Confidential and Restricted Access Information in International Arbitration - ASA Special Series No. 43

Author(s):

Elliott Geisinger

ISBN:

978-1-937518-77-6

Page Count:

246 pages

Published:

February, 2016

Elliott Geisinger

“The more keepers I have, the less I am kept… What am I”?

One of my children recently came home with this riddle. Without
knowing it, she provided me with the perfect opening to this foreword.
Children’s riddles often contain more than a little truth; this one more
than many, for the answer is: “a secret”.

We live in an age where there is much talk and print about the
“end of privacy”, where we fear or even experience ever-growing
snooping (be it of the governmental variety or other), where a whisper
at one end of the world is instantly transformed into a shout at the
other, where the enchanted word “transparency” has achieved a level
of saintliness that is usually reserved for divine revelation. At the same
time legislators across the globe—in both democratic and illiberal
jurisdictions—are issuing ever-more regulations that cloak certain
types of information in a shroud of secrecy and restrict the
transmission among citizens and businesses of other kinds of data.
International arbitration is not shielded from these technological,
societal and legal transformations.2 Whether one applauds or bemoans
this state of affairs, it remains a fact that it poses a brace of challenges
to the arbitral process.

First, information that is confidential generally does not remain so
for very long once it is disclosed as such.3 Whilst there may have been
a time when the “confidential” nature of arbitration may have been
viewed as a sufficient safeguard against that risk, this is no longer the
case today. Moreover, because of the ease with which information is
nowadays spread (or unlawfully accessed), whatever information is
disclosed can rapidly be disseminated far beyond its intended circle of
recipients if no precautions are taken.

Second, the arbitral process is increasingly impacted by the
exponential growth of governmental regulations that restrict access to
information or that prohibit the disclosure of certain data. The most
obvious example relates to defence secrets—a term that encompasses
an ever-expanding circle of issues. Other examples spring to mind less
spontaneously. Anti-trust rules that forbid the transmission of certain
data among competitors are a case in point. This is all the more true as
the definitions of a “competitor” and of the categories of data that may
not be exchanged have been broadened over the years. The result in
international arbitration is that a party may frequently need to disclose
(voluntarily or otherwise) data relating for example to its pricing
policies or margins, but is legally prevented from doing so—and can
face stiff penalties if it does.

These challenges, the fundamental issues they raise and the

incredible creativity with which arbitral practice has tackled them are

the topic of this ASA Special Series.

In the first contribution, on “Confidentiality in Arbitration”, Prof.

Dr. Luca G. Radicati di Brozolo and Mr. Flavio Ponzano paint a

comprehensive panorama of the type of question relating to

confidential or restricted-access information that can arise in

international arbitration. The authors begin by drawing a clear

distinction between confidentiality of arbitration and confidentiality

within arbitration, the latter being the topic of this book. They then

show the immense diversity of situations in which the issue of

confidential or restricted-access information can arise in arbitral

proceedings, sorting among the various phases of proceedings in

which pleas of confidentiality are typically raised and among the many

different grounds on which such pleas can be based. Having done this,

the authors address the legal framework and show that, whilst there

are some international or transnational rules and guidelines that can be

of assistance, the core of the issue is usually a matter of national law;

this in turn raises difficult questions of conflicts of laws. Given that

there are no truly satisfactory conflict-of-laws approaches, Prof.

Radicati di Brozolo and Mr. Ponzano close their contribution with

thought-provoking comments on how arbitral tribunals have

developed and can continue to develop mechanisms that best resolve

the difficult issues of confidential or restricted-access information with

which international arbitration is so frequently confronted.

The next two contributions focus on two legal issues that are of

immense relevance when dealing with confidential or restricted-access

information in international arbitration, namely (i) due process and

fundamental procedural rights and (ii) the burden of proof.

