IN THE MATTER OF AN ARBITRATION UNDER ANNEX 14-C OF THE CANADA-UNITED STATES-MEXICO AGREEMENT AND CHAPTER 11 OF THE NORTH AMERICAN FREE TRADE AGREEMENT
- and -
THE 2013 ARBITRATION RULES OF THE UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW
- between -
WESTMORELAND COAL COMPANY
Claimant
and
GOVERNMENT OF CANADA
Respondent
(ICSID Case No. UNCT/23/2)
Confidentiality
Tribunal
Prof. Gabrielle Kaufmann-Kohler (Presiding Arbitrator)
Mr. Laurence Shore
Ms. Judith Levine
Assistant to the Tribunal
Dr. Magnus Jesko Langer
Secretary of the Tribunal
Ms. Anna Holloway
5 May 2023
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1. For the purposes of this Confidentiality Order:
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2. The Disputing Parties agree to respect and maintain the confidentiality of information exchanged in this arbitration in accordance with the terms of this Confidentiality Order.
3. A Disputing Party may designate Confidential or Restricted Access Information contained in any document that the Disputing Party produces to the other Disputing Party, and in any Written Submission, transcript, order or award. These designations shall be made in accordance with the procedures set out in this Confidentiality Order.
4. A Disputing Party shall not designate as Confidential or Restricted Access Information any information belonging to the other Disputing Party which that Disputing Party has not also designated as Confidential or Restricted Access Information.
5. A document produced by a Disputing Party to the other Disputing Party shall be protected from disclosure as though it contained Confidential Information in its entirety, except that (a) should the document be filed by one of the Disputing Parties as part of a Written Submission, the Disputing Parties must follow the process for designating Confidential Information as set out in this Confidentiality Order; and (b) any produced documents that are already publicly available need not be treated as Confidential Information protected from disclosure.
6. If a Disputing Party contends that a document that it produces to the other Disputing Party contains Restricted Access Information, the Disputing Party shall clearly label each page of the document as “Restricted Access” at the time that it produces the document. A document produced by a Disputing Party to the other Disputing Party labeled Restricted Access shall be deemed to constitute Restricted Access Information in its entirety unless an objection is filed under paragraph 7 or the document is filed by one of the Disputing Parties as part of a Written Submission, in which case the Disputing Parties shall follow the process for designating Restricted Access Information as set out in this Confidentiality Order under paragraphs 8-17.
7. Within thirty (30) days of receipt of a document obtained through the other Disputing Party's document production, a Disputing Party may object to a proposed designation of Restricted Access Information in a document that it obtains through the other Disputing Party's document production. If such an objection is made, it is to be made in the form of the attached Disputed Designations Schedule
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(Appendix C). The Disputing Parties shall attempt to agree within fourteen (14) calendar days from the date of the objection.1 If the Disputing Parties do not agree on the final designations of Restricted Access Information, a Disputing Party may submit the objection to the Tribunal for resolution, in the form of the Disputed Designations Schedule (Appendix C).
8. If a Written Submission or procedural or administrative correspondence contains Confidential or Restricted Access Information, the party filing the Written Submission (the "Filing Party") shall so notify the other Disputing Party (the "Receiving Party") and the Registry at the time of filing. The designations made by any Disputing Party under this section are without prejudice to their ability to challenge those designations in accordance with paragraphs 12 and 19 of this Order.
9. If the Filing Party contends that a Memorial contains Restricted Access Information, the Filing Party must include a header stating “Restricted Access Information – Unauthorized Disclosure Prohibited" on the cover page and on each particular page of the Memorial that the Filing Party contends contains Restricted Access Information, upon filing.
10. Within seven (7) calendar days of the delivery of its complete Written Submission under Section 14 of Procedural Order No. 1, the Filing Party shall provide to the Receiving Party its specific proposed designations, if any, of Confidential and Restricted Access Information in the Written Submission.
