a. "Claimants" means Angel Samuel Seda, JTE International Investments, LLC, Jonathan M. Foley, Stephen J. Bobeck, Brian Hass, Monte G. Adcock, Justin T. Enbody, Justin T. Caruso and The Boston Enterprises Trust;
b. "Disputing Party" means either Claimants or the Republic of Colombia;
c. "Confidential Information" shall be
i. information that discloses identifying information on the owner of Boston Trust Enterprises to be reasonably inferred by either direct or indirect means; or
ii. confidential business information or information that is privileged or otherwise protected from disclosure under the Respondent's law.
d. "Written Submission" means the memorial, counter-memorial, reply, rejoinder whether on jurisdiction or on merits and damages; it does not include witness statements, expert reports or exhibits.
a. a confidential version in which Confidential Information is unredacted; and
b. a non-confidential version, with all Confidential Information redacted.
a. Members of the Tribunal (and their assistants, if any) to whom disclosure is reasonably considered by one or more Members of the Tribunal to be necessary;
b. ICSID's Secretariat, including counsel and paralegals or administrative personnel to whom disclosure is strictly necessary;
c. Attorneys, paralegals, and administrative support staff at Gibson, Dunn & Crutcher LLP, Cáez Muñoz Mejía Abogados, Medellín & Durán Abogados, Gaillard Banifatemi Shelbaya Disputes LLP, and Agencia Nacional de Defensa Jurídica del Estado whose involvement in the preparation or conduct of these proceedings is reasonably considered by a Disputing Party to be strictly necessary;
d. Claimants, and in the event of legal persons, Claimant's principal representatives that signed the Confidentiality Undertaking in the same form attached as an Appendix to this Confidentiality Order;
e. Wilson A. Martínez Sánchez and other experts which Claimants might be required to engage in connection with these proceedings;
f. Mr. Yesid Reyes, Mr. Nilson Pinilla, and other experts which the Respondent might required in connection with their engagement for these proceedings
g. translation professionals retained by Claimants or Respondent in connection with these proceedings;
h. witnesses, who in good faith are reasonably expected by a Disputing Party to offer evidence in these proceedings but only to the extent material relates to their expected testimony; or
i. court reporters and other hearing support staff that may be engaged in connection with these proceedings.
The Disputing Parties may agree to restrict the disclosure of Confidential Information to one or more of the groups outlined in (a) to (i) above.
a. have the obligation of notifying all persons receiving Confidential Information of the obligations under this Confidentiality Order;
b. ensure that persons receiving Confidential Information execute a Confidentiality Undertaking in the same form attached as an Appendix before receiving any Confidential Information;
c. maintain copies of such Confidentiality Undertakings and shall make such copies available to the other Disputing Party immediately after execution of the Confidentiality Undertaking.
A. On ## September 2021, the Arbitral Tribunal in the matter between Claimants and Respondent (together "Disputing Parties") – ICSID Case No. ARB/19/6 – issued Procedural Order No. 5 ("Confidentiality Order") setting out the Disputing Parties' agreement on the process for disclosure of materials over which claims for confidentiality have been advanced ("Confidential Information").
B. Subject to execution of this undertaking, the undersigned is entitled to receive and review Confidential Information pursuant to the terms of the Confidentiality Order.
2. I will hold the Confidential Information strictly in secrecy and not disclose it directly or indirectly to any legal or natural third person that has not executed this Confidentiality Undertaking, without the prior written consent of the Disputing Parties.
3. I will only discuss the Confidential Information with the Disputing Parties' legal counsel of record in ICSID Case No. ARB/19/6 as expressly authorized by the Arbitral Tribunal in the Confidentiality Order.
4. I agree to be liable for any damage caused to either Disputing Party from the unauthorized disclosure of Confidential Information in breach of this Confidentiality Undertaking.
5. This Confidentiality Undertaking shall not prevent me from disclosing or discussing the existence or content of the Confidential Information, to the extent that this information is already in my legitimate possession, or comes into such legitimate possession through no breach of this Confidentiality Undertaking or any other confidentiality undertaking made in connection with ICSID Case No. ARB/19/6.
6. This Confidentiality Undertaking shall enter into force from the date of signing and shall be valid in perpetuity.
7. This Confidentiality Undertaking shall be construed, interpreted and applied in accordance with the laws of the Republic of Colombia.
8. Any dispute, controversy or claim arising out of or in connection with this Confidentiality Undertaking, or the breach, termination or invalidity thereof, shall be finally resolved by the Arbitral Tribunal in the matter between Claimants and Respondent – ICSID Case No. ARB/19/6.
9. After the issuance of a final award in ICSID Case No. ARB/19/6, all disputes arising out of or in connection with the present Confidentiality Undertaking shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed. Each side shall nominate an arbitrator and the coarbitrators shall nominate the President within 30 days of the confirmation or appointment of the second arbitrator. The place of the arbitration shall be Paris, France. The language of the arbitration shall be English.
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