In their contribution on “Confidentiality and Fundamental Rights of

Due Process and Access to the File: A Comparative Overview”, Mr. Karl

Pörnbacher and Dr. Sebastian Baur show that there can be a tension

between two potentially competing principles: all parties’ right to fair

procedural treatment and equal treatment, which includes the right to

access the file, and one party’s right to protection of confidential

information. The question they pose is the following: can an arbitral

tribunal make adverse findings against a party that did not have

complete access to the evidentiary record? The question is actually

more complex than one may think: the authors also show that the

concepts of “due process”, “equal treatment” or “right to be heard”

can be understood as the right to a procedure that guarantees the

effective protection of substantive rights (“effektiver Rechtsschutz”).

Hence a further source of tension, this time between two aspects of due

process: if a party cannot or may not adduce evidence of a confidential

or restricted nature, is that party’s right to “effective protection of its

substantive rights” violated if an arbitral tribunal does not make the

necessary arrangements for it to produce evidence to which the

opposite party does not have (full) access?

Prof. Dr. Sébastien Besson addresses the issues of burden of proof

in his contribution on “Confidential and Restricted Data: Impact on Burden

of Proof?” Here, the question is whether the fact that a party is

prevented from adducing evidence in support of its claims, or is

prevented from complying with orders for disclosure, can impact the

rules on the burden of proof, on the assessment of evidence or on the

standard of proof. Prof. Besson helpfully emphasises the need to

distinguish between these three legal issues, since, as he eloquently

demonstrates, the questions can arise from confidentiality or

restrictions to transmitting information receive different answers

depending on the context.

The second part of the book turns to the solutions found in

arbitral practice that both ensure fair treatment and protect legitimate

concerns of confidentiality or restricted access to information.

The contribution by Ms. Domitille Baizeau and Ms. Juliette

Richard on “Addressing the Issue of Confidentiality in Arbitration

Proceedings: How Is This Done in Practice?” covers the many ways in

which arbitral tribunals deal with the issue of confidential or

restricted-access information in the course of the proceedings. The

article begins with a description of the incredibly broad spectrum of

procedural mechanisms that arbitrators and parties have devised over

the years. It continues with an analysis of certain key features and

selected issues, in which the authors provide valuable insights on the

form confidentiality-protection measures should take in which

situations, and on the issues that should specifically be included as

part of the confidentiality measures. This contribution is illustrated

throughout by excerpts from decisions taken from real-life cases, and is

thus of considerable interest for practitioners facing similar issues.

Issues of confidentiality and restricted-access information do not

end with the closing of the arbitral proceedings. They can spill over

into the award itself. This is the topic of Dr. Martin Bernet’s and

Dr. Benjamin Gottlieb’s contribution on “Confidential and Restricted

Data in the Award: How Do Arbitrators Draft Awards without Breaching

Confidentiality or Restrictions?” The authors begin with a clear and

concise review of the legal framework for the protection of confidential

and restricted data in the award. In this part of their contribution, the

authors show that there is yet another potential tension between, on

the one hand, protection of confidentiality or safeguarding of restricted

access to certain information and, on the other hand, rules that limit

arbitrators’ possibilities to issue awards without reasons or with only

incomplete reasons. Dr. Bernet and Dr. Gottlieb then give a thoroughly

researched overview and analysis of the many ways in which arbitral

tribunals and parties have resolved the issues arising from confidential

or restricted-access information at the stage of the award. This part of

the contribution is richly illustrated by concrete examples taken from

actual practice.

The last part of this book is a collection of materials. These

materials begin with a selection of arbitration rules and national

legislation on the procedural ways of safeguarding legitimate concerns

of confidentiality or restrictions to certain data. The next set of

materials is a rich trove of examples of orders and decisions taken from

arbitral practice4 that give an idea of the incredible creativity of parties

and arbitrators in handling issues arising from confidentiality and

restricted access to sensitive information.5

It is on this note of creativity that I end this foreword. All too

often, one hears that arbitration is becoming a standardised exercise

bordering on the robotic. The ways in which arbitral practice tackles

the issue of confidential and restricted-access information is proof that

there is still ample room for imagination and reasoned flexibility in the

process. And that is what arbitration is all about.

