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Must we be so Redactionary?

Transparency of investment treaty arbitration is back on the radar this week as delegations convene in Vienna for the latest meeting of the UNCITRAL Working Group II on Arbitration and Conciliation.

While governments debate the scope and content of new transparency obligations, one issue that has received less attention is a sometimes-seen corollary of greater transparency: the redaction of confidential business information or other types of protected information from documents before they are published.

While I remain a proponent of mandatory transparency in investment treaty arbitration, I’m troubled by certain aspects of the redaction process – particularly the emerging practice in NAFTA arbitration with respect to publication of awards and tribunal decisions.

Is this going to take long?

It was the Cargill v. Mexico NAFTA Chapter 11 arbitration that first focused my attention on the redaction process.

From the time that an ICSID tribunal rendered its final award in September of 2009, it took until late February of 2011 – that is, 17 months – for the parties to agree on redactions to the award.

The Cargill case is an outlier, but it’s also a cautionary example of what can happen when an award is rendered and no one – despite a nominal commitment to transparency – seems in a hurry to put it out there into the public domain.

Nor is Mexico the only NAFTA party that has been slow when it comes to giving effect to transparency commitments.

More than four months ago, an ICSID tribunal rendered a decision on liability in a NAFTA dispute between Exxon-Mobil and the Government of Canada. A confidentiality order in that case gives parties a full 30 days in which to object to the publication of any un-redacted decision of the tribunal; any ensuing redaction process is supposed to take no more than 30 additional days, unless “otherwise directed by the tribunal”.

Summer has since given way to autumn here in the Northern Hemisphere, and the Mobil v. Canada decision still remains lost in redaction.

You don’t need to impute malign motives to the parties involved in these cases. Once these awards are shunted into redaction, it’s perfectly understandable that they might remain stalled while more pressing matters and deadlines arise.

For this very reason, however, I think it’s important to examine whether mandatory redaction needs to go hand-in-hand with mandatory transparency of investment treaty decisions.

Can awards be released without running the redaction gauntlet?

What would happen if NAFTA-type awards just tumbled into the public domain mere days or weeks after their release to the parties – without undergoing any sort of redaction?

Fortunately, we don’t need to engage in elaborate thought-experiments here. We can look at the emerging practice under another agreement, the U.S.-Central America Free Trade Agreement (CAFTA), where the publication of awards is mandated.

In three recent CAFTA investor-state arbitrations, RDC v. Guatemala, Pacific Rim v. El Salvador, and Commerce Group v. El Salvador, awards and decisions have been made public exceedingly swiftly – generally in a matter of days after having been released to the parties.

Why is it that CAFTA decisions appear so quickly, while NAFTA decisions remain under wraps for so long?

If you look at the procedural history of the aforementioned CAFTA cases, it appears that the disputing parties simply chose not to put in place a process that provides windows of a month or more for parties to raise objections to the proposed publication of tribunal decisions (and further periods of time for the redaction process to play out).

The CAFTA approach makes sense when you consider how unusual it is for investment treaty awards to contain genuinely “protected” information, such as confidential business information.

If you take a look at the wider universe of investment treaty arbitration – where there are no mandatory transparency requirements – but where several hundred awards have been released with the blessing of one (or both) parties, such awards are almost always published without any redactions having been made to them.

Have there been any negative repercussions from so many BIT awards hitting the streets in a pure, un-redacted, form? Are the corners littered with lawyers and academics that have overdosed on the undiluted contents of these documents? Have investor-claimants fallen on hard times because their confidential business information was spilled across the internet thanks to the release of so many un-redacted investment treaty awards?

Frankly, I can’t recall any real horror stories that have arisen from the common practice of putting BIT awards out there in un-redacted form. Sometimes claimants or respondents don’t like it that their loss has been broadcast to the world – but that is a wholly different thing than to say that highly-sensitive “protected” information was leaked and investors suffered financial harm as a result.

The law of unintended consequences

Given the seeming infrequency with which genuinely protected information finds its way into investment treaty awards, the emerging NAFTA practice seems like overkill. Moreover, it leads to a potent irony: newly-rendered awards from BIT cases where there are no mandatory transparency provisions are far more likely to land in the hands of the public in mere days – or in a matter of weeks – than awards which stem from cases where there are mandatory transparency provisions.

Indeed, while we’ve been waiting for the Mobil v. Canada NAFTA award, at least a half-dozen ICSID awards have been rendered and tumbled into public view.

Don’t get me wrong.

We need mandatory transparency in investment treaty arbitration. Too many awards, and broader case details, remain hidden from public view.

But, protracted redaction processes can hamper transparency by keeping final rulings out of the public eye for months on end.

In NAFTA and CAFTA arbitrations there are already procedural mechanisms for parties to flag confidential business information at the time that it is submitted to the tribunal as part of a party’s pleadings or exhibits.

Where parties are “redacting as they go”, it should be easy for them to take one look at a decision or final award and to recognize in far less than 30 days whether that decision contains material that has been previously flagged as “protected”.

If the award does contain such “protected” information, the parties should enjoy a narrow window in which to request an emergency injunction against publication. Tribunals should be asked to move swiftly to verify the presence of such information, and to create a redacted version for public distribution.

In the rare instances that it’s called for, redaction of final decisions should be a mere speed-bump on the path to publication – not a recipe for interminable gridlock.

Luke Eric Peterson is the Editor of InvestmentArbitrationReporter.com an online news and analysis service focused on investor-state arbitration and policy. He writes occasional blog posts for Kluwer’s Arbitration Blog.

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About Luke Eric Peterson

Luke Eric Peterson is a journalist who has been covering international arbitration for more than a decade. In addition to his own popular news service, Investment Arbitration Reporter, he has reported on investor-state arbitration for The Financial Times, The Economist and The American Lawyer. He lives in New York City and is affiliated with NYU Law School's Investment Law Project View all posts by Luke Eric Peterson →
  • http://www.woessetpartners.com Dr. Herfried Wöss

    The Cargil award was not published earlier due to litigation in Canada in order to have the award set aside. The award is an excellent example of the fragmentation of international law. Whereas Mexico applied the fructose tax as countermeasure as a reaction to the refusal of the USA to establish a NAFTA Chapter XX panel on two occasions, the arbitral tribunal did not admit the countermeasure argument. In this respect Prof. Pieter-Jan Kuijper, Sophie Marceau and Caroline Henckels have argued in recent articles that the countermeasure argument should have proceeded at the least in the WTO Appellate Case (which they did not either). Unfortunately, the limited standards of revision in WTO dispute settlement and investment arbitration apparently do not admit countermeasures under general international law..

  • http://www.iareporter.com Luke Peterson

    Dear Dr. Woss, Is there a particular reason why you believe the domestic litigation is responsible for the delayed publication of the Cargill award? In this case, the Canadian set-aside proceedings ran until May of 2012, yet the award came out somewhere in the midst of those local proceedings.

    • http://www.woessetpartners.com Dr. Herfried Wöss

      Dear Prof. Peterson, I think that the fact of having lost three NAFTA fructose awards in the total amount of US$165 million has been extremely painful for the Mexican government. I assume timing was aimed to have as little as possible public discussion about the awards in Mexico. As a side-effect, Mexico finally seems to have changed external counsels after having used the same team(s) during the last 15 years. Still, the Mexican government does not seem to use its “local experts”, many of which are found in international law firms, are former ICSID functionaries or have been principal government litigators.

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