- The Parties' right to make the relevant request;
- The timing of the request and of the decision thereon;
- The considerations for the decision on reclassification; and
- Claimants' reservation to oppose reclassification and the relevance of the Parties' previous practice.
- “[T]here is a genuine concern that, with the publication of the witness statements in particular, witnesses may not be willing to participate, therefore undermining Claimants' right to adequately present their case” and “[i]n contrast, the non-publication of witness statements will not undermine Respondent's right to present its case given that it already has access to all documents submitted in this arbitration and in an unredacted form” (PO 11, para. 55).
- “[S]ubjecting more documents to this procedure will extend further the disputes between the Parties, delay the proceedings even more and cause significant expense to be incurred by both Parties” (PO 11, para. 56).
- The right to transparency “is not seriously undermined with the non-publication of witness statements and expert reports. Indeed, such right is sufficiently preserved through the publication of the main submissions, orders and decisions of the Tribunal” (PO 11, para. 57).
1. Respondent's request for reclassification of the witness statements and expert reports accompanying Claimants' Reply is rejected. Any references to such statements and reports in the Reply shall therefore be redacted.
2. The Parties shall liaise and proceed with the redaction process in relation to the exhibits and the subsequent redactions to the Reply in accordance with PO 3.
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