Tobias Zuberbuhler

Dieter Hofmann
Christian Oetiker
Thomas Rohner

IBA Rules of Evidence

Commentary on the IBA Rules
on the Taking of Evidence in
International Arbitration

arbitration
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european law
publishers Schulthess S
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Zuberbuthler/ Hofmann
/ Oetiker/ Rohner

IBA Rules of Evidence

Tobias Zuberbuhler
Dieter Hofmann
Christian Oetiker
Thomas Rohner

IBA Rules of Evidence

Commentary on the IBA Rules

on the Taking of Evidence in
International Arbitration

european law C
publishers Schulthess S 2012
Bibliographic information published by the Deutsche Nationalbibliothek
The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbiblio-
grafie; detailed bibliographic data are available in the Internet at http://dnb.d-nb.de.

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the copyright owner.

© Schulthess Juristische Medien AG, Zurich - Basel - Geneva 2012

ISBN 978-3-7255-5654-0

www.schulthess.com
Introduction

This publication seeks to provide a comprehensive analysis and description

of the "IBA Rules on the Taking of Evidence in International Arbitration", as
adopted by the Council of the International Bar Association (IBA) in May
2010.

Neither arbitration laws nor institutional arbitration rules provide detailed

and specific instructions for the taking of evidence in international arbitra-
tion. The "Supplementary Rules Governing the Presentation and Reception
of Evidence in International Commercial Arbitration", as adopted by the IBA
in 1983, represented a first attempt to both fill this perceived gap and to
set forth specific rules for evidence-taking. The 1983 Rules were extensive-
ly revised in 1999 and renamed the "IBA Rules on the Taking of Evidence in
International Commercial Arbitration". The 1999 Rules attempted to reflect
best practice in international commercial arbitration, and were generally
well received.

A decade later, the 1999 Rules were again taken under review and carefully
revised. The revised rules were adopted on 29 May 2010 as the "IBA Rules
on the Taking of Evidence in International Arbitration”.

The 1999 Rules were developed by a Working Party of eminent interna-

tional arbitration practitioners. Similarly, the 2010 Rules were drafted by
distinguished arbitration specialists who formed the "2010 Review Subcom-
mittee". The members of the 1999 Working Party and of the 2010 Review
Subcommittee are listed in the 2010 Rules (see (i) and (iii) in Annex 1).

The effectiveness of the 2010 Rules in practice will only become clear over
time. Hence, any comments on new developments or issues that should be
dealt with in future editions of this Commentary are appreciated (by e-mail
to the authors) and will assist the authors in continuing their work.

The authors are grateful to the IBA, the ICC and UNCITRAL for granting
their permission to use the texts of the IBA Rules, the ICC "Techniques for
Controlling Time and Costs in Arbitration" and the UNCITRAL Notes on Or-
ganizing Arbitral Proceedings.

Zurich, October 2011

Tobias Zuberbihler, Dieter Hofmann, Christian Oetiker & Thomas Rohner

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 VII

Table of contents

BUREN COCECUI ONY eer ire ee reer iene SRP, V

SERIOUS er rr XV

List of Abbreviations. ...........000...ccccccccecccceseceeeeeeeneees XVII

PURI
Ce 9EOC hu ES ae cee ae ea ee XXI

BaURENR ct rem eet Sct Sees cnt) eas Tian asd Repel 1
1. eA EMR ERCPTSUM Siesoreness Vevnnae staat: Seba tns steed seca ve ccae ree eg ioe ta nites
II. Efficient, Economic and Fair Taking of Evidence (par. 1) ........ 2
III. | Supplementation of Institutional, Ad Hoc or Other Rules
Vara) Pe) 8: ee a A Sila Bee ei ee ee 4
IV. Adaptation of the Rules in Arbitral Proceedings (par. 2)......... 4
V. GOO Favees Prmieiore (Dale 5 ac. Ne tendecstesceciitecesecattretscintsdeccns 5
VI. | Knowledge of Evidence Sufficiently in Advance of the Hearing
OMe Pip atse tances Seta vensctdcedddndasetirontpee
selsrsere reset eastraceresietas 6

PGE
SETRENORE ep eee se esr eees recess Pose cassesdencarsdtenasnasrnans 9

Article 1 Scope of Application...................

ee 11

Article 2 Consultation on Evidentiary Issues......... 13

ie POAC VISION 5 cnca.s stcrieds ctungo AA SRSO Ra ab «pitied ea GHRAPR ENS ssh ahececaveves 15
H, Early Consultation With the Parties (par. 1) ......ccsseeeeeeseeeeeees 14
Ne Res OO PC SS LOA.) occa axesccsgacsacsOnathOts silanes eiragseeessee 15
IV. Identification of Relevant and Material Issues (par. 3(a))....... 18
V. Preliminary Determination/ Bifurcation (par. 3(b)) .........seseee 19

LICE: 31H DOCUTTICIIES iif iii A Yahoo nee 23

I, RRO ULSIC I reer, anit taciaraccusshisacuretanonaccdnsenerDasnssyree 27
II. Objective and Structure Of Art. 3 .....sccsscscsecseeseeecssesseecesseees Ze
Ill. ‘What Is a “Document” Under the RUIES? oo. .cccs cs tccsessennecnnens 28
IV. Documentary Evidence in International Arbitration
SGOT Claires Mrtbcrkc ont Cada stetisendnsiavdanivcsnccscosssveventdcnsrceevs 29
A. Importance of Documentary EVIGENCe ........ceeeeeeeee neseeees 29
B. Terminology and Its LiMits .......:cscsscsssesesesenseeeseereneeees 30
VIII Table of Contents

C. Controversy as to Document Production Due to Differing

Concepts 30
D. Harmonised Rules and Document Production in Arbitral
Practice
E. The Arb itral Tribunal’s Power to Order Document
Production in Generali cccsnsccscassenessssceesen escea eeteeeeneiee ane
F. Production of Electronic Documents in Particular ............
G. Statutory and Contractual Rights to Production .............
H. General Remarks on the Provisions of Art. 3 .......:eceeeeeees
Submission of Documents That Are Available to Each Party
((oy-] a eteretereprrtitricitertr ces pert niin nono rcty oigheke dS)
VI. Production: of DOCUMENTS fo. . i. esccresxanswcssasascerectesuenes aera renee
A. Principles Governing Document Production (par. 2-9)......
B. Production of Documents in the Control of the Opposing
Party (par, 2:7) viesss bins cecveiegar «dead. demas deieeastatetesin Alle eaeeine
L.acIntroduction, .iid. ds csisracgatccrtadeds tea dene tee remegeeenes
2. Request to Produce to the Arbitral Tribunal and
to the Other. Parties. (paty-2) 2: .csinte wns Bes eee
3. Requirements as to the Content of a Request
to, Produce; (pat...3) <tiiesicdviuts tc.eaetenees benre eens
A) ZOLO-REVISION ccxcvecsccecteqsheneacsgoseate meee eees aaa
D) -OVEMNVIGW:. fsccveuscusedss ueducevsrcecaseea nates sateen eee
c) Identified Document or Narrow and Specific
Category 3... cduvecceceutipaesaenturteecandoutenerancee cae ee eee
d) Specific and Narrow Category in Case of
Documents Maintained in Electronic Form ...........
e) Only Documents That Exist. <5 .c:2ce see eeaeeein eee
fy ~Relevance’and Matefiality” --...-ccc:r.ctce toate ceeeeatee
g). Possession, Custody: or: Controle.csc.e nei eee
4. No Objection by the Other Party: Obligation to
Produce. (pay 4) sisrcterecsasesadete hteuenowen aerate
5. Objection to Production Request (par. 5) .....ccccseeeeeeee
6..-Invitation tor Consult (pare) s-eienneecteee at eee
7. Decision and Order by the Arbitral Tribunal (par. 7)...
C. Review of the Document by a Neutral Expert (par. 8) ......
D. Request to Produce Against a Third Party (par. 9)
E. Request to Produce by Arbitral Tribunal (par. 10)
Vil. Additional Documents - Second Round of Document
Submission (Dali LD), sdssmsinbccisciets citalia aecansn
ae Geet eee
i
VIII. Form of Submission or Production, Copies, Electronic
Documents, Multiple Copies and Translations (par. 12)
A. General Remarks
Table of Contents IX

B. Conformity of Copies and Presentation for Inspection

UE ATL chy hic POM aah ee Ue EN RA Pee SEO vd bela
C. Documents Maintained in Electronic Form (par. 12(b)).....
Daanomultiple Coples (par12(C)) sass AR OE wk
Spd ht
eae IS AL, BL) )orice nvssnininn hoe coVOULs TARE Rs onde
IX. COME ATERSENT AES inte! obSen cca ws OIA RED SEO won
X. Separate issues or Phases (par 14) 8 008 We rieeiaveneeesees

TOEMEMCAION OF WITNESSES (Dak 1). -.......ccccccvcosecncscecrsesocnes

eRe eae A VPISS COOL. ZY cs onasagsptscvicqucsucsscscstensetetacdyes
SRRRERVe WIG) WUIEIESSES (Dal. 3) scsccncananeansracessstsanncsesanacexsevs
Nee Sea IRs oes ccnacearertares crunth cert spsxs cegsdetergh0s esx
Pee PRIS COGN. FT) gedccappccconsastsveisssenteecnvvasines sures
ee SER US OE Boake satnnetGantacwspe ccaseascaanarevnens stats
i ag) 2 le) sae dl ian ape I a SR Ae RE PE
de 1GenULy- OL _chie WILMESS (Dal. 5(A))-.crncsscsncansssssscansenas
Zoe EALEINICIIC OF TCLS (DAT. DU) foveasc cscs ponnngoesssscnsusagesss
S fowlBy elVsye OA Pi ABS (a tg ea a ee aS i a eS
4. Affirmation of Truth and Signature (par. 5(d) and (e))
D. Rebuttal Witness Statements (par. 6) ........cecseceeseeeeeeeeees
VII. Right to Examine Witnesses Who have Submitted a Witness
SUEnD See ne st le aR eel aaa ne i See
A. 2010 Revision: Omission of the General Duty to Appear
BELOLe Ele PPD Gl FITOLUI ov cusecegtTasapnapsenancaasasssadnangsnnen
Be WAIVer Gl ADDEAIANCE (Dal. ©) ccssiccncesaccessstusteccnssctoessonne
er et ADOCAL (DAE FD caneadenxcusiuiyeSesscndstossisasinestyse nse
IN rate recente cas vneran Pealasegsccressassanestsnsieheeass
2. Waiver of Appearance by the PartieS.........scseeeeceeenees
3. Waiver of Appearance by the Arbitral Tribunal...........
4. Witnesses Who Are Unavailable for Examination
Because of Objective REASONS.........csssssccssessceecsceees
5B. UNexcused NON-APPEarance .oecissccccsscsssavecsccceccsscees
VIII. Evidence of Recalcitrant Witnesses (Par. 9)......ccsceseeseveeeeeeees
IX. Witness Appearance Ordered by the Arbitral Tribunal

Article 5 Party-Appointed Experts...................0000

I. DO MOUREVISIONbc att taetedises ietiaisedscaasanvrscecdassaedeepidasesessds
x Table of Contents

If: Reliance on a Party-Appointed Expert (par. 1)........sseeeeeeeeees 111

III. Identification of Party-Appointed Expert (par. 1).......:.cseeeeeees a2
IV. Expert REPOrti....v.sceccccssescvctnrcnteueseensseaseucsavsecseWednanasemencns 1
A... General REMAarkS wiccccscdscenntwtsstatch cs @heusnsaiuahs ness strane cen 112
B. .Submission (pate 1). ic.<seceacs Ave aae ve vawnbn wrote etea ened 113
CG... CONteNE (Pare. 2) ioative cs ceiecemiawe s dseeanee nese tastes aie selene 123
1. Identity of the Expert (par. 2(a))........cccccccesssecenesenes Lis
2. Description of Instructions (Par. 2(D)) ......ceseeeeeeeen eee 114
3. Statement of Independence (par. 2(C)) .......ceeeeeseeeeee 114
4. “Statement:ofi Facts (pare2(G)) isceteen cen. sceecenaneee ences 145
5. Expert’s Opinions and Conclusions (par. 2(e)) .........+ 116
6. Language (parie2(0)) svi ceneenneuss non cetepeier eae 116
7. Affirmation of Genuine Belief (par. 2(G)).......:esseseeeees Livy
8s. Signature (panc2Qiy) soiree ces see amen eee 1i7
9. Attribution to Several Authors (par. 2(i)) ...........:.seee 117
V. Rebuttal’ Expert: Reports (pally 3) cup<spussmcnxsiansmaernacwsheasaansamanics 118
VI. Expert Meeting: (pare 4) iste: ack ioeee sate cee 119
VII. Right to Examination of Party-Appointed Experts................55 120
A. 2010 Revision: Omission of the General Duty to Appear
Before the Arbitraly TA DUMal cane teow nbd eae eters 120
B. Waiver. ot Appearance. pals .6) aceon. .cancasenndceiaeeeenee 120
Cy. Failure tovApneer (Dat) criceacens nace teck cesta mueseeeeeeneee 121
1. Géneral ‘Rule cogasg ecko. ot. inne Oe ci eee ee val
2. Waiver of Appearance by the Parties..............scseeeeeee 122
3. Waiver of Appearance by the Arbitral Tribunal ........... 122
4. Experts Who are Unavailable for Examination Because
of Objective RGaSONS .a20. 5 Soi ee igs
5. Unexecused Non-Appeatance %,. .cciecsc osha ses eae 123

Article 6 Tribunal-Appointed Experts ...................... 125

i 2010 ReviSion....: cc. eR ee eee eee 127
II. Appointment of Experts by the Arbitral Tribunal .................. 128
A. General Remarks (pain) 2.41). 3h ee eee 128
B.. Duty. to. Appoint. an. Expertes ie2)- soe 128
C. Exclusion of the Arbitral Tribunal’s Power ................eceeees 129
D. Duty to Consult with the Parties (par. 1) .........cccceeeeeeeees 130
E. Choosing the Experts 252.2) aS eeeeee 130
F. Contractual Relationship of the Expert.............cccececeeeeees 131
G. Right of the Arbitral Tribunal to Release the Expert.......... 132
H. Scope of the Experts:laskt 242.2342 = ee eee 132
III. Expert’s Terms of Reference (par. 1).........cccsccescaeceececceceuceee 133
IV. Qualification and Independence of Expert (par. 2) .......ss00eee-- 134
Table of Contents XI

Dae VESERDNOROMOUGITICAtIONS siccu). Cheer euast.. Nee ede aid 134

Bi. statementofiindenendence x, arsine Swell 134
ewObjections bythe: Parties... chen Yana dl ke. Ret ilata 135
V. The Parties’ Duty to Provide Information (par. 3)........cceceeeees 136
Fi IGEN SRN Eh reu Re ANION
se A eens 136
B. The Expert’s Power to Request Information
BANCO CMe IES ste eh Lcaerie
er cis eee L:36
C. The "Relevant and Material"-TeSt .....icc.c:sciesccsecccetsccdecees ESA
D. Providing Access to Documents etc. ........ccsccscessesscsseeeecs 137
ee eR RAN eink ssid cance Rene nds acacincrnh ts oGdn tec wie 138
F. Failure to Comply with Expert’s Request ..........cccececeseeees 138
heen. Expeke Reposii (panies): ipuitieeerae ceeageremce 138
OS CSS SINE Se rire eee Bites Eee ET A ACRES wak ek 138
Bin MG ricci aetiace sata aes Me SE NU ec CSE iS aE es 139
L aeidentityiee the: Expert (pantla) eccii K eeies 139
2.=2Statement of Facts (pare 4(b) ad. ania noth mais 139
3. Expert’s Opinion and Conclusions (par. 4(C))..........68. 139
Reel ACA GRU AES 6) ie soar oes agai ee ieee cee Sete Se read 140
5. Affirmation of Genuine Belief (par. 4(e€))...........::eee 140
6s Signet Dar (0) & oe reac ae Sie sah sek aeeeeo ites os A awed 141
7. Attribution to Several Authors (par. 4(Q)) ........ceeeeeee 141
VII. Parties’ Right to Respond to the Expert’s Report (par. 5) ....... 141
VIII. Parties’ Right to Question the Expert (par. 6)........:eceeeeeeeeeeee 142
Pree MASSeSssiienit. OF EXDGIL REDO (Pale 7) viccicccscsccvauhsscorecscencnces 143
xX. CE RD TOS Fateh anon nes ansinsa capa ngaanannadwansncins 144
ie AODONIMITIENE OF ait AUCILIONG EXPEIl oo. cc cccscienssadseoninssdeesensns 144

Pa nnn
Nee — ITS DCCUONT cs-s.5 552050 c-0200-> sugnpnbercnd~enrepragiansd 145
I EM IONS rock iad een ca pnb cacaqcix wadadmalgnt rary Godan Vdatraves33
aeseme 145
II. BIEN gd soar da dveecs x cucncnsunadnn (tages Mace toril) (9G: Mises sya 145
III. Arbitrators’ Power to Order Any Kind of Inspection............... 146
A Re EE PICUIO oe ce ceciscddnaesndandesaaeepeh ese ePUeere «+xahs 6s 146
Be Oty eh PattyS REGUESE oven cance cc sc titerbuee ss Sea tsEN vena vecsgarent 147
Cos Limientions. According CO-Art. Ol 20s ianick <a. cs waedeics cea Goose. 147
IV. Parties’ Right to Assist the Arbitral Tribunal in the Taking
fo MLad (9(a) 2 Seek ES ek eee eee Pee OP er EETEEYPeLETER TyOL ELE Ce Eee 148
V. GONAUCE, Of The INSPECtlOnvawiakae hs «sida WSK S aT bes Scien vende sees 149

Article 8 Evidentiary Hearing...................ccccee 151

Re PR LOPREVISIONN Getter cee encthncrcerettossanntesececartitereceonscantsennssss 153
II. AERO CIUICLIOMGEEME teem ttre te ce erriircne cadccicaCadiscdsrtvscanccstercsnesaane 153
XII Table of Contents

A. Scope of Application ........0..0..005 Fy eee et kd aean eye aiePan ered

B. Applicable Procedural LAW .......:cccceeeeeneeseeeeeeeseeeeeeteeneens
III. Appearance of Witnesses (Par. 1)......cseeeeeeeeeeeeeeeeeeeeneeeeenees
IV. Leading Role of the Arbitral Tribunal (Par. 2).......ssseeeeneeeeeeees
V. Sequence of Witness and Expert Presentation (par. 3) .........
A. Sequence of Direct Testimony (Par. 3(a))....:cecseeeeeeeeeee ees
B. Sequence of Cross-Examination and Re-Direct
Examination (par. 3(D))i..c..2ai acon ounce ans ecee We enasrattntenssnae
C. Sequence of Testimony for Party-Appointed Experts
(pariSQC)) sevice ae Laisa Asean wate he aerate oanta 159
D. Questioning of Tribunal-Appointed Experts (par. 3(d)) ..... 159
E. Bifurcation of Arbitral Proceedings (par. 3(€))........csceeeees 159
F. Variations of Sequence/Witness Conferencing (par. 3(f)).. 152
G. Arbitral Tribunal’s Power to Ask Questions (par. 3(g))......
VI. Witnesses’ Affirmation of Telling the Truth (par. 4)...........0000
VII. Witnesses or Experts Requested by the Arbitral Tribunal
(pare: 5) veseticns calaties eR aca alae Semebieniot obese eee tghmmataamies 161
VIII. Some Practical Aspects of Managing the Evidentiary Hearing 162

Article 9 Admissibility and Assessment

of Evidence. ee ee eee
i 2010 REVISION sic. carvescsus ogemsscnspeucdte uatcenerds ae: exteea meee een
AA Assessment of Evidence by Arbitral Tribunals (par. 1) ...........
INUOGUCTION SSsccacad ince ance scesenace sence caanniean cera ete eee ere
Admissibility_OfF EVIGGRCE tx. eress ccuacossusewatescaeesees cere
Burden :OF-PLOOf scp n cis ana sana vcnacududenars sree eneeneeete eee

Weight OPEVIGENCE iiireccsaconmeatsanncaces aeeter eteenenere a eeeenen

“MOOD
Stay, of Proceedings ssiciaidecceccdge dexadetecetanees te eeee rene oe
III. Exallisioh of Evidence (paki 2) .cccecscesevsgavactenaceveceeeteeenneae
A.—Legal. Privilége (panf2(b) anaes) <i-7. 2.00: tee ee
be Tntréductiona..:. fick sea iaercs eter eae eat ee oe
2. IN=HOUSE-COuUNnSele& scivstenvereduo eee oe eee
oP eee ry

4./ List'of Elements to Consideri(pak' 3) Want. cen

B. Other Reasons to Exclude Evidence (par. 2(a-g))
1. Lack of Relevance or Materiality (par. 2(a))
Legal Impediment(par.°2(b) andS)s...c.s.ssaercevtesses
Unreasonable Burden to Produce (par. 2(c))
Loss or Destrilction' (pak 2(d))eascccnc eee ee 179
Commercial and Technical Confidentiality (par. 2(e)).. 180
Col
Pa Political or Institutional Sensitivity (par. 2(f)) 180
Table of contents XIII

7. Considerations of Procedural Economy,

Proportionality, Fairness or Equality (par. 2(g)).......... 181
IV. COMmcentaliky PrOCOCUON (Dale 4)caicaaiarsscevarwnminssrteXss0rcvicuts 181
V. Adverse Inference: (Par. S—-6)si.cccccccsscecssecissveseserevsecdvesvcevees 182
PPR LE ROGUCUOMM Rr racinr Nothih. cxcasacevekesvdcsedevnvsaniocchancesseebaveae 182
Be eNOLal, REGENT OIICNIES ccntiivenss sen deagsecesiteanny laverebnredteonsatt 184
C. Production of all Corroborating Evidence
SUG Se 2 |gnt On ag ee ee ee 184
D. Evidence Accessible to the Other Party ............sesesecsseeeee 185
Beet aE TMOTENICE Ln ssccccadiqgaarnencaedhataineaisvedandcndbiehanses 185
F. Consistence with Facts in the Record......:cccccsscsecssenrseens 186
G. Logical Relation to Evidence Withheld..............ccsceseeeeenes 186
H. Prima Facie Evidence by Requesting Party..........:ccseeseeees 187
I. Sufficient Opportunity for Requested Party to Produce..... 187
VI. Cost Sanctions for Bad Faith Conduct (par. 7) ..........cccceeeeeees 188

Annex 1: Comparison IBA Rules 1999 and 2010... 189

Annex 2: ICC Techniques for Controlling Time

and Costs in Arbitration................0.0..0.. 225

Annex 3: UNCITRAL Notes on Organizing

Arbitral Proceedings. .................cccceeees 253
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 XV

List of Authors

Tobias Zuberbihler, LL.M.

LUSTENBERGER RECHTSANWALTE
Wiesenstrasse 10
P.O. Box 1037
CH-8032 Zurich
zuberbuehler@lustenberger.pro

Dieter Hofmann
WALDER WYSS LTD.
Seefeldstrasse 123
P.O. Box 1236
CH-8034 Zurich
dieter.hofmann@walderwyss.com

Dr. Christian Oetiker, LL.M.

VISCHER LTD.
Aeschenvorstadt 4
CH-4010 Basel
coetiker@vischer.com

Dr. Thomas Rohner, LL.M.

PESTALOZZI
L6wenstrasse 1
CH-8001 Zurich
thomas.rohner@pestalozzilaw.com
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 XVII

List of Abbreviations

AAA American Arbitration Association

ArbInt Arbitration International, London

Arbitration The Journal of the Chartered Institute of Arbitration,
London

Am. Rev. Int’l Arb. American Review of International Arbitration, New

York

ASA Association Suisse de |’Arbitrage (Swiss Arbitration

Association)

ASA Bull ASA Bulletin

BLI Business Law International (IBA Legal Practice Divi-

sion)

CIETAC China International Economic and Trade Arbitration

Commission

CO Swiss Code of Obligations of 30 March 1911 (as

amended; SR 220)

DFT Decisions of the Federal Tribunal (= Swiss Federal

Supreme Court)

DIS Deutsche Institution fur Schiedsgerichtsbarkeit (Ger-

man Institution of Arbitration)

HKIAC Hong Kong International Arbitration Centre

IBA International Bar Association

ICC International Chamber of Commerce

ICC Bull The ICC International Court of Arbitration Bulletin,

Paris

ICC Report Techniques for Controlling Time and Costs in Arbitra-

tion, Report from the ICC Commission on Arbitration
(ICC Publication No. 843)

ICC Rules Rules of Arbitration of the International Chamber of

Commerce (in force as from 1 January 2012)

ICCA International Council for Commercial Arbitration

XVIII List of Abbreviations

ICSID International Centre for Settlement of Investment

Disputes

IntALR International Arbitration Law Review, London

JIDS Journal of International Dispute Settlement, Oxford

JIntArb Journal of International Arbitration, Geneva

LCIA London Court of International Arbitration

LCIA Rules LCIA Arbitration Rules in force as from 1 January

1998

Model Law UNCITRAL Model Law on International Commer-

cial Arbitration, adopted on 11 December 1985 (as
amended on 7 July 2006)

NYC United Nations Convention on the Recognition and

Enforcement of Foreign Arbitral Awards (New York
Convention; New York, 10 June 1958)

PILS (Swiss Federal) Private International Law Statute of

18 December 1987 (as amended; SR 291)

Rev.arb. Revue de I’arbitrage, Paris

Rules IBA Rules on the Taking of Evidence in International

Arbitration (as adopted by the IBA Council on 29 May
2010)
SchiedsVZ Zeitschrift fur Schiedsverfahren (German Arbitration
Journal), Munich/Frankfurt/Basel
SIAC Singapore International Arbitration Centre
SAVE Schweizerische Juristenzeitung, Zurich
SR Systematische Sammlung des Bundesrechts/ Recueil
systématique du droit fédéral (systematic digest of
Swiss federal law; www.admin.ch/ch/d/sr/sr [Ger-
man], www.admin.ch/ch/fr/rs/rs [French])
Swiss Rules Swiss Rules of International Arbitration (in force as
from 1 January 2012)
UNCITRAL United Nations Commission on International Trade
Law

UNCITRAL Notes UNCITRAL Notes on Organizing Arbitral Proceedings

(1996)
List of Abbreviations XIX

UNCITRAL Rules UNCITRAL Arbitration Rules (in force as from 15 Au-

gust 2010)

YB Comm. Arb. Yearbook Commercial Arbitration (van den Berg

ed.)

