Confidential and Restricted Data in the Award: How Do Arbitrators Draft Awards without Breaching Confidentiality or Restrictions - Chapter 5 - ASA Special Series No. 43 Confidential and Restricted Access Information in International Arbitration
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.
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.
Originally from:
ASA Special Series No. 43 Confidential and Restricted Access Information in International Arbitration
1. INTRODUCTION
It is a truism to state that confidentiality is a key benefit of
international commercial arbitration. While the general presumption in
the past that the arbitral process will always be confidential has been
replaced by an understanding that better reflects reality,1
confidentiality is still one of the primary reasons corporations opt for
arbitration over state court litigation.
In broad terms, parties’ confidentiality concerns with respect to
international arbitration proceedings are twofold: on the one hand,
the parties may wish to protect all or certain information involved in
the arbitration from public disclosure (i.e., to non-involved third
parties). On the other hand, in certain cases, confidentiality concerns
will also arise with respect to the opposing party (or parties) in a
potential or ongoing proceeding. For instance, this may be the case in
disputes involving trade secrets or other private know-how, such as
where one party does not wish to disclose its manufacturing process
to the other party; in defense industry cases, where one party wants
(and typically is under an obligation) to keep secret certain data for
reasons of national security; in joint venture disputes between two
competitors in the same market, where each side wishes to keep
confidential its commercial figures; or in cases where a key witness
feels threatened by the opposing party (a state or a state entity, for
example) and will only testify if his or her identity remains unknown
to this party.
Practitioners and scholars have developed a number of methods
to address confidentiality concerns during an arbitration proceeding
(sometimes modeled after the state court system).4
This article focuses on the arbitrators’ role in protecting confidential
and restricted data. It looks at the stage when the proceedings are
closed and the arbitrators begin drafting the award. How arbitrators
can best protect confidential and restricted data in the award is
critically important; all efforts previously undertaken to protect
confidential and restricted data would be frustrated if the award were
to subsequently disclose them.
This article confronts the topic primarily from the point of view of
an arbitral tribunal seated in Switzerland.
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]