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Procedural Order No. 2 (Confidentiality of Documents) (Resubmission Proceeding)

I. Procedural Background

1.
Pursuant to paragraph 13.11 of Procedural Order No. 1 dated April 4, 2017, it was contemplated that the Parties could submit for the Tribunal’s consideration a proposed joint Confidentiality Agrement to apply to this proceeding, within two (2) weeks from the date of the Tribunal’s Procedural Order No. 1.
2.
On April 5, 2017, having considered the Parties’ respective positions on the question of the Confidentiality Agreement between the Parties that was discussed during the First Session, the Tribunal invited the Parties to liaise and submit to the Tribunal’s consideration a joint proposal on a new Confidentiality Agreement to apply to this resubmitted case, by April 19, 2017.
3.
By email of April 19, 2017, Respondent informed the Tribunal that the Parties had not been able to agree on the text of a Confidentiality Agreement, noting that in Respondent’s view, establishing a Confidentiality Agreement in this proceeding before any request for protection had been made was premature and unnecessary at that procedural juncture.
4.
By email of April 20, 2017, Claimant confirmed that the Parties had been unable to reach agreement on the terms of a joint Confidentiality Agrement for this resubmitted arbitration proceeding. As a result, Claimant submitted to the Tribunal’s consideration Claimant’s proposed Confidentiality Agrement, according to which the confidentiality undertakings set forth in the Confidentiality Agreement concluded between the Parties on January 6, 2012 in the original arbitration proceeding (the “Original Confidentiality Agreement,” attached to Claimant’s communication) should apply mutatis mutandis in this proceeding with respect to documents produced and designated as “CONFIDENTIAL” in the original proceeding. Claimant further proposed addressing in that Order also the possibility of any requests for confidentiality of new documents that could arise during the course of the resubmitted arbitration.
5.
By letter of April 21, 2017, the Tribunal informed the Parties of its decision that, if either party so requested, it would issue a procedural Order whose effect would be to extend/reimpose the 2012 Confidentiality Agreement for the purposes of the present proceedings, but only in respect of the documents to which it was applicable as of December 19, 2013 (the date of the original Award). Any question of confidentiality arising in relation to other documents would be addressed if and when it arises. The Tribunal further indicated that the Parties might, however, think it preferable to conclude their own agreement on confidentiality. The Tribunal also noted that it would not issue the Order indicated above unless and until requested by one or both Parties to do so.
6.
By email of May 3, 2017, Claimant informed the Tribunal that the Parties had conferred, but that Respondent was not amenable to concluding a Confidentiality Agrement. Claimant requested the Tribunal to issue a procedural order to extend/reimpose the Parties' 2012 Confidentiality Agreement for purposes of the present proceedings in respect of the documents to which it was applicable as of 19 December 2013.
7.
By email of May 4, 2017, Respondent confirmed that it hasno objection to the issuing of a procedural order in connection with the confidentiality protection requested by Claimant.

II. Consideration and Decision of the Tribunal

8.
Having considered the Parties' communicationa on the question of a Confidentiality Agrement for this resubmitted arbitration proceeding, in particular Claimant's request of May 3, 2017, and Respondent's observations of May 4, 2017, the Tribunal decides:

i. To extend/reimpose the Original Confidentiality Agreement (“Annex A” to this Procedural Order) for the purposes of the present resubmitted arbitration proceeding, but only in respect of the documents to which it was applicable as of December 19, 2013 (the date of the original Award), referenced in the original proceedings as: “R-128, R-126, C-353 and C-354 corresponding to Respondent's Redfern Schedule categories C1, C3 and E2”; and

ii. To address any question of confidentiality arising in relation to other documents if and when it arises.

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