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IN THE MATTER OF AN ARBITRATION PROCEEDING UNDER THE
UNCITRAL ARBITRATION RULES (1976)

between

Alberta Petroleum Marketing Commission

(“Claimant”)

-and-

United States of America

(“Respondent”)

(ICSID Case No. UNCT/23/4)

PROCEDURAL ORDER NO. 2
ON CONFIDENTIALITY

Members of the Tribunal
Prof. Campbell A. McLachlan KC, President of the Tribunal
Mr. Stephen Drymer, Esq., Arbitrator
Prof. Sean D. Murphy, Arbitrator

Secretary of the Tribunal
Ms. Aïssatou Diop

5 February 2024

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Definitions

1. For the purposes of this Confidentiality Order:

1. “Disputing Party” means either Alberta Petroleum Marketing Commission or the Government of the United States of America;
2. “Confidential Information” means information that is not publicly available and is designated by a Disputing Party as confidential on the grounds that it is:
   1. Business Confidential Information of a Disputing Party or of a state/provincial or municipal government;
   2. Business Confidential Information relating to a third party;
   3. information that otherwise may be protected from disclosure under the applicable domestic law; or
   4. information that is deemed to be financial, commercial, scientific, or technical information supplied by third parties that has been treated in a confidential manner by those third parties.
3. “Business Confidential Information" includes:
   1. trade secrets;
   2. financial, commercial, scientific, or technical information that is treated consistently in a confidential manner by the Disputing Party, state/provincial or municipal government, or third party to which it relates, including but not limited to pricing and cost information; identification of customers, profit, loss and expense information; contracts; marketing and strategic planning documents; market share data; accounting or financial records; proprietary economic models; and other information of commercial value, not otherwise disclosed in the public domain;
   3. information, the disclosure of which could result in material financial loss or gain to the Disputing Party, state/provincial or municipal government, or third party to which it relates;
   4. information, the disclosure of which could interfere with contractual negotiations or relationships, or other negotiations or relationships of the Disputing Party, state/provincial or municipal government, or third party to which it relates; and
   5. other communications treated as confidential in furtherance of settlement between the Disputing Parties.

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4. “Pleading” means the Claimant’s Notice of Arbitration, a Memorial, a Counter-Memorial, a Reply, a Rejoinder, and any other similar brief or written argument filed with the Tribunal, including any submissions by the non-disputing treaty Parties (“NDTPs”), and any written submission by third persons (amicus curiae) that have been admitted by the Tribunal.
5. “Supporting Documentation” means witness statements, expert reports, exhibits, legal authorities, annexes, and any other similar evidentiary documentation.
6. “Written Submission” means a Pleading and its Supporting Documentation.
7. “Public Document” means a Written Submission, order, decision, or award that contains no Confidential Information and no redactions of such information.
8. “Public Version” means the version of a Written Submission, order, decision, or award that has been redacted to remove all Confidential Information.
9. “Confidential Version” means the version of a Written Submission, order, decision, or award that contains Confidential Information that has not been redacted.

Guiding principles, objective and purpose

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 and, for this purpose, to adopt and maintain appropriate communications modalities and secure data storage systems.

3. A Disputing Party may designate Confidential Information contained in any Written Submission, order, decision, or award, and in any other document produced by that Disputing Party to the other Disputing Party. These designations shall be made in accordance with the procedures set out in this Confidentiality Order.

Documents exchanged in document production

4. A Disputing Party may designate Confidential Information contained in any document produced by that Disputing Party to the other Disputing Party. These designations shall be made in accordance with the procedures set out in this Confidentiality Order with respect to Written Submissions.

Hearings and transcripts

5. All substantive hearings shall be broadcast to the public, via closed-circuit television broadcast to a public viewing room or an alternative form of broadcast to be agreed

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upon by the parties. The Tribunal shall establish procedures for the protection of proprietary and confidential information.

Written submissions

6. This section addresses procedures for the designation of Confidential Information for all Written Submissions.

7. For Pleadings, witness statements, and expert reports, information that the United States has designated as Confidential Information shall be surrounded by double brackets highlighted in yellow: [[...]]. Information that the Claimant has designated as Confidential Information shall be surrounded by double brackets highlighted in blue: [[...]]. For all Supporting Documentation besides a witness statement and an expert report, the Disputing Parties may designate the Supporting Documentation, or specific pages thereof, as Confidential Information with the label “Confidential Information, Unauthorized Disclosure Prohibited” on each page containing Confidential Information.

8. A Disputing Party has seven (7) calendar days from the date of the Electronic Platform Filing (as defined in Section [9.2] of Procedural Order No. 1) of a Written Submission to propose the designation of Confidential Information.

9. The Disputing Parties shall use the attached Disputed Designations Schedule (Appendix A) to file any objections and responses to any objections.

10. Designations of Confidential Information and objections shall be made on the following timetable:

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11. If a Disputing Party does not object to the designation of Confidential Information pursuant to the timetable in paragraph 10, the Disputing Party is deemed to have accepted the designation.