PDF of Title Page and TOC

Foreword

Elliott Geisinger

About the Editor

About the Contributors

Chapter 1

Confidentiality within Arbitration

Luca G. Radicati di Brozolo and Flavio Ponzano

Chapter 2

Confidentiality and Fundamental Rights of Due Process and Access to the File: A Comparative Overview

Karl Pörnbacher and Sebastian Baur

Chapter 3

Confidential and Restricted Data: Impact on Burden of Proof?

Sébastien Besson

Chapter 4

Addressing the Issue of Confidentiality in Arbitration Proceedings: How Is This Done in Practice?

Domitille Baizeau and Juliette Richard

Chapter 5

Confidential and Restricted Data in the Award: How Do Arbitrators Draft Awards without Breaching Confidentiality or Restrictions?

Martin Bernet and Benjamin Gottlieb

Appendices

Appendix 1:

Selected Statutory Provisions, Arbitration Rules and Guidelines

Appendix 2:

Summary of the Decision of the Federal Tribunal 4A_64/2011 (French);

Appendix 3:

Decision of the Swiss Federal Supreme Court (4A_64/2011) dated 1 September 2011 (see in particular con. 3.3) (German)

Appendix 4:

ICC International Court of Arbitration Case n°XXXXX/YZ, Procedural Order No. 4[order on the ........ protection of confidential information in the framework of document production and on the setting-up of an electronic data-room]

Appendix 5:

ICC Case No.(...)/(...), O (...) vs H (...) , Procedural Oder No. 2 [order protecting confidentiality of information and documentation disclosed in arbitral proceedings]

Appendix 6:

PCA Case No. XXXXX, C (...) and The Republic(...) Procedural Oder No. 6 [order restricting access to and limiting copies of raw footage used asevidence in proceedings; order protecting the anonymity of a witness and the confidentiality of that witness's testimony, and issuing further directionsto protect that witness]

Appendix 7:

Confidentiality agreement in ICC proceedings

Appendix 8:

Unilateral confidentiality undertaking given in ICC proceedings

Appendix 9:

ICC Case No. ..., Procedural Order No. 5, Protective Order by Consent

Appendix 10:

Confidentiality agreement in ICC Proceedings

Appendix 11:

Confidentiality Order of 12 July 1994 issued in ICC Case No. 7893, Journal du Droit International, 125e année 1998 n° 1 Janvier-Février-Mars, Juris-Classeur, pp. 1069-1076

Appendix 12:

Confidentiality undertaking, in the matter of Case No. XXXXX before the International Centre for Settlement of Investment Disputes between T (...) and the Republic (...)

Appendix 13:

Decision by an arbitral tribunal [on excessive redaction of documents provided following an order for document production]

Appendix 14:

Procedural Order No. 10 in ICC Arbitration Case No. XXXXX [order on the protection of confidential information in the framework of document production]

Appendix 15:

ICC Case No. XXXXX, N (...) V. S (...) , Confidentiality Undertaking [in relation to documents provided following an order for document production]

Appendix 16:

ICC arbitration case No. (...) , N. vs S., S's Confidentiality Undertaking [in relation to documents provided following an order for document production]

Appendix 17:

Swiss Chambers’ Arbitration No. XXXXX, A (...) v. C (...) , Procedural Order of XX XXXX 20XX [ordering that a party deliver a confidentiality undertaking in respect of certain information]

Appendix 18:

Claimants Counter-respondents v. Respondents Counter-claimants, Confidentiality Agreement [and, as exhibit, a confidentiality undertaking by the independent expert retained by one of the parties]

Appendix 19:
Case No. XXXXX, Claimants vs. Respondents, Confidentiality Agreement

Appendix 20:

Confidentiality Agreement in ICC Arbitration

Appendix 21:

ICC Case No. (...) , X v. Y, Third-Party Neutral’s Procedural Rules[containing provisions on protection and non-disclosure of sensitive military technology]

Appendix 22:

