INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES

Lotus Proje Akaryakıt Enerji Madencilik Telekominikasyon İnşaat
Sanayi Taah. Ve Tic. A.Ş.

v.

Turkmenistan

(ICSID Case No. ARB/24/13)

PROCEDURAL ORDER NO. 2

On Transparency and Confidentiality

Members of the Tribunal
Ms. Meg Kinnear, President of the Tribunal
Ms. Lucy Greenwood, Arbitrator
Mr. John M. Townsend, Arbitrator

Secretary of the Tribunal
Mr. Govert Coppens

February 27, 2025

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I. PROCEDURAL BACKGROUND

1. On January 27, 2025, the Tribunal circulated a draft of this order (“Draft PO2”) for discussion by the Parties.
2. On February 7, 2025, the Parties commented on Draft PO2.
3. On February 11, 2025, the Tribunal circulated a further revised draft Procedural Order Nos. 1 and 2.
4. On February 19, 2025, the first session was held. During the first session, the Parties and the Tribunal discussed the Parties’ comments on Draft PO2 and Draft Procedural Order No. 1.
5. This Procedural Order No. 2 contains the Parties’ agreements and the Tribunal’s decisions concerning the transparency regime governing this case.

II. LEGAL FRAMEWORK

6. The legal framework applicable to these proceedings is determined by the Energy Charter Treaty, the ICSID Convention, and the 2022 ICSID Arbitration Rules.
7. In accordance with ICSID Arbitration Rule 1(2), the Parties may agree on other rules governing transparency and confidentiality of this proceeding.
8. In this case, the Energy Charter Treaty is silent with respect to transparency and confidentiality. Therefore, the applicable provisions are those set out in Article 48(5) of the ICSID Convention and ICSID Arbitration Rules 62-66 as amended and supplemented by Section III of this Order.
9. In accordance with ICSID Arbitration Rule 66, confidential or protected information is information which is protected from public disclosure:
   1. by the instrument of consent to arbitration, if applicable;
   2. by the applicable law or applicable rules;
   3. in the case of information of a State party to the dispute, by the law of that State;

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4. in accordance with the orders and decisions of the Tribunal;
5. by agreement of the parties;
6. because it constitutes confidential business information or protected personal information;
7. because public disclosure would impede law enforcement;
8. because a State party to the dispute considers that public disclosure would be contrary to its essential security interests;
9. because public disclosure would aggravate the dispute between the parties; or
10. because public disclosure would undermine the integrity of the arbitral process.

III. TRANSPARENCY RULES

10. The Tribunal adopts the following transparency and confidentiality rules governing the proceedings.

    A. AWARD (ICSID ARBITRATION RULE 62)

11. For the purposes of Article 48(5) of the ICSID Convention and ICSID Arbitration Rule 62, the Centre shall not publish the Award without the consent of the Parties.
12. In accordance with ICSID Arbitration Rule 62(4), ICSID shall prepare excerpts of the Award within 60 days of its dispatch. The Parties may comment on the proposed excerpts within 60 days after their receipt, including whether any information in the proposed excerpts is confidential or protected. ICSID shall consider any comments received on the proposed excerpts and publish the excerpts within 30 days after the expiry of the time limit for the Parties’ comments on the proposed excerpts.

    B. ORDERS AND DECISIONS (ICSID ARBITRATION RULE 63)

13. ICSID shall publish the orders and decisions of the Tribunal, with any redactions agreed by the Parties. If the Parties disagree on any proposed redactions, the Secretary-General

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shall refer the order or decision to the Tribunal, and the Centre may publish the order or decision in accordance with the decision of the Tribunal and Section G below.

C. WRITTEN SUBMISSIONS (ICSID ARBITRATION RULE 64)

14. ICSID shall not publish the Parties’ written submissions.

D. SUPPORTING DOCUMENTS (ICSID ARBITRATION RULE 64)

15. Supporting documents, including exhibits, legal authorities, witness statements and expert reports (including annexes, appendices or exhibits thereto) shall not be published by ICSID.

Ε. HEARINGS (ICSID ARBITRATION RULE 65(1)-(2))

16. Hearings shall not be open to the public.

F. TRANSCRIPTS AND RECORDINGS OF HEARINGS (ICSID ARBITRATION RULE 65(3))

17. Transcripts and recordings of hearings shall not be published by ICSID.

G. PROCEDURE FOR REDACTIONS – NON-DISCLOSURE OF CONFIDENTIAL OR PROTECTED INFORMATION (ICSID ARBITRATION RULE 66)

18. With respect to publication pursuant to Section B above, any confidential or protected information as defined in ICSID Arbitration Rule 66 that is submitted to the Tribunal shall be protected from disclosure and publication in accordance with the procedure set forth below:
19. Within 60 days from the date of a decision or order, a written submission, or the date of transmittal of a final transcript or recording, a Party shall give written notice to the Tribunal and the other Party that it requests the non-disclosure of certain information it considers confidential or protected. Absent such a notice within the 60-day timeline, and unless the Tribunal determines on its own initiative that certain information is not to be made public in accordance with the applicable framework and ICSID Arbitration Rule 66, the Tribunal will authorize ICSID to publish the document or recording without redactions from the Parties.

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20. Within 60 days of receipt of the notice referred to in paragraph 19, the other Party may raise objections to the proposed redactions.
21. If no objections are raised within the deadline established in paragraph 19, the Tribunal will authorize ICSID to publish the document or recording at issue with the requested redactions.
22. If objections are raised within the deadline established in paragraph 19, the Parties shall confer and seek to agree on redactions within 14 days of receipt of the objections to the proposed redactions. If the Parties reach an agreement, the Tribunal will authorize ICSID to publish the document at issue with the agreed redactions.
23. If objections remain unresolved, the disputed redaction requests and the objections thereto shall be submitted to the Tribunal in the form of the Transparency Schedule set out in Annex A to this Order.
24. If information is to be redacted from a document or recording in accordance with paragraphs 20, 21, or 22, the Parties shall provide a redacted version of the document. Upon receipt of the redacted document, the Tribunal will ask ICSID to publish the document.

On behalf of the Tribunal,

Signature

Ms. Meg Kinnear
President of the Tribunal
Date: February 27, 2025

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ANNEX A – TRANSPARENCY SCHEDULE