Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation)

WHEREAS on 18 May 2017, the Arbitral Tribunal adopted the Rules of Procedure; and whereas Article 27, paragraph 7, of the Rules of Procedure provides that "[t]he Arbitral Tribunal, after ascertaining the views of the Parties, shall adopt procedures for the protection of confidential information in the present proceedings, including through appropriate arrangements at hearings and through redactions to the Parties' pleadings and documentary evidence, the Arbitral Tribunal's procedural orders and awards, and any hearings transcripts";

WHEREAS by letter dated 27 November 2017, the Arbitral Tribunal invited comments from both Parties on a draft of this Procedural Order;

WHEREAS by letters dated 8 December 2017, the Agents for Ukraine and the Russian Federation submitted their views with regard to the draft Order;

WHEREAS by letters dated 18 December 2017, the Agents for Ukraine and the Russian Federation provided comments on the correspondence received from the other Party;

NOW, THEREFORE, the Arbitral Tribunal, having ascertained the views of the Parties, adopts the Procedural Order on Confidentiality.

a. commercial or technical confidentiality;

b. special political or institutional sensitivity (including information that has been classified as secret by a government or a public international institution);

c. information in relation to which a Party owes an obligation of confidence to a third party;

d. personal data.

a. A Party may designate documents containing Confidential Information by marking them with the phrase "Contains Confidential Information". Any Confidential Information within the document shall be identified clearly by placing it in square brackets ("[...]") or highlighting it by other appropriate means.

b. Any document containing Confidential Information shall be submitted in accordance with the procedural calendar. A redacted version of the document shall be submitted within 21 days thereafter.

c. If a Party objects in writing to the other Party's designation of information as Confidential Information within 21 days after the submission of that information, or if a Party wishes to designate as Confidential Information any document or any part of a document submitted by the other Party within the same time period, the following procedures shall apply:

i. If the Parties do not reach agreement, either Party may make an application to the Tribunal within 14 days after the objection or request for designation is received.

ii. The submitting Party shall have 14 days to respond to the other Party's application.

iii. The Arbitral Tribunal shall decide whether the information was properly designated, or should be designated as Confidential Information. Until such decision, the information shall be treated as Confidential Information.

d. If the Arbitral Tribunal decides that the information was not properly designated, or should be designated as Confidential Information, the submitting Party shall have the opportunity either to remove or make the designation (as the case may be), or to withdraw the information from the record within 7 days.

a. Where Confidential Information is used or discussed at any hearing, the Arbitral Tribunal shall restrict access to that portion of the hearing to members of the Arbitral Tribunal and officials of the Registry; experts retained by the Arbitral Tribunal; the Parties and their counsel; independent experts or consultants retained by the Parties; court reporters and other hearing staff.

b. Transcripts of those portions of the hearing in which Confidential Information is used or discussed shall be redacted to remove such Confidential Information prior to being made public. Full unredacted transcripts will be retained in the case file.

c. Prior to the publication of hearing transcripts pursuant to Article 27, paragraph 4, of the Rules of Procedure, each Party shall have the opportunity to redact Confidential Information within 14 days after the last day of the hearing to which they relate. To the extent that the other Party objects to any of the proposed designations within 14 days after such designation, the procedure set out in Section A.2.c.i-iii shall apply mutatis mutandis,

a. Each Party may propose within 21 days after the receipt of any award or within 7 days after the receipt of any order from the Arbitral Tribunal the designation of any parts of such documents as Confidential Information. To the extent that the other Party objects to any of the proposed designations within 14 days (for awards) or 7 days (for orders), the procedure set out in Section A.2.c.i-iii shall apply mutatis mutandis.

b. The Arbitral Tribunal shall remain constituted for the purpose of making any order under this Section in relation to its final award or other final decision.