Republic of Guatemala v. IC Power Asia Development Ltd.

Background

The Republic of Guatemala filed a petition seeking recognition of an arbitration award against IC Power Asia Development Ltd. Guatemala filed two motions, docketed as Nos. 4 and 7, asking to file Exhibits 4, 5, 7, 9, 11, 12, and 13 under seal.

Guatemala argued that the exhibits contained confidential or sensitive information. Exhibit 4 was a private letter concerning a bid for the acquisition of the Distributors. Exhibits 5, 7, and 9 were share purchase agreements containing information about pricing, transfer taxes, payment methods, and related agreements. Exhibit 11 was a law firm’s letter discussing compliance with the Foreign Corrupt Practices Act and legal actions in Guatemala. Exhibits 12 and 13 were email exchanges containing personally identifying information and private negotiations about the sale of the Distributors.

Court’s Analysis

The court explained that judicial documents are presumed to be publicly accessible. That presumption can be overcome only when sealing is essential to protect a higher value and is narrowly tailored to protect that interest. The court also stated that general claims of confidentiality are not enough and that confidentiality practices in the arbitration do not eliminate the public-access principles governing federal court records.

The court found that Guatemala had not made the required showing at that time. Guatemala sought to seal more than 600 pages but did not identify the confidential information on each page. Instead, it sought to seal entire documents based on the possibility that confidential information appeared somewhere within them. The court also found Guatemala’s description of the allegedly confidential information too vague.

The court gave examples showing why a more specific showing was required. It was not clear that information about bidding procedures remained confidential when the bidding had occurred years earlier. The court also noted that any attorney-client privilege concerning Exhibit 11 might have been waived if the information had been disclosed during the arbitration.

Disposition

The court did not state an express final disposition of the two motions as “granted” or “denied.” It ruled that the current showing was insufficient and directed Guatemala to review each exhibit page by page, identify each portion it wished to keep under seal, and explain in detail why that information qualified as confidential at the time of the filing. Guatemala had ten business days to make that showing. The court stated that the current temporary sealing order would be lifted if Guatemala failed to do so.