PROCEDURAL ORDER NO. 6

Damages figures and other damages-related information constitute confidential business information. Article 830 of the Treaty establishes that “[a]ll other documents [in addition to the Award] submitted to, or issued by, the Tribunal shall be publicly available, unless the disputing parties otherwise agree, subject to the deletion of confidential information.” Moreover, the Treaty defines “confidential information” to include “confidential business information.” See Treaty, Art. 831; see also ICSID Arbitration Rule 66(f); Procedural Order No. 2 ¶¶ 6-8.

It is well established that confidential business information includes “information that […] describes financial, commercial, scientific or technical information that is confidential business information and is treated consistently in a confidential manner by the party to which it relates […] the disclosure of which could result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, the disputing party to which it relates.” See Vito G. Gallo v. Government of Canada, PCA Case No. 2008-03, Confidentiality Order dated 4 June 2008, ¶ 1 (emphasis added); see also Crompton (Chemtura) Corp. v. Government of Canada, PCA Case No. 2008-01, Procedural Order No. 2 (Confidentiality Order) dated 21 Jan. 2008 ¶ 1.³

Claimant’s damages figure in this case is non-public confidential business information, the public disclosure of which would be damaging to Claimant and/or could reasonably be expected to prejudice Claimant. Among other things, publicly disclosing such information and, thus, making public the scale and value of what criminals, including the Clan del Golfo, have been able to steal from the Mine because of the State’s various acts and omissions in violation of the Treaty, would further embolden existing illegal miners (including the Clan del Golfo), and even potentially attract new illegal miners. Relatedly, the disclosure of this non-public information could also prejudice Claimant, including its value by revealing to competitors, suppliers, and employees the extent of the illegal mining operations and the significant losses incurred at the Mine.

This information (and the rest of the information Claimant seeks to redact) is not already publicly available and Claimant has consistently treated damages information as confidential. Respondent’s opposition to doing so in this phase of the proceeding directly contradicts its prior position, as Respondent did not object to the redaction of damages in the Request for Arbitration. See Claimant’s Redacted Request for Arbitration, ¶¶ 50, 93(b)(i)).

Claimant’s position to redact damages is consistent with investment arbitration decisions. See, e.g., Ralph Clayton, William Douglas Clayton, Daniel Clayton and Bilcon of Delaware, Inc. v. Government of Canada, PCA Case No. 2009-04, Procedural Order No. 26, ¶ 23 (providing guidelines to redact, inter alia, financial and costs information, which ultimately led to the redaction of the damages figures in the published and redacted Investor’s Damages Memorial dated 10 March, 2017 ¶ 255(a), and Investor’s Reply Damages Memorial dated 23 August, 2017, § B “Quantifying The Loss.”).

UNCTAD’s Investment Dispute Settlement Navigator similarly reflects that non-disclosure of damages is not uncommon in investment arbitration. As of December 19, 2025, the database records hundreds of investment cases with no publicly available amount on the damages sought by claimants.

Claimant has failed to treat the information it claims as confidential as such, thereby failing to meet its burden in proving the confidentiality standard. While Claimant has not stated the exact damages figure contained in its Updated Memorial in the public domain, it has repeatedly divulged its alleged serious losses in the Colombian and international press. Claimant suggests that publication of its damages figures and information would encourage Clan del Golfo, yet Claimant has made frequent public pronouncements, and its directors and employees have provided interviews or statements to news agencies such as the Wall Street Journal and Reuters. In one such report, The Wall Street Journal quotes Leizhong Li, Continental Gold’s CEO, as “estimat[ing] that it has had to abandon an estimated 40 tons of gold deposits in the areas seized by the Gulf Clan and illegal miners.” See Juan Forero, A Drug Gang Stole 3 Tons of Gold in a Scam so Perfect It’s Still Going, in the Wall Street Journal, 12 November 2024; see also The Underground Battle for Colombia’s Richest Gold Mine, ‘The Journal’ Podcast, 2 January 2025. The Wall Street Journal also cited Claimant when it stated that “Zijin Mining Group [Redacted] estimated that last year it lost more than 3.2 tons of gold, worth around $200 million and equal to 38% of the mine’s total production” as well as “Zijin’s CEO” communicating with a Wall Street Journal journalist regarding the “$430 million lawsuit at the World Bank’s International Center for the Settlement of Investment Disputes.” The $430 million figure refers to Claimant’s original damages estimate figure in its Request for Arbitration and is demonstrative of Claimant’s Manichean handling of its own business information, which it claims as confidential before this arbitral Tribunal, but offers for public consumption in statements before the media.

