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Lawyers, other representatives, expert(s), tribunal’s secretary

Procedural Order No. 4 (Schedule of Pleadings and Confidentiality)

I. INTRODUCTION

1.
The Tribunal has before it two distinct matters:-

(a) the schedule of pleadings following the Tribunal’s decision on bifurcation in Procedural Order No. 3; and

(b) the manner in which the Parties are to deal with the designation of information as confidential in accordance with paragraph 23 of Procedural Order No. 1.

II. SCHEDULE

2.
In paragraph 24 of Procedural Order No. 3, the Tribunal stated that it would issue a fresh schedule for pleadings in the light of proposals from the Parties.
3.
On 14 June 2021, the Parties wrote to the Secretary attaching an agreed draft schedule.
4.
The Tribunal considers that the Parties’ draft schedule is acceptable and hereby adopts it. The schedule is attached as Annex A to this Order.

III. CONFIDENTIALITY

5.
The Tribunal has received numerous communications from the parties regarding the proposed designation of particular documents and pieces of information as confidential. These communications have culminated in a request, dated 25 June 2021, from the Respondent for further guidance from the Tribunal.
6.
Paragraph 23 of Procedural Order No. 1 makes provision for a Party to designate information as confidential and for the other Party to contest such designation. The Parties differ as to whether it is for the Party which designates information as confidential to indicate the particular section of paragraph 23 on which it relies and to summarise why it considers that the information in question falls within that provision, or for the Party contesting the designation of that information as confidential to demonstrate that the information in question does not fall within the scope of the provisions of paragraph 23.
7.
The Tribunal starts from the premiss that the proceedings are public and that the pleadings should be a matter of public record. Paragraph 23 of Procedural Order No. 1 creates a system by which, as an exception, parts of the pleadings may be designated as confidential.
8.
Paragraph 23.4 of Procedural Order No. 1 provides:

A Party may designate as confidential information only information which falls within one or more of the categories listed in paragraph 23.1, above. ...

9.
Since the right to designate information as confidential is limited to information which falls within one of the categories listed in Paragraph 23.1, it follows that it is for the Party which designates information as confidential to indicate the category in Paragraph 23.1 which it considers to be applicable. That should be done at the time when the designation is made. The Tribunal also considers that the Party which designates information as confidential should, when doing so, briefly indicate why it considers that that information falls within the relevant category and should thus be treated as confidential. That will enable the other Party to make an informed decision about whether or not to oppose the designation.
10.
In conclusion, the Tribunal wishes to remind the Parties that the issue of whether or not information is to be treated as confidential must not be allowed to become a protracted procedural battleground. The designation of information as confidential should be treated as exceptional and, where possible, used in relation to specific and clearly identified pieces of information, rather than entire documents.
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