WIPO World Intellectual Property Organization

WIPO Rules WIPO Arbitration Rules (in force as from 1 October
2002)
ZEG Zurich Chamber of Commerce

ZCC Rules ZCC International Arbitration Rules (in force as from

1 January 1989)
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 XXI

Bibliography

Aven Menno, Internationale Handelsschiedsgerichtsbarkeit, 2nd ed., Munich

2003

AsHrorp Peter, Documentary Discovery and International Commercial Arbi-

tration, Am. Rev. Int’l Arb. 1/2006, 89-141

Bercer Klaus Peter, International Economic Arbitration, Deventer/Boston

1993 (cited Bercer, Arbitration)

Bercer Klaus Peter, Evidentiary Privileges: Best Practice Standards versus/

and Arbitral Discretion, ArbInt 4/2006, 501-520 (cited Bercer, Evi-
dentiary Privileges)

Bercer Klaus Peter, Evidentiary Privileges Under the Revised IBA Rules on
the Taking of Evidence in International Arbitration, IntALR 5/2010,
171-176 (cited Bercer, IBA Rules)

Bercer Klaus Peter, Internationale Wirtschaftsschiedsgerichtsbarkeit, Ver-

fahrens- und materiellrechtliche Grundprobileme im Spiegel mod-
erner Schiedsgesetze und Schiedspraxis, Recht des internationalen
Wirtschaftsverkehrs (eds. Horn/Drobnig/Herber/Schitze), vol. 10,
Berlin/New York 1992 (cited Bercer, Wirtschaftsschiedsgerichts-
barkeit)

Bercer Klaus Peter, The Settlement Privilege, A General Principle of Inter-

national ADR Law, ArbInt 2/2008, 265-276 (cited Bercer, Settlement
Privilege)

Bercer/KeLterHALs, International and Domestic Arbitration in Switzerland,

2nd ed., Sweet & Maxwell/Stampfli Publishers Ltd. 2010

Biessinc Marc, Comparison of the Swiss Rules with the UNCITRAL Arbitra-
tion Rules and Others, ASA Special Series No. 22 (2004), 17-65

BocxstieceL Karl-Heinz, Taking Evidence in International Commercial Arbi-

tration - Legal Framework and Trends in Practice, in: Bockstiegel/
Berger/Bredow (eds.), The Taking of Evidence in International Com-
mercial Arbitration, Schriftenreihe der Deutschen Institution fur
Schiedsgerichtsbarkeit, vol. 26, Cologne 2010, 1-8

Booc Christopher, Die Durchsetzung einstweiliger Massnahmen in interna-

tionalen Schiedsverfahren, Zurich 2011

Born Gary B., International Commercial Arbitration, The Hague 2009

XXII ee e Bibliography
e
XX

BoucHenakt Amal, The IBA Rules Lay the Ground for Solutions to Address
Electronic-Document-Production Disputes, IntALR 5/2010, 180-185

Brower/BruescHke, The Iran-United States Claims Tribunal, The Hague 1998

Brunett1 Maurizio, The Lex Mercatoria in Practice: The Experience of the

Iran-United States Claims Tribunal, ArbInt 4/2002, 355-378

BUHLER/Dorcan, Witness Testimony Pursuant to the 1999 IBA Rules of Evi-

dence in International Commercial Arbitration - Novel or Tested
Standards?, JIntArb 1/2000, 3-30

Caron/Captan/PettonpAA, The UNCITRAL Arbitration Rules: A Commentary,

New York 2006

Carter James, Privilege Gets a New Framework, IntALR 5/2010, 177-179

Coven KLAseneR Amy, The Duty of Good Faith in the 2010 IBA Rules on the
Taking of Evidence in International Arbitration, IntALR 5/2010, 160-
164

CoHeN KLAsener/Dotcorukow, Die Uberarbeitung der IBA-Regeln zur Beweis-

aufnahme in der internationalen Schiedsgerichtsbarkeit, SchiedsVZ
6/2010, 302-310
Commentary Swiss Rutes, Zuberbuhler/Muller/Habegger (eds.), Swiss Rules of
International Arbitration, Commentary, Zurich 2005 (cited AutHor in
Commentary Swiss RuLes)

Craic Nicholas, Arbitration Confidentiality and the IBA Rules on the Taking
of Evidence in International Arbitration, IntALR 5/2010, 169-170

Craic/Park/Pautsson, International Chamber of Commerce Arbitration,

3rd ed., New York 2000

Cremades Bernardo M., Powers of the Arbitrators to Decide on the Admis-

sibility of Evidence and to Organise the Production of Evidence, ICC
Bull 1/1999, 49-56

Date Geoffrey, Rent Review and Property Valuation Arbitration, in: Tackab-
erry/Marriott (eds.), Bernstein’s Handbook of Arbitration and Dispute
Resolution Practice, vol. 1, London 2003, 839-875

Derains Yves, Towards Greater Efficiency in Document Production before

Arbitral Tribunals - A Continental Viewpoint, ICC Bull 2006 Special
Supplement, 83-91 (cited Derains, Document Production)
Derains Yves, La pratique de l’administration de la preuve dans l’arbitrage
commercial international, Rev.arb. 2004, 781-802 (cited DERAINS,
Preuve)
Derains Yves, Le témoin en matiére d’arbitrage international, in: Bohnet/
Wessner (eds.), Mélanges Francois Knoepfler, Basel 2005, 227-233
(cited Derains, Témoin)
Derains/ScHwartz, A Guide to the ICC Rules of Arbitration, 2nd ed., The
Hague 2005

E.sinc/Townsenp, Bridging the Common Law-Civil Law Divide in Arbitration,

ArbInt 1/2002, 59-65
FISCHER-ZERNIN/ JUNKER, Between Scylla and Charybdis: Fact Gathering in Ger-
man Arbitration, JIntArb 4/1987, 9-34

FOUCHARD/GAILLARD/Gotoman, On International Commercial Arbitration (eds.

Gaillard/Savage), The Hague/Boston/London 1999

Geunas Paul-A., Evidence through witnesses, in: Lévy/Veeder (eds.), Arbi-

tration and Oral Evidence, ICC Publication No. 689 (2005), 29-53

Git/Tawit/KreInDLer, The 2010 Revisions to the IBA Rules on the Taking

of Evidence in International Arbitration, Les Cahiers de L’Arbitrage
2011-1, 23-32
GIrRSBERGER/Voser, International Arbitration in Switzerland, Zurich 2008

Gotanpa John Yukio, Awarding Costs and Attorneys’ Fees in Internation-

al Commercial Arbitrations, Michigan Journal of International Law
1/1999, 1-49

GrirFin Peter R., Recent Trends in the Conduct of International Arbitration —

Discovery Procedures and Witness Hearings, JIntArb 2/2000, 19-30

Haseccer Philipp, Document Production - An Overview of Swiss Court and

Arbitration Practice, ICC Bull 2006 Special Supplement, 21-32

Harter Peter, Strategie und Technik des Zivilprozesses, 2nd ed., Zurich
2011
Hamiton Virginia, Document Production in ICC Arbitration, ICC Bull 2006
Special Supplement, 63-81
Hanotiau Bernard, The Conduct of Hearings, in: Newman/Hill (eds.), The
Leading Arbitrators’ Guide to International Arbitration, 2nd ed., New
York 2008, 359-379 (cited Hanotiau, Conduct of Hearings)

Hanotiau Bernard, Document Production in International Arbitration: A Ten-

tative Definition of "Best Practices", ICC Bull 2006 Special Supple-
ment, 113-119 (cited Hanotiau, Document Production)
XXIV ee ee Bibliography
eee
OM

Harris Christopher, Expert Evidence: The 2010 Revisions to the IBA Rules
on the Taking of Evidence in International Arbitration, IntALR 5/2010,
212-215

HascHer Dominique, Introduction, in: Decisions on ICC Arbitration Proce-

dure, ICC Bull 2010 Special Supplement, 5-16

Hertzmann Pierre, Confidentiality and Privileges in Cross-Border Legal Prac-

tice: the Need for a Global Standard?, ASA Bull 2/2008, 205-240

Hitt Richard D., The New Reality of Electronic Document Production in In-
ternational Arbitration: A Catalyst for Convergence?, ArbInt 1/2009,
87-102
IBA Review Suscommittee, Commentary on the Revised Text of the 2010 IBA
Rules on the Taking of Evidence in International Arbitration (cited
IBA Review Suscommittee 2010)

IBA Workinc Party, Commentary on the New IBA Rules of Evidence in Inter-
national Commercial Arbitration, BLI 2000, 16-36 (cited IBA Workine
Party 1999)

Jenkins/Stepsines, International Construction Arbitration Law, The Hague

2006
Jermini Cesare, Witnesses and the right to be heard in international arbitra-
tion: some remarks on recent decisions of the Swiss Federal Court,
ASA Bull 3/2004, 605-609

Jones Doug, Party Appointed Expert Witnesses in International Arbitration:

A Protocol at Last, ArbInt 1/2008, 137-155

KarrerR Pierre, Beweislast und Beweiswurdigung, Podiumsdiskussion zur

Praxis der Beweiserhebung in internationalen Schiedsverfahren, in:
Bockstiegel (ed.), Beweiserhebung in internationalen Schiedsver-
fahren, Schriftenreihe der Deutschen Institution fiir Schiedsgerichts-
barkeit, vol. 14, Cologne/Berlin/Bonn/Munich 2001, 107-110
KaAUFMANN-KoHLer/BArtscH, Discovery in international arbitration: How much
is too much?, SchiedsVZ 1/2004, 13-21

Knos.ach Steffen, Sachverhaltsermittlung in der internationalen Wirtschafts-

schiedsgerichtsbarkeit: eine rechtsvergleichende Untersuchung des
deutschen und englischen Schiedsrechts und der IBA-Rules on the
Taking of Evidence in International Commercial Arbitration, Berlin
2003
Knor Manfred, Tatsachenfeststellung in Streitigkeiten des internationalen
Wirtschaftsverkehrs, Cologne 1995
KREINDLER RichardH., The 2010 revision to the IBA Rules on the Taking of
Evidence in International Commercial Arbitration: A study in both
consistency and progress, IntALR 5/2010, 157-159 (cited KreinoLer,
2010 Revision)

KREINDLER Richard H., Benefiting from oral testimony of expert witnesses:

Traditional and emerging techniques, in: Lévy/Veeder (eds.), Arbi-
tration and Oral Evidence, ICC Publication No. 689 (2005), 87-104
(cited Kreinpter, Oral Testimony)

KUHNner Detlev, The Revised IBA Rules on the Taking of Evidence in Interna-
tional Arbitration, IntALR 6/2010, 667-677

LacHMANN Jens-Peter, Handbuch fur die Schiedsgerichtsbarkeit, 3rd ed., Co-

logne 2008

Lévy Laurent, Les astreintes et l’arbitrage international en Suisse, ASA Bull

1/2001, 21-36 (cited Lévy, Astreintes)

Levy Laurent, Witness Statements, in: Héritier Lachat/Hirsch (eds.), De

Lege Ferenda: Etudes pour le professeur Alain Hirsch, Geneva 2004,
95-104 (cited Levy, Witness Statements)

Lew/Miste.is/KroLtL, Comparative International Commercial Arbitration, The

Hague 2003

LorcHer Gino, Der vom Schiedsgericht bestellte Sachverstandige im Ver-

fahren, in: Briner et al. (eds.), Festschrift Karl-Heinz Bockstiegel,
Law of International Business and Dispute Settlement in the 21st
Century, Cologne/Berlin/Bonn/Munich 2001, 485-496

Mappen John P., How to Present Witness Evidence in an Arbitration - Ameri-

can Style, ASA Bull 3/1993, 438-445

Marriott Arthur L., Breaking the Deadlock, ArbInt 3/2006, 411-429 (cited
Marriott, Deadlock)
Marriott Arthur L., Evidence in International Arbitration, ArbInt 1989, 280-
290 (cited Marriott, Evidence)

McIuwrath/Savace, International Arbitration and Mediation: A Practical Guide,

The Hague 2010

Meter Anke, The Production of Electronically Stored Information in Interna-

tional Commercial Arbitration, SchiedsVZ 4/2008, 179-189
XXVI Bibliography

Meyer Olaf, Time to Take a Closer Look: Privilege in International Arbitra-

tion, JIntArb 4/2007, 365-378

Meyer-Hauser Bernhard, Anwaltsgeheimnis und Schiedsgericht, Schulthess

2004
Meyer-Hauser/Sieser, Attorney Secrecy v Attorney-Client Privilege in Inter-
national Commercial Arbitration, Arbitration 2/2007, 148-188

Mutter Christoph, Swiss Case Law in International Arbitration, 2nd ed., Zu-
rich/Basel/Geneva 2010 (cited Mutter, Case Law)

Mutter Thomas, IBA Rules of Evidence - ein Brickenschlag zwischen Com-

mon Law und Civil Law in internationalen Schiedsverfahren, in:
Spuhler (ed.), Internationales Zivilprozess- und Verfahrensrecht II,
Zurich 2003, 51-71 (cited Miter, IBA Rules)

Newmark Christopher, "Efficient, Economical and Fair": the Mantra of the

New IBA Rules, IntALR 5/2010, 165-168

Oetiker Christian, Sense and Nonsense of Written Witness Statement, in:

Muller/Rigozzi (eds.), New Developments in International Commer-
cial Arbitration 2009, Zurich 2009, 29-41 (cited Oetiker, Sense and
Nonsense)

Oetiker Christian, Witnesses before the International Arbitral Tribunal, ASA

Bull 2/2007, 253-278 (cited Oetiker, Witnesses)

O’Mattey Nathan D., An Annotated Commentary on the 2010 revised IBA

Rules of Evidence for International Arbitration, International Con-
struction Law Review 4/2010, 463-510 (cited O’Mattey, Annotated
Commentary)

O’Mattey Nathan D., Document Production Under Art. 3 of the 2010 IBA
Rules of Evidence, IntALR 5/2010, 186-194 (cited O’Mattey, Docu-
ment Production)
O’Mattey Nathan D., The Procedural Rules Governing the Production of Docu-
mentary Evidence in International Arbitration As Applied in Practice,
The Law and Practice of International Courts and Tribunals 1/2009,
27-90 (cited O’Mattey, Procedural Rules)
O’Mattey/Conway, Document Discovery in International Arbitration - Getting
the Document You Need, The Transnational Lawyer 2/2005, 371-
383
Park William W., Arbitrators and Accuracy, JIDS 1/2010, 25-53 (cited Park,
Accuracy)
Bibliography XXVII

Park William W., Arbitration’s Discontents: Of Elephants and Pornography,

ArbInt 3/2001, 263-274 (cited Park, Elephants and Pornography)

Peter Wolfgang, Die neue Schweizerische Schiedsordnung - Anmerkungen

fur die Praxis, SchiedsVZ 2/2004, 57-65 (cited Peter, Schiedsord-
nung)
Peter Wolfgang, Witness "Conferencing", ArbInt 1/2002, 47-58 (cited Peter,
Witness Conferencing)

PetrocHiLos Georgios, Procedural Law in International Arbitration, Oxford

2004
Pietrowski Robert, Evidence in International Arbitration, ArbInt 3/2006,
373-410

PILS (Basel), Honsell/Vogt/Schnyder/Berti (eds.), Basler Kommentar In-

ternationales Privatrecht, 2nd ed., Basel 2007 (cit. PILS (Basel)-
AuTHoR)

PILS (Zurich), Zurcher Kommentar zum IPRG, 2. ed., Zurich 2004 (cit. PILS
(Zurich)-AutHor)

Poupret Jean-Francois, Expertise et droit d’étre entendu dans |’arbitrage

international, in: Dominicé/Patry/Reymond (eds.), Liber amicorum
Pierre Lalive, Basel 1993, 607-624

Poupret/Besson, Comparative Law of International Arbitration, 2nd ed., Lon-

don/Zurich 2007

Price/Stans, Using Costs as a Case Management Tool in International Arbi-

tration, ASA Bull 4/2007, 704-716
RaescHKE-KessLer Hilmar, Die IBA Rules Uber die Beweisaufnahme in Inter-
nationalen Schiedsverfahren, in: Bockstiegel (ed.), Beweiserhebung
in Internationalen Schiedsverfahren, Schriftenreihe der Deutschen
Institution fir Schiedsgerichtsbarkeit, vol. 14, Cologne/Berlin/Bonn/
Munich 2001, 41-75 (cited RaescHke-Kesster, Beweisaufnahme)

RaescHKE-KessLer Hilmar, The Contribution of International Arbitration to

Transnational Procedural Law, in: Aksen et al. (eds.), Global Reflec-
tions on International Law, Commerce and Dispute Resolution, Liber
Amicorum Robert Briner, Paris 2005, 647-663 (cited RaescHKe-Kess-
Ler, Festschrift Briner)

RaescHKE-Kesster Hilmar, Die Praambel der IBA-Rules of Evidence - ein Pro-

gramm fir eine moderne Verfahrensgestaltung in internationalen
Schiedsverfahren, in: Schiitze (ed.), Einheit und Vielfalt des Rechts,
XXVIII Bibliography

Festschrift fir Reinhold Geimer zum 65. Geburtstag, Munich 2002,

855-871 (cited RaescHKe-Kess.er, Festschrift Geimer)

RaescHKe-Kesster Hilmar, The Production of Documents in International Ar-

bitration - A Commentary on Article 3 of the New IBA Rules of Evi-
dence, ArbInt 4/2002, 411-430 (cited RaescHKe-Kesster, Production)

RaescHKE-Kesster Hilmar, The Arbitrator as Settlement Facilitator, ArbInt

4/2005, 523-536 (cited RaescHke-Kesster, Settlement Facilitator)

RaescHKE-KessLer Hilmar, Witness Conferencing, in: Newman/Hill (eds.), The

Leading Arbitrators’ Guide to International Arbitration, 2nd ed., New
York 2008, 415-428 (cited RaescHKE-Kesster, Witness Conferencing)

Reorern/Hunter/Biackasy/Partasipes, Law and Practice of International Com-

mercial Arbitration, 4th ed., London 2004 (cited RepreRN/HUNTER/
Biackasy/Partasipes, 4th ed.)

ReDFERN/Hunter/BiackaBy/Partasipes, Redfern and Hunter on International Ar-

bitration, 5th ed., Oxford 2009

Reed/Hitt Rosenkranz, The UNCITRAL Rules as Applied in the Iran-US Claims

Tribunal, ASA Special Series No. 22 (2004), 119-129

Rees Peter J., The Revised IBA Rules of Evidence, Arbitration 3/2010, 514-
523

Reiner Andreas, Burden and General Standards of Proof, ArbInt 3/1994,

328-340

Roney David P., Effective Witness Preparation for International Commercial

Arbitration: A Practical Guide for Counsel, JIntArb 5/2003, 429-435

Roney/MUtter, The Arbitral Procedure, in: Kaufmann-Kohler/Stucki (eds.),

International Arbitration in Switzerland: A Handbook for Practition-
ers, The Hague 2004, 49-68

RUeDE/Hapdenretot, Schweizerische Schiedsgerichtsbarkeit, Zurich 1993

SacHs Klaus, Use of documents and document discovery: "Fishing expedi-

tions" versus transparency and burden of proof, SchiedsVZ 5/2003,
193-198
ScHererR Matthias, The Limits of the IBA Rules on the Taking of Evidence in
International Arbitration: Document Production Based on Contrac-
tual or Statutory Rights, IntALR 5/2010, 195-200

ScHLaeprer Anne Véronique, Witness statements, in: Lévy/Veeder (eds.), Ar-

bitration and Oral Evidence, ICC Publication No. 689 (2005), 65-75
Bibliography XXIX

ScHLosser Peter, Das Recht der internationalen privaten Schiedsgerichts-

barkeit, 2nd ed., Tiibingen 1989
ScHnerper Michael E., Technical experts in international arbitration, introduc-
tory comments to the materials from arbitration practice, ASA Bull
3/1993, 446-465 (cited ScHnerper, Experts)

ScHnerper Michael E., Lean Arbitration: Cost Control and Efficiency Through
Progressive Identification of Issues and Separate Pricing of Arbitra-
tion Services, ArbInt 2/1994, 119-140 (cited Scuneiper, Lean Arbitra-
tion)

ScHneIper, Michael E., Witnesses in international arbitration, presentation of

materials from arbitration practice, ASA Bull 2/1993, 302-312 (cited
ScHNEIDER, Witnesses)

ScHURMANN Hans-Jurg, Pladieren durch die Hinterttir - Pleading through the

back door, ASA Bull 3/2006, 433-441

SuarPe Jeremy, Drawing Adverse Inferences from the Non-production of

Evidence, ArbInt 4/2006, 549-571

SHenton D.W., An Introduction to the IBA Rules of Evidence, ArbInt 1/1985,

118-123

SHore Lawrence, Three Evidentiary Problems in International Arbitration:

Producing the Adverse Document, Listening to the Document that
does not Speak for Itself, and Seeing the Witness through her Writ-
ten Statement, SchiedsVZ 2/2004, 76-80

SinpLerR/Wustemann, Privilege across borders in arbitration: multi-jurisdic-

tional nightmare or a storm in a teacup?, ASA Bull 4/2005, 610-
639
Smit Robert H., E-disclosure Under the Revised IBA Rules on the Taking of
Evidence in International Arbitration, IntALR 5/2010, 201-206

Smit/Rosinson, E-Disclosure in International Arbitration, ArbInt 1/2008,

105-135

SpUHLER/GEHRI, Die Zulassung von Experten zur Urteilsberatung: Neue Wege

fiir Schiedsverfahren?, ASA Bull 1/2003, 16-26

Sutcuirre/WirtH, Witness Evidence: Written or Oral, Who asks the Ques-

tions?, in: B6éckstiegel/Berger/Bredow (eds.), The Taking of Evidence
in International Commercial Arbitration, Schriftenreihe der Deut-
schen Institution fiir Schiedsgerichtsbarkeit, vol. 26, Cologne 2010,
33-43
XXX Bibliography

Tackaserry/Marriott, Preparing for a Hearing/The Conduct of the Hearing, in:

Tackaberry/Marriott (eds.), Bernstein’s Handbook of Arbitration and
Dispute Resolution Practice, vol. 1, 4th ed., London 2003, 285-305

TALLERICO/BeHRenot, The Use of Bifurcation and Direct Testimony Witness

Statements in International Commercial Arbitration Proceedings,
JIntArb 3/2003, 295-305

VAN DEN Berc Albert Jan, Organizing an International Arbitration: Practice

Pointers, in: Newman/Hill (eds.), The Leading Arbitrators’ Guide to
International Arbitration, 2nd ed., New York 2008, 149-170

van Houtte Hans, Counsel-witness relations and professional misconduct in

civil law systems, in: Lévy/Veeder (eds.), Arbitration and Oral Evi-
dence, ICC Publication No. 689 (2005), 105-113

Veeper Johnny V.V., The 2001 Goff Lecture, The Lawyer’s Duty to Arbitrate in
Good Faith, ArbInt 4/2002, 431-451 (cited Veeper, Lawyer’s Duty)

VeeDER Johnny V.V., Document Production in England: Legislative Develop-

ments and Current Arbitral Practice, ICC Bull 2006 Special Supple-
ment, 57-61 (cited VeepErR, Document Production)

VeRMEILLE Francois, Le choix de |’expert et le déroulement de l’expertise, ASA

Bull 2/1994, 192-203

voN Mexren Robert B., Burden of Proof in International Arbitration, ICCA

Congress Series No. 7 (1996), 123-130

VON Mexren/Satomon, Submitting Evidence in an International Arbitration:

The Common Lawyer’s Guide, JIntArb 3/2003, 285-294

VON SCHLABRENDORFF/SHEPPARD, Conflict of Legal Privileges in International Ar-

bitration: An Attempt to Find a Holistic Solution, in: Aksen et al.
(eds.), Global Reflections on International Law, Commerce and Dis-
pute Resolution, Liber Amicorum Robert Briner, ICC Publishing 2005,
743-774
VON SeGesseR Georg, The IBA Rules on the Taking of Evidence in Interna-
tional Arbitration: Revised version, adopted by the International Bar
Association on 29 May 2010, ASA Bull 4/2010, 735-752 (cited von
Secesser, IBA Rules)
von SecesserR Georg, Witness Preparation in International Commercial Ar-
bitration, ASA Bull 2/2002, 222-228 (cited von Secesser, Witness
Preparation)
Bibliography XXXI

Voser Nathalie, Harmonization by Promulgating Rules of Best International

Practice in International Arbitration, SchiedsVZ 3/2005, 113-118

Weber Pierre C., La responsabilité de |’expert a |’égard des parties et du

Tribunal arbitral, ASA Bull 2/1993, 190-209

Wesster Thomas H., Obtaining Documents from Adverse Parties in Interna-

tional Arbitration, ArbInt 1/2001, 41-58

Weicanp Frank-Bernd, Practitioner’s Handbook on International Arbitration,

2nd ed., Bern 2002 (cited Weigand-AutHor)

Wetss/Bore! Locatetu, Der vom Schiedsgericht bestellte Experte - ein Uber-

blick aus Sicht eines Internationalen Schiedsgerichts mit Sitz in der
Schweiz, ASA Bull 3/2004, 479-504
WiretH Markus, Ihr Zeuge, Herr Rechtsanwalt! Weshalb Civil-Law-Schieds-
richter Common-Law-Verfahrensrecht anwenden, SchiedsVZ 1/2003,
9-15

Wyss Lukas F., Vorsorgliche Massnahmen und Beweisaufnahme - die Rolle

des Staatlichen Richters bei Internationalen Schiedsverfahren aus
Schweizer Sicht, SchiedsVZ 4/2011, 194-203

ZPO (Basel), Spuhler/Tenchio/Infanger (eds.), Schweizerische Zivilprozes-

sordnung, Basel 2010 (cited ZPO (Basel)-AutHor)

ZUBERBUHLER/MULLER/Haseccer (eds.), Swiss Rules of International Arbitration,

Commentary, Zurich 2005 (cited AutHor in Commentary Swiss RuLes)
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Preamble 1

Preamble

1. These IBA Rules on the Taking of Evidence in International Arbitra-

tion are intended to provide an efficient, economical and fair proc-
ess for the taking of evidence in international arbitrations, particu-
larly those between Parties from different legal traditions. They are
designed to supplement the legal provisions and the institutional,
ad hoc or other rules that apply to the conduct of the arbitration.
2. Parties and Arbitral Tribunals may adopt the IBA Rules of Evidence,
in whole or in part, to govern arbitration proceedings, or they may
vary them or use them as guidelines in developing their own pro-
cedures. The Rules are not intended to limit the flexibility that is
inherent in, and an advantage of, international arbitration, and Par-
ties and Arbitral Tribunals are free to adapt them to the particular
circumstances of each arbitration.