Pursuant to the Treaty, Claimant, as the “disputing party providing information that it claims is confidential has the burden of designating it as confidential.” The Commentary to ICSID Rule 66(f) weighs several different treatments of the term “confidential business information” and supplies a consensus that “‘confidential business information’ refers to trade secrets or other proprietary business information, which is not available in the public domain and which gives a party a competitive advantage in its field or which, conversely, would put it at a disadvantage if revealed to a competitor.” See ICSID Arbitration Rule 66(f) and Eva Kalnina and Ankita Godbole, 'Part 3: ICSID Arbitration Rules, Chapter X: Publication, Access to Proceedings and Non-Disputing Party Submissions [Rules 62-68]', in Richard Happ and Stephan Wilske (eds), ICSID Rules and Regulations 2022: Article-by-Article Commentary (2022), pp. 617 – 659.

The tribunal in South American Silver v. Bolivia provided a test for identifying confidential business information: “First, it is clear that it is information in the possession of Claimant to which Respondent does not have access. Second, the Information is not in the public domain. Third, the Information may have industrial significance and may provide Claimant a competitive advantage in that it contains the data and know-how for the development of the Project. Last, but not least, Claimant treats the Information as confidential.” See South American Silver v. Bolivia, PCA Case No. 2013-15, Procedural Order no. 2, para. 23.

Claimant fails to demonstrate that its damages calculation constitutes “confidential business information” under either ICSID Rule 66(f) or the South American Silver factors. While revealing its claimed damages to its employees, competitors, and suppliers might prove embarrassing to Claimant (although its damages-related media statements suggest to the contrary), there is no proof as to how its claimed damages figures would constitute a “trade secret” or be “proprietary” under ICSID Rule 66(f). Nor would this information be disadvantageous if revealed to competitors. Claimant has an exclusive concession over the Mine which precludes

any official competition. Claimant’s suggestion that the release of the information would embolden Clan del Golfo is also undermined by Claimant’s own argumentation. Claimant presents Clan del Golfo as a sophisticated criminal enterprise which is directly or indirectly managing up to two thirds of the Mine. Clan del Golfo presumably is aware of the quantity of gold being extracted from its own illegal activities without any disclosures from Claimant.

Applying the South American Silver factors is similarly unavailing to Claimant: (1) Claimant makes use of no information which it has not already stated, in one form or another, to Colombia’s security services regarding its losses in the mine; (2) as shown above, Claimant has already made multiple public statements regarding the substance of its claimed losses, including its initial damages estimate of at least $430 million; (3) contrary to what Claimant suggests, there can be nothing proprietary or relevant to know-how in claimed damages figures which would be of use to Claimant’s competitors; and (4) Claimant has not treated its own ostensibly confidential information as such.

Claimant’s reliance on Clayton v. Canada is inapposite. The information which the claimant in that case requested to be redacted was relevant as to a quarry which had yet to be constructed and the relevant regulatory requirements. Disclosing elements such as the “Specifics of the design … Details as to the technical advice … [and] Specific information about envisaged processing of the basalt and end products” would undoubtedly entail proprietary corporate know-how, See Clayton/Bilcon v. Canada, PCA Case No. 2009-04, Procedural Order No. 26, 8 December 2017, para. 23. Unlike the claimant in Clayton, disclosure of Claimant’s damages calculation in these proceedings does not entail proprietary corporate know-how that would justify redaction.

