Author: Armin Steinbach*
Published: June 2014
The treatment of sensitive information poses a challenge in dispute settlement proceedings of the World Trade Organization (“WTO”). The challenge lies in the importance of access to the information relevant to the dispute, which is deeply rooted in the principles of fairness and due process. There are three potentially conflicting interests involved when dealing with sensitive information: First, procedural safeguards are necessary to provide private business with adequate protection for their proprietary business information when a disputing party deems it necessary to present such evidence in support of its case. Second, reasonable access to such information must be provided to the adjudicating body and the other disputing parties. Third, from a transparency and legitimacy perspective, the public has a genuine interest in being informed about the dispute and the facts and considerations leading the panel to adopt a ruling.
Frequently, the WTO Panels’ working procedures have established ad hoc procedures dealing with confidential business information, where “Business Confidential Information” (“BCI”) has been defined as “any information that is designated Business Confidential by the party submitting the information that is not otherwise available in the public domain.” In some cases, Panels seem to have expanded the concept of confidentiality from business interests to other possibly sensitive information by adopting special procedures for handling “Strictly Confidential Information” (“SCI”). Often, the parties to a dispute…
*The author is a civil servant at the German Federal Ministry of Economics (Berlin) and currently Gwilym Gibbon Fellow at Oxford University. The views expressed are strictly those of the author.