12. Pursuant to Section [9.3] of Procedural Order No. 1, within three weeks of the Electronic Platform Filing, or within seven (7) calendar days of the order of the Tribunal regarding the appropriate designations, whichever is later, the Disputing Party that originally filed the Written Submission shall upload the Public Version of the Written Submission. For greater certainty, ICSID shall publish Public Versions of Written Submissions in accordance with Section [19.1] of Procedural Order No. 1 following the procedures set forth in this section.

13. Each page of a Confidential Version must be labeled, “Confidential Information, Unauthorized Disclosure Prohibited.” Each page of a Public Version must be labeled “Public Version.” Public Documents shall be labeled “Public Document” on the first page of the document.

14. Where whole documents or multiple pages of 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.

Orders, decisions and award

15. According to NAFTA Article 1137(4) and Annex 1137.4, and in light of the Note of Interpretation of the NAFTA Free Trade Commission issued July 31, 2001, a Disputing Party shall be free to disclose the Public Version of any award, including not only the final award, but also orders, decisions, as well as interim, interlocutory, partial and preliminary awards issued by the Tribunal.

16. The Disputing Parties shall have twenty-one (21) calendar days from the receipt of an order, decision, or award from the Tribunal to designate information as Confidential Information in the order, decision, or award and to exchange such designations. The

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Disputing Parties shall have an additional fourteen (14) 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, the Disputing Parties shall have ten (10) calendar days to consolidate their final designations and submit, as appropriate, a final Confidential Version and Public Version of the order, decision, or award.

17. If the Disputing Parties are unable within the ten (10) calendar days identified in paragraph 16 of this Confidentiality Order to agree on any designations of Confidential Information, a Disputing Party may submit the issues to the Tribunal for resolution. The Disputing Parties shall use the attached Disputed Designations Schedule (Appendix A) for filing these objections.

Treatment of confidential information

18. In light of the Note of Interpretation of the NAFTA Free Trade Commission issued July 31, 2001, a Disputing Party shall be free to disclose Public Documents and the Public Version of all Pleadings (exclusive of documentary evidence, witness statements and expert reports), procedural orders, decisions, and awards related to the proceeding.

19. Until the lapse 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, a Written Submission, order, decision, or award shall be deemed to be entirely designated as Confidential Information. Thereafter, until the final designations of Confidential Information have been agreed by the Disputing Parties, or determined by the Tribunal, each Disputing Party’s proposed designations of Confidential Information shall be presumed valid.

20. Except with the prior written consent of the Disputing Party that claimed confidentiality with respect to the Confidential Information, and, in the case of materials from state/provincial 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:

1. Members of the Tribunal, their Assistant, and ICSID officials assigned from time to time, in any capacity, to the administration of this proceeding by the Secretary- General of ICSID;
2. counsel to a Disputing Party (and their support staff and vendors) and counsel to state/provincial or municipal governments whose involvement in the preparation or conduct of these proceedings is reasonably considered by a Disputing Party to be necessary in connection with preparation of the Disputing Party’s case;
3. officials or employees of a Disputing Party and of state/provincial or municipal governments to whom disclosure is reasonably considered by the Disputing

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Party to be necessary in connection with preparation of the Disputing Party’s case;

4. independent experts or consultants retained or consulted by a Disputing Party or by state/provincial or municipal governments in connection with these proceedings;
5. witnesses, who in good faith are reasonably expected by a Disputing Party to offer evidence in these proceedings, but only to the extent that the Confidential Information is material to their expected testimony; and
6. court reporters and other hearing support staff, including translators.

21. No Disputing Party shall file any confidential material covered by the terms of this Confidentiality Order in any court unless required to do so by that court. In such case, the Disputing Party receiving such request shall bring this Confidentiality Order to the attention of the court and seek directions concerning the filing of such material in a manner that protects its confidentiality. A Disputing Party receiving such request shall promptly notify the other Disputing Party and any affected parties prior to requesting such direction from the court.

22. Inadvertent or improper disclosure of Confidential Information, as set forth in the present Confidentiality Order, does not constitute a waiver of the designation of the information as confidential.

23. All persons receiving Confidential Information shall be bound by this Confidentiality Order. Each Disputing Party shall have the obligation of notifying all persons receiving Confidential Information of the obligations under this Confidentiality Order and to ensure that persons receiving Confidential Information pursuant to paragraphs 20(d) or (e) execute a Confidentiality Undertaking in the form attached as Appendix B before gaining access to any such information. Each Disputing Party shall maintain copies of Confidentiality Undertakings under Appendix B and shall make such copies available to the other Disputing Party upon order of the Tribunal or upon the termination of this arbitration.

24. Notwithstanding any other provision in this Confidentiality Order, any request for documents other than those made in this arbitration, including the production of documents under the applicable domestic law of a Disputing Party (for example, under access to information or freedom of information legislation), shall be wholly governed by the relevant federal, state, or provincial law.

25. Notwithstanding any other provision in this Confidentiality Order, the Disputing Parties may disclose documents or information if so required by law. For the avoidance of doubt, in response to any request for documents, the Disputing Parties and the NDTPs shall not disclose the Confidential Version of documents submitted or produced in this arbitration, unless otherwise required by the relevant federal, state, or provincial law.