For the reasons set out above in this Procedural Order No. 6, specific damages figures qualify as confidential business information. Claimant’s damages figure contained in its Updated Memorial is substantially higher than its prior estimate and has not been in the public domain.

Therefore, Claimant’s Request No. 1 is GRANTED.

For the reasons set out above in this Procedural Order No. 6, detailed operational information that has not been in the public domain, such as up-to-date information on illegal attacks and the proximity of illegal activities to Claimant’s operations, qualifies as confidential business information.

Therefore, Claimant’s Request No. 2 is GRANTED.

Reference is made to the Tribunal’s reasoning on Requests Nos. 1 and 2.

Claimant’s Request No. 3 is GRANTED.

The Tribunal finds that the section which Claimant seeks to be redacted only partly contains specific information that is not yet available in the public domain, i.e., [Redacted]

By contrast, the statement that Claimant has been allegedly deprived of mineral reserves to which it held exclusive rights does not contain any additional details beyond information already made publicly available, including in the published version of the Claimant’s Request for Arbitration (see Request for Arbitration, paras. 46, 49).

With regard to the section “[Redacted]” Claimant’s Request No. 4 is GRANTED. Otherwise, Claimant’s Request No. 4 is DENIED.

Reference is made to the Tribunal’s reasoning on Request No. 1.

Claimant’s Request No. 5 is GRANTED.

Reference is made to the Tribunal’s reasoning on Requests Nos. 1 and 2.

Claimant’s Request No. 6 is GRANTED.

Reference is made to the Tribunal’s reasoning on Requests Nos. 1 and 2.

Claimant’s Request No. 7 is GRANTED.

Reference is made to the Tribunal’s reasoning on Requests Nos. 1 and 2.

Claimant’s Request No. 8 is GRANTED.

Reference is made to the Tribunal’s reasoning on Requests Nos. 1, 2 and 4.

With regard to the sentence [Redacted] Claimant’s Request No. 9 is GRANTED. Otherwise, Claimant’s Request No. 9 is DENIED.

Reference is made to the Tribunal’s reasoning on Requests Nos. 1 and 2.

Claimant’s Request No. 10 is GRANTED.

See Claimant’s Comments on Requests No 1. Non-public information about incidents, and internal statistics on detonations, improvised explosive devices, and shootings at the Mine are compiled internally and kept non-public for security reasons. Disclosing this information to the public, including to the Clan del Golfo, would hand armed groups with a detailed picture of security measures used by Claimant to defend itself against attacks, as well as incident patterns and further points which could be exploited against the fragile security situation at Mine due to Colombia’s omissions.

The publication of this information could embolden existing illegal miners (and even attract new illegal miners) by revealing the extent of the damage they have caused to the mine’s operations. In addition, the publication of this information could prejudice Claimant, including by revealing to competitors the status of the illegal mining operations at the project site.

Notably, Respondent’s opposition to information related to the attacks at the Mine in this phase of the proceeding directly contradicts its prior position in this proceeding, as Colombia did not object to the redaction of similar information in connection with the publication of Claimant’s Request for Arbitration (see Claimant’s Request for Arbitration, ¶ 31).

Reference is made to the Tribunal’s reasoning on Requests Nos. 1 and 2.

Claimant’s Request No. 11 is GRANTED.

Reference is made to the Tribunal’s reasoning on Requests Nos. 1 and 2.

Claimant’s Request No. 12 is GRANTED.

Reference is made to the Tribunal’s reasoning on Requests Nos. 1 and 2.

Claimant’s Request No. 13 is GRANTED.

Reference is made to the Tribunal’s reasoning on Requests Nos. 1 and 2.

Claimant’s Request No. 14 is GRANTED.