3. The taking of evidence shall be conducted on the principles that

each Party shall act in good faith and be entitled to know, reason-
ably in advance of any Evidentiary Hearing or any facts or merits
determination, the evidence on which the other Parties rely.

Contents Note
il 2010 Revision 1
II. Efficient, Economic and Fair Taking of Evidence (par. 1) 4
III. Supplementation of Institutional, Ad Hoc or Other Rules (par. 1) 1
IV. Adaptation of the Rules in Arbitral Proceedings (par. 2) ilZ2
V. Good Faith Principle (par. 3) 14
VI. Knowledge of Evidence Sufficiently in Advance of the Hearing (par. 3) 18

Other Rules
Art. 22(1) and 22(4) ICC; Art. 15(1) and 15(7) Swiss Rules; Art. 17(1) UNCITRAL;
Art. 14(1-2) LCIA; Rule 34(3) ICSID; Art. 38(b-c) WIPO.

.@ 2010 Revision

The word "commercial" was deleted from the title of the Rules and from
par. 1 of the Preamble to acknowledge the fact that the Rules are meant to
be used both in commercial and investment arbitration.’

Furthermore, the former par. 3 of the Preamble on early identification of

the relevant and material issues has been moved to the separate and new
Art. 2(3) in order to give it more weight as part of the Rules instead of a
mere encouragement in a preamble.”

IBA Review Suscommittee 2010, Introduction.

2 Von Secesser, IBA Rules, 740-741.
 2. Preamble

3 Finally, the Review Subcommittee included a new requirement of fair-

ness in par. 1 of the Preamble and added in par. 3 that each party shall act
"in good faith" in the taking of evidence.

II. Efficient, Economic and Fair Taking of Evidence

(par. 1)
The principle of efficiency in arbitration is receiving more and more atten-
tion in today’s fast-paced business world. Following some dissatisfaction
expressed by arbitration users and in a constant effort to improve arbitra-
tion services, institutions and practitioners are striving to achieve more
time and cost efficiency. For example, the ICC Task Force on Reducing Time
and Costs in Arbitration published its brochure on "Techniques for Control-
ling Time and Costs in Arbitration" in 2007.%

While the implementation of fast-track procedures is becoming more

frequent,* explicit provisions in institutional rules and arbitration laws
regarding efficiency for regu/ar arbitral proceedings are still quite rare.
Sect. 33(1)(b) of the English Arbitration Act 1996 provides that the arbi-
tral tribunal shall “adopt procedures suitable to the circumstances of the
particular case, avoiding unnecessary delay or expense, so as to provide a
fair means for the resolution of the matters falling to be determined”. Sect.
21 of the Swedish Arbitration Act provides that the proceedings must be
conducted rapidly.

The widespread adoption of the Rules per se already leads to a more ef-
ficient taking of evidence by the fact that arbitrators and counsel can agree
on a basic set of rules and do not have to "reinvent the wheel" every time
a procedural question regarding evidence arises. Despite some criticism by
eminent practitioners,> the increasing harmonisation of arbitral practice
and procedure constitutes more than just an “additional layer of procedural
order, taking a bit from here and a bit from there".®

3 ICC Publication No. 843, 2007. Reprinted in Annex 2.

E.g. WIPO Expedited Arbitration Rules, Art. 42 Swiss Rules, Rules for Expedited Ar-
bitrations of the Arbitration Institute of the Stockholm Chamber of Commerce, Rules
for Expedited Arbitration of the Arbitration Institute of the Central Chamber of Com-
merce of Finland, Expedited Procedures of the AAA Commercial Arbitration Rules, Art.
50-58 CIETAC Arbitration Rules, Art. 38 HKIAC Administered Arbitration Rules (Hong
Kong International Arbitration Centre), Rule 5 SIAC Rules (Singapore International
Arbitration Centre), Commercial Rules of the Korean Commercial Arbitration Board
(Chapter XIII), Commercial Arbitration Rules of the Japan Commercial Arbitration
Association (Chapter V), Art. 39 CAMCA Arbitration Rules (Commercial Arbitration
and Mediation Center for the Americas).
Marriott, Deadlock, 426-427.
& “Id. 426:
Preamble 3

The true benefit of harmonised guidelines such as the Rules is to raise pre-
dictability and assist parties with less experience. In arbitrations where
the Rules apply, the parties will know from the outset e.g. that an arbitral
tribunal may draw adverse inferences if they do not adhere to produc-
tion orders. This knowledge alone will lead to better compliance with such
orders. Of course, the same result could be achieved by announcing the
sanction of adverse inference in the production order, but what if an inex-
perienced arbitrator forgets to do so? Harmonised rules first benefit the
inexperienced counsel and arbitrators, who cannot resort to similar cases
they have dealt with earlier and immediately come up with a well-balanced
and tested proposal or solution. It is equally clear that an experienced arbi-
trator most likely does not need to consult the Rules when confronted with
an evidentiary issue, since he or she has already "internalised" the basic
rules for such matters and can call them up almost instinctively. In this con-
nection, it is important to note that the Rules are not intended to limit the
flexibility in international arbitration in any way, as the drafters clarified in
par. 2 of the Preamble.

Another important aspect of harmonised rules is that of bringing together

the common law and civil law systems. Rather than simply adapting con-
cepts from the other legal system as it is discussed in litigation (e.g. for the
introduction of class actions in the EU’), the Rules are a synthesis of both
legal systems’ accepted features, the "best of two worlds", and thus a con-
tribution towards the development of an international lex evidentia’®.

The taking of evidence in an efficient and economical manner should pre-

dominantly be accomplished by the arbitrators. They are the "masters of
the proceedings"? and should admonish and encourage the parties and
their representatives to act in an efficient and cost-saving way. The follow-
ing strategies might be helpful in this task:

a) promotion of settlement by the arbitrators;

b) focussing on decisive issues at an early stage of the proceedings;*°

c) limitation of the duration of hearings;

d) reduction of party-appointed expert reports by greater use of tribunal-

appointed experts;**

7 Cf. e.g. the EU’s Consumer Strategy 2007-2013, COM (2007) 99, 13 March 2007.
8 Cf. SHarpe, 551-552, with respect to the drawing of adverse inferences.
9 The International Arbitration Rules of the Zurich Chamber of Commerce, which have
been replaced by the Swiss Rules, stated matter-of-factly in Art. 21(1): "The chair-
man leads the arbitration."
10 See Art. 2 N 13-15 below.
11 Marriott, Deadlock, 427.
 4 Preamble

e) separate pricing and cost awards for procedural motions.

10 The 2010 Revision has added the principle of fairness to the criteria of
efficient and economical evidence-taking. One application of the fairness
principle could be seen in the "most favourable privilege" rule.*°

III. Supplementation of Institutional, Ad Hoc or Other

Rules (par. 1)
11 The Rules only deal with issues relating to the taking of evidence and are
not intended to provide an entire mechanism for the conduct of an inter-
national arbitration. Therefore, parties must still select a set of institutional
or ad hoc rules, such as those of the ICC, the Swiss Chambers, WIPO, AAA,
LCIA, UNCITRAL or ICSID, or design their own rules,* to establish the
overall procedural framework for their arbitration.** The Rules are merely
intended to fill in the gaps left open in those rules with respect to the
taking of evidence.*®

IV. Adaptation of the Rules in Arbitral Proceedings

(par. 2)
172 Recognising that there is no single best formula to conduct all international
arbitrations and that flexibility in proceedings is an advantage, the draft-
ers felt it important to clarify that the Rules are not intended to limit this
flexibility.?”

AES} The Rules should be used by parties and arbitral tribunals in the manner
that best suits them, by either:

a) adopting them as a whole;

b) adopting them in part, i.e. using only certain provisions;

c) adopting them, but varying certain provisions to fit the particular cir-
cumstances of their arbitration;

ScHneper, Lean Arbitration, 135-137; Price/Stans, 713-714.

13 Art. 9 N 30 below.
The term "other rules" was added by the drafters of the 2010 Revision to clarify that,
for ad hoc proceedings, the parties may also design completely independent proce-
dural rules "from scratch", as opposed to pre-existing rules such as the UNCITRAL
Rules.
For a discussion of the advantages and disadvantages of institutional versus ad
hoc arbitration, cf. Poupret/Besson, N 93-97, and REDFERN/ HUNTER/BLACKABY/PARTASIDES,
N 1.152-1.168.
IBA Review Suscommittee 2010, Preamble sect. (i).
IBA Review Suscommittee 2010, Preamble sect. (iii).
Preamble 5

d) using them simply as guidelines in developing their own procedures.%8

V. Good Faith Principle (par. 3)

In conjunction with the principle of fairness, the Review Subcommittee 14
has expressly included a requirement in par. 3 of the Preamble that each
party shall act "in good faith" in the taking of evidence pursuant to the
Rules. While the universal principle of good faith already applied to any
evidence-taking before the revision, the express stipulation in the revised
Rules is welcome and provides a solid basis for arbitrators e.g. to draw an
adverse inference (Art. 9(5-6)) or to sanction abusive conduct by imposing
costs on the respective party (Art. 9(7)). On the other hand, it is submit-
ted that the good faith principle does not include an obligation to produce
documents manifestly helpful to the opponent’s case or even harmful to a
party’s own case.*°

Despite some criticism that the obligation of good faith raises more ques- 15
tions than it answers,”° the Review Subcommittee felt that embedding this
principle in the Rules was particularly helpful for those parties that have no
or less experience with international arbitration and for providing the arbi-
tral tribunal with a yardstick to conduct the evidentiary proceedings.”
The type of conduct that will amount to a breach of the good faith obliga- 16
tion will be for arbitral tribunals to consider on a case-by-case basis. Com-
mentators have stated the following fact patterns which might breach the
principle:2

e excessive document requests;

e burying responsive documents under unimportant ones;

e failure to comply with a document production order;

e raising objections to document production requests without a reason-

able and good-faith basis;
e holding back documents or witnesses on which a party relies with the
intent to surprise parties or witnesses with such documents and wit-
nesses;

18 Born (at 1794) suggests that arbitral tribunals ordinarily have the power (in the exer-
cise of their discretion over evidence-taking) to adopt the Rules and direct that the
parties proceed in accordance with them, but also points out that arbitral tribunals
will prefer to use the Rules as guidelines if any party objects to a strict application.
19 Coven KLASENER, 161; contra von Secesser, IBA Rules, 741.
20 Rees, 515.
21 \V/on Secesser, IBA Rules, 741.
22 Conen KLASENER, passim; Newmark, 166; Rees, 515.
 6 Preamble

e deliberate concealment or destruction of evidence;

e tampering with documents submitted or produced;

e submitting misleading translations;

e disclosing confidential materials with the intent of pressuring or harming

another participant in the arbitration;

e unduly influencing the testimony of a witness (e.g. by paying inappro-

priately high compensation in exchange for testimony, inciting false tes-
timony, or relying on witness testimony notwithstanding the fact that
the testimony is known to be false);

e deliberately asking confusing questions during cross-examination;

e seeking to portray witnesses in a bad light.

17 Another question raised is whether the good faith obligation applies only
to parties (in accordance with the wording of par. 3 of the Preamble) or to
counsel as well. Since nearly everything counsel does during arbitral pro-
ceedings is performed as the representative of a party, it would appear that
the good faith obligation also applies to counsel.”*

VI. Knowledge of Evidence Sufficiently in Advance

of the Hearing (par. 3)
18 As noted by the drafters, the Rules are designed to avoid surprises about
procedures, in order to assist parties that may be unfamiliar with interna-
tional arbitration. Similarly, the Rules seek to avoid any surprises at the
evidentiary hearing.** The principle that each party shall know sufficiently
in advance of the hearing the evidence which the other parties are relying
on, is a basic rule for all other provisions of the Rules. In this sense, the
drafters of the 1999 Rules stated that "the best results are obtained when
each party knows the arguments made by the other and is able to provide
as effective a rebuttal as possible".?5
19 The underlying principle of an "adversarial procedure" is reflected
amongst others in French law (principle of “contradiction"). Art. 15 of the
Nouveau Code de Procédure Civile stipulates a duty of the parties to inform
each other about the factual and legal basis of their allegations sufficiently

23 Coen KLASENER, 163.

*4 IBA Workinc Party 1999, Preamble sect. (iv).
2H Til.
Preamble 7

in advance for the other party to prepare a defence.” This principle is also
recognised under Swiss arbitration law.?’

Late submission of evidence, unless it consists of truly new facts, should 20

only be accepted by arbitrators with a certain restraint. The confrontation
of witnesses with new evidence at hearings should also be avoided as far
as possible. Civil law arbitrators will generally be more inclined to accept
late evidence than common law arbitrators, since they are less familiar with
the strict conditions for the admission of evidence as they exist in common
law jurisdictions.

Many discussions about the admissibility of late evidence can be avoided by 21

including clear procedural rules to specify the general rule stated in the
Preamble of the Rules. Similar to Art. 27(1) ICC Rules, which instructs ar-
bitrators to declare the proceedings closed as soon as possible after the last
hearing or the filing of the last authorized submissions, arbitral tribunals
could fix a deadline of e.g. ten days before the hearing, after which date no
further evidence (not even new facts) may be introduced into the proceed-
ings until the witness hearing is concluded. This would allow the parties to
prepare the witness hearing and their witnesses without constantly being
bombarded by the other side with new allegations and facts.

After the hearing, the arbitrators shall declare the proceedings as closed 22
and shall not accept any further evidence.*® A reopening of the proceed-
ings to evaluate new evidence should only be possible under the following
exceptional circumstances:*?

a) if during the deliberations of the arbitral tribunal it turns out that certain
issues need further clarification;*°

b) if during the deliberations of the arbitral tribunal an issue comes up

which was not dealt with during the proceedings and requires additional
evidence-taking;

c) if it is discovered that a party fraudulently held back evidence it was

ordered to produce;

26 "Les parties doivent se faire connaitre mutuellement en temps utile les moyens de
fait sur lesquels elles fondent leurs prétentions, les éléments de preuve qu’elles
produisent et les moyens de droit qu’elles invoquent, afin que chacune soit a méme
d’organiser sa défense."
27 DFT 116 II 643, 117 II 347-348; cf. also PILS (Basel)-ScHnetper, Art. 182 N 56-61,
and Motter, Case Law, 168-169.
28 Art. 27 ICC Rules, Art. 29 Swiss Rules.
29° OemiKer in Commentary Swiss Rutes, Art. 29 N 11.
30 It being understood that this must not lead to an unjustified remedy of a party's
failure to submit certain evidence in time.
8 Preamble

d) if a party becomes aware of decisive facts supporting its case which

were not and could not have been known previously.
Definitions 9

Definitions

In the IBA Rules of Evidence:

‘Arbitral Tribunal’ means a sole arbitrator or a panel of arbitrators;

‘Claimant’ means the Party or Parties who commenced the arbitration

and any Party who, through joinder or otherwise, becomes aligned
with such Party or Parties;

‘Document’ means a writing, communication, picture, drawing, program

or data of any kind, whether recorded or maintained on paper or by
electronic, audio, visual or any other means;

‘Evidentiary Hearing’ means any hearing, whether or not held on con-.

secutive days, at which the Arbitral Tribunal, whether in person, by
teleconference, videoconference or other method, receives oral or
other evidence;

‘Expert Report’ means a written statement by a Tribunal-Appointed Ex-

pert or a Party-Appointed Expert;

‘General Rules’ mean the institutional, ad hoc or other rules that apply
to the conduct of the arbitration;
‘IBA Rules of Evidence’ or ‘Rules’ means these IBA Rules on the Taking
of Evidence in International Arbitration, as they may be revised or
amended from time to time;

‘Party’ means a party to the arbitration;

‘Party-Appointed Expert’ means a person or organisation appointed by a

Party in order to report on specific issues determined by the Party;

‘Request to Produce’ means a written request by a Party that another

Party produce Documents;

‘Respondent’ means the Party or Parties against whom the Claimant

made its claim, and any Party who, through joinder or otherwise,
becomes aligned with such Party or Parties, and includes a Respond-
ent making a counter-claim;

‘Tribunal-Appointed Expert’ means a person or organisation appointed

by the Arbitral Tribunal in order to report to it on specific issues de-
termined by the Arbitral Tribunal; and

‘Witness Statement’ means a written statement of testimony by a wit-

ness of fact.
10 Definitions

The Definitions section (no longer a numbered Article) sets forth the basic
definitions to be applied in the Rules. The definitions themselves do not
provide any substantive rules of conduct or evidence.”

The definition of "Document" was slightly modified to clarify and ensure

that all forms of evidence, including electronic evidence, are subject to the
Rules.32 Furthermore, technological advance was taken into account for
the new definition of "Evidentiary Hearing", which includes witness testi-
mony by telephone conference, video conference or any other methods. Fi-
nally, the definition of "Party-Appointed Expert" was expanded to allow not
only for the appointment of persons, but also of organisations as experts.

31 TBA Review Suscommrttee 2010, Definitions par. 1.

32 Id., Definitions par. 3.
Article 1 Scope of Application all

Article 1 Scope of Application

1. Whenever the Parties have agreed or the Arbitral Tribunal has de-
termined to apply the IBA Rules of Evidence, the Rules shall govern
the taking of evidence, except to the extent that any specific provi-
sion of them may be found to be in conflict with any mandatory pro-
vision of law determined to be applicable to the case by the Parties
or by the Arbitral Tribunal.

2. Where the Parties have agreed to apply the IBA Rules of Evidence,
they shall be deemed to have agreed, in the absence of a contra-
ry indication, to the version as current on the date of such agree-
ment.

3. In case of conflict between any provision of the IBA Rules of Evi-

dence and the General Rules, the Arbitral Tribunal shall apply the
IBA Rules of Evidence in the manner that it determines best in order
to accomplish the purposes of both the General Rules and the IBA
Rules of Evidence, unless the Parties agree to the contrary.

4. In the event of any dispute regarding the meaning of the IBA Rules
of Evidence, the Arbitral Tribunal shall interpret them according to
their purpose and in the manner most appropriate for the particular
arbitration.
5. Insofar as the IBA Rules of Evidence and the General Rules are
silent on any matter concerning the taking of evidence and the Par-
ties have not agreed otherwise, the Arbitral Tribunal shall conduct
the taking of evidence as it deems appropriate, in accordance with
the general principles of the IBA Rules of Evidence.

Because the Rules only deal with issues relating to the taking of evidence,
parties must select another set of institutional or ad hoc rules to gov-
ern their proceedings. In addition, international arbitrations are subject to
mandatory law at the seat of arbitration. Conflicts may arise between the
Rules and these other rules or any mandatory legal provisions.

Art. 1 provides several basic principles as to how arbitral tribunals should

apply the Rules in the event of a conflict with any of these other provi-
sions:

par. 1: In a conflict between the Rules and mandatory legal provisions

determined to be applicable to the case, the mandatory law
shall govern the taking of evidence.”

33 Regarding the scope and application of mandatory law, see Poupret/Besson, N 705-
708, with further references.
12 Article 1 Scope of Application

par. 3: In aconflict between the Rules and the General Rules (as speci-
fied in the Definitions section, i.e. the institutional or ad hoc
rules chosen by the parties), arbitral tribunals shall attempt to
harmonise the two sets of rules to the greatest extent possible.
However, because party autonomy is central to any international
arbitration, the parties have a right to resolve any such conflict in
the manner they choose, as long as both parties agree.*

par. 4: If a dispute exists as to the meaning of the Rules, arbitral tribu-

nals shall interpret them “according to their purpose and in the
manner most appropriate for the particular arbitration", i.e. in
greatest possible compliance with the general principles set
forth in the Preamble.?°

par. 5: An application of the general principles is equally prescribed if

both the Rules and the General Rules are silent on a particular
issue.

With regard to conflicts between the Rules and the General Rules, it has
been suggested that the Rules should override any conflicting provisions
in the General Rules if the parties agree on the application of the Rules after
the determination of the General Rules.*°
The new Art. 1(2) specifies that the version of the Rules as current on
the date of an agreement between the parties to apply them shall be ap-
plicable for any subsequent dispute, absent any contrary indication. As a
consequence, the 1999 Rules will still apply in cases where the parties
have explicitly agreed on the application of the Rules in their arbitration
agreement. On the other hand, parties wishing to apply the version of the
Rules current at the time of the arbitration should consider including this in
the arbitration clause.*”

34 IBA Review Suscommittee 2010, Art. 1 par. 1 sect. 2.

35" Id., Art. 1 par<1.sect. 3.
36 Miter, IBA Rules, 56-57.
37 The following language is suggested in the Foreword to the Rules: "/In addition to
the institutional, ad hoc or other rules chosen by the parties,] [t]he parties agree
that the arbitration shall be conducted according to the IBA Rules of Evidence as
current on the date of [this agreement/the commencement of the arbitration ies
Article 2 Consultation on Evidentiary Issues ne}

Article 2 Consultation on Evidentiary Issues

1. The Arbitral Tribunal shall consult the Parties at the earliest appro-
priate time in the proceedings and invite them to consult each other
with a view to agreeing on an efficient, economical and fair process
for the taking of evidence.

2. The consultation on evidentiary issues may address the scope, tim-

ing and manner of the taking of evidence, including:

(a) the preparation and submission of Witness Statements and Ex-

pert Reports;

(b) the taking of oral testimony at any Evidentiary Hearing;

(c) the requirements, procedure and format applicable to the pro-

duction of Documents;

(d) the level of confidentiality protection to be afforded to evidence

in the arbitration; and

(e) the promotion of efficiency, economy and conservation of re-

sources in connection with the taking of evidence.

