Addressing the Issue of Confidentiality in Arbitration Proceedings: How Is This Done in Practice? - Chapter 4 - ASA Special Series No. 43 Confidential and Restricted Access Information in International Arbitration
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.
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.
Originally from:
ASA Special Series No. 43 Confidential and Restricted Access Information in International Arbitration
1. INTRODUCTION
Confidentiality of and in international arbitration has for many
years been a highly debated issue,1 and remains characterised by a
high degree of uncertainty as to its precise scope and enforceability.2
Different legal regimes usually come into play, numerous and at times
conflicting legal principles tend to apply and, as a result, the
participants in an international arbitration do not always share the
same expectations as to what is covered by any confidentiality
obligation and how it may be enforced.
However, in practice, arbitrators, counsel and parties have over
the years found many ways of preserving confidentiality in
international arbitration proceedings without impacting on the fairness
and equality of the arbitral process. It is those practical solutions,
illustrated by examples of (and extracts from) confidentiality
agreements and procedural orders, that are identified and discussed in
this paper.
Parties to an arbitration tend to face confidentiality issues at two
different stages: when presenting evidence in support of their case and
when being requested to produce evidence by their opponent.4 Whilst
the latter scenario is the most commonly addressed, the former also
can give rise to difficulties,5 and the practical solutions adopted tend to
be the same in both cases, as the examples discussed in this paper
demonstrate.
In all cases, protection is typically sought with respect to
documents containing trade secrets or sensitive commercial
information, such as pricing information, business plans, customer
lists, information on components or manufacturing know how, plans,
sketches, and other corporate records. But confidentiality concerns
may also be raised with respect to other types of evidence, such as
industrial site visits, samples and also expert analyses of, or based on,
confidential information, including for the purpose of damage
assessment. Less commonly, parties may also face confidentiality
issues with respect to testimonial evidence.
This paper sets out a “catalogue” of practical solutions used by
arbitrators and parties and then examines some of the key features and
issues that arise out of these measures.
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]