11. The Disputing Parties' information shall be highlighted in Written Submissions as follows:
12. Within twenty-one (21) calendar days of receipt of these designations, the Receiving Party shall provide any objections to the Filing Party of its proposed designations, if any, of Confidential and Restricted Access Information in the Written Submission and provide its own further proposed designations of Restricted Access and Confidential Information. The disputing parties shall use the attached Disputed Designations Schedule (Appendix C) for filing these objections.
13. If a disputing party did not object to the designation of Restricted Access Information to a document received in document production pursuant to paragraph 7, it does not preclude them from filing objections under paragraph 12 to the specific designations of Restricted Access Information, if that document becomes an exhibit to a Written Submission.
14. Within fourteen (14) calendar days, the Filing Party shall provide its responses to the Receiving Party's objections. The disputing parties shall then attempt to reach an agreement on the objected designations. If no such agreement is made within twenty-one (21) calendar days of receipt of responses to objections, the disputing parties shall submit the Disputed Designations Schedule to the Tribunal for resolution. The Tribunal may invite further submissions on proposed designations of Restricted Access or Confidential information.
15. If a Disputing Party does not object to the designation of Confidential or Restricted Access Information pursuant to paragraph 12, then the Disputing Party is deemed to have accepted the designations.
16. Within fourteen (14) calendar days from the date on which the final designations of Confidential and
1 To the extent that a “calendar day" falls on a public holiday in either Canada or the United States, the deadline shall be moved to the next business day. ↩
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Restricted Access Information have been confirmed by agreement of the Disputing Parties, by the failure of a Disputing Party to make or object to any designation, or by order of the Tribunal, the Filing Party shall file:
17. Where whole documents or multiple pages of Restricted Access Versions or Confidential Versions have been redacted entirely, such pages need not be reproduced in redacted form in the Public Version. Instead, a summary page stating the number of pages that have been redacted in their entirety will suffice.
18. The Disputing Parties shall have twenty (20) calendar days from the receipt of an order or award to designate information as Confidential or Restricted Access Information in the order or award and to exchange such designations. The Disputing Parties shall have thirty (30) calendar days from the date of receipt of a transcript to designate information as Confidential or Restricted Access Information in the transcript and to exchange such designations.
19. The Disputing Parties shall have an additional twenty-one (21) calendar days from the receipt of such designations to raise any objections to the other Disputing Party's designations. At the conclusion of that period, if the Disputing Parties are unable within twenty-one (21) calendar days to agree on any designations of Confidential or Restricted Access Information, a Disputing Party may submit the issues to the Tribunal for resolution. The Disputing Parties shall use the attached Disputed Designations Schedule (Appendix C) for filing these objections.
20. Within fourteen (14) calendar days after any objections to proposed designations of Confidential or Restricted Access Information have been resolved by agreement of the Disputing Parties or by order of the Tribunal, the Disputing Parties shall file a final Restricted Access Version, Confidential Version, and Public Version of the transcript, order or award.
21. With respect to the final award, the Parties agree that the Tribunal shall only become functus officio after the confidentiality objections, if any, have been resolved, and that ICSID will close the case fund after the publication of the final award.
22. Until the final designations of Restricted Access Information have been confirmed by the agreement of the disputing parties or by order of the Tribunal, each disputing party's proposed designations of Restricted Access Information shall be presumed valid.
23. With the exception of that which is designated as Restricted Access Information, documents exchanged in production, a Written Submission, transcript, order or award shall be deemed to be entirely confidential until the elapse of any period for a Disputing Party to provide the other Disputing Party with its proposed designations of Confidential Information, or such earlier time should the Disputing Parties communicate in writing that they have no proposed designations or objections.
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24. For greater certainty, the Disputing Parties and the Tribunal shall not disclose any Written Submission, transcript, order or award to any person not authorized to receive Restricted Access Information or Confidential Information under the terms of this Confidentiality Order until any Restricted Access Information or Confidential Information has been designated in accordance with the terms of this Confidentiality Order.