Arbitral Tribunal Constituted Pursuant to Article 287 of the United Nations Convention on the Law of Sea and in Accordance with Annex VII thereto, In the matter of an Arbitration between GUYANA and SURINAME, Order No. 1 of 18 July 2005, Access to Documents

Appendix 23:

Procedural order (excerpt) [order on the protection of confidential information in the framework of document production and on the setting-up of an electronic data-room]

Appendix 24:

Excerpt of hearing transcript on "Confidentiality of the Transcript"

Appendix 25:

Confidentiality Agreement between Chairman of an arbitral tribunal and a "Conference Administrator" [aiming to secure confidentiality of information to which the administrator of a web conference would have access]

Elliott Geisinger chairs Schellenberg Wittmer’s International
Arbitration Group. Since 1994, his practice has focused on international
arbitration. He has acted as counsel and arbitrator in complex
commercial disputes involving international construction contracts,
consortia and joint venture agreements, sponsorship contracts, sales
and distribution contracts, and consultancy contracts. In addition,
Elliott Geisinger has regularly represented clients in arbitration-related
court proceedings, and several of his cases have been reported on in
the official collection of Swiss Supreme Court cases and in arbitration
journals. Contract management in large-scale construction projects is a
further specialization of his. He has also advised Swiss corporations in
investment disputes. Elliott Geisinger has authored and co-authored
several publications in the fields of international arbitration and
private international law. He sat on the Arbitration Committee of the
Geneva Chamber of Commerce and Industry from 1999 to 2003 and
was elected to the executive board of the Swiss Arbitration Association
in 2007, becoming Vice-President in 2010, and President in 2014. He is
also a Member of the Board of Trustees of FIAA (Foundation for
International Arbitration Advocacy). After graduating from the School
of Law of the University of Geneva in 1986, where he also obtained a
Master of Laws in 1990, Elliott Geisinger served as a teaching and
research assistant in private international law from 1986 to 1992. He
was a trainee and then an associate with another business law firm in
Geneva before joining Schellenberg Wittmer in 1996 and becoming a
Partner in 2002 Group.

ABOUT THE CONTRIBUTORS

Domitille Baizeau is a Partner in the international arbitration group of
LALIVE, based in Geneva. She has been practicing dispute resolution
for 20 years, exclusively in international arbitration, commercial and
investment, since 2001. She has been involved in over sixty
international disputes as counsel or arbitrator, in administered and ad
hoc arbitration proceedings, governed by various procedural and
substantive laws, both common law and civil law. She focuses on joint
venture, share purchase, M&A, sales, privatisation and investment
disputes in the energy (oil & gas, solar, mining), telecommunications,
construction and commodity trading sectors. Ms Baizeau has been a
member of the Arbitration Court of the Swiss Chambers’ Arbitration
Institution since 2010. She is also a member of the Board and the
Executive Committee of ASA and an officer of the European Users’
Council of the LCIA. She regularly speaks at conferences and publishes
in the field international arbitration; she was for several years a
member of the Editorial Board of the ASA Bulletin. In 2011, she was
selected as one of 45 “leading figures” in international arbitration
below the age of 45, following a peer-review process conducted by
Global Arbitration Review. Ms Baizeau initially trained in New
Zealand and also holds a French law diploma. She is admitted to
practice in both England and in Geneva, Switzerland. Before joining
LALIVE in 2004 (becoming partner of the firm in 2008), she practiced
litigation and arbitration in New Zealand and France. A dual New
Zealand and French national, she is fluent in both English and French
and has working knowledge of Spanish.

