award was rendered." 68
287. In the same vein, lan Redfern and Martin Hunter hold that:
"[t]he concept that the arbitration is governed
by the law of the forum where the arbitration
takes place, which is the 'seat' (or 'jurisdiction'
or 'locus arbitri') of arbitration is firmly
enshrined in both in the theory and practice of
international arbitration. 69
288. For its part, the legal theory on international arbitration recognizes
that the disputes of contractual nature may be submitted to be heard
and decided by arbitrators. The arbitrability of these disputes does not
offer discussion when they concern financial matters in respect of
which the parties have availability, as matters of public interest or
public policy issues are not dealt with. Accordingly, to prevent the
arbitration from becoming an ideal means to settle differences of extracontractual origin, it is necessary that the lawmaker does not recognize
the availability, by individuals, of the matter at issue, or that he may
reserve its decision to the exclusive jurisdiction of justices and State
courts. Hence, the arbitrability of these disputes is the rule of thumb.
This is why the New York Convention covers claims arising out of both
contractual and non-contractual commercial relationships. 70 We saw
that Swiss law allows the arbitrability of any financial claims, as is the
case in these proceedings.
289. The international community considers that "there is no doubt
that disputes of contractual nature are susceptible of arbitration,"
in explaining that the arbitration clauses comprising "all disputes
68 CRAIG, Laurence W., PARK, William W., PAULSSON, Jan, International Chamber of Commerce Arbitration, Third
Edition, United States, 2000, Oceana Publications Inc., pp. 53-54; Attachment CL-42.
69 REDFERN, Alan and HUNTER, Martin con BLACKABY, Nigel and PARTASIDES, Constantine, Teora y Prctica del
Arbitraje Comercial Internacional, Fourth Edition, Edition in Spanish revised and adapted by Noiana Marigo and Felipe Ossa,
Buenos Aires, 2007, La Ley, p. 160; Attachment CL-43.

70 BORN, Gary

B., International Commercial Arbitration, Volurne 1, The Hague, 2014, Kluwer Law
International, p. 302, Attachment CL-44.

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arising during the performance of or in connection with this

contract" are enough to determine the jurisdiction of the arbitral
tribunal "on extra-contractual claims."71 In turn, it has been
voiced that the arbitrators may have jurisdiction over extracontractual claims if the terms of the arbitration clause are
sufficiently broad to conclude that the intention of the parties was
to settle such disputes through arbitration. This occurs, for
example, when the clause refers to "any disputes arising out of the
performance of the contract"; or "in connection with the
contract."72
290. In this regard, the need is underscored to establish whether the text of
the arbitration clause is broad enough to include in such provision any
claim linked to the existence of the contractual relationship, even if such
a claim is extra-contractual.73
291. Thus, the legal theory explains that general terms such as " claims,"
"differences" and "disputes" are indicative of a broad jurisdiction.
The same is true of words that connect or link the discrepancies to
the contract, such as "in connection with," "concerning" and "arising
out of" that denote willingness to cover all the disputes that may be subject
to arbitration.74
292. There are also precedents in arbitration under the ICC Rules in
which it was decided that: "the implicit intention of the parties was to
vest the arbitral tribunal with jurisdiction over any possible disputes
arising out of or in connection with the contracts."75
293. In conclusion, both the legal theory and the Swiss and international
case-law accept that the broadening in the drafting of arbitration clauses,
as applicable in this procedure, confers the Arbitration Tribunal with
71 SAVAGE, John and

GAILLARD, Emmanuel, Fouchard Gaillard Goldman on

International Commercial Arbitration, The Hague, 1999, Kluwer Law lnternational, para. 524,
p. 306, Attachment CL-45.
72 Ibid.

73 BLACKABY, Nigel and PARTASIDES, Constantine, in REDFERN, Martin and HUNTER, Alan, International Arbitration,
Fifth Edition, Oxford University Press, No. 2.20(b), Attachment CL-43.
74 Blackaby et al, op. cit., No. 259, Attachment CL-43.