25. The time periods set out in this Confidentiality Order may be amended by agreement of the Disputing Parties, who shall agree to cooperate in this regard, or by order of the Tribunal after hearing the Disputing Parties and taking into account all relevant circumstances.
26. Except with the prior written consent of the Disputing Party that claimed confidentiality with respect to the information, and, in the case of materials from provincial, territorial or municipal governments or third parties, the owner of such Confidential Information, Confidential Information may be used only in these proceedings and may be disclosed only for such purposes to and among:
27. Except with the prior written consent of the Disputing Party that claimed confidentiality with respect to the information, and, in the case of materials from provincial, territorial or municipal governments or third parties, the owner of such Restricted Access Information, Restricted Access Information may be used only in these proceedings and may be disclosed only to and among the following people, where their access to the information is necessary for the preparation of the conduct of the case:
28. Inadvertent or improper disclosure of Confidential or Restricted Access Information, as set forth in the present Order, does not constitute a waiver of the designation of the information as Confidential or Restricted Access.
29. All persons receiving Confidential Information or Restricted Access Information shall be bound by this Confidentiality Order. Each Disputing Party shall have the obligation of notifying all persons
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(other than Members of the Tribunal and their support staff and officials at the Registry) to whom each Disputing Party provides Confidential Information or Restricted Access Information of the obligations under this Confidentiality Order and to ensure that such persons receiving Confidential Information pursuant to paragraphs 26 (d)-(e) (to the extent such witnesses referred to in paragraph 25(e) are not also officials or employees of the Disputing Parties or of provincial, territorial, or municipal governments as contemplated by paragraph 26(c)) or Restricted Access Information pursuant to paragraph 27 (c): execute a Confidentiality Undertaking in the form attached as Appendix A, or a Restricted Access Information Confidentiality Undertaking in the form attached as Appendix B, as appropriate, before gaining access to any such information. Each Disputing Party shall maintain copies of Confidentiality Undertakings under Appendix A and Restricted Access Information Confidentiality Undertakings under Appendix B and shall make such copies available to the other Disputing Party upon order of the Tribunal.
30. Where Confidential Information or Restricted Access Information is used or discussed at any hearing, the following rules shall apply:
31. Notwithstanding any other provision in this Confidentiality Order, any request for documents (other than those made in this arbitration), or for the production of documents under the applicable domestic law of the disputing State party, including documents produced to Canada in these proceedings, shall be wholly governed by the relevant federal or provincial legislation.
32. In light of Annex 14-C of the United States-Mexico-Canada Agreement and the Note of Interpretation of the NAFTA Free Trade Commission issued July 31, 2001, a Disputing Party shall be free to disclose to the public Documents and the redacted, Public Versions of: (a) Written Submissions of the Disputing Parties; (b) decisions of the Tribunal; (c) correspondence to or from the Tribunal; (d) transcripts of hearings; and (e) procedural rulings, orders and awards.
33. Notwithstanding any other provision in this Confidentiality Order, the Disputing Parties may make such disclosure of documents or information as is required by law.
34. In accordance with Annex 14-C of the United States-Mexico-Canada Agreement and Articles 1127, 1128 and 1129 of the NAFTA, non-disputing NAFTA Parties may attend the oral hearings, and may have access to transcripts, orders, awards and Written Submissions.
35. Nothing in this Confidentiality Order shall be construed to abrogate or support a claim or entitlement with respect to a refusal to disclose any information under or on the basis of: (a) national or provincial legislation; (b) a privilege; or (c) other grounds for exemption or non-disclosure.
36. One (1) unredacted copy of transcripts, orders, awards and Written Submissions including those designated as Restricted Access and Confidential Information under this Order, may be retained by the Disputing Parties' legal counsel, including in-house counsel, and legal counsel to provincial, territorial or municipal governments. Any other documentation which has not been designated as a Public Document or Public Version must be returned to the respective Disputing Party or otherwise destroyed within thirty (30) calendar days following the later of: the conclusion of any set aside proceedings; the time to request set aside proceedings has expired; or the full compliance of a Disputing Party with the Tribunal's Final Award. When a Disputing Party destroys documentation, the Disputing Party shall provide a written certification of destruction of the documents to the other Disputing Party.
