The Treatment of Confidential Information in WTO Dispute Settlement Proceedings - ARIA - Vol. 24, No. 4 2013

Author(s):

Armin Steinbach

Page Count:

20 pages

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Published:

June, 2014

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I. INTRODUCTION

The treatment of sensitive information poses a challenge in dispute settlement

proceedings of the World Trade Organization (“WTO”). The challenge lies in the

importance of access to the information relevant to the dispute, which is deeply

rooted in the principles of fairness and due process. There are three potentially

conflicting interests involved when dealing with sensitive information: First,

procedural safeguards are necessary to provide private business with adequate

protection for their proprietary business information when a disputing party deems

it necessary to present such evidence in support of its case. Second, reasonable

access to such information must be provided to the adjudicating body and the

other disputing parties. Third, from a transparency and legitimacy perspective, the

public has a genuine interest in being informed about the dispute and the facts and

considerations leading the panel to adopt a ruling.1

Frequently, the WTO Panels’ working procedures have established ad hoc

procedures dealing with confidential business information, where “Business

Confidential Information” (“BCI”) has been defined as “any information that is

designated Business Confidential by the party submitting the information that is

not otherwise available in the public domain.”2 In some cases, Panels seem to

have expanded the concept of confidentiality from business interests to other

possibly sensitive information by adopting special procedures for handling

“Strictly Confidential Information” (“SCI”).3 Often, the parties to a dispute