3. The Arbitral Tribunal is encouraged to identify to the Parties, as

soon as it considers it to be appropriate, any issues:

(a) that the Arbitral Tribunal may regard as relevant to the case and
material to its outcome; and/or

(b) for which a preliminary determination may be appropriate.

Contents Note
I. 2010 Revision il
II. Early Consultation with the Parties (par. 1) 2
Il]. Issues to Address (par. 2) 7
IV. Identification of Relevant and Material Issues (par. 3(a)) ils}
V. Preliminary Determination / Bifurcation (par. 3(b)) 16

Other Rules
Art. 24 and Appendix IV ICC; Art. 17(1-2) UNCITRAL; Art. 14(1)(ii) and 19(3) LCIA;
Rule 20 and 21 ICSID; Art. 16 AAA; Art. 38(c) and 47 WIPO.

i 2010 Revision

The new Art. 2 promulgates in par. 1 the so-called "meet and consult"
method, requiring*® the arbitral tribunal to consult with the parties at the
earliest appropriate time to discuss the specific approach to evidence-tak-
ing. Some issues which may be appropriate for consultation are listed in

38 The word used is "shall", not "may".

14 Article 2. Consultation on Evidentiary Issues

Art. 2(2). Art. 2(3) is a slightly expanded version of the former par. 3 of
the Preamble and encourages arbitral tribunals to identify to the parties,
as early as possible, the issues they may regard as relevant to the case
and material to its outcome as well as those issues for which a preliminary
determination may be appropriate.

II. Early Consultation With the Parties (par. 1)

The arbitration community seems to have reached a consensus that an
early discussion between the arbitral tribunal and the parties regarding the
procedure to be adopted for the arbitration is a good idea.*® With respect
to evidence-taking, Art. 2(1) stipulates a corresponding duty for the arbi-
tral tribunal to consult with the parties. Respective instructions by arbitral
tribunals are best communicated at a so-called pre-hearing conference
(also referred to as "organisational hearing", "preparatory conference"
or "case-management conference"*°), after exchange of the first briefs, i.e.
when the parties’ positions have been set forth in a sufficient manner.**
Pre-hearing conferences are not only a good opportunity for the arbitral
tribunal to meet party counsel and representatives in person and identify
material issues, but can serve other purposes such as signing the terms of
reference (or constitutional order as it is sometimes referred to), organis-
ing the time schedule of the proceedings, exploring the possibilities of a
settlement, or debating production requests (if already filed). As Reep/Hit
RoSENKRANZ Correctly note, bringing all the participants to the same table
early in the proceedings should outweigh the related costs, and a face-to-
face meeting among arbitrators, counse! and principals may narrow issues
or even lead to settlement.‘

In any case, a first meeting can often establish a good atmosphere and
thus ensure a smooth progress of the arbitration. While the current trend
is to hold pre-hearing conferences by telephone or video conference,*? it
seems doubtful whether this is a good development. During telephone con-
ferences, concentration usually drops much faster than during a meeting,
and participants are easily distracted by incoming emails. Video confer-

39 Newmark, 166.
40 One of the few express mentions of pre-hearing conferences can be found in Art. 24
of the revised ICC Rules, according to which "the arbitral tribunal shall convene a
case management conference to consult the parties on procedural measures that
may be adopted [...]". See also Art. 16(2) of the ICDR International Arbitration Rules,
the Tribunal Rules of the Iran-US Claims Tribunal (Art. 15 N 4), Rule 21 of the ICSID
Arbitration Rules, and Art. 47 WIPO Rules.
41 PILS (Basel)-Scunerper, Art. 182 N 92.
42 ReEED/HILL ROSENKRANZ, 123.
“3 Cf. Appendix IV(f) to the ICC Rules and par. 28 of the ICC Report on Techniques for
Controlling Time and Costs in Arbitration (Annex 2).
Article 2. Consultation on Evidentiary Issues 15

ences on the other hand do not offer the same opportunities for informal
communication which are essential to establish a certain level of interper-
sonal relationship.

In order to be efficient, the chairperson should distribute a comprehensive

agenda along with a draft of any procedural documents the arbitral tribu-
nal intends to issue (terms of reference, procedural orders, supplemental
procedural rules, timetables etc.) to the parties in advance of the pre-
hearing conference.

The first procedural discussion may also be used by the arbitrators to find
an agreement with the parties on certain other open or disputed matters
such as the applicable law (if it is unclear or if the contract stipulates an
exotic law that counsel and arbitrators are not acquainted with).*®

Pre-hearing conferences are also required by Art. 24 ICC Rules and dis-
cussed in Appendix IV(g) to the ICC Rules as well as in its report on "Tech-
niques for Controlling Time and Costs in Arbitration" (the "ICC Report").*
Contrary to the view expressed in par. 23 of the ICC Report, pro-active case
management can also be particularly important and helpful for complex
cases. A pre-hearing conference should not be deferred until the parties
have set out their cases in detail.*” It is also clear, however, that new evi-
dentiary issues may arise during the proceedings which may have to be
addressed at a later stage.**

III. Issues to Address (par. 2)

It may be useful at an early stage in the proceedings for the arbitrators and
parties to consult the UNCITRAL Notes on Organizing Arbitral Proceedings
("UNCITRAL Notes" ).*? The UNCITRAL Notes provide a list of matters ar-
bitral tribunals may need to keep in mind when they organise the proceed-
ings. The list is not intended to be exhaustive, but gives a useful indication
of points the arbitrators may wish to consider. With respect to evidence
proceedings, the following is proposed for consideration:°°

44 On the other hand, it should be kept in mind that telephone or video conferences
might be warranted to save costs and resources, particularly in cases with a lower
amount in dispute; cf. Born, 1809, and N 12 below.
45 RaescHKe-Kesster, Settlement Facilitator, 527 mentions the further example of con-
tract interpretation methods.
46 Par. 21-23 and 31-34 of the ICC Report (Annex 2).
47 See the note by Philipp Capper (Construction Arbitration: Challenges from new
trends) in Global Arbitration Review 4/2008, 27-28.
48 \/on SecesserR, IBA Rules, 743.
42 Adopted by UNCITRAL in 1996. The text of the UNCITRAL Notes is set out in An-
nex 3.
50 Summarised by Reprern/Hunter/Biackasy/Partasives, N 6.38.
16 Article 2. Consultation on Evidentiary Issues

The adoption of a set of procedural rules, in the event that the parties
have not already done so (par. 14-16).

The language of the proceedings, the language that is to be used in

the hearings, the need (if any) for translation of oral presentations and
documents, and the costs involved (par. 17-20).

Confidentiality of information: The arbitral tribunal may need to make

arrangements to ensure confidentiality (par. 31-32).°

Definition of points of issue: The arbitral tribunal may prepare a list of

issues and the order in which they should be decided and determine
precisely the relief that is sought (par. 43-46).

Possibility of settlement negotiations: The arbitral tribunal should

consider the extent (if at all) to which it should offer to facilitate settle-
ment negotiations (par. 47).

Documentary evidence: The arbitral tribunal may set time limits for
the submission of documents and determine the consequences of late
submission (par. 48-49). It should also determine whether the parties
are going to be compelled to produce documents (par. 50-51).°? One is-
sue that was not yet of particular significance when the UNCITRAL Notes
were drafted, but is becoming more important and should also be ad-
dressed during a preliminary hearing, is the production of electronically
stored documents.

Physical evidence: The arbitral tribunal may make arrangements for

any physical evidence to be presented as well as any site inspections it
may wish to undertake (par. 55-58).*4

Witnesses of fact:°> The arbitral tribunal may wish to determine

a) the advance notice required concerning witnesses and the con-

tent of such notice and the nature of the statement of the witness
(par. 60);
b) the possibility of pre-hearing witness depositions (par. 61);
c) the manner in which the hearing of witnesses will take place, and the
degree of control the arbitral tribunal wishes to exercise (par. 62-
68).

51
See Art. 3 N 254-266 and Art. 9 N 50-53 below.
52
See Art. 3 below.
53
See Meter, 187, and Art. 3 N 49-59 below.
54
See Art. 7 below.
55
See Art. 4 below.
Article 2 Consultation on Evidentiary Issues W/

¢ Experts and expert witnesses: The arbitral tribunal may wish to con-
sider appointing an expert to report to it and determine how such a
person is to be chosen. It may also determine the terms of reference for
the expert and decide how the parties are to comment on such terms of
reference (par. 69-73).°°

e Hearings:*’ The arbitral tribunal may wish to decide on some or all of

the following matters as concerning hearings:

a) Should hearings be held at all? And if they are to be held, how are
they to be structured? (par. 74-77)

b) Should there be a limit on the time that each of the parties has? And
in what order will the parties present their arguments? (par. 78-80)

c) The length of the hearings and whether a record should be kept of

the proceedings and how they are to be kept (par. 81-83).

d) Whether the parties should be allowed to submit a summary of their

oral arguments (par. 84-85).

Some of the items listed in the UNCITRAL Notes are also reflected in
Art. 2(2). The evidentiary issues recommended for discussion at an
early stage as to the scope, timing and manner of the taking of evidence
are:
a) the preparation and submission of witness statements and expert re-
ports;
b) the taking of oral testimony at any evidence hearing;

c) the requirements, procedure and format applicable to the production of

documents;

d) the level of confidentiality protection to be afforded to evidence in the

arbitration; and

e) the promotion of efficiency, economy and conservation of resources in

connection with the taking of evidence.

While Art. 2 provides a framework for discussing evidentiary issues, it is

not intended to prescribe how evidence should be taken in any particular
arbitration.°® For example, the arbitral tribunal and the parties may decide
not to require witness statements or the disclosure of electronic evidence
or not to hold an evidentiary hearing. On the other hand, if they determine

56 See Art. 5 below.

57 See Art. 8 below.
58 IBA Review Suscommittee 2010, Art. 2 par. 3.
 18 Article 2. Consultation on Evidentiary Issues

that certain forms of evidence-taking should be applied, Art. 2 encour-

ages arbitral tribunals and parties to discuss the related details at an early
stage.

10 Furthermore, the list of course does not constitute a comprehensive

catalogue, and arbitral tribunals must consider additional issues where ap-
propriate.°°

ital An important issue is the level of confidentiality protection to be afforded

to evidence in the arbitration (Art. 2(2)(d)). In order to create a level play-
ing field for parties from jurisdictions with differing standards on confidenti-
ality (e.g. with respect to the attorney-client privilege of in-house counsel),
the specific extent of confidentiality in connection with document produc-
tion should be discussed and agreed at the outset of any proceedings.

12 While Art. 2(2)(e) repeats the requirement of Art. 2(1) to consult on the
promotion of efficiency and economy and thus appears to be duplicative,
it also specifically refers to the conservation of resources in connection
with the taking of evidence. This could include discussing ways to reduce
(i) the economic and environmental costs of travel (e.g. by increased use of
telephone and video conferencing) or (ii) document reproduction costs (by
submitting documents via web-based platforms such as the ICC’s NetCase
or by email).®

IV. Identification of Relevant and Material Issues

(par. 3(a))
11,5} Each arbitral tribunal is encouraged under Art. 2(3)(a) to identify the rel-
evant and materia! issues to the parties "as soon as it considers it to be
appropriate".* The focus on decisive issues probably has the largest poten-
tial for improving cost control and efficiency in international arbitra-
tion.® The parties are able to focus their pleadings on the points considered
essential by the arbitral tribunal and have a better chance to strengthen
certain arguments the arbitral tribunal disagrees with.
14 On the other hand, some arbitrators might feel uncomfortable telling the
parties at the outset of the proceedings which issues they consider to be

5° Von Secesser, IBA Rules, 743.

6° Cf. von Secesser, IBA Rules, 743; Rees, 516; Art. 9 N 27 below.
61 Cf. IBA Review Suscommittee 2010, Art. 2 par. 4.
°2 Asimilar provision can be found in Appendix IV(g) to the ICC Rules and par. 38 of the
ICC Report: "The arbitral tribunal may consider using the occasion of the pre-hearing
conference to indicate to the parties the issues on which it would like the parties to
focus at the forthcoming hearing".
63
ScHneIper, Lean Arbitration, 132.
64
Newmark, 167.
Article
a 2 Consultation on Evidentiary Issues 19

important. They might be concerned that this is premature and improper

and could even lead to accusations of partiality.®
The fact that the provision on identification of relevant and material issues IS)
is positioned within an article focussed on early case management confer-
ences gives the impression that such identification by the arbitral tribunal
should happen very early in the case. In practice, however, it will often be
better to identify the relevant and material issues later in the proceed-
ings, at a time when the arbitrators know more about the case (e.g. before
the hearing).*

V. Preliminary Determination/ Bifurcation (par. 3(b))

While the drafters of the Rules did not intend to encourage litigation-style 16
motion practice, they recognised that in some cases certain issues may re-
solve all or part of a case. In such circumstances, arbitral tribunals should
seek to resolve the respective matters first in order to avoid potentially
unnecessary work on issues that will not determine the outcome.*

In deciding whether to bifurcate, arbitral tribunals must first evaluate 17

whether substantive issues in the arbitration are easily separable and/
or significantly complex to justify bifurcation. Other factors to consider
include:®

a) the amount and type of evidence needed to support each issue;

b) whether the evidence necessary for a later phase of the proceedings will
overlap or will be mutually exclusive;

c) whether the evidence necessary for a later phase will be detrimental or

disruptive to the proceedings;

d) whether evidence necessary for a later phase of the proceedings is sen-

sitive or if there is a strategic reason to withhold certain key evidence
until a later phase;
e) whether a second phase of the arbitration will be voluminous,

f) the effect that bifurcation may have on discovery (if allowed);

g) whether bifurcation will somehow result in prejudice or unfair advan-

tage;

65 Newmark, 167; cf. also Born, 1816.

66 Newmark, 167. Cf. Art. 19(3) LCIA Rules: "The Arbitral Tribunal may in advance of any
hearing submit to the parties a list of questions which it wishes them to answer with
special attention."
67 IBA Review Suscommirtee 2010, Art. 2 par. 5.
68 Tattertco/BEHRENDT, 298.
 20 Article 2. Consultation on Evidentiary Issues

h) whether bifurcation will result in greater convenience to witnesses, the

parties or the arbitral tribunal;

i) whether bifurcation will act to expedite the proceedings and help to

conserve resources.

18 It must be taken into account that bifurcation may ultimately result in

longer and more complex proceedings, because (i) every step of an
arbitral procedure (e.g. two exchanges of briefs, expert reports, witness
hearing) may have to be repeated in the second phase, and (ii) the party
which lost in the first phase is likely to defend its position more fiercely in
the second phase, since it already knows e.g. that it will be ordered to pay
damages. Such parties may tend to be recalcitrant and less cooperative,
resulting in higher costs and a longer duration of the proceedings.

11S; Furthermore, it is sometimes necessary to enquire fully into all the cir-
cumstances of a case in order to determine a preliminary issue. In these
cases, it is preferable to deal with the preliminary issue in the final award.°?
There is also a danger that evidence presented during the second phase
would have had a material impact on the decisions made in the first phase
which however cannot be amended as they have become final.”°

20 The possibility of a separate decision on jurisdiction is considered the rule

under arbitration laws.”1 Another common example of preliminary determi-
nation is that of the law governing the arbitration or the law applicable to
the merits” or a decision on interim measures.

21 Bifurcation is also frequent with respect to issues of liability and quan-

tum, particularly where the quantification of claims is a major exercise.”
The reverse is also conceivable: A respondent may prefer to have the arbi-
tral tribunal hear evidence of a claimant’s allegations on damages prior to
a hearing on liability because the lack of proof of damages may be decisive
and involve less analysis than the question of liability.’”* Such reverse bifur-
cation can also assist the parties in trying to shape settlement negotiations
based upon the outcome of a hearing on damages.”

69 Poupret/Besson, N 474; Reprern/HunTer/BLAckaBy/Partasives, N 6-47.

70 Van ven Berc, 169-170.
7} Art. 186(3) PILS; § 1040(3) German ZPO. Cf. Poupret/Besson, N 474.
72 Reprern/Hunter/Biackasy/Parrasives, N 6.42, mentioning the Aminoil arbitration as an
example of such preliminary determination ([1982] 21 I.L.M. 976). Cf. also Born,
1816.
73
Born, 1816-1817; Reprern/Hunter/BLackasy/Partasipes, N 6.43-6.48.
74
TALLERICO/BEHRENDT, 297.
US life, AXS¥s}:
Article 2 Consultation on Evidentiary Issues 2a

Because it might lead to a termination of the proceedings, the arbitral tri- 22

bunal’s decision following a bifurcation should be rendered in the form of an
award and not by procedural order.’

76 Cf, Poupret/Besson, N 727-730.

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Article 3 Documents 23

Article 3 Documents

1. Within the time ordered by the Arbitral Tribunal, each Party shall
submit to the Arbitral Tribunal and to the other Parties all Docu-
ments available to it on which it relies, including public Documents
and those in the public domain, except for any Documents that have
already been submitted by another Party.

2. Within the time ordered by the Arbitral Tribunal, any Party may
submit to the Arbitral Tribunal and to the other Parties a Request to
Produce.

3. A Request to Produce shall contain:

(a) (i) a description of each requested Document sufficient to iden-

tify it, or

(ji) a description in sufficient detail (including subject mat-

ter) of a narrow and specific requested category of Documents
that are reasonably believed to exist; in the case of Documents
maintained in electronic form, the requesting Party may, or the
Arbitral Tribunal may order that it shall be required to, iden-
tify specific files, search terms, individuals or other means of
searching for such Documents in an efficient and economical
manner;
(b) a statement as to how the Documents requested are relevant to
the case and material to its outcome; and

(c) (i) a statement that the Documents requested are not in the pos-
session, custody or control of the requesting Party or a state-
ment of the reasons why it would be unreasonably burdensome
for the requesting Party to produce such Documents, and

(ii) a statement of the reasons why the requesting Party as-

sumes the Documents requested are in the possession, custody
or control of another Party.

4. Within the time ordered by the Arbitral Tribunal, the Party to whom
the Request to Produce is addressed shall produce to the other Par-
ties and, if the Arbitral Tribunal so orders, to it, all the Documents
requested in its possession, custody or control as to which it makes
no objection.
5. If the Party to whom the Request to Produce is addressed has an
objection to some or all of the Documents requested, it shall state
the objection in writing to the Arbitral Tribunal and the other Par-
ties within the time ordered by the Arbitral Tribunal. The reasons
for such objection shall be any of those set forth in Article 9.2 ora
failure to satisfy any of the requirements of Article 3.3.
24 Article 3 Documents

Upon receipt of any such objection, The Arbitral Tribunal may invite
the relevant Parties to consult with each other with a view to re-
solving the objection.
Either party may, within the time ordered by the Arbitral Tribunal,
request the Arbitral Tribunal to rule on the objection. The Arbitral
Tribunal shall then, in consultation with the Parties and in timely
fashion, consider the Request to Produce and the objection. The
Arbitral Tribunal may order the Party to whom such Request is ad-
dressed to produce any requested Document in its possession, cus-
tody or control as to which the Arbitral Tribunal determines that (/)
the issues that the requesting Party wishes to prove are relevant
to the case and material to its outcome; (ii) none of the reasons for
objection set forth in Article 9.2 applies; and (iii) the requirements
of Article 3.3 have been satisfied. Any such Document shall be pro-
duced to the other Parties and, if the Arbitral Tribunal so orders, to
it.
In exceptional circumstances, if the propriety of an objection can
be determined only by review of the Document, the Arbitral Tribu-
nal may determine that it should not review the Document. In that
event, the Arbitral Tribunal may, after consultation with the Parties,
appoint an independent and impartial expert, bound to confidenti-
ality, to review any such Document and to report on the objection.
To the extent that the objection is upheld by the Arbitral Tribunal,
the expert shall not disclose to the Arbitral Tribunal and to the oth-
er Parties the contents of the Document reviewed.

If a Party wishes to obtain the production of Documents from a per-

son or organisation who is not a Party to the arbitration and from
whom the Party cannot obtain the Documents on its own, the Party
may, within the time ordered by the Arbitral Tribunal, ask it to take
whatever steps are legally available to obtain the requested Docu-
ments, or seek leave from the Arbitral Tribunal to take such steps
itself. The Party shall submit such request to the Arbitral Tribunal
and to the other Parties in writing, and the request shall contain
the particulars set forth in Article 3.3, as applicable. The Arbitral
Tribunal shall decide on this request and shall take, authorize the
requesting Party to take, or order any other Party to take, such
steps as the Arbitral Tribunal considers appropriate if, in its discre-
tion, it determines that (ij) the Documents would be relevant to the
case and material to its outcome, (ii) the requirements of Article
3.3, as applicable, have been satisfied and (iii) none of the reasons
for objection set forth in Article 9.2 applies.
10. At any time before the arbitration is concluded, the Arbitral Tribu-
nal may (i) request any Party to produce Documents, (ii) request
any Party to use its best efforts to take or (iii) itself take, any step
that it considers appropriate to obtain Documents from any person
or organisation. A Party to whom such a request for Documents is
Article 3 Documents 25

addressed may object to the request for any of the reasons set forth
in Article 9.2. In such cases, Article 3.4 to Article 3.8 shall apply
correspondingly.
ii, Within the time ordered by the Arbitral Tribunal, the Parties may
submit to the Arbitral Tribunal and to the other Parties any addi-
tional Documents on which they intend to rely or which they believe
have become relevant to the case and material to its outcome as
a consequence of the issues raised in Documents, Witness State-
ments or Expert Reports submitted or produced, or in other submis-
sions of the Parties.
by With respect to the form of submission or production of Docu-
ments:

(a) copies of Documents shail conform to the originals and, at the

request of the Arbitral Tribunal, any original shall be presented
for inspection;

(b) Documents that a Party maintains in electronic form shall be

submitted or produced in the form most convenient or economi-
cal to it that is reasonably usable by the recipients, unless the
Parties agree otherwise or, in the absence of such agreement,
the Arbitral Tribunal decides otherwise;

(c) a Party is not obligated to produce multiple copies of Documents

which are essentially identical unless the Arbitral Tribunal de-
cides otherwise; and

(d) translations of Documents shall be submitted together with the

originals and marked as translations with the original language
identified.

abe feAny Document submitted or produced by a Party or non-Party in

the arbitration and not otherwise in the public domain shall be kept
confidential by the Arbitral Tribunal and the other Parties, and shail
be used only in connection with the arbitration. This requirement
shall apply except and to the extent that disclosure may be required
of a Party to fulfil a legal duty, protect or pursue a legal right, or
enforce or challenge an award in bona fide legal proceedings be-
fore a state court or other judicial authority. The Arbitral Tribunal
may issue orders to set forth the terms of this confidentiality. This
requirement shall be without prejudice to all other obligations of
confidentiality in the arbitration.

14. If the arbitration is organised into separate issues or phases (such

as jurisdiction, preliminary determinations, liability or damag-
es), the Arbitral Tribunal may, after consultation with the Parties,
schedule the submission of Documents and Requests to Produce
separately for each issue or phase.
26 Article 3 Documents

Contents
re The 2010 Revision
II. Objective and Structure of Art. 3
III. What Is a "Document" Under the Rules?
IV. Documentary Evidence in International Arbitration in General
A. Importance of Documentary Evidence
B. Terminology and Its Limits
C. Controversy as to Document Production Due to Differing Concepts
D. Harmonised Rules and Document Production in Arbitral Practice
E. The Arbitral Tribunal’s Power to Order Document Production
in General
iz Production of Electronic Documents in Particular
G. Statutory and Contractual Rights to Production
H. |General Remarks on the Provisions of Art. 3
V. Submission of Documents That Are Available to Each Party (par. 1)
VI. Production of Documents
A. Principles Governing Document Production (par. 2-9)
B. Production of Documents in the Control of the Opposing Party
(par. 2-7)
ub Introduction
Pa: Request to Produce to the Arbitral Tribunal and to the Other
Parties (par. 2)
3s Requirements as to the Content of a Request to Produce
(par. 3)
a) 2010 Revision
b) Overview
c) Identified Document or Narrow and Specific Category
d) Specific and Narrow Category in Case of Documents
Maintained in Electronic Form
e) Only Documents That Exist
f) Relevance and Materiality
g) Possession, Custody or Control
4. No Objection by the Other Party: Obligation to Produce
(par. 4)
5. Objection to Production Request (par. 5)
6. Invitation to Consult (par. 6)
Te Decision and Order by the Arbitral Tribunal (par. 7)
C. Review of the Document by a Neutral Expert (par. 8)
D. Request to Produce Against a Third Party (par. 9)
E. Request to Produce by Arbitral Tribunal (par. 10)
VII. Additional Documents - Second Round of Document Submission
(par. 11)
VIII. Form of Submission or Production, Copies, Electronic Documents,
eel ls Copies and Translations (par. 12)
A. General Remarks
B. Conformity of Copies and Presentation for Inspection (par. 12(a))
C. Documents Maintained in Electronic Form (par. 12(b))
D. No Multiple Copies (par. 12(c))
E. Translations (par. 12(d))
IX. Confidentiality (par. 13)
X. Separate Issues or Phases (par. 14)
Article 3 Documents D7,

Other Rules
Art. 25(1) and 25(5) ICC; Art. 18(3), 19(2) and 24(3) Swiss Rules; Art. 20(4), Zi
and 27(3) UNCITRAL; Art. 15(6) and 22(1)(e) LCIA; Rules 24 and 34(2)(a) ICSID;
Art. 19(2-3) AAA; Art. 41(c), 42(b) and 48 WIPO.