75 ICC case 61 49; Attachment CL-46.

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competent jurisdiction to hear any claim that is connected with the

contract, irrespective whether such claim is or not contractual in nature.
294. On the other side, beyond the provisions of Swiss law, in Argentina
(country whose substantive law the parties have chosen, in the
alternative, to govern the Framework Agreement) precedents have
allowed to settle arbitration claims for damages, which do not result
directly and exclusively from contractual breaches, but which are
connected with the contract as a consequence of its termination. In
this case, the court of law concluded, "the claim aimed at achieving
compensation for damages that would occur by the termination of
the agreement is directly connected with the contract."76
295. The Argentine legal theory has explained that the "criteria of the
Court of Arbitration concerning the interpretation of arbitration
clauses" is that these "should be understood to encompass all the
consequences arising under the contract, without including some
and excluding others, as this would produce an undesirable
overlap between the arbitral and state jurisdictions, which would
cause potential conflicts between them."77
296. As demonstrated by the evidence in these proceedings, Close-Up's
decision to enter the sales data business was a strategy to mitigate the
damages that were generated as a result of the breach of contract
committed by the Respondent.78 The linkage was also noted by Ms.
Gary, witness: "Nilson Paletta was under enormous despair to curb
our departure from the sales data business, and to cover the big
blunders he had made when he bullied us out of the sales
business"(CT-9).
297. Consequently, there is a direct relationship, exacerbated because IMS
acted with tortious intent, between the damages claimed by the
76 National Court of Commercial Appeals, Division D, 22/2/2002, "Bear Service

S.A. v. Cervecera Modelo S.A.", LA

LEY 2002-D , 7; Attachment CL-47.
77 RIVERA, Julio C., "El Principio de Autonoma del Arbitraje. Claroscuros del derecho argentino", Academia
Nacional de Derecho, 2005, 1/1/2005, Attachment CL-48.
78 Witness Guzmn, 3 CT-2; 12/22/12 certificate directory, Exhibit R-16

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Respondent and the Framework Agreement. As shown above, although

the claims of extra-contractual nature may fall within the terms of
arbitration clauses couched in broad terms just like the clause
underpinning the jurisdiction of this Tribunal; one may conclude that the
existence of arbitral jurisdiction is irrefutable with regard to the
Claimant's claims supported in the damages sustained in the sales data
business, because such damages were directly connected with IMS's
breach of the non-compete obligation provided in the Framework
Agreement.
298. To the above, one must add that the Argentine Civil and Commercial
Code (CCC),79 in Article 1656 sets out: [In] case of doubt, one must
respect the increased efficiency of the arbitration agreement80.
299. In conclusion, the broad terms in which the arbitration clause of the
Framework Agreement was stipulated allows claims, such as those
drawn up by the Claimant in relation to damages in respect of mitigation
that it tried to conduct to offset the losses generated by IMS when it
breached the non-compete clause, to be heard and decided by the
arbitrators that constitute this Tribunal.
XI. IMS Unfounded Requirement to Provide Documentary Evidence
300. In several paragraphs of its counter-memorial (e.g., paragraphs 4,
19, 92, 100, 104, 106 and 107) IMS notes that the Claimant might
not have provided documentary evidence of the factual
circumstances submitted in the Claimant's Memorial.
301. The Respondents stance is absurd. In fact, IMS goes so far as to
pretend that the Claimant has not provided any documentary evidence
showing that IMS threatened to breach the non-compete clause, 19, or
that it does not enclose any documents proving that IMS paid visits to
79 Law 26.994.
80
Effects. Review of arbitration awards. The arbitration agreement compels the parties to honor the terms and provisions as
it excludes the jurisdiction of the courts of law on disputes submitted to arbitration, unless the arbitral tribunal may not yet be
hearing the dispute, and the agreement appears to be manifestly void or unenforceable.
In case of doubt, one must respect the increased efficiency of the arbitration agreement.

Arbitral awards issued in the framework of the provisions of this Chapter may be reviewed before the competent courts on the
matter and territory as grounds for annulment be invoked, in whole or in part, pursuant to the provisions of this Code. One
cannot waive the legal challenge of the final award in the arbitration agreement that would be contrary to the law"
http://www.infoleg.gob.ar/infolegintemet/anexos/235000-239999/235975/texact.htm-.

