Confidentiality within Arbitration - Chapter 1 - ASA Special Series No. 43 Confidential and Restricted Access Information in International Arbitration
Luca G. Radicati di Brozolo is the Founding Partner of the arbitration
and litigation boutique ArbLit–Radicati di Brozolo Sabatini
Benedettelli and a door tenant at Fountain Court Chambers in London.
He holds the chair of Private International Law at the Catholic
University of Milan, where he also teaches Law of International
Arbitration and Transnational Commercial Law. After having
practiced in a variety of areas for many years as a partner in two of the
major Italian firms, Mr. Radicati di Brozolo now concentrates primarily
on international arbitration as counsel, presiding, party-appointed and
sole arbitrator and expert, in proceedings under the main arbitration
rules and involving a broad array of issues. He has significant
experience in investor-State arbitration, having acted as counsel in
several high-profile cases (including the ICSID cases Saipem v
Bangladesh and Ambiente Ufficio v. Argentina and Giovanni Alpi v.
Argentina) and in several UNICTRAL cases against the Czech
Republic under the Energy Charter Treaty and several BITs). He also
appears in court litigation in arbitration-related cases and cases raising
issues of international and competition law. He is the author of five
books and over 150 scholarly articles on different topics on arbitration,
public and private international law, European Union law and
antitrust law, and is a co-editor of the leading Italian commentary of
the law of arbitration. He is a former member of the ICC International
Court of Arbitration and former Vice-Chair of the IBA Arbitration
Committee, a member and former rapporteur of the Committee on
International Commercial Arbitration of the International Law
Association, a member of the American Law Institute, Consultative
Group on the Restatement (Third), International Commercial
Arbitration and co-chair of the Joint Working Group of the
Competition and Arbitration Committees of the ICC Arbitration
Commission on Antitrust Follow-on Actions.
Flavio Ponzano is an Associate at Arblit–Radicati di Brozolo Sabatini
Benedettelli. His practice as counsel focuses on both investment and
commercial arbitration and he regularly acts as administrative
secretary to arbitral tribunals sitting in proceedings conducted under
different sets of rules. Mr. Ponzano graduated magna cum laude from
the Law School of the Catholic University of Milan in 2012 and is
admitted to the Italian Bar. In 2014 he was awarded the Runner-up
Prize for the Laureate of the International Academy for Arbitration
Law in Paris. He is also a PhD candidate in International Law and a
research and teaching assistant at the course of Private International
Law, Law of International Arbitration and Transnational Commercial
Law at the Catholic University of Milan. Since 2013 Mr. Ponzano is one
of the coaches of the Catholic University of Milan’s team in the Willem
C. Vis International Commercial Arbitration Moot.
Originally from:
ASA Special Series No. 43 Confidential and Restricted Access Information in International Arbitration
1. CONFIDENTIALITY OF AND WITHIN ARBITRATION
Confidentiality has essentially two facets in relation to arbitration.
These can be referred to respectively as confidentiality “of” arbitration
and confidentiality “within” arbitration. The former—which could also
be termed “outbound confidentiality”—has to do with the nondisclosure
to third parties not involved in the arbitration of
information relating to the arbitration, including the existence of the
arbitral process itself and facts, evidence, arguments, documents and
other information pertaining to the process.1 In this scenario the issue
is not the sharing of information amongst the participants to the
arbitration, and particularly the parties, but preventing the information
from becoming available to parties beyond the confines of the
arbitration, including competitors and the media.
The second facet of confidentiality could be termed “inbound
confidentiality”. It relates to the introduction into—and to the
treatment within—the arbitral process of information that is external to
the arbitration and that is or is assumed to be pertinent to the outcome
of the process, but that according to a party cannot or must not be
disclosed to the other participants in the arbitration. The grounds for
the allegation of confidentiality normally relate to the nature of the
information and are often unrelated to the arbitral process itself.
The present contribution intends to address this second facet of
confidentiality. It will do so exclusively from the standpoint of the
arbitrators. Some of the issues of confidentiality analyzed here also
may be relevant for other participants in the arbitration, foremost
amongst which counsel, whose professional and other obligations may
come into play according to the circumstances.
2. NATURE AND GROUNDS OF PLEAS OF CONFIDENTIALITY
Issues relating to the type of confidentiality considered here arise
most often in the evidence-gathering phase of arbitral proceedings.
Confidentiality is routinely raised as an objection to requests for
document disclosure; it can also be raised for example in relation to
requests to examine fact or expert witnesses or even to inspect sites or
things. While usually invoked by the party resisting the introduction of
the information into the arbitration, confidentiality can also be invoked
by the party seeking to rely on the allegedly confidential information,
as well as by a third party, such as a witness or expert.
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]