I: The 2010 Revision

Art. 3 primarily deals with the production of documentary evidence and

thus a core issue of the taking of evidence. Accordingly, particular atten-
tion was paid to this provision in the course of the review and revision of
the 1999 Rules.”

The text of Art. 3 of the 1999 Rules was preserved by the 2010 Revision
to quite some extent,”® but there were certain important amendments
made. These changes are set out in detail in the commentary on the indi-
vidual paragraphs of Art. 3 below.”

II. Objective and Structure of Art. 3

Art. 3 provides rules as to the submission and the production (by the
other party)® of documents® that the parties wish to introduce as evi-
dence in the arbitration.

Art. 3 first contains the basic rule (and reflects the standard practice) that
the parties shall submit, to each other and to the arbitral tribunal, all
documents available to them on which they rely (Art. 3(1)).® Art. 3(11)
provides for a second round of submission of additional documents that
have become relevant in light of earlier submissions.

Second, Art. 3 sets out the requirements and limits under which the
parties may request the production of documents and under which the
arbitral tribunal may order document production (Art. 3(2-9)).

In addition, Art. 3 deals with certain other aspects of document submission

and production:

77 KreINDLER, 2010 Revision, 158; O’Mattey, Document Production, 186.

78 In line with the overall approach taken by the 2010 Review Subcommittee, in the
words of its Chair: "It is fair to say that the work of the Subcommittee [...] resulted
in a careful consideration of every single provision and every single word of the 1999
Rules, while at the same time being strictly guided and informed by the overarching
maxim of: ‘If it is not broken, do not fix it.'"; KreinoLer, 2010 Revision, 157.
79 See N 70-272; Annex 1 (Art. 3).
80 As to terminology with regard to submission and production, see below N 18-19.
81 See below, N 9-12.
82 TBA Review Suscommittee 2010, 6.
ge id-AG.
 28 Article 3 Documents

e Art. 3(10) provides that the arbitral tribunal may, on its own motion
(sua sponte) and at any time, request the production of documents from
a party or request that a document is sought from a third party.

e Art. 3(12) sets out the form in which documents are to be submitted or
produced, in particular regarding electronic documents.

e Art. 3(13) provides for confidentiality in relation to documents submit-

ted or produced.

e Art. 3(14) provides that in cases where the arbitration is organised into
separate issues or phases (bifurcation), the submission and pro-
duction of documents may be scheduled separately for each issue or
phase.

Hence, Art. 3 primarily distinguishes between documents depending on

who is in possession of a document:* Art. 3(1) relates to documents that
are available to a party. In contrast, Art. 3(2-9) relate to documents that
a party wishes to use as evidence but cannot introduce on its own since
they are in the control® of the other party to the arbitration or of a
third party not participating in the arbitration.

Art. 3 is drafted to generally apply the same set of rules to all forms of
documents (whilst providing for some additional rules as to certain as-
pects of electronic documents).°*°

III. What Is a "Document" Under the Rules?

The Rules define "Document" to mean “a writing, communication, picture,

drawing, program or data of any kind, whether recorded or maintained on
paper or by electronic, audio, visual or any other means".®’

10 The 2010 Revision amended the previous definition by adding "communi-

cation, picture, drawing, program or data" and "maintained".®® It did, how-
ever, not bring a substantive change to the definition of "Document".®°
11 The definition is very broad and includes, inter alia, letters, faxes, emails,
deeds, instruments, contracts, minutes, notes of phone conversations, in-
voices, etc.

Se Tila «(Sy,
*° In full language of the Rules (see Art. 3(3)(c), 3(4), 3(7)): "in the possession, cus-
tody or control", see also below, N 145-155.
86 See below, N 9-12 and 54.
87 See also above, Definitions N 2.
88 See also Annex 1 (Definitions).
8° IBA Review Suscommrttee 2010, 4; Von Secesser, IBA Rules, 742.
Article 3 Documents 29

The definition of "Document" in the 1999 Rules was already broad enough 172
to include any form of electronic evidence.%° The minor amendments in
the definition contained in the 2010 Rules were intended to make even
clearer that all forms of electronic evidence fall within the scope of the
Rules.** In particular, the amendment to expressly include electronic data
also confirms that metadata (i.e. data about electronically stored data)
falls within the scope of Documents.”

IV. Documentary Evidence in International Arbitration

in General
A. Importance of Documentary Evidence

The taking and presentation of documentary evidence is an important fea- 13

ture in any legal proceeding. Documentary evidence often plays a major
role compared to other means of evidence.” In international arbitration,
documentary evidence is generally seen as more credible and thus stronger
than other evidentiary means.* This view is generally shared among in-
ternational arbitration practitioners — irrespective of which country they
received their legal training in. This can be illustrated, e.g., by the following
two comments:

e Inthe words of English practitioners: "In international arbitrations, the

best evidence that can be presented in relation to any issue of fact is
almost invariably contained in the documents which came into existence
at the time of the events giving rise to the dispute. "*°

e Similarly, from a Swiss perspective: "Jn many cases, documents may

be considered as the most important pieces of evidence. They normally
provide the most accurate form of ‘contemporaneous evidence’, i.e. they
are able to provide a straight and objective record of what the parties
undertook, omitted, agreed or thought before or at the time when their
business relationship went sour."%

The general preference for documentary evidence can also be explained by 14

the fact that it is usually easier, more efficient, less costly and less time-
consuming to present than evidence introduced by witnesses.*’

90 RepFERN/HunTER/Biackasy/Partasives, N 6.123.
91 TBA Review Suscommittee 2010, 4.
92 Conen KLASENER/Dotcorukow, 305. As to electronic documents in particular, see also
below, N 49-59.
93 O’Mattey, Document Production, 186.
94 GirsBercer/Voser, 734; PILS (Basel)-ScHneiper, Art. 184 N 15.
95 Reprern/HunTer/BLackasy/PartAsIDES, N 6.97.
96 Bercer/KELLERHALS, N 1210.
97 Reprern/HunTer/BiackaBy/Partasipes, N 6.98.
 30 Article 3 Documents

B. Terminology and Its Limits

iS In the context of document production, the terms "discovery" or "disclo-

sure" are often used.

16 It has been suggested that the term "discovery" should not be used in
connection with international arbitration and that terms such as "disclosure"
or "evidence-taking" should be preferred. In the words of eminent arbitra-
tion practitioners: "[...] it is better to avoid the use of the term ‘discovery'
because it is an ambiguous term. To a civil lawyer it means nothing; to a US
lawyer it encompasses production of documents and depositions of poten-
tial witnesses and experts as well as inspection of the subject-matter of the
dispute; to an English lawyer it refers only to production of documents. "%*

17 Another approach recognises that the terms "discovery" and "disclosure"

both refer to tribunal-ordered (or court-ordered) production of materials
for use in substantiating the parties’ claims in the arbitral proceedings, and
that the actually relevant issue is not the terminology, but rather the scope
of the documents that must be produced.°*

18 Given that discovery and disclosure may mean quite different things, and
since the prevailing view is that neither US-style court-litigation discovery
nor English court-litigation disclosure (or similar features from other sys-
tems) should be practiced in international arbitration (at least under the
Rules) ,*°° this Commentary (generally and in line with the language of the
Rules) uses the term "document production".

19 Similarly, this Commentary generally refers to "submitting" and "submis-

sion", respectively, where parties introduce documents voluntarily to sup-
port their case.

Cc; Controversy as to Document Production Due to Differing

Concepts

20 Whether, to what extent, under what conditions and requirements and how
a party may request production of documents from the other party (in
particular, internal and potentially adverse documents”), was and
still is to some extent controversial.

98
Reorern/Hunter/Biackasy/Partasives, 4th ed., N 6-71.
99 Born, 1878, also pointing out that disagreements over terminology in this context
"do not advance analysis materially” and that the term "discovery" does not necessa-
rily encompass a broader notion and range of materials than "disclosure".
100 See in more detail below, N 29-37 and 83.
+01 In this context, one can generally distinguish between three categories of documents:
(1) documents that are favourable to a party which has them in its possession; (2)
documents that are unfavourable; and (3) documents that are neutral. The first and
Article 3 Documents Bil

The issue was already a main topic in the discussions of the IBA Working 21
Party 1999.'°? Consequently, in the course of the 2010 Revision, particular
attention was paid to Art. 3.1°3

The topic of document production in international arbitration has also gen- 22

erated quite some scholarly writing.“
The issue was lively debated and is still under discussion because the tra- 23
ditions, concepts and rules with regard to document production vary fun-
damentally between the different legal systems, in particular between
common law and civil law jurisdictions.!°5

There are important differences between the legal traditions in state 24

court litigation of civil law and common law jurisdictions regarding docu-
mentary evidence and the taking and presentation of such evidence.

In general, it seems fair to say that civil law countries tend to regard docu- 25
ments as the primary source of evidence, whilst common law countries
put more weight on witnesses.’ In state courts in common law countries,
facts are mainly proved by direct oral testimony, and even documentary
evidence must in principle be introduced by a witness.?””

Moreover, state court litigation in many common law countries usually in- 26
volves automatic "discovery" of documents. This means that each party
must disclose to the other party the existence of all relevant documents,
whether favourable or adverse to their case and, in particular, including
internal papers such as notes and memoranda. There is no such obligation
in civil law systems (to an extent similar to common law countries).*°

the third category usually raise no peculiar difficulty as to submission or production

(whilst they may raise issues as to their authenticity and their evidentiary weight
with regard to the allegations they are submitted for), in contrast to the category of
unfavourable documents; Reorern/Hunter/Biackasy/Partasipes, 4th ed., N 6-70.
102 TBA WorkinG Party 1999, 5; IBA Review Suscommirtce 2010, 7.
103 Q’Mattey, Document Production, 186.
w

104 KayFMANN-KOHLER/BARTSCH, 14. See, as an illustration, the publications listed above, for
example by Ashford, O'Malley, Sachs, von Segesser, Raeschke-Kessler, and others.
105 TBA Review Suscommittee, 7: "The vigour with which this issue was debated demonst-
rated that the question of document production was the key area in which practiti-
oners from common law countries and civil law countries differ." Sachs, 194: "Civil
law practitioners generally have an allergic reaction to any attempt by their common
law opponents to introduce pre-trial discovery proceedings or common law style
document production in international arbitration proceedings. Any such attempt is
immediately rejected as an inadmissible ‘fishing expedition’ or 'unzulassiger Aus-
forschungsbeweis'. [...] By contrast, document discovery is seen by common law
practitioners as an indispensable tool for determining the truth."
106 Syenton, 122.
107 Reprern/HuNTER/BLACKABY/ParTASIDES, N 6.97.
108 KayrMaNN-KOHLER/BARTSCH, 14.
 sy) Article 3 Documents

27 Yet, generalisation is always risky, and one should bear in mind that,
whilst the distinction between common law and civil law countries as re-
gards discovery or disclosure is obvious, there are also important differ-
ences between countries of the same group.’ For example, in the United
States, discovery is much wider in its scope than in many other common
law countries in that it is not limited to production of documents, but in-
cludes depositions of potential fact and expert witnesses as well as inspec-
tions of the subject-matter of the dispute.*”°

28 National legislation as to document production in state court litigation is

developing over time. This development may bring the ancestral positions
closer together. For example, Germany introduced legislation providing for
document production which could be considered as broader than the IBA
Rules, whilst England narrowed the scope of disclosure.*’’

D. Harmonised Rules and Document Production in Arbitral

Practice

29 The procedural systems differ from jurisdiction to jurisdiction, and there is

no denying that arbitration practitioners - arbitrators and counsel alike -
are generally influenced by their own national procedural background,
in particular their legal training and experience.*!?

30 Nevertheless, international arbitration has over long years developed its

own practice and established harmonised "transnational" rules, in the
sense of a blend of different legal traditions and systems.‘

31 This approach has become particularly manifest in the field of document

production, where the usual practice in international arbitration today is a
combination of the approaches taken by civil and common law jurisdic-
tiens.***

32 The issue of document production in international arbitration has led and

may sometimes still lead to heated discussions (and even more so when
dealt with under the term "discovery").*15 It is, however, worthwhile to note

109 Suore, 76.

REDFERN/HunTeR/BLackaBy/Partasipes, 4th ed., N 6-71; KAUFMANN-KOHLER/BARTSCH, 15.
111 Sacus, 198.
Hanotiau, Document Production, 113.
The ICC Bulletin 2006 Special Supplement on Document Production in International
Arbitration provides an overview as to document production practice in arbitration in
different parts of the world.
114
Reorern/Hunter/Biackasy/Partasives, 4th ed., N 6-74: "The usual practice in internatio-
nal commercial arbitration is for the parties, and for the tribunal, to follow a blend of
common law and civil law procedures, with the latter being predominant."
115
See also above, N 20; Sacus, 193.
Article 3 Documents
SO 33
a

that "the power on the part of the arbitral tribunal to require the parties to
produce documentary or other materials, relevant and important to resolv-
ing the matters in dispute, is a venerable and highly important aspect of
the arbitral process."

Today, it seems fair to say that document production is standard in in- 33

ternational arbitration.'” It is also common knowledge that the number
and scope of requests for document production in international arbitrations
have increased over the years.*® It has been suggested that the increase
of document production was in part also a result of the 1999 Rules which
introduced a comprehensive set of provisions on this question.*!° There is
also a pattern that, as soon as one party starts to make requests for docu-
ment production, the counterparty will usually do the same. ?2°

Consequently, in international arbitral practice, the actual issue nowadays 34

is not whether there should be document production or not, but rather to
what extent.

However, it is clear that "there is no practice of automatic discovery in 35

international commercial arbitration."*+ National laws or institutional rules
do not grant parties to international arbitrations an automatic right to re-
quest documents to be produced by the counterparty. There is no general
obligation on parties to disclose any or all documents that may be rel-
evant to the dispute.*2

Typically, arbitral tribunals will provide for document production with rela- 36
tive restraint. In particular, they will refuse to grant expansive "fishing-
expedition" production requests. "There is no tradition or practice of the
wholesale (or 'warehouse') production of documents. "'?

There are a number of reasons for the relative restraint of arbitral tribunals o7
in ordering document production. In part, this approach may stem from the
legal background and traditions of the members of an arbitral tribunal.’

116 Born, 1876, with references.

117 Tq., 1896 ("it is fair to say that some measure of document disclosure occurs in
a substantial proportion of contemporary international commercial arbitrations.");
KaAUFMANN-KOHLER/BARTSCH, 14 (“there is hardly an arbitration nowadays without a re-
quest for document production"). The above is actually attested by the Rules them-
selves and the large space document production takes in the Rules.
118 Sacus, 197: "[...] and this independently of whether Anglo-American parties or coun-
se/ are involved in the proceedings."
119 Hanotiau, Document Production, 114.
120 Sacus, 197.
121 Reprern/HunTeR/BLackaBy/Partasives, 4th ed., N 6-71.
122 Born, 1897.
123 Reprern/HuNnTER/BLAckaBy/Partasipes, 4th ed., N 6-71.
124 See above, N 23-26 and 29.
 34 Article 3 Documents

In addition, arbitral tribunals will take into account that document produc-
tion is normally time-consuming and expensive, two features that are
inconsistent with the overall aspirations of arbitration. Furthermore, arbi-
tral tribunals will take into account that most parties will have agreed to
arbitration and the confidentiality that normally is connected with it in the
expectation that the arbitral proceedings will not expose them to broad
discovery.125

E. The Arbitral Tribunal’s Power to Order Document

Production in General

38 All arbitration is ultimately based on the parties’ agreement to arbitrate.

Usually, arbitration clauses or agreements do not expressly deal with
document production.'2° Occasionally, arbitration agreements refer to the
Rules.!2” In order to avoid later discussions as to whether there should be
document production or not and if there should be, to what extent, one
may wish to consider providing for clear language on the issue in the arbi-
tration agreement.'°

89 International arbitrations are generally governed by the national arbitra-

tion law of the place or seat of the arbitration (/ex arbitri).

40 Certain national arbitration laws expressly provide for the power of the
arbitral tribunal to order document production. E.g., Sect. 7 of the United
States Federal Arbitration Act and Sect. 34(2)(d) of the 1996 English Ar-
bitration Act grant the power to order document production to the arbitral
tribunal, as well as Art. 1467(3) of the French Code de Procédure Civile.
However, most national arbitration laws are silent in this regard.129

41 The UNCITRAL Model Law is also silent on the issue of document pro-
duction. Under the broad language of Art. 19 Model Law, however, and the
broad discretion granted to the arbitral tribunal to determine the procedure,
the power to order document production is generally deemed to be con-
ferred to the arbitral tribunal.*2°

42 Since document production is seen as a procedural issue, the arbitral

tribunal’s power to order document production is governed by the rules
on procedure. In accordance with the general principle of party autonomy,
the procedural rules are determined by the parties’ agreement. The parties

125 Born, 1907-1908.

126 Sacus, 196.
127 de OG:
128 Chidyd9en19oe
129 KaUFMANN-KOHLER/BARTSCH, 14; Sachs, 194.
130 Sacus, 194; Born, 1880-1881.
Article 3 Documents 35

may agree on the procedure directly or indirectly by reference to a set of

arbitration rules which is in practice the more frequent approach.13!

In the absence of an agreement in this regard between the parties the 43

arbitrators have the power to set the rules on procedure and therefore
to determine if and under what requirements they may order document
production.1%

The majority of international arbitration rules provide that the arbitral tri- 44
bunal has the power to order the parties to produce documents. In
most cases, the rules state that production orders may be made on the
arbitral tribunal’s own motion. Some rules state that production orders
may be rendered either at a party’s request or on the arbitral tribunal’s
own motion. Certain rules contain more specific provisions, whilst others
contain a more general rule pursuant to which the arbitral tribunal must
establish the facts "by all appropriate means". Some rules state that the
requests for document production must relate to specific documents. Nor-
mally, confidentiality issues are not addressed. Whilst most of the widely
used institutional arbitration rules deal with the production of documents,
they generally do not deal with the issue in great detail.**>

This may be illustrated by the following examples:'** 45

e Art. 25(5) ICC Rules 2012 (former Art. 20(5) ICC Rules 1998) provides
that “at any time during the proceedings, the arbitral tribunal may sum-
mon any party to provide additional evidence". Usually, this provision is
invoked in connection with document production requests. A party has
no right to the production of documents in an ICC arbitration. However,
document production is not excluded either; it is for the arbitral tribunal
to decide.?*>

e Pursuant to Art. 24(3) Swiss Rules, the arbitral tribunal may, at any
time during the proceedings, require the parties to produce documents.
The arbitral tribunal may do so at its own initiative or at the parties’ re-
quest.?%6

The arbitral tribunal’s power to order document production is well es- 46

tablished today.’”’

131 aUFMANN-KOHLER/BARTSCH,
kK 14.
132 Iq. 14,
133 Iq. 14-15; Sacus, 195; Born, 1886; O’Mattey/Conway, 383.
134 Under Art. 27(3) UNCITRAL Rules, the arbitral tribunal may require the parties to
produce documents.
135 Deratns/ScHwartz, 281; Sacus, 195.
136 \ater-Bass in CommeNTARY Swiss Rutes, Art. 24 N 11.
137 KayfMANN-KOHLER/BARTSCH, 14-15.
 36 Article 3 Documents

47 Moreover, "practice does confirm that arbitrators have no hesitation as-

suming the power to order document production",*** and this regardless of
whether such power is expressly granted by the relevant national legisla-
tion, the parties’ agreement or the applicable arbitration rules. In the ab-
sence of an express granting of such power, arbitrators regard it as inher-
ent in their general authority to determine the procedure.’*”

48 Generally, neither national arbitration laws nor institutional arbitration rules

set out the requirements and standards for document production. Conse-
quently, arbitral tribunals generally have broad discretion in this regard,
and they decide on a case-by-case basis.’*°

F. Production of Electronic Documents in Particular

49 Electronically stored documents, in particular emails, have become a very

important, perhaps the most important, source of information in busi-
ness life and hence in commercial disputes.'*1 The importance of electronic
information and data is likely to increase even more in time.

50 Consequently, discovery of electronic documents ("“e-discovery") is now-

adays a big issue in particular in state court litigation in the United States,
where detailed rules have been adopted.

51 It will remain for quite some time a controversial issue whether and if, to
what extent, the production of electronically stored data and electronic
documents (often labelled as "e-discovery" or "e-disclosure™**?) should
be permitted in international arbitration. In this context, it has been stated
that “if 'discovery' is a dirty word in international arbitration, 'e-discovery'
promises to be downright obscene".'*3 Not surprisingly, the issue of discov-
ery or disclosure of electronic information was one of the main issues dis-
cussed by the 1999 Working Party and the 2010 Review Subcommittee.1
Dz. A main reason for the scepticism towards e-discovery is the great concern
that allowing e-discovery to a bigger extent would jeopardise arbitration
as an efficient tool for dispute resolution. In particular, it would aggravate
a growing concern that arbitration is in danger of becoming too expensive
and taking too much time, which concern is to quite some extent based
on the increasing volume of documents filed in arbitral proceedings. It is

EE ial, sy.
Pele 1S:
OT eel Sa
141 TBA Review Suscommittee 2010, 9.
142 As with discovery and disclosure in general (see above, N 15-19), the terminology is
not clear.
143 Smrt/Rosinson, 105.
*44 Von Secesser, IBA Rules, 737; see also below, N 54.
Article 3 Documents 37

generally felt that there were good reasons not to have US-style discovery
in international arbitration, and that there are even stronger reasons not
to have US-style e-discovery, since e-discovery is seen as multiplying
the negative implications of traditional paper discovery.
On the other hand, obtaining access to electronic documents of the coun- 53
terparty may often seem tempting. A main reason for this is that expe-
rience shows that people are often less concerned with putting potentially
adverse information in an email than they would on paper. The "smoking
gun" is more often thought to be hiding in a sloppy email than in formal
minutes of a board meeting. In addition, because of the more and more so-
phisticated electronic archiving and search tools, the search and production
of electronic documents may in reality often be less time-consuming, more
efficient and less costly than a search by traditional means.1*°

Although the issue was intensively discussed, the increase in the impor- 54
tance of electronic documents since 1999 has not resulted in radical chang-
es of the 2010 Rules. Rather than prescribing new rules for production of
electronic documents, the 2010 Rules maintain the basic approach of
the 1999 Rules. The 2010 Rules continue to define "documents" to include
electronic documents,*** and provide a single set of rules to govern the
production of all types of documents, regardless whether in paper or
in electronic form. However, the 2010 Rules include a few new specific
provisions that are designed to address certain unique issues posed by the
production of electronic documents.*4”

The guiding principles for the production of electronically stored evidence 55

introduced by the 2010 Rules are commented below.8

The 2010 Rules are intended to be neutral as to whether electronic docu- 56

ments should be produced in arbitral proceedings.'*? They simply provide a
framework in case the parties agree to, or the arbitral tribunal orders, the
production of electronic documents.’* In particular, the amendments intro-
duced by the 2010 Revision to regulate issues arising in connection with
the production of electronic documents should not be misunderstood to

So rime OG)
146 fea) Above, N 12.
147 The 2010 Revision of the Rules regarding disclosure and production of electronic
documents expanded the definition of "document" to include "data [...] maintained
[...] by electronic [...] means" and added language to the new Art. 3(3)(a)(ii) and
Art. 3(12)(b) regarding the form of submission or production of electronic docu-
ments (Annex 1, Art. 3(3)(a)(ii) and Art. 3(12)(b)); Smrr, 202-205; Bouchenaki, 180;
CoHEN KLASENER/DoLGorukow, 304.
148 See in particular N 119-123 and 244-248.
149 TBA Review Suscommitee 2010, 9; Grt/Tawit/KREINDLER, 29.
150 TBA Review Suscommitee 2010, 9; Grt/Tawit/KREINDLER, 29.
 38 Article 3 Documents

answer the question whether e-disclosure should generally be possible in

an international arbitration.15: The Rules leave flexibility to the parties and
the arbitral tribunal to deal with the specific requirements of a case. In any
event, the Rules clarify that there is no US-style e-discovery when they are
applicable.'®2 In line with their general approach, “the Rules are concerned
to ensure that if e-disclosure occurs it is done efficiently and without un-
necessary cost".*°3

S\7/ The approach chosen!™ by the 2010 Revision is appropriate. The ongoing
move from information that is (or rather was) predominantly on paper to
information that is predominantly stored electronically requires no general
or fundamental reconsideration of the principles of document production in
international arbitration.*®

58 Issuing an entire set of new rules for production of electronic documents

as part of the 2010 Rules would have been likely to lead to unwanted and
unfortunate results. In particular, new detailed rules may well have led to
an increase of the production of electronic documents and hence document
production in general. As mentioned above,*** it is thought that the 1999
Rules contributed to an overall increase of document production in interna-
tional arbitration practice, and the same might have happened if the 2010
Rules had been amended by detailed rules on e-disclosure. Accordingly, a
well-intended "cure" may have eventually become a part of the "disease" it-
self. Moreover, a new set of rules as to production of electronic documents
might, in effect, jeopardise the flexibility of the parties and the arbitrators
to address such issues in view of the particular circumstances of the case.1%”

59 There will be different views on the issue among practitioners. Some will
feel there is a lack of clear rules that would have been helpful. It has been
suggested that the general reference to e-discovery in the 2010 Rules raises
a fundamental difficulty of preparing for e-discovery in international arbi-
tration.**® It has been further suggested that, in light of this lack of specific
guidance, the practice of United States courts might offer detailed insights
into possible approaches regarding electronic evidence and that it may be
possible to draw principles from the United States practice, of course limit-

CoHEN KLASENER/DotcoruKow, 304.

