1. The Respondent will identify, no later than Thursday, 12 July 2018, the exhibits and the portions of the relevant witness statements and expert reports that it proposes to reclassify as non-confidential.
2. The Claimants will provide their comments on the Respondent's proposals no later than Thursday, 26 July 2018, which they will submit to the Tribunal on the same day.
3. The Tribunal will rule on any disagreements between the Parties regarding the non-confidentiality of the exhibits, witness statements and expert reports by Friday, 10 August 2018.
4. The Respondent will identify, no later than 10 business days from receipt of the Tribunal's ruling referred to in step 3 above (in principle Friday, 24 August 2018), the portions of the Counter-Memorial that it proposes to redact.
5. The Claimants will provide their comments on the Respondent's proposed redactions, and will identify any additional portions of the Counter-Memorial that they propose to redact, no later than 10 business days from receipt of the Respondent's proposed redactions (in principle Friday, 7 September 2018). Should the Claimants have no additional proposed redactions, they will submit their comments to the Tribunal on the same day.
6. In the event the Claimants have identified additional portions of the Counter-Memorial for redaction, the Respondent will provide its comments thereon no later than 5 business days from receipt of the Claimants' proposed additional redactions (in principle Friday, 14 September 2018), which it will submit to the Tribunal on the same day.
7. The Tribunal will rule on any disagreements between the Parties regarding the redaction of the Counter-Memorial within 10 business days of the receipt of the Parties' comments. (emphasis as in the original)
Claimants confirmed their agreement via an email to the ICSID of the same date.
Claimants enclosed the Parties' agreed redactions to the list of exhibits and to the witness statements of (i) Ms. Dorina Simona Mocanu and (ii) Mr. Sorin Mihai Găman and to the expert reports of (iii) Mr. Bernard J. Guarnera, Mr. Mark K. Jurgensen and Dr. Robert E. Cameron (Behre Dolbear & Company (USA) Inc.), (iv) Dr. Dacian Cosmin Dragoş and (v) Dr. Ian Thomson and Ms. Larraine Wilde (CMA Partners LLP), including the accompanying appendices.
They also enclosed a Log concerning their disagreement on the redactions to the expert report of Dr. James C. Burrows of Charles Rivers Associates (“CRA Report”), as well as [REDACTED] in support of their objection to Respondent's proposed reclassification.
- Those passages [REDACTED] if made public during the course of the arbitration, would pose [REDACTED] that may aggravate this dispute and interfere with Claimants' ability to present their case (Claim. 08.08.18).
- As the Tribunal has recognized, information may warrant protection from disclosure in accordance with Section 1.1(iii) of PO No. 3 in the interest of “safeguarding of the proceedings and the right of a Party to present its case” (Claim. 08.08.18).
- The possibility of [REDACTED] is not merely a subjective concern, [REDACTED] (Claim. 08.08.18).
- The [REDACTED] would bring cannot be dismissed as inconsequential (Claim. 08.08.18).
- It is uncertain whether disclosure of [REDACTED] will result in such burdensome consequences for Claimants. Nevertheless, the duty to protect the integrity of the proceedings includes “attempting to reduce the risk of future aggravation and exacerbation of the dispute, which necessarily involves probabilities, not certainties” (Claim. 08.08.18).
- The passages in dispute are relatively brief (Claim. 08.08.18).
- The Parties agreed on the process to deal with the redactions to the Counter-Memorial and the supporting documentation (see above para. 3).
- The Parties followed such process and agreed on the confidentiality designations to the list of exhibits to the Counter-Memorial and on the scope of redactions to the witness statements of (i) Ms. Dorina Simona Mocanu and (ii) Mr. Sorin Mihai Găman and to the expert reports of (iii) Mr. Bernard J. Guarnera, Mr. Mark K. Jurgensen and Dr. Robert E. Cameron (Behre Dolbear & Company (USA) Inc.), (iv) Dr. Dacian Cosmin Dragoş and (iii) Dr. Ian Thomson and Ms. Larraine Wilde (CMA Partners LLP), including the accompanying appendices (Claim. 26.07.18).
- Claimants reserved their right to object to a request by Respondent to reclassify as non-confidential further witness statements and expert reports, including those that may be filed in support in future submissions (Claim. 26.07.18).
- The Parties agreed in significant respect with regard to the CRA Report although, with a few items left for decision by this Tribunal. Specifically, Claimants oppose the reclassification as non-confidential of 11 headings and statements in the CRA Report that discuss [REDACTED]
“The Parties shall treat as confidential in accordance with the terms of this Order the following categories of information and documents: (i) confidential business information; (ii) information that it is privileged; or (iii) information that is otherwise protected from disclosure”.
“Although the Tribunal finds the text of Section 1.1(iii) rather broad, it is not clear, based on a textual interpretation or by looking at the Parties' submissions at this point, whether it is relevant to assessing Respondent's request for reclassification. This being said and without dismissing the provision's relevance, the Tribunal considers that, in the present situation, it enjoys a degree of discretion, which must be exercised by having the competing interests at play in mind. These are the following: (a) the safeguarding of the proceedings including the participants and the right of a Party to present its case; (b) ensuring procedural economy; and (c) the right to transparency. In the present case, no single interest should override the others.”
- It appears that the Parties are in dispute as to whether information in relation to the 11 headings and statements has been publicly disseminated.
- Whether the risk of [REDACTED] during the pendency of this arbitration through the publication of the 11 headings and statements is a subjective one or not, is of no relevance; also of no relevance is the fact that [REDACTED] . The fact remains that Claimants consider it as a risk, which if materialised, may end up disrupting the present arbitral proceedings, including Claimants' right to present their case.
- Instead, Respondent bears no risk or detriment to its right to present its case if these 11 headings and statements are not made public. In fact, Respondent was and is free to present its case as it sees fit and in reliance of statements that are considered and should remain confidential.
1. The 11 headings and statements in the CRA Report and as noted in the Log enclosed in the present Procedural Order No. 14 as Annex A shall not be made public.
2. The Parties are invited to go further with the procedure on the redactions to the Counter-Memorial as agreed on 28 June 2018.
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