Sebastian Baur is a Senior Associate and a member of the dispute
resolution group in the Munich office of Hogan Lovells. He acts as
counsel in national and international arbitration proceedings and has
experience in proceedings under ICC, DIS, Swiss and VIAC Rules as
well as ad hoc proceedings, seated in, inter alia, Germany, Switzerland,
Austria, France, Sweden, Poland, England, Turkey and Lithuania. Mr.
Baur also represents clients in arbitration-related court proceedings,
e.g. in relation to the enforcement of an arbitration clause or the
setting-aside of an arbitral award. He focusses on disputes in the field
on construction and energy (gas, nuclear, solar, wind) as well as
general commercial matters. During his time at Hogan Lovells, Mr.
Baur spent six months with the international arbitration and
engineering and construction practice of the London office. He
publishes regulatory on topics of international arbitration and
international law. Mr. Baur studied at the Ruprecht-Karls-Universität
Heidelberg where he received a Ph.D.

Martin Bernet is a Partner in Schellenberg Wittmer’s Zurich office,
where he heads the Dispute Resolution Group. His practice focuses on
international litigation and arbitration as well as insurance and
reinsurance. He has a strong practice as counsel representing parties
before state courts and arbitration panels and is also regularly
appointed as an arbitrator, frequently presiding as chairman over
arbitral tribunals. Mr. Bernet’s litigation practice covers a broad range
of issues, among them pre-litigation strategic advice, representation of
parties in court proceedings in cases related, inter alia, to banking,
international commodity sales, joint ventures, corporate liability,
insurance, enforcement of foreign judgments, and asset recovery. He
has extensive experience in matters involving issues of international
legal assistance. His insurance and reinsurance practice covers a wide
range of matters faced by the industry. He advises and represents
insurers and reinsurers in, for example, coverage, policy wording, and
regulatory matters. Mr. Bernet has published in the areas of
international litigation, international arbitration, administrative
procedural law and contracts. He is a former chair of the International
Bar Association’s International Litigation Committee. He teaches
international arbitration at the University of Zurich and is a frequent
conference speaker. Mr. Bernet graduated Dr. iur. from University of
Zurich, and was admitted to the Zurich Bar in 1982. A partner with
Schellenberg Wittmer since 1989, Mr. Bernet previously worked as a
foreign associate in Washington, D.C.

Sébastien Besson is a Partner at Lévy Kaufmann-Kohler, based in
Geneva. He represents companies before arbitral tribunals and state
courts in commercial disputes, and serves as arbitrator. Mr. Besson has
acted as counsel, chairman, party-appointed arbitrator, sole arbitrator
or legal expert in numerous international arbitrations under a variety
of arbitration rules, and in different jurisdictions. The nature of such
cases, among others, includes joint ventures and industrial
cooperation, agency and distribution, sales contracts, licensing,
construction, finance and sport-related disputes. He is also a part-time
Professor at the Faculty of Law of the University of Neuchâtel. He
published numerous treaties and articles in the field of international
arbitration, including “Comparative Law of International Arbitration”
(2nd ed., Sweet & Maxwell, 2007, co-authored with Professor Jean-
François Poudret) and is regularly invited as speaker at various
conferences, university programmes and events in Switzerland and
abroad. Mr. Besson was educated at the Lausanne University, where
he received his Doctorate in Law in 1997 (Prix de la Fondation Fleuret,
Lauréat de l’Université de Lausanne, Prix Walther Hug), and at
Columbia University (New York), from which he holds an LL.M
(2000). He is fluent in French and English, and has good knowledge of
German.

Benjamin Gottlieb is a PhD candidate at the University of Lucerne
and a lecturer at the University of Zurich. His focus lies mainly on
international commercial arbitration and international sales law. After
completing his internship at the Zurich office of Schellenberg Wittmer,
Mr. Gottlieb is currently on study leave and will return to Schellenberg
Wittmer as an associate in the Dispute Resolution team in 2016. He
studied at the University of Zurich and the University of Milan in Italy.
Subsequently he worked as a research and teaching assistant in
private, European and commercial law at the University of Zurich with
Prof. Dr. Claire Huguenin and interned in major Swiss law firms in
Geneva and Zurich. Besides his law degree from the University of
Zurich, Mr. Gottlieb holds a joint CAS degree in international
commercial arbitration from the Universities of Lucerne and
Neuchâtel.