Reference is made to the Tribunal’s reasoning on Requests Nos. 1 and 2.

Claimant’s Request No. 15 is GRANTED.

Reference is made to the Tribunal’s reasoning on Requests Nos. 1 and 2.

Claimant’s Request No. 16 is GRANTED.

Reference is made to the Tribunal’s reasoning on Requests Nos. 1 and 2.

Claimant’s Request No. 17 is GRANTED.

Reference is made to the Tribunal’s reasoning on Requests Nos. 1 and 2.

Claimant’s Request No. 18 is GRANTED.

See Claimant’s Comments on Request No. 1. Non-public information regarding the security measures implemented by Claimant to protect its rights in the mine, including sensitive intelligence information, is highly protected.

Disclosing this information to the public, including to the Clan del Golfo, would hand armed groups with a detailed picture of security measures used by Claimant to defend itself against attacks, as well as incident patterns and further points which could be exploited against the fragile security situation at Mine due to Colombia’s omissions. Moreover, publishing the scope of the illegal miners’ theft that was secured through a terrorist attack increases the odds for further such attacks in the future.

Reference is made to the Tribunal’s reasoning on Requests Nos. 1 and 2.

Claimant’s Request No. 19 is GRANTED.

Reference is made to the Tribunal’s reasoning on Requests Nos. 1 and 2.

Claimant’s Request No. 20 is GRANTED.

Reference is made to the Tribunal’s reasoning on Requests Nos. 1 and 2.

Claimant’s Request No. 21 is GRANTED.

Reference is made to the Tribunal’s reasoning on Requests Nos. 1 and 2.

Claimant’s Request No. 22 is GRANTED.

Reference is made to the Tribunal’s reasoning on Requests Nos. 1 and 2.

Claimant’s Request No. 23 is GRANTED.

Reference is made to the Tribunal’s reasoning on Requests Nos. 1 and 2.

Claimant’s Request No. 24 is GRANTED.

Reference is made to the Tribunal’s reasoning on Requests Nos. 1 and 2.

Claimant’s Request No. 25 is GRANTED.

Reference is made to the Tribunal’s reasoning on Requests Nos. 1 and 2.

Claimant’s Request No. 26 is GRANTED.

Based on the legal standard outlined above in this Procedural Order No. 6, the Tribunal is of the opinion that this section does not contain specific information that is not available in the public domain and could endanger Claimant’s financial or security interests. In particular, this information is publicly available and has not been redacted in the published version of the Claimant’s Request for Arbitration (see Request for Arbitration, paras. 8, 33) and is contained in other parts of the Updated Memorial for which Claimant has not requested redaction (see Updated Memorial para. 236).

Therefore, Claimant’s Request No. 27 is DENIED.

The Tribunal finds that only the first two sentences of this Request contain specific information that is not yet in the public domain.

As outlined above at the Tribunal’s decision on Request No. 4, the statement that Claimant has been allegedly deprived of mineral reserves to which it held exclusive rights does not contain any additional details beyond information that is already publicly available.

With regard to the sentences “[Redacted]” and “[Redacted]”, Claimant’s Request No. 28 is GRANTED. Otherwise, Claimant’s Request No. 28 is DENIED.

Reference is made to the Tribunal’s reasoning on Requests Nos. 1 and 2.

Claimant’s Request No. 29 is GRANTED.

Reference is made to the Tribunal’s reasoning on Request No. 1.

Claimant’s Request No. 30 is GRANTED.

Reference is made to the Tribunal’s reasoning on Request Nos. 1 and 2.

Claimant’s Request No. 31 is GRANTED.

Reference is made to the Tribunal’s reasoning on Request No. 1.

Claimant’s Request No. 32 is GRANTED.

Reference is made to the Tribunal’s reasoning on Request No. 1.

Claimant’s Request No. 33 is GRANTED.

Reference is made to the Tribunal’s reasoning on Request No. 1.

Claimant’s Request No. 34 is GRANTED.