Claimants cannot, under the guise of document production, seek to impose on the Respondent an obligation to disclose information in violation of Article 10.21 and 22.4 of the [Treaty] and Colombian Law.1
Article 10.21: Transparency of Arbitral Proceedings
1. Subject to paragraphs 2 and 4, the respondent shall, after receiving the following documents, promptly transmit them to the non-disputing Parties and make them available to the public:
(a) the notice of intent;
(b) the notice of arbitration;
(c) pleadings, memorials, and briefs submitted to the tribunal by a disputing party and any written submissions submitted pursuant to Article 10.20.2 and 10.20.3 and Article 10.25;
(d) minutes or transcripts of hearings of the tribunal, where available; and
(e) orders, awards, and decisions of the tribunal.
2. The tribunal shall conduct hearings open to the public and shall determine, in consultation with the disputing parties, the appropriate logistical arrangements. However, any disputing party that intends to use information designated as protected information in a hearing shall so advise the tribunal. The tribunal shall make appropriate arrangements to protect the information from disclosure.
3. Nothing in this Section requires a respondent to disclose protected information or to furnish or allow access to information that it may withhold in accordance with Article 22.2 (Essential Security) or Article 22.4 (Disclosure of Information).
4. Any protected information that is submitted to the tribunal shall be protected from disclosure in accordance with the following procedures:
(a) subject to subparagraph (d), neither the disputing parties nor the tribunal shall disclose to any non-disputing Party or to the public any protected information where the disputing party that provided the information clearly designates it in accordance with subparagraph (b);
(b) any disputing party claiming that certain information constitutes protected information shall clearly designate the information at the time it is submitted to the tribunal;
(c) a disputing party shall, at the time it submits a document containing information claimed to be protected information, submit a redacted version of the document that does not contain the information. Only the redacted version shall be provided to the non-disputing Parties and made public in accordance with paragraph 1; and
(d) the tribunal shall decide any objection regarding the designation of information claimed to be protected information. If the tribunal determines that such information was not properly designated, the disputing party that submitted the information may (i) withdraw all or part of its submission containing such information, or (ii) agree to resubmit complete and redacted documents with corrected designations in accordance with the tribunal's determination and subparagraph (c). In either case, the other disputing party shall, whenever necessary, resubmit complete and redacted documents which either remove the information withdrawn under (i) by the disputing party that first submitted the information or redesignate the information consistent with the designation under (ii) of the disputing party that first submitted the information.
5. Nothing in this Section requires a respondent to withhold from the public information required to be disclosed by its laws.
Article 22.2: Essential Security
Nothing in this Agreement shall be construed:
(a) to require a Party to furnish or allow access to any information the disclosure of which it determines to be contrary to its essential security interests; or
(b) to preclude a Party from applying measures that it considers necessary for the fulfillment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests.
Article 22.4: Disclosure of Information
Nothing in this Agreement shall be construed to require a Party to furnish or allow access to confidential information the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice the legitimate commercial interests of particular enterprises, public or private.
EXCEPTIONS TO ACCESS TO INFORMATION
Article 18. Information excepted due to harm to the rights of natural or legal persons. It is all classified public information, access to which may be refused or denied in a reasoned manner and in writing, provided that access may cause damage to the following rights:
(a) The right of every person to privacy, under the limitations imposed by the condition of civil servant, in accordance with the provisions of Article 24 of Law 1437 of 2011.
(b) The right of every person to life, health or safety. […]
"Right to petition authorities
Article 24. Reserved information and documents. Only information and documents expressly subject to reserve by the Constitution or the law shall be reserved, and in particular:
1. Those related to national defense or security.
3. Those involving rights to privacy and protection of the intimate sphere of persons, including resumes, work history and pension files and other personnel records in the archives of public or private institutions, as well as medical records.
5. The data referring to financial and commercial information, under the terms of Statutory Law 1266 of 2008.
7. Those protected by professional secrecy.
PARAGRAPH. For the purposes of the request for information of a reserved nature, as set forth in paragraphs 3, 5, 6 and 7, it may only be requested by the owner of the information, by their attorneys or by persons authorized with express power to access such information."
I. The Parties shall seek agreement on the terms of a confidentiality agreement and inform the Tribunal of their agreement no later than 30 August 2021;
II. Respondent is ordered to produce the documents as directed in the attached Exemp tion Log (Annex B) within one week of the conclusion of the confidentiality agreement;
III. Respondent is ordered to conduct any additional searches for responsive documents as directed in Annex A and either to produce or to log the responsive documents on a supplementary Exemption Log by 30 August 2021; and
IV. All other document production requests are denied, but without prejudice to the Tribunal's power to review its decision on the production of documents.
• the notice of intent and the notice of arbitration filed by the claimant;
• pleadings, memorials, and briefs submitted to the tribunal by a disputing party and any written submissions submitted pursuant to:
⁃ Article 10.20.2 by a non-disputing party,
⁃ Article 10.20.3 by amici curiae, and
⁃ Article 10.25, which concerns objections raised by the respondent;
• minutes or transcripts of hearings of the tribunal, where available; and
• orders, awards, and decisions of the tribunal.
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