Confidentiality and Fundamental Rights of Due Process and Access to the File: A Comparative Overview - Chapter 2 - ASA Special Series No. 43 Confidential and Restricted Access Information in International Arbitration
Karl Pörnbacher is a Partner in the Munich office of Hogan Lovells International LLP.
He heads the firm’s Arbitration Practice in Germany. Dr. Sebastian Baur is a Senior
Associate at Hogan Lovells International LLP in Munich and member of the
international arbitration group. The article is based on a presentation held by Karl
Pörnbacher during the ASA Conference on 4 October 2013
ASA Special Series No. 43 Confidential and Restricted Access Information in International Arbitration
In arbitration proceedings two fundamental rights of the parties
frequently collide: The right of due process and of access to the (entire)
file on the one hand, and on the other, the right to keep confidential
information, such as business secrets, confidential.
Two examples may illustrate the issue:
A party to a long-term supply contract for gas or oil claims a price
adjustment. One of the criteria for the adjustment specified in the
contract is the price respondent has agreed to in similar supply
contracts with third parties. Claimant may request that respondent
produce these contracts in order to substantiate its claim. But such
disclosure may jeopardize contractual non-disclosure obligations, and
possibly violate competition law. Respondent may therefore argue that
the contracts, particularly the price conditions, are confidential and
cannot be disclosed.
Could an arbitral tribunal nevertheless order respondent to
disclose these contracts where respondent’s interests are protected by
limiting claimant’s access to confidential information? For example,
may the arbitral tribunal order the production to an independent
expert, thereby limiting or even excluding claimant’s right to (direct)
access to the file?
In a second example, claimant contends that its software has been
illegally copied by respondent. To substantiate its claim, claimant
would necessarily have to disclose the structure, setup and working of
its software. Should the claimant fail to disclose the full information on
the software, must an arbitral tribunal reject the claim?
About the Editor
About the Contributors
Confidentiality within Arbitration
Luca G. Radicati di Brozolo and Flavio Ponzano
Confidentiality and Fundamental Rights of Due Process and Access to the File: A Comparative Overview
Karl Pörnbacher and Sebastian Baur
Confidential and Restricted Data: Impact on Burden of Proof?
Addressing the Issue of Confidentiality in Arbitration Proceedings: How Is This Done in Practice?
Domitille Baizeau and Juliette Richard
Confidential and Restricted Data in the Award: How Do Arbitrators Draft Awards without Breaching Confidentiality or Restrictions?
Martin Bernet and Benjamin Gottlieb
Selected Statutory Provisions, Arbitration Rules and Guidelines
Summary of the Decision of the Federal Tribunal 4A_64/2011 (French);
Decision of the Swiss Federal Supreme Court (4A_64/2011) dated 1 September 2011 (see in particular con. 3.3) (German)
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]
ICC Case No.(...)/(...), O (...) vs H (...) , Procedural Oder No. 2 [order protecting confidentiality of information and documentation disclosed in arbitral proceedings]
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]
Confidentiality agreement in ICC proceedings
Unilateral confidentiality undertaking given in ICC proceedings
ICC Case No. ..., Procedural Order No. 5, Protective Order by Consent
Appendix 10: Confidentiality agreement in ICC Proceedings
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
Confidentiality undertaking, in the matter of Case No. XXXXX before the International Centre for Settlement of Investment Disputes between T (...) and the Republic (...)
Decision by an arbitral tribunal [on excessive redaction of documents provided following an order for document production]
Procedural Order No. 10 in ICC Arbitration Case No. XXXXX [order on the protection of confidential information in the framework of document production]
ICC Case No. XXXXX, N (...) V. S (...) , Confidentiality Undertaking [in relation to documents provided following an order for document production]
ICC arbitration case No. (...) , N. vs S., S's Confidentiality Undertaking [in relation to documents provided following an order for document production]
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]
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]
Case No. XXXXX, Claimants vs. Respondents, Confidentiality Agreement
Confidentiality Agreement in ICC Arbitration
ICC Case No. (...) , X v. Y, Third-Party Neutral’s Procedural Rules[containing provisions on protection and non-disclosure of sensitive military technology]
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
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]
Excerpt of hearing transcript on "Confidentiality of the Transcript"
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]