37. The obligations created by this Order shall survive the termination of these proceedings.
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38. This Confidentiality Order shall be effective and binding upon a Disputing Party upon the signature of the Confidentiality Order by the Tribunal.
39. A Disputing Party may apply for an amendment to, or a derogation from, this order if compelling circumstances so require.
Date: 5 May 2023
For the Tribunal
[signed]
Gabrielle Kaufmann-Kohler
Presiding Arbitrator
Signed by both Disputing Parties in acknowledgement of the obligation to abide by this Confidentiality Order:
|
[signed] For the Government of Canada Ms. Krista Zeman |
[signed] For Westmoreland Coal Company Javier H. Rubinstein |
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TO: The Government of Canada (and its legal counsel) and Westmoreland Coal Company (and its legal counsel).
FROM: _________________________________________________
1. IN CONSIDERATION of being provided with materials in connection with the arbitration between Westmoreland Coal Company. and the Government of Canada, over which claims for confidentiality have been advanced (“Confidential Information"), I hereby agree to maintain the confidentiality of such material. It shall not be copied or disclosed to any other person who has not signed a Confidentiality Undertaking nor shall the material so obtained be used by me for any purposes other than in connection with this proceeding.
2. I acknowledge that I am aware of the Confidentiality Order that has been agreed to by the Disputing Parties, a copy of which is attached to this Undertaking, and agree to be bound by it.
3. I will promptly return or otherwise destroy any Confidential Information received by me to the Disputing Party that provided me with such materials or the information recorded in those materials, at the conclusion of my involvement in these proceedings.
4. I acknowledge and agree that either of the Disputing Parties to this arbitration is entitled to relief to restrain breaches of this Confidentiality Order, to enforce the terms and provisions hereof in addition to any other remedy to which any Disputing Party to this arbitration may be entitled at law or in equity.
5. I agree to submit to the jurisdiction of the courts:
SIGNED, SEALED AND DELIVERED before a witness this ___ day of ________, 20___.
_________________________________________________
(Print Name)
_________________________________________________
(Signature)
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TO: The Government of Canada (and its legal counsel) and Westmoreland Coal Company (and its legal counsel).
FROM: _________________________________________________
1. IN CONSIDERATION of being provided with materials in connection with the arbitration between Westmoreland Coal Company and the Government of Canada, over which claims for confidentiality have been advanced ("Confidential Information") and for which access has been restricted ("Restricted Access Information”), I hereby agree to maintain the confidentiality of such material. It shall not be copied or disclosed to any other person who has not signed a Restricted Access Information Confidentiality Undertaking nor shall the material so obtained be used by me for any purposes other than in connection with this proceeding.
2. I acknowledge that I am aware of the Confidentiality Order that has been agreed to by the Disputing Parties, a copy of which is attached to this Undertaking, and agree to be bound by it.
3. I will promptly return or otherwise destroy any Restricted Access Information and Confidential Information received by me to the Disputing Party that provided me with such materials or the information recorded in those materials, at the conclusion of my involvement in these proceedings.
4. I acknowledge and agree that either of the Disputing Parties to this arbitration is entitled to relief to restrain breaches of this Confidentiality Order, to enforce the terms and provisions hereof in addition to any other remedy to which any Disputing Party to this arbitration may be entitled at law or in equity.
5. I agree to submit to the jurisdiction of the courts:
SIGNED, SEALED AND DELIVERED before a witness this ___ day of ________, 20___.
_________________________________________________
(Print Name)
_________________________________________________
(Signature)
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| No. | Ref. to Designation | Type of Designation [RAI / CI] | Objections to Designation | Reply to Objections | Tribunal's Decision | |
|---|---|---|---|---|---|---|
| Reasons | Designation Requested | |||||
| 1. | ||||||
| 2. | ||||||
| 3. | ||||||
| 4. | ||||||