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customers, 104, or that it does not gather any documents evidencing

the interference in which IMS engaged against Close-Up, when the
latter, to mitigate losses, decided to enter the sales data market.
302. The factual circumstances noted are facts for which the Claimant in
all logic will lack documentary evidence, for the simple reason that no
one documents the occurrence of events such as threats to breach a
contract, interference (barriers) to hinder the entry into a market or the
direct breach of a non-compete clause.
303. It should also be noted that the stance of the Respondents is totally
biased because the Claimant has proved the circumstances by witness
testimony.
304. To this, one must add that no rule demands that the relevant
evidence be the documentary one. By contrast, one can hardly
see cases that can be resolved solely on the basis of such
evidence.81
305. Consequently, the unfounded demand of the Respondents must
be discarded in that any factual circumstances has to be attested
by documentary evidence; and more so, if we include those
circumstances, that as mentioned, are hardly ever documented.
306.However, Close-Up has been careful to reflect the circumstances of
which it knew and of decisions adopted in real time, as shown in
documents such as the minutes provided under Exhibit C-12, the
presentation prepared by IMS for the 2013 World Review held in
Brazil (Exhibit C-10), the establishment and sending of
communications to IMS proven by Exhibit C-7 and the board
minutes of 12/22/12, which was delivered to the Respondents when
the production of documents incident-took placewhich they
submitted themselves in Exhibit R-12. Also, we see that Respondents
have disingenuously denied the existence of certain documents
produced by them and in their possession, which is a bad faith
strategy consistent its absurd demand that Close-Up submit
81 FRY, Jason-, GREENBERG, Simon, MAZZA, Francesca, The Secretariat's Guide to ICC Arbitration, Paris, 2012,
ICC Publication, p. 278, Attachment CL-49.

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4

documentary evidence to reflect circumstances that are seldom

documented.
XIII. IMS in its Counter-Memorial Distorts Facts to Discredit the
Claimant.
307. With the intention of distorting, confusing and distracting from the relevant
facts and issues, the Claimant introduces false and extraneous issues to the
central theme thereof.
308. We will respond to some of those that we consider important to clearly
expose the conduct that lays bare its bad faith in these proceedings.
309. First, it is important to mention that the Respondent accuses the Claimant
of wanting to delay the processa false issue, which is precisely what the
Claimant did to reconvene for an alleged breach, which it withdrew
somewhat later.
310. As to the development of the Sales Audit business by Close-Up in the
Counter-Memorial, the Respondents mention:
a)
Nine months after Close-Up had decided to enter the sales data
business in Latin America (...) IMS's commercial director, Paulo
Paiva, resigned in IMS Health of Brazil to join close- Up."
b)
That it sent in September 13, 2013 a letter to Murilo de Paiva and
Close-Up to remind them of confidentiality obligations.
c)
IMS discovered that in the days ahead of his departure, Murilo de
Paiva days had sent to his personal email account a significant trove
of sensitive and confidential information of IMS, including the
financial performance of the company together with projections and
confidential data sales to customers and billing data.
d)
As a result of these findings, IMS Brazil brought a lawsuit. . .
obtaining a provisional measure." (Counter-Memorial # 79-81).
311. IMS omits to mention some important facts, that even with a provisional
measure in place; this is completely harmless, because Close-Up never
used any confidential information.

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5

312. IMS does not mention either that Murilo de Paiva left IMS when he had
not been hired by Close-Up yet.
313. What IMS refers to as "significant trove of sensitive and confidential
information is information that in the trial itself in Brazil was proven to be
available on the Web, but for one of the documents containing financial
information, which Murilo de Paiva sent to his email account on grounds
recognized by the Brazilian law, aimed for the defense of his labor rights.
Advocacy that became effective in a labor trial that Murilo de Paiva filed
against IMS Health Brazil in claiming labor debts, including the Bonus,
the assessment of which is based on the financial information that he sent
to his email account.
314. In short all the proceedings currently underway and on which IMS has
not been able to prove whatever allowed it to obtain injunctive relief, that
we deem of harmless effects.
297. In the same vein, it is mentioned (Counter-Memorial 82)
that "Close-Up tried to hire other team members of IMS
Brazil ...," topic that was also subject of the proceedings in Brazil
as referred to above.
315. This situation is not only normal in our industry, as many people from
Close-Up or Inestra work in IMS today, but also Harvey Ashman, IMS
General Counsel and VP recognizes and affirms no limitations exist in this
regard, namely:
"We do not agree that those obligations include
contractual restrictions to both IMS and Close-Up
with regard to recruiting employees."
316. This, in the same paragraph of the Counter-Memorial, IMS refers to a
former IMS Ecuador employee alleging that this currently "is part of
the consulting team of Close-Up Ecuador." As demonstrated in the
LinkedIn page of Hernn Cuevas he is Close-Up Ecuador's Business
Manager (General Manager), a post far from that of a consulting team,
which does not yet exist in Ecuador.
XIV. Prayer for Relief

