INTERNATIONAL COURT OF ARBITRATION

OF THE INTERNATIONAL CHAMBER OF COMMERCE

MATTER No. 20050/ASM
______________________________________________
BETWEEN:
PRESCRIPTION DATA AG (Switzerland)
Claimant
v.
1.

10.
13.
14.

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)
OPERACIONES CENTRALIZADAS LATINOAMERICANA LIMITADA (Chile)
11.
INTERDATA SA (Colombia)
12.
DATANDINA ECUADOR SOCIEDAD ANNIMA (Ecuador)
ASSERTA CENTRO AMRICA MEDICIN DE MERCADOS SA (Guatemala)
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.

3.

1.
CLOSE-UP SA (Argentina)
2.
LIDER FILE SA (Argentina)
PRESCRIPTION DATA BOLIVIA SA (Bolivia)

4.
5.

PHARMA MARKET PUBLICAES LTDA (Brazil)

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
__________________
Claimants' 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 Tortiously. 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 the Damages Claim................................................................................49
X. Admissibility of the Claim for the Refund of 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

Respondents 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
it acknowledges having done, it breached the Framework
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, 2015
thereby affecting due process and preventing Close Up from being able to prove additional breaches by
IMS.

12.

13.
14.

15.

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 [Spanish: literally
when] 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
longer to find out the amounts in the competitors proposal; it
3

See Exhibit CT-6.

See Exhibit C-10.
5
Exhibit CP-7.
4

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

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

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

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,

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

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
IMS tries to deny, cannot succumb to its own contradiction; in
paragraph 70 of the Respondents Counter-Memorial, it was
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.

46.
47.

48.

49.

50.

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).
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.
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.
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.
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.
The experts also conclude that, undoubtedly, there was
competition in the market, so that the non-compete obligation was
not honored. This makes it possible to rebut the arguments by
IMS to the effect that the act prohibited by the Framework

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.

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,
by any means and for any objective9 - the emphasis was added
8
9

See paragraph 160 of the Respondents Counter-Memorial.

See Annex I of the Framework Agreement, Definitions.

57.

58.

59.

60.
61.

62.

10

in this submission. Below, the Framework Agreement gives a list

of Prescription Data products.
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.
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.
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.
The Respondents, tendentiously, would have Murilo de Paivas
statement likened to an acceptance regarding the lack of
commercialization of Censomed by IMS.
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.
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,
according to the interpretation by the Respondents, making a

See Annex I of the Framework Agreement, Definitions.

63.
64.
65.
66.

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

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.

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

81.
82.
83.
84.
85.

86.
87.
88.

89.

11

influence other physicians to use the customers products, it

offers a glimpse of the true usefulness of Influence Mapping.
The fact is that, after Mr. Albuquerques statement, the only thing
left to ask oneself is: How do physicians use the customers
products?
The answer is clear and simple: by prescribing them.
Carefully the witnesses provided by the Respondents and the
Respondents Counter-Memorial omit clarifying this aspect,
which shows the true nature of Influence Mapping.
Note that IMS never denied that that was the objective of
Influence Mapping. This was categorically argued in the
Claimants Memorial.
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
.
The Respondents were not even able to attempt to rebut the
foregoing in view of how obvious this is.
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.
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.
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

See Annex I of the Framework Agreement, Definitions.

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.

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
prescription; i.e., which physicians are going to influence
others in their own specialty in prescribing products.
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.

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:
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
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.
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
14

Both contracts were attached as Exhibit A-1, together with the expanded claim, submitted on February 20, 2015.
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).
15

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
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.
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.
16

http://www.Infoleg.gob.ar/infolegInternet/anexos/105000-09999/109481/texactley340_libroII_S1_tituloXI.htm;
the foregoing without prejudice to the higher compensation sought by the Claimant since IMS acted tortiously.

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
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
statementExhibit 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
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.
(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
17

See Exhibit CP-6.

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.
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
18

Respondents Counter-Memorial, 142.

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
of that mandatory rule, the result will be to reverse the
merits of the case in the interest of preventing only partial
unenforceability19.
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.

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
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.
20
21

Idem, p. 58.
Idem, pp. 58-60.

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
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
22
23

Respondents Counter-Memorial, 136-141.

Respondents Counter-Memorial, 140.

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
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
24

DERAMO, Mara R., DREYZIN DE KLOR, Adriana and SANTUCCIONE, Gabriela, Defrauding the Law in
International Private Law, La Ley 1995-C, 1207.

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
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
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
25

As has been seen, it engaged in commercialization actions.

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. Exhibit CL-25.
26

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.
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
28

Witnesses Freire, 7/8 and Paletta, 23.

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; Exhibit 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
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
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
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 Exhibit CL-25).
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 - Exhibit
CT-1.

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
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
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
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 Tortiously. Extension of Its Liability Arising
from Tortious Actions.
189.The breach of contract can be attributed to fault or fraud by the
party to the agreement (or by its subsidiaries).

32

Brazil, Superior Court of Justice, 05/05/2015, SPECIAL APPEAL: REsp 1203109 MG 2010/0127767-0,
Rapporteur: Judge MARCO AURELIO BELLIZZE, Exhibit CL-26.

190.The systematic inclusion of fraud as a factor for assigning damage

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 fraud is necessary; for example, to go
above the caps of some scheduled compensations 33. 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 fraudulent, 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, fraud 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.
193.Most case law considers that fraud exists with a knowing or
deliberate breach, even if there is no intention to cause damage 35.
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 fraudulent 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
33

TOBAS, Jos W. and DE LORENZO, Federico, Fraud in Civil Law. Proposals for a Notion in Eclipse. LL
2001-C-1102., Exhibit 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. Exhibit CL-28.
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 ( Exhibit
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; Exhibit CL-30.

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: [F]raud
exists owing to the intentional production of damage or with
gross disregard for the interests of others37.
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 fraudulent. We will give the reasons in detail
below.
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.

37

Article 1724: Subjective factors. Fault and fraud are subjective factors for attributing. 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. Fraud 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

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.
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 fraud attributed to IMS.