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26. In accordance with Articles 1127, 1128 and 1129 of the NAFTA, NDTPs may attend the oral hearings, and may have access to orders, the award, and Written Submissions, including those designated as Confidential Information under this Confidentiality Order. NDTPs shall be made aware of this Confidentiality Order and, pursuant to Article 1129 of the NAFTA, shall treat all information as if they were a Disputing Party, notably in respect of protection of Confidential Information.

27. 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) federal or state/provincial law; (b) a privilege; or (c) other grounds for exemption or non-disclosure.

28. The obligations created by this Confidentiality Order shall survive the termination of these proceedings. Within 120 days after, (1) the Tribunal has notified the final award to the parties, or (2) in the event of a proceeding to set aside the final award, following any decision on set aside and following the end of any appeals of that decision, each Disputing Party and each NDTP shall dispose of any documents containing Confidential Information of the other Disputing Party (or the Disputing Parties, as the case may be), unless a Disputing Party asks that the documents be returned to them or to their counsel, which will be done at the expense of the requesting party. Each Disputing Party shall inform the other Disputing Party in writing of the destruction or return of such documents. For the avoidance of doubt, the United States and the NDTPs shall comply with the obligations in this paragraph to the extent permitted by their respective domestic laws.

29. In the event that a Disputing Party considers that certain information requires an additional level of confidentiality on the grounds that (i) its disclosure to the other Disputing Party could result in a serious material gain or loss which could potentially prejudice the competitive position of the Disputing Party, state/provincial or municipal government, or third party to whom that information relates, or (ii) the information is highly sensitive Business Confidential Information that belongs or relates to a Disputing Party, state/provincial or municipal government, or third party, the Disputing Party may request that the Tribunal further limit disclosure of such information to specific persons and counsel in these proceedings.

30. The time periods set out in this Confidentiality Order may be amended by agreement of the Disputing Parties, or by order of the Tribunal after hearing the Disputing Parties and taking into account all relevant circumstances.

31. A Disputing Party may apply for an amendment to, or a derogation from, this order if compelling circumstances so require.

32. This Confidentiality Order shall be effective and binding upon the Disputing Parties upon the signature of the Confidentiality Order by the Tribunal.

33. The Tribunal, the Assistant, and ICSID personnel are not subject to this order, but

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acknowledge their inherent duty to ensure the protection of the confidentiality of information exchanged with the Disputing Parties and amongst themselves in this arbitration and, to this effect, shall maintain appropriate communications modalities and secure data storage systems according to their professional practice.

Date: 5 February 2024

For the Tribunal,

[signed]

Prof. Campbell McLachlan KC
Presiding Arbitrator

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Signed by both Disputing Parties in acknowledgement of the obligation to abide by this Confidentiality Order:

[signed]

For the Government of the United States of America

Ms. Lisa J. Grosh, Assistant Legal Adviser
Mr. John D. Daley, Deputy Assistant Legal Adviser
Mr. David M. Bigge, Chief of Investment Arbitration
Ms. Julia H. Brower, Attorney-Adviser
Mr. Nathaniel E. Jedrey, Attorney-Adviser
Ms. Melinda E. Kuritzky, Attorney-Adviser
Ms. Mary T. Muino, Attorney-Adviser
Mr. Alvaro J. Peralta, Attorney-Adviser
Mr. David J. Stute, Attorney-Adviser
Office of International Claims
and Investment Disputes
Office of the Legal Adviser
U.S. Department of State
Washington, D.C., USA, 20520

[signed]

Alberta Petroleum Marketing Commission

Mr. Ian A. Laird
Ms. Ashley R. Riveira
Mr. Eduardo Mathison
Ms. Lily Geyer
Ms. Tai Williams
Crowell & Moring LLP
1001 Pennsylvania Ave., NW
Washington, D.C., USA 20004

Mr. John R. Laird
Crowell & Moring
Tower 42
25 Old Broad Street
London, UK EC2N 1HQ

Dr. Todd Weiler, MCIArb.
Barrister & Solicitor (Ontario)
150 Plane Tree Drive
London, Ontario, Canada, N6G 5H4

[Page 10]

APPENDIX A

DISPUTED DESIGNATIONS OF CONFIDENTIAL INFORMATION

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APPENDIX B

CONFIDENTIALITY UNDERTAKING

TO: The Government of the United States of America (and its legal counsel) and Alberta Petroleum Marketing Commission (and its legal counsel).

FROM:

1. IN CONSIDERATION of being provided with materials in connection with the arbitration between Alberta Petroleum Marketing Commission and the Government of the United States of America, 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:

1. For residents of Canada in the Provinces of Alberta and/or Ontario; or
2. For residents of the United States of America in the District of Columbia; or
3. For residents of another jurisdiction, at their choice [check one box]:

   [] • In the Province of Alberta
   [] • In the Province of Ontario
   [] • In the District of Columbia

SIGNED, SEALED AND DELIVERED before a witness this ___ day of _________, 20___.

_________________________

(Print Name)

_________________________

(Signature)

_________________________

(Print Witness Name)

_________________________

(Witness Signature)