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6

317. To the Honorable Arbitral Tribunal, the Claimant kindly requests to:
i)
Enter this filing in the record as the Claimant's Reply.
ii) Render a final award, ordering IMS to:
a) Deliver to Prescription Data the lists and the information
described in Point A) of the preceding chapter.
b) Refund to Prescription Data the sum of US$5,000,000 plus interest,
pursuant to Article 6 of the Master Contract;
c) Compensate Prescription Data for the damages caused in the
amount of US$19,024,852, plus interest;
d) Assume the full costs of this arbitral procedure (see Article 37 of
the Regulations).
Respectfully submitted,
City of Buenos Aires, September 22, 2015.
[signature]
Leandro Javier Caputo

[signature]
Santiago Nievas Blanco

7
7

With a copy to:

1)
Dietmar W. Prager
Samantha J. Rowe
Debevoise & Plimpton
919 3rd Avenue New York NY 10022
USA
Telephone: +1-212-909-6000
Emails:
dwprager@debevoise.com
sirowe@debevoise.com
By email
2)
Pablo A. Pinnel
Hernn Oriolo
Javier F. Gelis
Abeledo Gottheil Abogados [Attorneys]
Avenida E. Madero 1020, 5th floor
C1106ACX
Autonomous City of Buenos Aires
Argentine Republic
Telephone: + 54114516-1500
Emails:
pinnel@abeledogottheil.com.ar;
oriolo@abeledogottheil.com.ar;
gelis@abeledogottheil.com.ar
By email
3) Ana Serra e Moura, advisor
Juliana Castillo, assistant advisor
Secretariat of the International Court of Arbitration of the ICC
ical@iccwbo.org
By email

7
8

1) Report of Documentary Evidence Provided by the Claimant Together

with the Memorial's Reply
Documents

Numbering

Pharmaceutical Marketing, "Stakeholder influence mapping in

secondary care"; available in:
httn://www.imshealth.com/imshealth/Global/Content/Document/
Sales%20and%20Marketing%20Effectiveness
%20TL/Stakeholder Influence Mapping Secondary Care
PME.pdf

C-20

Invitation from Close-Up's Quality Control Committee

Close-Up's Product Presentations

C-21
C-22

2) List of Expert Reports Provided by the Claimant Together with the

Claimants Reply
Expert Documents

Numbering

Rebuttal Report by Experts Galli and Maltagliatti

CP-6

Rebuttal Report by Expert Pedraza

CP-7

3) List of Testimonies Provided by the Claimant Together with the Claimants Memorial
Rebuttal Statement by:

Numbering

Paulo Murillo de Paiva Jr.

CT-6

Juan Ignacio Giulianelli

CT-7

Jorge Guzmn

CT-8

Liliana Gary

CT-9

4) List of Legal Citations Provided by the Claimant Together with the Claimants Reply
Documents

Numbering
CL-25

Federal Supreme Court of Brazil, 05/05/201 5, SPECIAL

RESOURCE: In charge 1 203 1 09 MG 20 1 0/0127767-0,
Reporter (a): Minister MARCO AURELIO BELLIZZE

CL-26

Vote from councilman Luiz Fernando Schuartz in the

administrative proceeding records No. 08012.007042/2001
-33

7
9

TOBIAS, Jos W. and DE LORENZO, Federico, El dolo en el

derecho civil. Propuestas para una nocin en eclipse. LL 2001 C- 1102
ALTERINI, Atilio A., AMEAL, Oscar J. and LOPEZ CABANA,
Roberto M., Derecho de Obligaciones Civiles y Comerciales,
Updated Fourth Edition, Buenos Aires, 2008, Abeledo Perrot, p.
211
TRIGO REPRESAS, Flix A. and CAZEAUX, Pedro N.,
Derecho de las Obligaciones, Volume 1, Buenos Aires., 1987, ed.
Librera Editora Platense SRL, pp. 117, 313 and 506
National Commercial Court of Appeals, Division E, 2/7/1986,
"Cabrera Enrique A. e/ Pinto Kramer Martn", La Ley 1986-E206-1
BUSTAMANTE ALSINA, Jorge, Teora General de la
Responsabilidad Civil, Ninth Edition Revised and Updated,
Buenos Aires, 1997, Abeledo-Perrot, p. 335
BELLUSCIO, Augusto C. and ZANNONI, Eduardo A., Cdigo
Civil y Leyes Complementarias- Commented, Annotated and
Collated, Buenos Aires, Editorial Astrea, 1993, p. 586

