Confidential and Restricted Data: Impact on Burden of Proof? - Chapter 3 - ASA Special Series No. 43 Confidential and Restricted Access Information in International Arbitration
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.
Originally from:
ASA Special Series No. 43 Confidential and Restricted Access Information in International Arbitration
1. INTRODUCTION
The scenario that this contribution proposes to explore is the
following:
• A party bears the burden of proof in relation to certain facts
that must be established for prevailing on the merits (e.g. facts
that constitute a breach of the contract or facts relevant for the
quantum);
• That party has evidence concerning these facts but it cannot
present such evidence because the information is highly
confidential (e.g. the licensor of military equipment cannot
establish that the licensee is in breach of a prohibition in the
license agreement to develop the products because the licensor
would have to disclose secret or classified information);
• It has not been possible to adequately safeguard the
confidentiality of the information in a confidentiality
agreement or by a protective order.
The party therefore feels that it has no other option but to refuse
to disclose the confidential information in the arbitration and refrain
from adducing evidence concerning such confidential information.
What will then be the consequence, if any, of such situation on the
allocation of the burden of proof? This is the discrete question that will
be addressed below.
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]