BoucHENak!, 181.
153 Giut/TAwit/KREINDLER, 29.
In line with the 2010 Review Subcommittee’s overall approach; see above, fn. 78.
IBA Review Suscommittee 2010, 9; Smit, 203.
LACeINESS:
157 Cf. also Smit, 203.
BoucHenaki, 181, also pointing out that a broad discretion of individual arbitrators
means that decisions do not offer much predictive value and that there are only few
published decisions regarding procedural and evidentiary matters.
Article 3 Documents 39

ing the application of such principles to suit the particular nature of inter-
national arbitration.**° It is submitted that the United States practice should
be considered only with great caution and restraint. If, however, the parties
to an arbitration require specific rules for a given case, detailed guidelines
for production of electronically stored information in international arbitra-
tion have been suggested by some authors.1®©

G. Statutory and Contractual Rights to Production

The IBA Rules are procedural rules only, not substantive rules. This fol- 60
lows clearly from the Foreword to the Rules and from their terms and con-
tent. The Rules govern the taking and presentation of evidence only in the
framework of arbitral proceedings.‘

Document production based on procedural rules, and in particular the IBA 61

Rules, is to be clearly distinguished from the right to obtain documents
from another party derived from other sources, in particular statutory
rules or contractual rights. For example, depending on the applicable
law and/or the contract, an agent or sales representative is entitled to ob-
tain information about certain business activities, in particular to the extent
that his or her remuneration depends on such figures.+*

The Rules do not limit substantive rights to documents based on statu- 62

tory rules or contractual rights. Accordingly, a party may not use the Rules
to limit its statutory and/or contractual obligations to disclose certain docu-
ments.?°

In practice, a party may nevertheless try to use the Rules as a defence 63

against contractual or statutory obligations to disclose documents.
Such attempts must fail. Form and substance of document production re-
quests having their basis in statutory law and/or the contract are governed
exclusively by, and have to be examined against, the applicable substantive
rules.1

159 Td. 181-182, recognising that this proposal is unlikely to win many friends, but that
there is a difference between simply following an approach and drawing lessons from
others, also with regard to the issues of an "arbitration hold" (similar to a "litigation
hold", that is a prohibition to delete any documents pending the proceedings) and
whether backup tapes are considered accessible (BoucHenaki, 182-185).
160 Smrt/Rosinson, 130-133.
161 ScHerer, 195.
Boe Niele aleyey
HOES Vol. a)S
164 Scyerer, 195, giving the example of a bank that is obliged under the applicable ban-
king regulations and/or the contract to disclose to its customers information regar-
ding the customer’s account so that it may not object to the customer's disclosure
request on the ground that the request would not comply with the Rules.
 40 Article 3 Documents

H. General Remarks on the Provisions of Art. 3

64 It is generally held that Art. 3 constitutes a well-balanced compromise

between civil and common law systems. Art. 3 is an emanation of the
development of transnational procedural rules and of the standardisation
of international arbitration, and reflects best practice. In essence, the
standards that have emerged from international arbitration practice have
been "codified" in the Rules.*®

65 Yet, there is also criticism. It has, e.g., been suggested that the 1999
Rules were "a misguided combination of various aspects of different tradi-
tions", that it was doubtful whether the compromise was a significant ad-
vance for arbitration, and that the Rules preferred documentary evidence
far too strongly over evidence introduced by witnesses. Moreover, it has
been stated that the 1999 Rules led to an increase of document production
in practice.©” It has also been suggested that, in the first years after their
introduction, the Rules were often not used appropriately.'®

66 Art. 3 is particularly useful in arbitrations involving parties from

civil and common law countries.’® A civil law party may find the Rules
helpful when seeking to limit an extensive request for document produc-
tion by a common law party; and a common law party may be able to use
the Rules to obtain at least some internal documents from a civil law party
which this party would otherwise not provide.?”°

67 Art. 3 is a core provision of the Rules.’”1 Within Art. 3, the great impor-
tance of document production (compared to document submission) is re-
flected in the structure of this provision: Whilst the voluntary submission of
documents that are available to one party is basically dealt with by a single

165K aUFMANN-KOHLER/ BARTSCH, 17-18; Sachs, 196; Evsinc/Townsend, 61; RaeSCHKE-KESSLER,

Production, 416, 429; MU.ter, IBA Rules, 57; IBA Review Suscommrttee 2010, 7. In
view of the 1999 Working Party and the 2010 Review Subcommittee, the document
production rules are "a balanced compromise between the broader view generally
taken in common law countries and the more narrow view generally held in civil law
countries". The 2010 Revision "preserves this balance" (IBA Review Suscommrttee 2010,
8).
166 Suore, 76, 78.
Hanotiau, Document Production, 114.
Id., 114 ("It is now generally acknowledged that when the IBA Rules were first disco-
vered and applied by arbitral tribunals at the end of the last century, they were often
misused"),
169 IBA Review Suscommrrtee 2010, 8.
Aiud ie
KREINDLER, 2010 Revision, 158, refers to Art. 3 as arguably being "the mainstay of the
IBA Rules",
Article 3 Documents
EEN
e 41-
e

paragraph (Art. 3(1)),'”* the production of documents is dealt with by nine

paragraphs (Art. 3(2-10)).

Like the Rules in general, Art. 3 may also be used (merely) as a source of 68
inspiration or guideline for dealing with document production; in prac-
tice, this approach is more frequent than the adoption of the Rules.1”3 In-
deed, the Rules may not always present the best approach to a given case.
The most adequate procedure for document production will differ from case
to case, depending upon the dispute, the parties and their legal representa-
tives.+74

Irrespective of whether Art. 3 is directly applicable by reference or merely 69

used as a source of inspiration, this should be set forth in the terms of ref-
erence or a procedural order, preferably in agreement with the parties and
at the outset of the proceedings.‘

V. Submission of Documents That Are Available

to Each Party (par. 1)
Art. 3(1) provides that each party shall submit to the arbitral tribunal and 70
to the other parties all documents available to it on which it relies, within
the time ordered by the arbitral tribunal. Pursuant to Art. 3(1), the parties
shall submit public documents and documents in the public domain
as well, but they do not need to and should not submit documents that
have already been submitted by another party.

The 2010 Revision did not bring any changes to the text of Art. 3(1) with Hi
one minor exception.’”®

Art. 3(1) embodies the general rule that the parties shall introduce the 72
documents available to them and which they wish to rely on as evidence.?””
This rule can be found expressly or implicitly in the major arbitration rules.?”8
It is common practice in international arbitration for each party to submit to
the arbitral tribunal and to the other party the documents on which it relies
in support of its case.'”? This is also in line with the general principle that
172 Art, 3(11) provides for a second round of submission of additional documents.
173 The reason being that many arbitrators prefer to keep some flexibility when dealing
with evidentiary issues; Sacus, 196.
174 Hanotiau, Document Production, 114; Veever, Document Production, 60.
175 Sacus, 196.
176 The 2010 Rules refer to "Documents" instead of "documents"; O’Mattey, Document
Production, 186.
177 TBA Review Suscommrttee 2010, 6.
178 See, e.g., Art. 25(2) ICC Rules 2012 (former Art. 20(2) ICC Rules 1998), Art. 18(3)
and 19(2) Swiss Rules, Art. 23(1) Model Law, Art. 15(6) LCIA Rules, Art. 20(4) and
21(2) UNCITRAL Rules.
179 Reprern/Hunter/Biackasy/Partasives, N 6.101.
 42 Article 3 Documents

the parties have a burden to introduce the evidence supporting their

case,*®° which principle is generally accepted both in civil and in common
law countries.*®

73 The wording of Art. 3(1) clarifies that a party is only required to submit
the documents it relies on. Consequently, a party is per se not required
to submit documents that are adverse to its case. Thus, failure to submit
or disclose adverse documents (or adverse evidence in general) is — in the
absence of an order of the arbitral tribunal to this extent — not an infringe-
ment of the Rules,1® and in particular no violation of the good faith principle
set out in par. 3 of the Preamble.'®

74 It is for the arbitral tribunal to specify the manner in which the parties
shall present the documents they submit. In general, it would be useful
for the arbitral tribunal to indicate early in the proceedings how this should
be done. In the interest of efficiency, the arbitral tribunal should also pre-
vent any attempts by a party to over-complicate the arbitration by submit-
ting an enormous amount of documents.

75 It is common practice for the parties to file all documents they regard as
relevant along with their written submissions.‘ Art. 18(3) Swiss Rules
provides, for example, that as a rule the claimant shall annex to its state-
ment of claim all documents it deems relevant.+®

76 There are, of course, different possibilities and practices for the presenta-
tion of documents. Apart from, or possibly also in addition to, the above
mentioned practice of filing documents along with the parties’ submissions,
there is also a practice of preparing so-called bundles for the arbitral tri-
bunal.*%&

77 The documents must be submitted to the arbitral tribunal and to the

other parties. This ensures that the other parties are in a position to study
the documents in due course and may comment on them and present their
own evidence in order to defend their rights of due process and their right
to be heard.

180 IBA Review Suscommrttee 2010, 6.

ial. Ge
182 Q’Mattey, Document Production, 186.
183 WwW Cf, also Rees, 515 (critical on the good faith duty); see also above, Preamble N 14.
184 Bercer/KeterHats, N 1211 (recommending that the arbitral tribunal insist on compli-
ance with a rule that any document shall be attached to the written submission first
referring to it).
185
The same rule applies as per Art. 19(2) last sentence Swiss Rules to the respondent’s
statement of defence.
18 ton)
Reorern/Hunter/Biackasy/Partasives, N 6.131.
Article 3 Documents 43

Under Art. 3(1), if a party wishes to rely on documents that are public or 78
in the public domain, it must also submit those documents.

There is no need to submit any documents that have already been sub- 79
mitted by another party (Art. 3(1)).

Art. 3(1) does not contain a specific time limit for the submission of docu- 80
ments (in contrast to an early draft of the Rules).!®? The Working Party of
the 1999 Rules (as well as the Review Subcommittee of the 2010 Rules)
were of the opinion that the best route to take was to provide for maximum
flexibility for the parties and the arbitral tribunal.18* Consequently, the Rules
leave the time frames to be determined by the arbitral tribunal ("within
the time ordered by the arbitral tribunal"*®°), and after consulting with
the parties.**° Time frames will generally vary depending on the complexity
and the concrete circumstances of the case, the parties’ resources, etc.1%

With regard to the submission of written pleadings, the arbitral tribunal will 81
usually set time limits for the submission of documents. Within the time
limit ordered by the arbitral tribunal, each party is required to submit all
documents that are available to it and on which it relies. This is to prevent
the other parties - and the arbitral tribunal - from being surprised by new
documents shortly before a hearing or even during a hearing.

Once an initial submission of documents has been completed, later sub- 82

missions in the arbitration of, e.g., witness statements or expert reports,
may make it necessary for the parties to submit additional documents
to rebut statements contained in these submissions.**? Consequently, Art.
3(11) provides for a second round of submission of documents. It is again
for the arbitral tribunal to determine when such second round shall take
place.9

187 TBA WorkiNG Party 1999, 4.

188 TBA Review Suscommittee 2010, 6.
189 Art, 3(1) contains, for the first time in the Rules, the wording "within the time orde-
red by the arbitral tribunal". The same wording is used throughout the Rules when a
submission is to be made or a step to be taken by the parties; IBA Review SuscommiTTee
2010, 6.
190 TBA Review Suscommittee 2010, 6.
Peake ee
EN Gl Zs
193 Iq. 7,
 44 Article 3 Documents

VI. Production of Documents

A. Principles Governing Document Production (par. 2-9)

83 The 1999 Working Party as well as the 2010 Review Subcommittee agreed
on and were guided by certain principles that resulted in Art. 3(2-9):°%

a) Extensive US-style discovery or English-style disclosure is, in gen-

eral, inappropriate in international arbitration.’%° In particular, so-
called "fishing expeditions" shall be excluded from the outset. In ad-
dition, a "general discovery procedure" was not desired. Consequently,
in international arbitration, a party is not required to submit any and all
documents and other documentary evidence, including internal docu-
ments such as internal memoranda, file notes, minutes, expert reports,
etc., regardless of whether they may be relevant and would support the
counterparty’s case. Rather, requests for document production should
be carefully tailored to issues that are relevant and material to the de-
termination of the merits of the case.'%°

b) There was a general consensus that some level of document produc-

tion is appropriate in international arbitration, even among practition-
ers from civil law countries. It is a principle reflected in the rules of some
of the major international arbitration institutions that an arbitral tribunal
shall establish the facts of the case "by all appropriate means".'%” This
includes the competence of the arbitral tribunal to order a party to pro-
duce certain internal documents in the arbitration upon request of the
other party. This position is also based on the fact that some civil law
systems entitle state courts to order a party to produce internal docu-
ments.1%8

c) It is for the arbitral tribunal to decide whether a party must produce

internal documents against its will, and to decide on the scope of docu-
ment production. Furthermore, only the arbitral tribunal has the compe-
tence to make a decision on the request if the opposing party refuses to
produce the requested documents.!%
d) The scope of what is to be produced is limited by certain objections as
set out in Art. 9(2) and the requirements set forth in Art. 3(3). If the

194 TBA Workinc Party 1999, 5-6; IBA Review Suscommittee 2010, 7-8; RaescHKE-KESSLER,
Production, 415-416; Sacus, 196.
195
IBA Review Suscommirtee 2010, 7; O’Mattey, Document Production, 187.
196
IBA Review Suscommrttee 2010, 7; Sacus, 196.
197
E.g., Art. 25(1) ICC Rules 2012 (former Art. 20(1) ICC Rules 1998).
198
IBA Review Suscommittee 2010, 7; IBA Workinc Party 1999, 5-6; Sacus, 196.
199
IBA Review Suscommittee 2010, 8; Sacus, 196.
Article 3 Documents 45

other party does not wish to comply with the request for production, it
may defend its position by raising any of the reasons for objection.2%°

e) If an objection is made, the arbitral tribunal may first invite the parties
to consult (Art. 3(6)). If the objection is not resolved by way of such
consultation, either party may request the arbitral tribunal to decide.
The arbitral tribunal shall order the production if it is convinced, first,
that the issues the requesting party wishes to prove are relevant to
the case and material to its outcome; second, that none of the
reasons for objection set forth in Art. 9(2) applies; and third, that the
requirements of Art. 3(3) have been satisfied.?%

The rules set out in Art. 3(2-9) are derived from these principles.?° 84

B. Production of Documents in the Control of the Opposing

Party (par. 2-7)

1 Introduction

Art. 3(2-7) provide for the production of documents that are in the con- 85
trol of an opposing party and set out the requirements and limits under
which a party may request the production of such documents and under
which the arbitral tribunal may order document production from another
party.

Za Request to Produce to the Arbitral Tribunal and to the

Other Parties (par. 2)

Pursuant to Art. 3(2), a party may submit to the arbitral tribunal and to 86
the other parties a request to produce, within the time ordered by the
arbitral tribunal.
The 2010 Revision amended Art. 3(2) by providing that the request to 87
produce must be made to the arbitral tribunal and to the other parties.

This is in line with the revised definition of a request to produce. A "Re- 88

quest to Produce" is characterised in the Definitions section”? to mean “a
written request by a Party that another Party produce Documents".? The
amendments to the definition and to Art. 3(2) make clear that a request

200 TBA Review Suscommittee 2010, 8; Sachs, 196.

201 TBA Review Suscommittee 2010, 8.
202 Td., 8; Sacus, 196.
203 See above, Definitions, N 1-2.
204
oo
The 1999 Rules had defined the term as "a written request by a Party for a proce-
dural order by which the Arbitral Tribunal would direct another Party to produce
documents"; von Secesser, IBA Rules, 742-743.
 46 Article 3 Documents

to produce may not be made ex parte and that a request to produce is, at
the outset, primarily a request to the other party rather than a re-
quest for an order of the arbitral tribunal.?°> The arbitral tribunal, unless
it decides otherwise, only becomes involved if there is an objection to the
request and if the parties are not able to resolve the objection (Art. 3(5-7)).
The 2010 Revision thus reflects general practice and the manner in which
the Rules are usually applied. It would be unusual for a party to submit a
request for production ex parte.?°° Moreover, it seems likely that an arbitral
tribunal deciding on an ex parte production request, without hearing the
other party, would violate the latter party’s right to be heard and manda-
tory provisions of most /eges arbitri.*”’

89 A request to produce must be made within the time limit set by the ar-
bitral tribunal for such a request (Art. 3(2)).

90 It has been suggested that the parties should be free to request documents
from each other at any time. However, it is important to provide time in the
procedural calendar for the filing of a (formal) request for document pro-
duction and objections to it, for the arbitral tribunal’s decision and for the
production of documents. “Failure to do so will inevitably cause slippage in
the calendar and may make it necessary to postpone the hearing."?°

91 At what time should (disputed) document production take place? The

answer depends on the specific case: "Neither too early nor too late, is the
general answer which is necessarily subject to the specifications of a given
case, “20

92 The general view is that disputed document production should take place
between the first and the second exchange of (full) written briefs
(i.e. after the submission of both the statement of claim and the statement
of defence). This timing is seen as best practice, although it is clear that the
specific circumstances of a case may require a different approach.?°
93 There are a number of reasons for the above timing: At said stage of
the arbitral proceedings, the parties will have exchanged their first (full)
written briefs, usually along with the documents they intend to rely on

205 Von Secesser, IBA Rules, 742-743.

206 Q’Mattey, Document Production, 186.
AVES Gl, aetsy
208 Hanotiau, Document Production, 115-116.
209 KAUFMANN-KOHLER/ BARTSCH, 20.
210 woo Hanotiau, Document Production, 115. In a case where the claimant is not in a position
to properly set out and substantiate its claim without having certain documents to be
produced by the respondent, it may be appropriate to set the document production
phase at an earlier stage of the proceedings. In any case, the arbitral tribunal should
be flexible and consider the specific circumstances of a given case.
Article Si
FS 3 ee
Documents 47

(Art. 3(1)). The parties will then also have seen what documents the other
party submitted. It may well be that a party actually submits a document
voluntarily so that there is no need for a production request. Or a party is
confronted with the fact that the other party did not submit certain docu-
ments. Accordingly, at this stage, a party will have a better knowledge as
to whether it should submit a production request. And at this stage, the
arbitral tribunal will have sufficient knowledge of the case to be able to
decide on the request, if necessary.?"!

This timing is also appropriate with regard to the specificity required in 94

the request to produce (Art. 3(3)).?!2 Requests to produce will normally be
made once the issues of the arbitration have become sufficiently clear.?!3
Before this stage, it will usually not make sense for a party to file such a
request and for the arbitral tribunal to decide on it. Thus, normally, a re-
quest to produce cannot simply be included by the claimant in a request
for arbitration pursuant to (e.g.) Art. 4(3) ICC Rules or by the respondent
in a general answer to the request for arbitration in accordance with (e.g.)
Art. 5(1) ICC Rules.?*4
Therefore, as a rule, the arbitral tribunal will not be able to make a decision 95
on the request to produce unless and until the parties have exchanged
full factual and legal submissions in a first round and the issues of the
case are sufficiently clear.??°

Thus, arbitral tribunals normally provide for document production at the 96

earliest time once the parties have set out their respective claims
and defences in their first full written briefs. In this manner, document pro-
duction can take place on the basis of the parties’ positions, but still at an
early stage in the arbitral proceedings.7?°

There will not always be agreement about the appropriate timing of 97

document production. Parties may be tempted to obtain document produc-
tion soon after the arbitral proceedings have been instituted, i.e., after the
request for arbitration and the answer to the request have been served.

211 Sachs, 196-197; Hanotiau, Document Production, 115; O’Mattey, Document Produc-
tion, 186; O’Mattey, Procedural Rules, 41.
212 See below, N 104.
213 TBA Review Suscommittee 2010, 10; in particular, regarding the required relevance and
materiality. In fact, the level of likelihood of these requirements and the timing of
production requests are connected; see also below, N 141.
214 These documents that are necessary to institute arbitral proceedings often do not set
out the issues of the dispute in detail. However, the request for arbitration may also
take the form of a fully fledged brief setting out all relevant factual, legal and pro-
cedural issues in detail. In this case the claimant is in a position to include a request
for production, and the arbitral tribunal has a basis to decide on it.
21 uw O’Mattey, Document Production, 186.

216 Born, 1900; Hanotiau, Document Production, 115.

 48 Article 3 Documents

On the other hand, there may be parties that attempt to delay document
production until shortly before the hearing.”

98 In any case, the precise timing of requests to produce will be determined

by the arbitral tribunal and will depend on the specificity of the initial
pleadings and the documents submitted along with them, the terms of ref-
erence or other documents that identify the issues.?%*

99 If the party filing a request does not meet the set time limit and cannot
excuse this in a proper manner, the arbitral tribunal may reject the request
on this formal ground.??°

100 In the event of a request that appears to be premature, an arbitral tribu-

nal may also request a party to re-submit the request at a later stage in
the proceedings.?”°

101 In general, arbitral tribunals will allow the parties to make document pro-
duction requests to supplement a previous request. However, arbitral
tribunals will react warily if parties attempt to reargue issues that have
already been decided by the arbitral tribunal. In principle, it may be appro-
priate to revert to a request that has previously been denied, in particular
if the parties’ legal or factual positions have changed or if an unforeseen
issue is raised, e.g., in the course of witness testimony. However, arbitral
tribunals will often be critical regarding such attempts.???

217 Born, 1899.

218 IBA Review Suscommittee 2010, 10. See also an ICSID Award in which the Arbitral
Tribunal found that "/...) at a time when only the short Request for Arbitration Pro-
ceeding submitted by Claimant [...] and the submissions on the production request
itself are available to identify the relief sought and the factual allegations and legal
arguments on which Claimant intends to rely in this regard for the alleged breaches,
[...] the Tribunal is not in a position to identify, within the many and broad requests
submitted by Claimant, which documents must be considered relevant and mate-
rial for the Tribunal to decide on the relief sought.” Award in Noble Ventures Inc
(US) v Romania (ICSID ARB/01/11) October 2005 at 32, available at http://ita.law.
uvic.ca/documents/Noble.pdf [last visited 23 September 2011]; see also O’Mattey,
Document Production, 186. Cf. regarding the stage of proceedings of a request with
respect to confidentiality: Giovanna a Beccara and Others v. The Argentine Republic,
ICSID Case No. ARB/O7/5 (27 January 2010), procedural order No 3 (confidentiality
order) at 81, available at http://ita.law.uvic.ca/documents/BeccaraConfidentiality-
Order_000.pdf; see also O’Mattey, Annotated Commentary, 476.
21
See also below, N 168.
22 oo
Hanotiau, Document Production, 117. See also an ICSID Award in which the Arbitral
Tribunal found that "/...] the Parties may, if they consider it necessary, submit new
requests for the production of documents together with their first memorials present-
ing their factual allegations and legal arguments supporting their claims and coun-
ter-claims respectively [...]". Award in Noble Ventures Inc (US) v Romania (ICSID
ARB/01/11) October 2005 at 33, available at http://ita.law.uvic.ca/documents/Noble.
pdf [last visited 23 September 2011].
221 Born, 1900.
Article 3 Documents 49

Often, the parties will present their document production requests and ob- 102
jections thereto on their own motion or upon an order by the arbitral tribu-
nal, in the form of a table commonly referred to as a "Redfern Schedule".
This schedule lists the documents requested and the objections made to the
production of such documents.?”? The schedule takes the form of a spread-
sheet. In this spreadsheet, the first column sets out a list and description
of the documents requested; the second column sets out the requesting
party’s justification for the request (including relevance and materiality);
the third column sets out the requested party’s reasons for refusing the
request (for example, no such document exists, lack of relevance, propor-
tionality, legal professional privilege, etc.). The fourth column is left blank,
for the tribunal to record its decision.??3

oe Requirements as to the Content of a Request to Produce

(par. 3)

a) 2010 Revision

The 2010 Revision expanded upon the wording of the 1999 Rules (which 103
in turn had expanded upon the wording of the 1983 Rules).?*4 Art. 3(3) of
the 2010 Rules contains two main new features: It specifically deals with
the issue of electronic documents, and it provides an exception to the
general rule that a party may not seek a document from another party if
the document would be considered as being within its own control.?°

b) Overview

Art. 3(3) sets forth the requirements for a request and thus also determines 104
the general framework for document production.”#° The requirements of Art.
3(3) are generally designed to make the request specifically describe the
documents being sought.” The degree of specificity generally depends on
the specific case.?”8

Art. 3(3) as introduced by the 1999 Rules was a marked step from the 1983 105
Rules under which internal documents were effectively excluded from

222 Reprern/HunTeR/BLAckaBy/Partasipes, N 6.113-6.114; Hanotiau, Document Production,

116, 118; Born, 1898.
223, Reprern/HunTeR/BLackaBy/Partasives, N 6.115; Hanotiau, Document Production, 116.
224 Q’Mattey, Document Production, 186-187.
225 Tq,, 187 (labelling the new wording of Art. 3(3) as "remarkable" for these two rea-
sons).
226 Q’Mattey, Document Production, 186.
227 TBA Review Suscommrttee 2010, 8.
228 Cf. also Hanotiau, Document Production, 117.
 50 Article 3 Documents

production. Similarly, production requests regarding categories of docu-

ments were excluded in the 1983 Rules.’