CL-27

LORENZETTI, Ricardo L., Cdigo Civil y Comercial de la

Nacin, Anootated, Arts. 1614 to 1881, Buenos Aires, 2015,
Editorial Rubinzal & Culzoni, pp. 508 and 511

CL-33

National Civil Court, Division F, 06/06/1989, "Inversora

Castagnino SA e/ Macchi, Cecilia L.", La Ley 1 989-D, 540
National Court of Commercial Appeals, Division B,
03/11/1996, "Ply, S.A. e/ Conelmec, S .R.L. s/ordinario", MJJUE-10140-AR. EDJ 10140

CL-34

PAOLANTONIO, Martn E., "Las clusulas de no competencia",

LA LEY 2010-A , p.49
BUERES, Alberto J. and HIGHTON, Elena I., Cdigo Civil y
normas complementarias. Anlisis doctrinario y jurisprudencia,
Volume 2A , Buenos Aires, 1995, Hammurabi , p. 566
LLAMBIAS, Jorge J., Tratado de Derecho Civil. Obligaciones.
Volume 11-A, Second Edition, Buenos Aires, 1976, Abeledo
Perrot, p.291
Federal Law on Private International Law of 18 December 1987.
Twelfth Chapter: International Arbitration. Art. 177. Translated
from the German, French and Italian official languages by:
Daniele Favalli and Cecilia Flores Rueda. Available at:
http :// www .arbitrationch.org/dl/33 eb65e6 1
14be80f5d3a66e66d0c9b3f!IPRG Spanish.pdf

CL-36

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0

CL-28

CL-29
CL-30
CL-31
CL-32

CL-35

CL-37
CL-38
CL-39

BRTSCH, Philippe y PETTI , Angelina M., Chapter 3 The

Arbitration Agreement en Elliott Geisinger and Nathalie Voser
(eds), International Arbitration in Switzerland A Handbook for
Practitioners (Second Edition), 2nd edition (( Kluwer Law
International; Kluwer Law Intemational 201 3), p. 36

CL-40

Swiss Federal Supreme Court, DFT 1 16 Ia 56; DFT 1 29 III 675;

Decision 4C.40/2003 of May 19, 2003

CL-41

CRAIG, Laurence W., PARK, William W., PAULSSON, Jan,

International Chamber of Commerce Arbitration, Third Edition,
Estados Unidos, 2000, Oceana Publications Inc., pp. 53-54

CL-42

REDFERN, Alan and HUNTER, Martin con BLACKABY, Nigel and

PARTASIDES Constantine, Teora y Prctica del Arbitraje
Comercial Internacional, Fourth Edition, Edition in Spanish
Revised and adapted by Noiana Marigo and Felipe Ossa, Buenos
Aires, 2007, La Ley, p. 160, W 2.20, No. 259

CL-43

BORN, Gary B., lnternational Commercial Arbitration, Volume

1, The Hague, 2014, Kluwer Law International, p. 302

CL-44

SAVAGE, John and GAILLARD, Emmanuel, Fouchard Gaillard

Goldman on lnternational Commercial Arbitration, The Hague,
1999, Kluwer Law lntemational, para. 524, p. 306

CL-45

CCI file 6149

CL-46

Cmara Nacional de Apelaciones en lo Comercial, Sala D,

22/2/2002, "Bear Service S.A. v. Cervecera Modelo S.A.", LA
LEY 2002-D, 7

CL-47

RIVERA, Julio C., "El Principio de Autonoma del Arbitraje.

Claroscuros del derecho argentino", Academia Nacional de
Derecho, 2005, 111/2005

CL-48

FRY, Jason-, GREENBERG, Simon, MAZZA, Francesca, The

Secretariat 's Guide to JCC Arbitration, Paris, 2012, ICC
Publication, p. 278

CL-49

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