Summary

Reproduced from www.worldbank.org/icsid with permission of ICSID.

I. BACKGROUND

1. By paragraph 23.9 of Procedural Order No. 1 ("PO1") the Tribunal provided that:

The Parties consent to the publication by ICSID of the award and any order of decision of the Tribunal, as well as the request for arbitration and the pleadings of the Parties provided that any confidential information is redacted before publication.

2. Pursuant to this provision, on 20 October 2020 the Secretary of the Tribunal wrote to the Parties to inform them that ICSID proposed to publish on its website "by 2 November 2020" the request for arbitration (the "RFA"), PO1 and the Tribunal's Decision on Bifurcation and Other Matters (the "Decision").

3. On 27 October 2020, the Claimants wrote to the Secretary stating that they had already notified the Respondent of the redactions which they considered necessary to the RFA, that "no objections were made by Respondent" and that a redacted version of the RFA had already been made publicly available on a website. Those redactions concerned

(a) the identification of ... and (b) the amount claimed in the proceedings. The Claimants gave their consent to publication of the RFA in the same redacted form on the ICSID website. The Claimants also indicated that PO1 and the Decision contained no confidential information and therefore could be published in full. ICSID posted the redacted RFA and the full texts of the Order and the Decision on its website on 2 November 2020.

4. The Respondent wrote to ICSID on 5 November 2020. In its letter, the Respondent stated that:

The redactions to the [RFA] proposed by the Claimants, and made in the version published on the ICSID website, concern matters of public interest. Norwegian political bodies and taxpayers have a legitimate interest in knowing what are the issues in dispute, what is at stake, the amount claimed and who is involved in the case.

This case is being defended at public expense, which also means that we have had to provide detailed information into the government budget processes for fiscal years 2020 and 2021. Furthermore, in conformity with our constitutional duties we have already provided briefings and documentation to the Council of Ministers, to Parliament and to various government bodies, where the amount in dispute has been furnished. Verbatim records of Parliamentary meetings will be published on the website of the Parliament in due course, which will include the amount being claimed.

The Respondent challenged both redactions proposed by the Claimants.

5. At the invitation of the Tribunal, the Claimants replied on 19 November 2020. The Claimants expressed their concern that, in the passage of its letter of 5 November 2020 quoted above, the Respondent appeared to indicate that it would publish the amount of the claim before the Tribunal had ruled on whether this information was confidential and asked the Tribunal to remind the Parties of their obligation to treat as confidential any information which a Party had designated as confidential information until the Tribunal had ruled upon that designation.

...

VI. DISPOSITIF

(1) The Claimants' third request is granted.

(2) The Claimants' other requests are rejected.

(3) The redaction of parts of footnote 36 in the text of the RFA published on the ICSID website shall stand. The redaction of the amount in paragraph 306(b) shall be removed.

(4) The Parties shall endeavour to agree which parts of the present Procedural Order shall be redacted prior to its publication on the ICSID website.

(5) The costs incurred in connection with the various applications considered in this Procedural Order are reserved.

...