The non-confidential parts of this hearing were broadcasted on closed-circuit television at an overflow room of the World Bank premises in Washington D.C., pursuant to Section 20.6 of PO 1, Section 4 of PO 3, the Protocol of Confidentiality communicated by the Tribunal Secretary on 8 October 2019 and Section D of PO 25. The hearing was broadcasted with a 60-minute delay to protect potential information. Further, rules on cameras and other recording devices were applied (see paras 51-52, PO 25).
- Option 1: broadcasting the hearing with a 2-3 day delay in an overflow room in the World Bank facilities in Washington D.C.
- Option 2: streaming the hearing on the ICSID website with a 2-3 day delay.
- Option 3: broadcasting the hearing in real time in another location in Paris (hotel or another private facility) to be agreed upon by the Parties. In this case ex-post moderation of the video feed would not be available.
- Section I.1 and 2 of Annex C of the Canada-Romania BIT provides that “[h]earings […] shall be open to the public” and “[t]o the extent necessary to ensure the protection of confidential information, the tribunal may hold portions of hearings in camera”. Further, that “[t]he tribunal shall establish procedures for the protection of confidential information and appropriate logistical arrangements for open hearings, in consultation with the disputing parties.”
- Section 20.6 of PO 1 provides that, “[i]n accordance with Section I.1 of Annex C of the Agreement between the Government of Canada and the Government of Romania for the Promotion and Reciprocal Protection of Investments, done at Bucharest on May 8, 2009 (the “Canada – Romania BIT”), the hearings shall be open to the public.” Further, that “[t]he hearing shall be broadcast on closed-circuit television at facilities made available by the ICSID Secretariat for such purpose” (Section 20.6.1, PO 1) and that “[t]o ensure the protection of confidential information, the Tribunal may hold portions of hearings in camera and establish such other procedures for the protection of confidential information as may be appropriate”.
- The same aforementioned principles were produced in Sections 4.1 to 4.3 of PO 3.
- The principle to hold the proceedings and, in particular the hearings, open to the public is not negated by the agreement to broadcast such hearings in closed-circuit. This is because the latter does not prevent a person from the public to personally observe the hearing if she or he is interested in doing so. At the same time, it ensures that the integrity of the proceedings is preserved, at least during the conduct of the hearings. What is important is for the procedure established for the protection of the confidential aspects of the proceedings to be safeguarded at all times.
- Option 2, which provides for streaming the hearing on the ICSID website with a 2-3-day delay, would contradict the agreed upon principle to “broadcast” the hearing in closed circuit.
- Option 3, which provides for broadcasting the hearing in real time in another location in Paris to be agreed upon by the Parties, would be appropriate only if the safeguarding the confidentiality parts of the hearing was ensured. It appears that this is not possible, given the Tribunal Secretary's confirmation that “ex-post moderation of the video feed would not be available”.
- Option 1, which provides for broadcasting the hearing with a 2-3-day delay in an overflow room in the World Bank facilities in Washington D.C., seems to be the only option that ensures that all applicable principles are complied with in the present circumstances. The fact that the public from a specific region may not benefit from the possibility to observe the hearing does not affect (i) the transparency principles that are in place, (ii) the integrity of the proceedings and, more importantly, (iii) the rights of the Parties to fully present their case.
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