Flavio Ponzano is an Associate at Arblit–Radicati di Brozolo Sabatini
Benedettelli. His practice as counsel focuses on both investment and
commercial arbitration and he regularly acts as administrative
secretary to arbitral tribunals sitting in proceedings conducted under
different sets of rules. Mr. Ponzano graduated magna cum laude from
the Law School of the Catholic University of Milan in 2012 and is
admitted to the Italian Bar. In 2014 he was awarded the Runner-up
Prize for the Laureate of the International Academy for Arbitration
Law in Paris. He is also a PhD candidate in International Law and a
research and teaching assistant at the course of Private International
Law, Law of International Arbitration and Transnational Commercial
Law at the Catholic University of Milan. Since 2013 Mr. Ponzano is one
of the coaches of the Catholic University of Milan’s team in the Willem
C. Vis International Commercial Arbitration Moot.

Karl Pörnbacher is Partner at Hogan Lovells in Munich and head of
the German Arbitration Practice. He advises and represents clients in
national and multinational alternative dispute resolution proceedings
(arbitration, mediation, adjudication). He acted as a counsel in more
than 70 domestic and international arbitration proceedings and as an
arbitrator in more than 40 proceedings. Mr. Pöornbacher specializes in
disputes regarding the energy industry (gas, oil, nuclear, renewables),
construction and projects, M&A, life science and automotive industry.
Having worked in Hogan Lovells’ Warsaw office from 2000-03, Mr.
Pörnbacher is frequently involved in cross-border disputes involving
Poland and other Central and Eastern European Countries. He speaks
German, English, French and Polish.

Luca G. Radicati di Brozolo is the Founding Partner of the arbitration
and litigation boutique ArbLit–Radicati di Brozolo Sabatini
Benedettelli and a door tenant at Fountain Court Chambers in London.
He holds the chair of Private International Law at the Catholic
University of Milan, where he also teaches Law of International
Arbitration and Transnational Commercial Law. After having
practiced in a variety of areas for many years as a partner in two of the
major Italian firms, Mr. Radicati di Brozolo now concentrates primarily
on international arbitration as counsel, presiding, party-appointed and
sole arbitrator and expert, in proceedings under the main arbitration
rules and involving a broad array of issues. He has significant
experience in investor-State arbitration, having acted as counsel in
several high-profile cases (including the ICSID cases Saipem v
Bangladesh and Ambiente Ufficio v. Argentina and Giovanni Alpi v.
Argentina) and in several UNICTRAL cases against the Czech
Republic under the Energy Charter Treaty and several BITs). He also
appears in court litigation in arbitration-related cases and cases raising
issues of international and competition law. He is the author of five
books and over 150 scholarly articles on different topics on arbitration,
public and private international law, European Union law and
antitrust law, and is a co-editor of the leading Italian commentary of
the law of arbitration. He is a former member of the ICC International
Court of Arbitration and former Vice-Chair of the IBA Arbitration
Committee, a member and former rapporteur of the Committee on
International Commercial Arbitration of the International Law
Association, a member of the American Law Institute, Consultative
Group on the Restatement (Third), International Commercial
Arbitration and co-chair of the Joint Working Group of the
Competition and Arbitration Committees of the ICC Arbitration
Commission on Antitrust Follow-on Actions.

Juliette Richard is an Associate in the international arbitration group
of LALIVE, based in Geneva. Her main areas of practice are
international commercial arbitration and investment arbitration, as
well as corporate and commercial law with an emphasis on crossborder
transactions. Before joining LALIVE, Juliette trained in Paris
with Freshfields Bruckhaus Deringer (2012) and Sullivan & Cromwell
(2011). She also worked as an intern with DS Avocats (2009) and
HSBC (2008) in Paris. Juliette Richard holds a Master in Business Law
from the University of Paris II Panthéon-Assas (2011) and a Bachelor in
Law from the University of Cergy-Pontoise (2010). She also holds a
Bachelor of Science and a Master of Science in Management from
ESSEC Business School (Grande Ecole Programme) in Paris.