106 It is generally appropriate for the arbitral tribunal, when discussing docu-
ment production with the parties at the first organisational meeting, to
make clear that “sweeping requests asking for ‘all documents relating to’
or ‘all minutes of the board’ over a long period of time will not usually sat-
isfy the criterion of specificity".2°° Similarly, it generally seems advisable to
raise the issue of production of documents in electronic form at the outset.

107. Pursuant to Art. 3(3), a request to produce shall contain

e a description

o of each requested document, sufficient in detail to identify the

document, or

o of a narrow and specific requested category, sufficient in detail

(including subject matter), of documents that are reasonably be-
lieved to exist; and

o inthe case of documents maintained in electronic form, the request-

ing party may - sua sponte or upon order by the arbitral tribunal -
identify specific files, search terms, individuals or other means of
searching in an efficient and economical manner;?34

e astatement?” as to how the requested documents are relevant to the

case and material to its outcome; and

e astatement

o that the requested documents are not in the possession, custody

or control of the requesting party, or

o of the reasons why it would be unreasonably burdensome for the

requesting party to produce such documents, and

o of the reasons why the requesting party assumes the requested

documents to be in the possession, custody or control of another
party.

108 The requirements set out in Art. 3(3) serve a number of purposes. In par-
ticular, they are designed to:

AsHFrorp, Document Discovery, 97.

Hanotiau, Document Production, 117.
Art. 3(3)(a)(i) was added by the 2010 Revision.
The 1999 Rules had referred to "a description".
Article 3 Documents 51

¢ permit a party to request documents which can be identified with rea-

sonable specificity and which can be shown to be relevant to the case
and material to its outcome;?23

¢ prevent a "fishing expedition" by the requesting party;234

¢ prevent unnecessary hassling of the opposing party;735
e avoid a burdensome and costly exercise that does not seem
indispensable;
?*°

e have checks on the scope of a request to produce;22”

e put the other party in a position to decide whether it wishes to comply

with the request to produce voluntarily (Art. 3(4)) or to raise objections
(Art. 3(5));738
e enable the arbitral tribunal, if there is an objection to the request, to
decide whether it shall grant or reject the request, in accordance with
the standards set forth in Art. 3(7).?%9

c) Identified Document or Narrow and Specific Category

The party requesting production of a certain individual document must 109

describe this document in sufficient detaii so that it can be identified
(Art. 3(3)(a)(/)). This requirements for the description of an individual doc-
ument is straightforward.7*°

Usually, the description will consist of three elements: 110

(i) the presumed author and/or presumed recipient of the documents,

(ii) the presumed date or presumed time frame within which the docu-
ment is thought to have been established, and

(iii) the presumed content of the document.**?

233 IBA Review Suscommittee 2010, 8.

234 Tq., 8; Hanotiau, Document Production, 117; Shore is sceptical whether the mecha-
nism to constrain "fishing expeditions" will prove to be successful (SHore, 77).
235 IBA Review Suscommittee 2010, 10.
236 fea) Hanotiau, Document Production, 117.
237 TBA Review Suscommitce 2010, 9.
238 Td., 8; KaurMANN-KOHLER/BARTSCH, 18,
239 IBA Review Suscommittee 2010, 8-9; KaurMANN-KoHLER/BArTSCH, 18.
240 TBA Review Suscommittee 2010, 9.
241 Iq. 9: KaurMANN-KoHLeR/BARTSCH, 18. RAeSCHKE-Kesser provides the following examp-
le with regard to the identification of an individual document: "English licensee A,
whose license was terminated after a relatively short period of time and who consi-
dered the termination to be ineffective, suspects that his German licensor B mana-
ged to conclude a new and better licensing agreement with another English company
X shortly before he terminated the existing agreement. A assumes that this was the
 52 Article 3 Documents

taka How precise and detailed the description of a document needs to be

made must also be decided with a view to allowing the arbitral tribunal and
the counterparty to assess whether the respective document is relevant to
the case and material to the outcome of the proceedings (Art. 3(3)(b) and
3(Z)).2

112 A party may also request the production of a narrow and specific cate-
gory of documents (Art. 3(3)(a)(ii)). This basically means a group of the
same or similar documents relating to a certain topic which the requesting
party wishes to prove.

Lil} A party submitting a request for a category of documents will first (as for
an individual document) have to indicate the presumed author and/or the
presumed recipient of the documents, the presumed date or time frame
within which the documents were established and the presumed content
of the documents.

114 The exact meaning of "narrow and specific” is a matter of interpreta-

tion, under the 2010 Rules as well as under the 1999 Rules. It has been
suggested that "narrow and specific" should be understood "to mean nar-
rowly tailored, i.e. reasonably limited in time and subject matter in view of
the nature of the claims and defences advanced in the case".** Requiring
that a request is limited in time and subject matter provides a measur-
able frame.*** Moreover, the above interpretation makes clear that the test
depends on the specific issues raised in a case. A request should aim at
the production of a document which relates to certain specific issues in the
arbitration, not a broad description of a claim or a general contention.2**

115 The narrow and specific requirement is a key standard which differenti-
ates document production in international arbitration from the document
production rules provided for in state court litigation both in civil law and in
common law countries.?*°

actual reason for the termination. A is therefore claiming damages from B and re-
quests a procedural order [...] which requires B to produce his new licensing agree-
ment with X. This new contract between B and X, which A believes exists, need not
be set out in only one contractual document. It could also follow from an exchange
of letters. A should therefore request the production of either the contract between
B and X or the exchange of letters between B and X, which together constitute a
contract. A should include in his request the period of time [...] during which these
documents were most probably established." (RaescHKe-Kesster, Production, 418).
24
See below, N 129-144.
24 wn
O’Mattey, Document Production, 187 (with reference to: Procedural Order No. 2
sect. 2 (ii), International Thunderbird Gaming Corp (US) v United Mexican States,
unreported 2003 NAFTA/UNCITRAL).
24
O’Mattey, Document Production, 187, referring to "quantifiable guidelines".
24
O’Mattey, Document Production, 187; O’Mattey, Procedural Rules, 45.
24 ann
O’Mattey, Document Production, 187.
Article 3 Documents 53

The possibility to request the production of documents by category prompt- 116

ed quite some discussion among the 1999 Working Party and the 2010
Review Subcommittee.4’

The drafters of the Rules did not want to open the door to "fishing expedi- 117
tions". Yet, it was understood that a party may be unable to specifically
identify documents although they may well be relevant and material and
should be produced. In fact, "a/l/ members of the Working Party and of the
Subcommittee, from common law and civil law countries alike, recognised
that arbitrators would generally accept such requests if they were care-
fully tailored to produce relevant and material documents".

This can be illustrated by the following example: If the termination by no- 118
tice of one party (B) of a joint venture agreement is an issue in an arbitra-
tion, the other party (A) will know that the board of directors of the party B
must have made the decision to terminate the joint venture agreement in
the course of a meeting at a date close to the date of the notice, that cer-
tain documents must have been prepared for the board’s consideration of
the decision to terminate and that minutes must have been taken concern-
ing the decision. In this case the requesting party A is unable to identify the
dates or the authors of such documents, but it is still able to identify with
some specificity the nature of the documents being sought and the general
time frame in which the documents would have been prepared. Such a re-
quest may qualify as a "narrow and specific category of documents" as set
forth in Art. 3(3)(a)(i/).**°

247 IBA Review Suscommittee 2010, 9.

248 Td., 9; KAUFMANN-KOHLER/BARTSCH, 18.
249 IBA Review Suscommittee 2010, 9; RaescHke-Kesster provides an example for a category
of documents as follows: "Parties A and B are disputing whether the defendant B
has an implied contractual obligation. This is what claimant A alleges to support his
claim. According to the applicable material law, the arbitral tribunal would no longer
be able to infer an implied obligation from the contract, if the obligation was specifi-
cally discussed during negotiations and was explicitly refused by B, as B alleges and
wishes to prove. Should B succeed in proving its allegation, A’s claim will have to
be dismissed. B knows that the head of the negotiation on the side of A informed its
board about each step of the negotiations and assumes that B’s own refusal of that
obligation is also part of the information passed on to the board. The board proto-
cols of A concerning the information passed from the head of A’s negotiation team
to the board about the negotiations with B are 'a narrow and specific category of
documents’. B should therefore ask the arbitral tribunal, in its request to produce, to
orderA to produce those board protocols concerning negotiations with B that contain
the issue of B’s obligation." (RaeSCHKE-KEssLer, Production, 418).
 54 Article 3 Documents

d) Specific and Narrow Category in Case of Documents

Maintained in Electronic Form

119 The 2010 Review Subcommittee recognised that documents in electronic

form have become more important and that their production may be bur-
densome.2°° Hence, it introduced means for the parties to identify more
precisely a narrow and specific requested category of documents main-
tained in electronic form (Art. 3(3)(a)(ii)).

120 A party may, either on its own initiative, or at the arbitral tribunal’s re-
quest, additionally identify electronic documents by file name, specified
search terms, individuals (e.g., specific authors, addressees or custodians)
or other means of searching for such documents in an efficient and eco-
nomic manner.?°?

121 In principle, the requested specification, regardless of whether the produc-

tion request is aiming at electronic documents or traditional documents
(paper documents) is done by detailed identification of single documents or
by referring to a narrow and specific category.?°?

122 As mentioned above, the Rules are neutral as to whether electronic docu-
ments should be produced or not; they simply provide a framework in case
the parties agree on, or the arbitral tribunal orders production of electronic
documents. They leave flexibility to the parties and the arbitral tribunal to
deal with the specific requirements of a case.?°?

123 Metadata may, in appropriate circumstances, be subject to document pro-

duction in international arbitration. This should not be the case in the large
majority of arbitrations. However, it may be possible that metadata regard-
ing the author, recipient or date of creation or revision of an electronic
document may be relevant to the outcome of a specific case which turns
on these issues.?%4

e) Only Documents That Exist

124 A basic condition for production is that the document(s) sought actually
exist(s). This requirement is stipulated for the description of a category of
documents in Art. 3(3)(a)(ii) ("reasonably believed to exist"), but it is also
relevant for a specific document in the sense of Art. 3(3)(a)(i). It is also

250 See also above, N 49; IBA Review Suscommittee 2010, 9.

251 IBA Review Suscommrttee 2010, 9.
252 Coven KLAsener/DotcoruKow, 305; Smit, 202, 204.
253 TBA Review SUBCOMMITTEE 2010, 9; Gitt/Tawit/KreINDLER, 29; see also above, N 56.
254
u
Smit, 203; ConeN KtAsener/DotcoruKow, 305; as to metadata, see also above, N 12 and
below, N 246.
Article 3 Documents 55

reflected in the statement with regard to possession, custody or control as

set forth in Art. 3(3)(c).25
A detailed description and/or detailed statement on who has control over 125
a document will usually provide specific indications as to why the document
sought exists or at least why the document is believed with good reason to
be in existence.

Specific indications as to the existence must suffice; often a party will be 126
unable to adduce proper evidence.?*°

Since document production only extends to existing documents, it is not IW27/

possible to request a party to create a new document, e.g., to break down
sales figures, etc. It may, however, be possible to obtain such information
and data by way of examining witnesses.?5”

The issue as to which party has to prove whether or not a document was 128
established and the consequences of any respective lack of proof must be
dealt with by the arbitral tribunal in accordance with the applicable law
governing the burden of proof.

f) Relevance and Materiality

Art. 3(3)(b) requires that the documents requested are relevant to the 129
case and material to its outcome.’ This requirement was and is central
and constitutes a standard core test.

The 1999 Rules had requested that the documents sought are "relevant 130
and material to the outcome of the case", which was amended by the 2010
Revision to require that the document is "relevant to the case and mate-
rial to its outcome".?5?

255 See below, N 145-155.

256 Cf., e.g., an unpublished order by a Swiss arbitrator (quoted in Haseccer, 30): "The
Sole Arbitrator notes at this point that Claimant has provided virtually no evidence
that the various internal documents requested exist [...]. There is no concrete indica-
tion why Claimant believes that the requested documents exist; Claimant seems to
rely on the general presumption that companies do establish and keep internal do-
cuments relating to their business dealings. The lack of concrete indications as to the
presumed existence of these documents would in the Sole Arbitrator’s view suffice
to reject the requests for internal documents. The Sole Arbitrator will nevertheless
examine the admissibility of Claimant’s individual requests. [...]". The position taken
by the arbitrator in this case may seem rather strict. In any case, it will depend on
the circumstances of a given case how specific the indications should be; in cases
where the requesting party argues that a company normally has certain documents,
and where this seems to be a reasonable assumption, this should suffice.
257 Born, 1900.
258 This requirement is expressly set forth in Art. 2(3)(a), Art. 3(3)(b), Art. 3(7),
Art. 3(9), Art. 3(11), Art. 4(9), Art. 6(3), Art. 8(5) and also in Art. 9(2)(a).
259 See below, N 135.
 56 Article 3 Documents

ikshil A party filing a request to produce must, in its request, state in detail that
and how the documents requested are relevant to the case and material to
its outcome (Art. 3(3)(b)). The requesting party must clarify with reason-
able particularity what facts or allegation(s) each document or category of
documents sought is intended to establish. It must set out why it believes
the facts it wishes to prove based on the requested document are relevant
to the case and material to its outcome. A document may serve to support
the allegations of the requesting party or to reject allegations made by the
other party. In light of this, the request to produce must set out for what
purpose the party needs the requested documents. Consequently,
the content of the requested document needs to relate to the issues in the
case, i.e. a procedural or substantive allegation or contestation made by
the requesting party.”

132 A party may link its request to the factual allegations in the submissions
that were filed or to factual allegations the party intends to make in its
further submissions.?*

133 The relationship between the document(s) and the issue(s) must
be set out in sufficient specificity in order to enable the arbitral tribunal to
understand why the requesting party needs the document sought and to
decide if the respective document may indeed be appropriate proof for al-
legations of the requesting party.?°

134 The relevant and material requirement can also be seen in connection with
the respective language of Art. 27(4) UNCITRAL Rules,’ which states
that "the arbitral tribunal shall determine the admissibility, relevance, ma-
teriality and weight of the evidence offered".

135 The 2010 Revision put an emphasis on a two-pronged test.? Under the
1999 Rules, one could get the impression that relevance and material-
ity were a redundant statement of the same principle.7*° Under the new
Rules, "materiality" and "relevance" are two tests to be distinguished from
each other. Of course, "it remains to be seen how tribunals [will] apply this
standard. "26

260 TBA Review Suscommittee 2010, 9-10.

261 Hanotiau, Document Production, 116.
262 IBA Review Suscommittee 2010, 9-10; Hanotiau, Document Production, 116; O’MALtey,
Procedural Rules, 46.
263 art. 25(6) UNCITRAL Rules 1976.
264 Von Secesser, IBA Rules, 743-744; Giit/Tawit/KreinoLer, 28. See above, N 130.
265 Q’Mattey, Document Production, 189. Cf. also the following construction: "The word
‘material’ is clearly an attempt to delimit the relevance from being too fanciful or re-
mote." (AsHrorp, Document Discovery, 97).
266 Von Secesser, IBA Rules, 744.
Article 3 Documents 57

The understanding of two separate tests had already been suggested and 136
practiced under the 1999 Rules. It also reflects general practice: "The usual
practice is to limit document production as much as possible to those docu-
ments that are strictly relevant to the issues in dispute and necessary for
the proper resolution of those issues."8’ In this context, it has been sug-
gested that a relevant document is a document that is likely to prove a
fact from which legal conclusions are drawn.2® A material document is
a document required to allow complete consideration of the legal issues
presented to the arbitral tribunal.?° It follows that, where a party is able to
prove a fact already by other means (in particular other documents), there
is no need for production of further documents.

It is difficult to imagine a document that is material to the outcome of a 137

case, but not at the same time relevant to the dispute. In contrast, there
may well be many documents relevant to the dispute, but not material to
its outcome, for example, because the respective fact has already been
proven by other means of evidence. Accordingly, it is submitted that there
are two tests set forth by the Rules, but that one of them, namely the ma-
teriality test, is clearly the tougher test to take.

The required relevance and materiality are to be seen in the context of the 138
burden of proof. The party submitting a request to produce actually bears
the burden of proof and needs to prove the respective fact in order to be
successful. If this additional requirement is overlooked, “the result is an
avalanche of needless documents".*”° In fact, the importance of the bur-
den of proof in determining whether or not a request should be granted is
often underestimated.?”! It is for the arbitral tribunal to determine, when a
document production request is objected to, "whether the requesting party
actually needs the documents to discharge the burden of proof. If not, the
request should be denied."*”? In other words: "[...Jdocument production
must serve the purpose of bringing to the arbitral tribunal’s knowledge not
just any documents relevant and material to the outcome of the dispute,
but documentary evidence without which a party would not be able to dis-
charge the burden of proof lying upon it."?7

26 N
Reprern/Hunter/Biackasy/Partasipves, 4th ed., N 6-71.
268 K aUFMANN-KOHLER/ BARTSCH, 18.
269 Id., 18; MU.er, IBA Rules, 62; RaescHke-Kessier, Production, 427.
270 Derains, Document Production, 87.
271 ms Hanotiau, Document Production, 116.
272 Derains, Document Production, 87.
273 de S7.
 58 Article 3 Documents

139 Accordingly, when assessing requests, the arbitral tribunal must carefully
check that the burden of proof is actually on the requesting party.”” If it is
not, the arbitral tribunal must decline the request.

140 If a party alleges that the counterparty failed to prove an allegation

it made and requests the counterparty to produce the relevant evidence,
this request should normally be dismissed.?”° In fact, merely reminding
a party that it has most probably not satisfied the burden of proof with
regard to the allegation in question will cause it to provide the requested
documents.?”6

141 The documents the production of which is sought need only be prima facie
relevant and material. In other words, they need to appear likely to contain
information that is material to resolving what seem to be disputed issues in
the arbitration. At the stage document production takes place, it is not pos-
sible to be certain that particular documents will indeed contain relevant in-
formation or that the respective piece of information will be material: "The
most that can be done is make prima facie judgments of likely relevance
and materiality".?”

142 The arbitral tribunal may wish to point out that the document production
decisions are made on the basis of prima facie relevance and of the par-
ties’ submissions filed so far, but not as a final decision on the ultimate
relevance.?7°

143 Arbitral tribunals will usually avoid making a final decision as to the rel-
evance and materiality of documents too early in the proceedings. In result,
the threshold of relevance and materiality will be lowered, on the one hand,
in order not to prejudice the arbitral tribunal’s final finding and, on the oth-
er hand, to ensure that documentary evidence that may potentially (prima
facie) be relevant and material is made available by way of production.?79

ENA Cale (S77,

275 Hanotiau, Document Production, 116.
HAS aly aNANG)-
277 Born, 1909; Hamitton, 69 (referring to "prima facie relevance" or "likelihood of rele-
vance"); Hanotiau, Document Production, 117. The level of likelihood is connected
with the respective stage of the proceedings, see above, N 94.
27
Hamitton, 69; Hanotiau, Document Production, 117.
27 Oo
@
Haseccer, 31, quoting from an unpublished order of a Swiss arbitrator as follows: Wee}
the requesting party’s statement as to the relevance and materiality of the document
appears to be - at the present stage of the proceedings - a reasonable position, i.e.
that the requested document may be relevant. Thus, the Sole Arbitrator may order
the production of documents also taking into account the requirement of procedural
efficiency in the sense that it may appear advantageous to have certain documents
available at the forthcoming witness hearing instead of having them available only
at a later stage when the relevance thereof may have been finally determined."
Article 3 Documents 59

An arbitral tribunal may also ask the requesting party to amend its re- 144
quest in order to better demonstrate the relevance and materiality.2%

g) Possession, Custody or Control

A party filing a request to produce must state that the documents are not in 145
its possession, custody or control and explain why it assumes that the
documents are in the possession, custody or control of the other party. In
other words, a requesting party must set out why it is not in a position to
produce the requested documents itself, but the other party is.

This mainly aims at preventing a party from being unnecessarily has- 146
sled by requests of the other party.?** As set out in Art. 3(1), a party must
submit the documents it wishes to rely on that are available to itself.?®2

The requirement that documents to be produced are within "the posses- 147
sion, custody or control" of the requested party is also demanded by arbi-
tral practice in general.?®? The emphasis is on "control", and control is a
practical issue; the formula extends not only to documents in the files or
archives of a party or in those of its employees, officers or directors, but to
all documents within a party’s control.°

Some arbitrators tend to require a requesting party to provide evidence 148

or at least specific indications that a requested party is in possession of
the requested documents.*®° On the other hand, an arbitral tribunal may
choose to first hear the other party’s comments on its alleged possession,
custody or control of the requested documents.?°°

280 Hanotiau, Document Production, 117.

281 TBA Review Suscommitee 2010, 10.
282 With one exception, see below, N 152-154.
283
Ww
Born, 1899.
284 Td., 1899, also pointing out that there is substantial authority in some common law
jurisdictions regarding the meaning of "control" in the context of disclosure which is
generally relevant in arbitration. "The essential point is that control is not a technical
concept, but rather a practical one which should be liberally interpreted and applied"
(Born, 1899). It has also been pointed out that "possession", "custody" or "control"
in result “equates to the generally understood concept of ‘control’. Nevertheless it
is clumsy wording and the more modern [...] ‘control' [...] is probably a neater and
more precise descriptor." (AsHFoRrD, 98).
285 HapeccerR, 30; see also N 126 above as to the existence of documents.
286 Hapeccer, 30, quoting from an unpublished order of a Swiss arbitrator as follows: "The
arbitral tribunal only will order the production of documents or a category of docu-
ments if they exist and are within the possession, power, custody or control of the
other party. If contested, the requesting party will have to show this is likely." HaBec-
cer, 30-31, referring to another unpublished order in which document requests were
granted, although the requesting party had not demonstrated the likelihood of the
possession, since the alleged possession remained unchallenged by the requested
party; cf. also Hanotiau, Document Production, 117.
 60 Article 3 Documents

149 It may be difficult for the arbitral tribunal to determine the scope of "pos-
session, custody or control" in a specific arbitration. Generally, the scope
will also be determined by the arbitration agreement between the parties
and the jurisdiction of the arbitral tribunal in general.

150 Depending on the specific case and on the applicability of the so-called "group
concept", an arbitral tribunal may consider ordering the production of docu-
ments that are not in the direct possession of the other party, but are in
the possession of a company that is also a member of the group to
which the party belongs.” However, in practice, a restrictive approach
will have to be taken in this regard.
Alternatively, the requesting party and the arbitral tribunal may refer to
Art. 3(9) which provides a basis for production of documents by third
parties.’°°

illey2 Art. 3(3)(c)(i) as introduced by the 2010 Rules provides for an exception
to the general rule that a request must demonstrate documents sought not
to be in the possession, custody or control of the requesting party.?® This
new rule states that, where the requesting party can show that it would be
unreasonably burdensome for it to produce the requested documents
itself, the arbitral tribunal may order the counterparty to produce them.

