INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES
BSG Resources Limited (In Administration), BSG Resources (Guinea) Limited and
BSG Resources (Guinea) SARL
v.
Republic of Guinea
(ICSID Case No. ARB/14/22)
PROCEDURAL ORDER No. 19
Objections to Publication
Professor Gabrielle Kaufmann-Kohler, President of the Tribunal
Professor Albert Jan van den Berg, Arbitrator
Professor Pierre Mayer, Arbitrator
Secretary of the Tribunal
Mr. Benjamin Garel
Assistant to the Tribunal
Dr. Magnus Jesko Langer
15 August 2018
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1. The Tribunal refers to the Claimants’ email dated 30 July 2018, to the accompanying Transparency Table, relating to the objections to the publication of certain information for which protection is requested under Articles 7(2)(a) and (c) of the UNCITRAL Rules on Transparency, Article 15 of Procedural Order No. 2 dated 17 September 2015 and Article C(c) of Procedural Order No. 4 of 25 November 2015. The Tribunal also refers to the Claimants’ email dated 31 July 2018 attaching color-redacted versions of the Claimants’ post-hearing briefs.
2. The Tribunal further refers to the Respondent’s email dated 31 July 2018, to the accompanying Transparency Table relating to the objections to the publication of certain confidential or protected information for which it requests protection under Articles 7(2)(a) and (c) of the UNCITRAL Rules on Transparency, Article 15 of Procedural Order No. 2 dated 17 September 2015 and Article C(c) of Procedural Order No. 4 of 25 November 2015.
3. This order sets out the applicable legal framework (A), the Tribunal’s determination for each category of documents sought to be protected (B), and directions for the next procedural steps (C).
A. Legal framework
4. The Parties have agreed to the application of the Transparency Rules as set out and adapted in Procedural Order No. 2 (“PO2”). Accordingly, the Parties have agreed to make available to the public the documents listed in paragraph 12(iii) of PO2, subject to the exceptions to transparency provided in Article 7 of the Transparency Rules.
5. Where there is a dispute on whether a certain document or category of documents is confidential or otherwise protected, the Tribunal will make its determination in application of the standards set out in Article 7 of the Transparency Rules. In this context, Article 1(4) of the Transparency Rules specifies that, in the exercise of its discretion, the Tribunal must take into account the public interest in transparency as well as the Parties’ interest in a fair and efficient resolution of their dispute. Further, according to Article
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1(6) of the Transparency Rules, the Tribunal must ensure that the transparency objectives prevail in the face of any conduct having the effect of undermining such objectives.
B. Determinations
6. The Tribunal’s determinations concerning the Claimants’ Transparency Table are set out in Annex 1 and those regarding the Respondent’s Transparency Table are found in Annex 2.
7. In this context, the Tribunal notes that there are a number of new exhibits recently added to the record by the Parties with leave from the Tribunal, which originate from the ongoing investigations of the Swiss authorities. While not specifically requested by either Party, the Tribunal decides that references to these exhibits shall be redacted to be consistent with its prior procedural orders (in particular, paragraph 6(b) of Procedural Order No. 4).
C. Order
(a) Exhibits not for publication
8. The following exhibits shall not be published: Exhibits C-0364, C-0365, C-0366, R-594, R-595, R-596, R-597, R-598 and R-599.
(b) Redaction of submissions
9. The following passages in the Claimants’ Post-Hearing Brief dated 11 June 2018 shall be redacted: the title of section VI, 6.3, viii.
In addition, the following footnote in the Claimants’ Post-Hearing Brief shall be redacted: 385.
10. The following passages in the Claimants’ Reply Post-Hearing Brief dated 9 July 2018 shall be redacted: para. 98, 2nd sentence from “[Redacted]
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”; para. 98, 5th sentence from “[Redacted]”; and para. 99, 4th sentence from “[Redacted]”.
In addition, the following footnote in the Claimants’ Reply Post-Hearing Brief shall be redacted: 215.
11. The following passages in the Respondent’s Post-Hearing Brief dated 11 June 2018 shall be redacted: para. 280, 2nd sentence from “[Redacted]”; para. 333, 1st sentence from “[Redacted]”; para. 449, 2nd sentence from “[Redacted]”.
In addition, the following footnotes in the Respondent’s Post-Hearing Brief shall be redacted: 366, 373, 374, 376, 377 and 381.
12. The following passages in the Respondent’s Reply Post-Hearing Brief dated 9 July 2018 shall be redacted: para. 113, 5th sentence from “[Redacted]”; para. 142, 2nd sentence from “[Redacted]”; para. 144 from “[Redacted]” (including footnote 242).
(c) Transmission of amended documents for publication
13. The Parties shall transmit the redacted version of the relevant documents for publication to the Tribunal and the Centre within two weeks from receipt of this Procedural Order.
On behalf of the Tribunal
Signature
Gabrielle Kaufmann-Kohler
President of the Tribunal
Date: 15 August 2018