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APPENDIX 3 Hwang model procedural order on confidentiality*

Rules of Evidence in International Arbitration


Page 373

APPENDIX 3

Hwang model procedural order on confidentiality*

Hwang model procedural order on confidentiality*

1
  • (1) Except as Parties expressly agree in writing (whether in the arbitration agreement or otherwise) or leave is given by the Tribunal, Parties undertake to keep confidential all Confidential Information and the award. Additionally, the provisions of this Procedural Order will continue in force notwithstanding the termination of the arbitration.
  • (2) In this Procedural Order, “Confidential Information” is defined as information that relates to the proceedings or to an award made in the proceedings and includes:
    • (a) the existence of the proceedings;
    • (b) the statement of claim, statement of defence, and all other pleadings, submissions, and statements;
    • (c) any evidence (whether documentary or other) supplied to the Tribunal;
    • (d) any notes made by the arbitral tribunal of oral evidence or submissions given before the Tribunal;
    • (e) any transcript of oral evidence or submissions given before the Tribunal;
    • (f) any rulings of the Tribunal; and
    • (g) any award of the Tribunal, but excludes any matter that is otherwise in the public domain.
  • (3) Subject to (4) below, a party may disclose Confidential Information –
    • (a) for the purpose of making an application to any competent court of any State to recognise, enforce or challenge the award;
    • (b) pursuant to the order of, or a subpoena issued, by a court of competent jurisdiction;
    • (c) for the purpose of pursuing or enforcing a legal right or defending a claim;
    • (d) where disclosure is made to a third party for the purpose of satisfying any legal obligation of disclosure owed (under any applicable law) to that third party;
    • (e) in compliance with the request or requirement of any competent regulatory body or other authority;
    • (f) where disclosure is necessary to ensure that a party to the arbitral proceedings has a full opportunity to present its case and the disclosure is no more than reasonable for that purpose (which may include disclosure to legal and other advisers as well as potential witnesses and other parties assisting in the preparation of the case);
    • (g) if a party wishes to disclose information or documents already in that party’s possession prior to the commencement of the arbitration;
    • (h) with the consent of all the other parties to the arbitration;

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      (i) pursuant to an order by the Tribunal on application by a party with proper notice to the other parties; or
    • (j) as permitted under any other exception recognised by the applicable law.
  • (4) Subject to (6) below, before a party discloses Confidential Information as authorised in (3) above, that party must provide to the other party/parties seven (7) days’ prior written notice of its intention to disclose, giving:
    • (a) written details of the Confidential Information to be disclosed;
    • (b) the party/parties to whom disclosure is intended to be made; and
    • (c) the reasons for the disclosure.
  • (5) Where the disclosure of Confidential Information is sought to be made pursuant to (3) above, the information to be furnished to the other party need only contain a general description of the Confidential Information sought to be disclosed and the classes of persons to whom description is to be made (without identification of those persons). The disclosing party must use its best endeavours to obtain an undertaking of confidentiality, given in favour of the party opposing disclosure, from any individual or entity to whom disclosure of any Confidential Information may be made. The terms of such undertaking should be agreed in advance of such disclosure by the party opposing disclosure (who will not be entitled to the names of the parties to whom disclosure is to be made). If there is a dispute in relation to the terms of the undertaking, this should be referred to the Tribunal for determination. If no such undertaking of confidentiality can be obtained, seven (7) days’ notice is to be given to all other parties identifying the individual or entity concerned. If any objection is raised by any other party within the period of notice, the matter should be referred to the Tribunal to determine the extent of the Confidential Information that may be disclosed and any other steps that should be taken to preserve confidentiality.
  • (6) None of the requirements of (4) above is to apply in the following situations:
    • (a) where disclosure of Confidential Information is made pursuant to (3)(a) above; and
    • (b) where the party seeking to disclose Confidential Information obtains the written consent (both to the particulars and extent of Confidential Information which is sought to be disclosed) of all other parties to the arbitration to do so.
  • (7) If the other party/parties object(s) to disclosure pursuant to (4) above within the period of seven (7) days, no disclosure may be made until the issue has been resolved by the Tribunal in the manner set out in (8) below.
  • (8) If a question arises in the arbitral proceedings as to whether any Confidential Information should be disclosed, and at least one of the parties requests the Tribunal to determine that question, the Tribunal, after giving each of the parties an opportunity to be heard, may in its discretion make or refuse to make an order allowing all or any of the parties to disclose Confidential Information.
  • (9) After the Tribunal has become functus officio, its functions under this Procedural Order are to be exercised by the appropriate supervisory court at the seat of the arbitration.

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    (10) The orders in this Procedural Order replace the provisions of the [IDENTIFY INSTITUTIONAL RULES, IF APPLICABLE].
  • [Note: Because certain countries have enacted legislative provisions on confidentiality, special wording will be needed for arbitrations seated in Hong Kong (Sections 5, 18, Arbitration Ordinance); Australia (Section 22(3), International Arbitration Act of 1974); Dubai International Financial Centre (DIFC Courts Practice Direction No. 2 of 2013); or New Zealand (Section 14, Arbitration Act 1996 (amended 2007))].
  • (11) The Tribunal has the power to take appropriate measures including issuing an order or award for sanctions or costs if a party breaches any of the orders set out in this Procedural Order.

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