153 The 2010 Review Subcommittee recognised that it is becoming increasingly

less likely for a particular document to have been entirely deleted from a
party’s records and that such document may continue to exist electronically,
e.g. on back-up tapes or in other forms of electronic archives. In cases
where the document is no longer easily retrievable (e.g., because it is
no longer part of a server’s active data), it may be less burdensome and
costly for the counterparty to produce it.?9°

154 What "unreasonably burdensome" means will, to a great extent, depend

on the specific facts. It may be helpful to apply the rule of proportionality,2%
i.e. to weigh the burden imposed on the producing party against the po-
tential use of the documents.’ The analysis is likely to take into account
the costs the requesting party would have to bear if it had to retrieve the
documents itself, and the probative value of the documents. These factors
would have to be weighed against the costs of the non-requesting party
if it was ordered to produce the documents. Yet, the rule is that a party

287 KaUFMANN-KOHLER/BARTSCH 19; cf. ReprFern/Hunter/Biackasy/Partasipes, N 2.39; cf. BERGER/

KELLERHALS, N 529.
288 See below, N 206-219.
289 IBA Review Suscommittee 2010, 10.
2200 Tdey
291 See also below, N 186.
292 Q’Ma.tey, Document Production, 188.
Article
an
e 3a Documents
ee 61
e te

with access to the documents must retrieve them itself, and the exception
to this rule should be an exception and therefore only apply in specific cir-
cumstances.?%

If a party has the copy of a document the original of which is in the pos- ils}s;
session of the counterparty, then the party in possession of the copy
must usually submit this copy. However, if the requesting party alleges that
the copy available to it is forged and therefore differs from the original and
that the content of the original is relevant to its legal position, the respec-
tive party may ask for the production of the original (cf. Art. 3(11)).

4. No Objection by the Other Party: Obligation to Produce

(par. 4)

Art. 3(4) provides that, within the time ordered by the arbitral tribunal, the 156
party to whom the request to produce is addressed shall produce to the
other parties and, if the arbitral tribunal so orders, to it, all the documents
requested that are in its possession, custody or control as to which it makes
no objection.

The 2010 Revision brought some small, but relevant amendments com- ALS7/
pared to the text of the 1999 Rules.

With a view to procedural economy, the new Art. 3(4) sets forth that the 158
documents the requested party wishes to produce shall be transmitted to
the arbitral tribunal only if the arbitral tribunal so ordered, "in /ight
of the observation that it is often not efficient for arbitrators to review all
of the documents at the stage of their production".*°* Consequently, the
default mode is that documents are to be produced to the arbitral tribunal
only if it so requests.*°° That the arbitral tribunal is not involved in the initial
production of documents is in line with the general approach of the revised
Rules to involve the arbitral tribunal only where necessary.”*° As a conse-
quence, the evidentiary record of the arbitral tribunal will not necessarily
contain all documents that were produced.*%”

22 tdi LSS.
294 TBA Review Suscommittee 2010, 10; cf. also Hanotiau, Document Production, 116.
295 TBA Review Suscommittee 2010, 10.
296 O’Mattey, Document Production, 188. The 1999 Working Party had actually assumed
(or hoped) that the default requirement (under the 1999 Rules) that any documents
produced shall be sent to the arbitral tribunal as well should also serve as an additi-
onal limitation on the scope of documents to be requested, because any documents
automatically became a part of the record and the self-interest of the parties should
cause them to limit the scope of their request as they would not wish to overburden
the arbitral tribunal with documents; IBA Workinec Party 1999, 8; IBA Review Suscom-
mittee 2010, 10.
297 O’Mattey, Document Production, 188.
 62 Article 3 Documents

159 The further amendment to the 2010 Rules, i.e. the addition of the pas-
sage "to the other parties" was made in consideration of multi-party
arbitrations. The production of documents (and evidence in general) must
be made vis-a-vis all parties, not only to the party that actually requested
the production. It would be difficult for an arbitral tribunal to order a party
to produce certain documents to only one of the parties but not to all
other parties, and any excluded party would have an argument that it was
treated unfairly.2® As a consequence, the 2010 Rules state that document
production (be it voluntarily or by order of the arbitral tribunal) shall be
made to all parties.°°

160 A party confronted with a request to produce has to decide whether it in-
tends to comply with the request and wishes to produce the respective
documents voluntarily or whether it wants to object to the production
request.

161 If the party confronted with a request to produce does not wish to raise an
objection within the time limit set by the arbitral tribunal, it is automati-
cally obliged to produce the requested documents (Art. 3(4)). As a conse-
quence, the arbitral tribunal simply needs to order whether the requested
document is to be produced to it as well or only to the requesting party.

162 Art. 3(4) is based on the principle that the parties must actively exercise
their procedural rights in the arbitration. If a party takes no action, it is
deemed to have waived its right to object.

Ly Objection to Production Request (par. 5)

163 Art. 3(5) provides that if the party to whom the production request is ad-
dressed has an objection to some or all of the documents requested, it
shall state the objection in writing to the arbitral tribunal and to the other
parties, within the time ordered by the arbitral tribunal. The reasons for
such objection shall be any of those set out in Art. 9(2) or a failure to sat-
isfy any of the requirements of Art. 3(3).

164 The 2010 Revision amended Art. 3(5) by introducing an obligation of the
objecting party to address objections in writing to the other parties as well,
whilst under the 1999 Rules the objecting party was only required to ad-
dress the arbitral tribunal. The amendment is in line with standard practice
since an arbitral tribunal will only in exceptional circumstances entertain

298 Ids 188,

2 Td 88.
Article 3 Documents 63

ex parte communications.*° Moreover, the revised Art. 3(5) expressly pro-

vides a further basis for making an objection.2°
If a party confronted with a production request wishes to defend against 165
the request, it must state its objections in writing to the arbitral tribunal
and to the other parties.** A party may oppose entirely to a request to
produce or in part.

The requested party must state its objections to the arbitral tribunal within 166
the time ordered by the arbitral tribunal (Art. 3(5)). If the requested
party does not meet the time limit and fails to give sufficient reason for the
delay, the arbitral tribunal does not have to consider the objections when
deciding on the request. The arbitral tribunal must, however, still examine
whether the issues the requesting party wishes to prove are relevant to the
case and material to its outcome (Art. 3(7)(i)).

The objections are commonly divided into so-called procedural (or for- 167
mal) objections and substantive objections. This terminology is not too
precise, since the so-called procedural objections may have a substantive
element as well.

So-called procedural (or formal) objections are the following: The re- 168
quested party may set out that the request to produce was brought too late
since the requesting party did not meet the time limit set by the arbitral
tribunal (Art. 3(2)). Or the other party may allege that the requesting party
did not fulfil any of the requirements for the request as set out under Art.
3(3).2 The revised wording of Art. 3(5) (and Art. 3(7)) expressly provides
for such objections.?%

The so-called substantive objections are those set forth in Art. 9(2).3°5 169

The list as set out in Art. 9(2) is not exclusive. 170

300 Td., 188.

301 See below, N 168.
302 IBA Review Suscommrtee 2010, 10.
303 IBA Review Suscommitree 2010, 10. It was already common practice under the 1999
Rules for parties to object to requests as being overly broad when the request did
not meet the narrow and specific category requirements. See also the Procedural
Orders 3 and 5 in a NAFTA/UNCITRAL Arbitration where the arbitral tribunal ruled
that "[...] Claimants’ ‘Document Request’ [was] not in conformity with Article 3 of
the IBA Rules, and the Request to Produce [was] declined." Grand River Enterprises
v United States (Procedural Orders 3 and 5), unreported 2007 NAFTA/UNCITRAL,
available at http://www.state.gov/documents/organization/85416.pdf [last visited
23 September 2011]; see also O’Mattey, Document Production, 188.
304 Q’Mattey, Document Production, 188.
305 See below, Art. 9 N 18-49.
 64 Article 3 Documents

171 A possibly relevant objection is that the document does not exist. Obvi-
ously, a document which has never been in existence cannot be produced.
Art. 3(3) as well as Art. 9(2) presuppose that a requested document ex-
isted at some time. A party only can and only has to produce those docu-
ments that are in its possession, custody or control, but it cannot produce
a non-existing document, even if it does not raise objections to a request
to produce such document.

6. Invitation to Consult (par. 6)

172 Art. 3(6) provides that the arbitral tribunal, upon receipt of any objection
(as per Art. 3(5)), may invite the relevant parties to consult with each
other with a view to resolving the objection themselves.

173 This provision was introduced by the 2010 Revision.*” The text is com-
pletely new. It is in line with the general principle that the evidence-taking
procedure should be conducted as efficiently as possible. Party-to-party
consultation may in some cases be the more effective way of resolving
objections, including those based on insufficient descriptions and other de-
ficiencies in the form of the request.%°

174 An invitation of the arbitral tribunal to discuss disputes over evidence im-
poses some burden on the parties to try to act reasonably and resolve the
issue, and it may well resolve the issue, so that the arbitral tribunal does
not need to decide upon the request. Accordingly, Art. 3(6) is seen as a
welcome innovation to the Rules.°*°°
175 Particularly in large and complex cases, where there are often extensive
production requests by both sides and usually each party will dispute the
other party’s requests, a meeting between the arbitral tribunal and the par-
ties’ counsel, aiming at finding a compromise, may be an efficient way
forward. This process may involve meetings between the parties’ counsel,
with the encouragement of the arbitral tribunal, in order to attempt to limit
the scope of the production requests. "Experience shows that a day spent
in this manner by the tribunal and the parties often cuts through what can

306 RaescHke-Kesster, Production, 422; as to non-existing documents see also above,

N 124-128. In order to make the issue clear, and in order to avoid possible negative
consequences or negative inferences pursuant to Art. 9(5), the party should set out
within the time limit as ordered by the arbitral tribunal for objections that the respec-
tive document never existed. A document that never existed does not come within
the scope of Art. 9(2)(d) which only relates to documents that existed but were lost
or destroyed (see also Art. 9 N 41-42).
307 IBA Review Suscommittee 2010, 10.
DS fel, al(0),
309 O’Mattey, Document Production, 189.
Article 3 Documents 65

otherwise be a lengthy document production phase that has the potential

to delay the overall procedural schedule [...]".3"°
The arbitral tribunal may invite the parties to consult, or it may deem such 176
consultation unnecessary.*""

7; Decision and Order by the Arbitral Tribunal (par. 7)

Art. 3(7) provides that either party may request the arbitral tribunal to WT
rule on the objection, and that the arbitral tribunal shall consider the re-
quest to produce and the objection, in consultation with the parties, and
in timely fashion. Furthermore, Art. 3(7) provides that the arbitral tribunal
may order the party to whom such request is addressed to produce any
requested documents in its possession, custody or control?!2 as to which
the arbitral tribunal determines that

e the issues the requesting party wishes to prove are relevant to the case
and material to its outcome,?#? and

e none of the reasons for objection set forth in Art. 9(2) applies, and

e the requirements of Art. 3(3)7** have been satisfied.

Any such document shall then be produced to the other parties and to 178
the arbitral tribunal if it so orders.
The 2010 Revision added the third requirement set forth in Art. 3(7), i.e. 179
that the requirements of Art. 3(3) have been satisfied.*° Moreover, the first
sentence of Art. 3(7) was added.

If the other party produces the requested documents voluntarily without 180
raising any objections to the request to produce, there is no need for a
particular decision by the arbitral tribunal (Art. 3(4)). The (newly added)
first sentence of Art. 3(7) clarifies that the arbitral tribunal is only required
to involve itself in the adverse document production procedure where an
objection has been made which the parties cannot resolve themselves.

31 Oo
Reprern/Hunter/Biackasy/Partasives, N 6.112.
311 TBA Review Suscommittee 2010, 10.
312 See also above, N 145-155.
313 See also above, N 129-144. See as an example regarding an objection asserting that
a particular request is not material or relevant to the case: William Ralph Clayton
v. Government of Canada, PCA Case No. 2009-04 (25 November 2009), Procedural
Order No. 8, available at http://www.pca-cpa.org/upload/files/Bilcon-Procedural-
OrderNo8.pdf [last visited 23 September 2011]; see also O’Mattey, Annotated Com-
mentary, 472.
314 See also above, N 103-155.
315 TBA Review Suscommittee 2010, 10.
 66 Article 3 Documents

181 If the other party raises (procedural or substantive) objections to the re-
quest to produce,2** and the arbitral tribunal deems consultation as set
forth in Art. 3(6) unnecessary or if such consultation takes place but some
objections remain, the arbitral tribunal must decide on the request and on
the objection against it.??’

182 Art. 3(7) expressly provides that the arbitral tribunal shall consider the
request to produce and the objection in consultation with the parties.
Accordingly, the arbitral tribunal will give both parties the opportunity to
comment and state their positions. The arbitral tribunal may hold a hearing
to deal with these issues, but this is not often the case.*!* If both parties
expressly ask for a hearing, the arbitral tribunal will usually hold such hear-
ing, but it may also deal with the issues by way of written statements. In
any case, the arbitral tribunal must respect the rights of the parties as to
fair and equal treatment and due process.

183 The decision shall take the form of a procedural order, by which the arbi-
tral tribunal either denies or grants the request, in whole or in part.

184 If the arbitral tribunal grants the request, entirely or partially, it shall order
the party to whom such request is addressed to produce the respective
documents to the other parties and possibly to the arbitral tribunal itself.

185 To render such an order, the arbitral tribunal must ex officio be convinced
that the issues the requesting party wishes to prove are relevant to the
case and material to its outcome, that none of the reasons for ob-
jection set forth in Art. 9(2) applies and that the requirements of Art. 3(3)
have been satisfied (Art. 3(7)).?*°

186 It has been suggested that the arbitral tribunal should also take other as-
pects into consideration when making its decision on document production,
in particular:

e The parties’ backgrounds, their legal cultures and their reasonable

expectations; this may well include the same aspects with regard to the
parties’ counsel.37°
e The principle of proportionality, balancing the potential use of the
document(s) to be produced against the burden imposed on the pro-
ducing party.*** “[...] most arbitral tribunals apply the principle of ‘pro-

316 See above, N 163-171.

317 IBA Review Suscommittee 2010, 10.
318 Born, 1899.
319 TBA Review Suscommrttee 2010, 10.
KAUFMANN-KOHLER/BArTScH, 20.
EE Wel, AAO)
Article 3 Documents 67

portionality' - that is, they will limit the scope (and thus the expense)
of document production to an extent that is reasonable in the context
of the amount in dispute and the relative significance of the issues in
respect of which document production has been requested. "22? In other
words, the burden on the requested party, i.e. the efforts required of the
requested party in gathering the documents, should be in proportion to
the evidentiary value of the documents.323

e Efficiency of the arbitration process. Document production may often

increase the duration of the arbitral proceedings and costs, which dis-
advantages must be balanced against the potential benefit of document
production.?*4

A procedural order issued by an arbitral tribunal regarding a request to 187

produce does not qualify as an interim or partial award. Consequently, the
arbitral tribunal does not need to state the reasons for its decision in writ-
ing. However, in light of par. 3 of the Preamble, issuing a procedural order is
a good way to inform the parties of the issues the arbitral tribunal regards
as relevant and material. In practice, the order will provide summary ex-
planations for the arbitral tribunal’s rulings.?°

In most jurisdictions, it will not be possible to bring an appeal against a 188

procedural order before a state court.?*°

In general, an arbitral tribunal will not have the power to impose coercive 189
sanctions (e.g. penalties, monetary fines), in contrast to a state court.*”
There may be the possibility to impose a so-called astreinte.*** It is possible,
but rare that an arbitral tribunal seeks judicial enforcement of its produc-
tion orders in national courts.%”?

322 Reprern/HUNTER/BLACKABY/Partasipes, 4th ed., N 6-71.

323 Hamitton, 73; Hanotiau, Document Production, 117.
KaUFMANN-KOHLER/BArTSCH, 20.
325 Born, 1898-1899; see also above, N 102, regarding a so-called Redfern Schedule.
326 RaescHKE-KessLer, Production, 424.
327 Born, 1918, pointing out that there is no power of arbitrators to impose coercive
sanctions in virtually all jurisdictions, with few exceptions, in particular Belgium.
328 An astreinte is a monetary penalty (or punitive fine), ordered by a court in case the
addressee does not comply with an order, usually in the form of an order to pay a
certain amount for each day of non-compliance. In France - where the astreinte
was developed - the prevailing view is that an arbitral tribunal is entitled to impose
an astreinte, and it has been suggested that an arbitral tribunal having its seat in
Switzerland should, in general, be entitled to do so as well (Booc, 139, 144 and 158;
but the position is disputed, Bercer/KetterHats, 1156 and 1215). See also Art. 9 N 54
below.
329 Born, 1918.
 68 Article 3 Documents

Cc. Review of the Document by a Neutrai Expert (par. 8)

190 Art. 3(8) provides that in exceptional circumstances, if the propriety of an

objection can be determined only by review of the document, the arbitral
tribunal may determine it should not review the document itself. In this
case, the arbitral tribunal may, after consultation with the parties, appoint
an independent and impartial expert, bound to confidentiality, to review
any such document and to report on the objection. To the extent the ob-
jection is upheld by the arbitral tribunal, the expert shall not disclose to
the arbitral tribunal and to the other parties the contents of the document
reviewed.

191 The 2010 Revision did not bring any material changes to Art. 3(8) (which
corresponds to Art. 3(7) of the 1999 Rules).%°

192 A request to produce should not open the door for the requesting party
to gain access to commercial or other secrets of the other party. Similarly,
document production should not impair privilege. Consequently, commer-
cial or technical confidentiality or special political or institutional sensi-
tivity or privilege are listed as objections in Art. 9(2)(e), 9(2)(f) and
9(2)(b).°*
alee} Normally, the arbitral tribunal will not be in a position to decide whether an
objection based on these grounds is valid unless and until it has had an op-
portunity to review the requested documents. Consequently, the arbitral
tribunal would, as a standard procedure, first order the other party to pro-
duce the document to it but not to the requesting party in order to decide
on the objection(s) raised.

194 However, this approach may not always seem appropriate. In particular,
the arbitral tribunal may not wish to review the document itself, because it
is concerned that it could not eliminate its knowledge of the document once
it has reviewed it and has upheld the objection. In addition, there may also
be concerns with regard to the other party’s interests as to confidentiality
and secrecy. Some cases may even involve a risk (or at least raise fear on

339 The 2010 Revision refers to "Document" instead of "document", and changed the
position of "only" in the first sentence (the 1999 Rules read: "[...] can only be deter-
mined by review [...]").
331
See also below, Art. 9 N 43-47 and N 19-35. See Award at 5(14), Piero Foresti v
Republic of South Africa (ICSID Case ARB(AF)/07/1), unreported 3 August 2010,
available at http: //ita.law.uvic.ca/documents/PieroForesti_v_SouthAfrica_Award.pdf
[last visited 24 September 2011], where a neutral third party recommended by the
arbitral tribunal and agreed upon by the parties acted as an independent expert; see
also O’Mattey, Document Production, 190.
Article 3 Documents 69

the part of the requested party) that information is passed on from within
the arbitral tribunal to the requesting party or to third parties.

In this situation, the arbitral tribunal may appoint an expert in the sense 195
of Art. 3(8).

Art. 3(8) provides for an exception from the standard procedure??? by 196
allowing the arbitral tribunal to appoint an expert to assess the objec-
tion.

An arbitral tribunal could also consider appointing the secretary to the icy
arbitral tribunal to review the document. Another possibility is that the
chairperson reviews the respective document in camera. However, these
approaches may not be considered by all arbitral tribunals or all parties
as appropriate, and they indeed do not seem to solve the concerns set
out above.*** In any case, if such option is chosen, the parties should be
requested to declare that they will not subsequently challenge the arbitral
tribunal or the award because of such procedure.*?°

There may be cases where, in principle, it would seem preferable to opt for 198
an expert in the sense of Art. 3(8), but the circumstances do not allow
for this route, in particular where time and cost factors are considered to
leave no room. In this case, the arbitral tribunal may nonetheless decide to
review the document itself.%°°

The expert must be independent, impartial and bound to confidential- 199

ity.
The expert does not necessarily need to be appointed in accordance with 200
the terms set out in Art. 6.°%”

Art. 3(8) does not set out the procedure the expert must follow when 201
performing his or her function. It is expressly stated that the arbitral tribu-
nal shall consult with the parties before it appoints the expert. In practice,
arbitral tribunals will invite the parties to comment on the selection of the

332 IBA Review Suscommittee 2010, 10-11; RaescHke-Kessier, Production, 423.

333 Above, N 193.
334 N} 194; see as an example for the appointment of the secretary to the tribunal as
independent expert: Procedural Order 6 at par. 1, Dr Horst Reineccius v Bank of
International Settlements, unreported 11 June 2002, Tribunal Regarding the Bank
for International Settlements, available at http://www.pca-cpa.org/upload/files/Pro-
ceduralOrderNo6.pdf [last visited 24 September 2011]; see also O’Mattey, Document
Production, 190.
335 Sacus, 197.
336 TBA Review Suscommitree 2010, 11.
SEY | alate
 70 Article 3 Documents

expert and how he or she should perform his or her function, and will issue
terms of reference to the expert.**°

202 The expert must assess whether the objection is valid or not. The ex-
pert may not pass on the respective document(s) to the arbitral tribunal or
to the other parties until he or she has concluded his or her assessment. It
is not for the expert to decide him- or herself. The expert’s function is to
assess and to provide a report on his or her findings.* This report will
include considerations and recommendations, but without revealing the
contents of the document(s) in question.24° It is for the arbitral tribunal to
make a decision on the validity of the objection.***

203 If the expert regards the objection as valid, he or she will inform the ar-
bitral tribunal which shall then decide in a procedural order whether it will
uphold the objection and decline the production request on the basis of the
expert’s finding or not. If the expert considers the objection to be invalid,
he or she will pass on the document to the arbitral tribunal which must then
decide on the request to produce and the objections raised, in accordance
with Art. 3(7).

204 If the objection is upheld by the arbitral tribunal, the document must be
returned by the expert to the producing party and it will not become a part
of the arbitral proceedings.*** If the objection is dismissed by the arbitral
tribunal, the requested party must produce the document to the arbitral
tribunal and to the other parties.**? In either case, the expert must respect
the confidentiality of the documents he or she has reviewed.?*4

338 As an example for the appointment of an independent expert with particular linguistic
capacities after consultation of the parties: Order No. 3 at par. 2, Guyana v Suriname,
unreported 12 October 2005 PCA, available at http://server.nijmedia.nl/pca-cpa.org/
upload/files/Order%203%20121005%20Fin.pdf [last visited 24 September 2011]
and Order 1 at par. 4, Guyana v Suriname, unreported 18 July 2005 PCA, available
at http://server.nijmedia.nl/pca-cpa.org/upload/files/Order%201%20fin%20rev. pdf
[last visited 24 September 2011]; see also O’Mattey, Document Production, 190.
339
IBA Review Suscommittee 2010, 11; see as an example Order 4 at par. 3, Guyana v
Suriname, unreported 12 October 2005 PCA, available at http://server.nijmedia.nl/
pca-cpa.org/upload/files/Order%204%20121005%20Fin.pdf [last visited 24 Sep-
tember 2011], where the Arbitral Tribunal ordered that "the independent expert
shall endeavour to report on his findings as soon as possible"; see also O'MALLEY,
Document Production, 190.
340
See Order 5 at par. 1, Guyana v Suriname, unreported 16 February 2006 PCA, avail-
able at http: //server.nijmedia.nl/pca-cpa.org/upload/files/Order%205%20final.pdf
[last visited 24 September 2011], where the Arbitral Tribunal adopted the recom-
mendations of the independent expert; see also O’Maitey, Document Production, 190.
341
IBA Review Suscommrttee 2010, 11.
32 Tee Dee
RP ahs aliil
Side
Article 3 Documents 71

The expert may also find that the objections are valid with regard to certain 205
parts of the requested document but not to the document as a whole.
In this case, the expert must render the respective part of the document
illegible before he or she passes the document on to the arbitral tribunal.
The final decision will again be for the arbitral tribunal to take.

D. Request to Produce Against a Third Party (par. 9)

Art. 3(9) provides that if a party wishes to obtain the production of docu- 206
ments from a person or organization which is not a party to the arbitration
and from which the party cannot obtain the documents on its own, the
party may, within the time ordered by the arbitral tribunal, ask the arbitral
tribunal to take whatever steps are legally available to obtain the
requested documents or seek leave from the arbitral tribunal to take such
steps itself. The party shall submit such request to the arbitral tribunal and
to the other parties in writing, and the request shall contain the particu-
lars set forth in Art. 3(3). The arbitral tribunal shall decide on the request
and shall take, authorize the requesting party to take, or order any other
party to take such steps as the arbitral tribunal considers appropriate, if
the arbitral tribunal determines that the requirements are met. These re-
quirements are, in essence, the same as for a request to produce against
a party to the arbitration, i.e. the requested document must be relevant
to the case and material to its outcome, the requirements of Art. 3(3), as
applicable, have to be satisfied and none of the reasons for objection set
forth in Art. 9(2) apply.

The 2010 Revision introduced the possibility for a party to seek leave of 207
the arbitral tribunal to take its own steps to obtain the document(s) from
a third party. In addition, the last sentence of the revised Art. 3(9) directly
refers to the general standards for document production (Art. 3(3) and
9(2)). This amendment provides for consistent application of the criteria
set out in Art. 3(3) and the grounds for objection in Art. 9(2) also with re-
gard to production from a non-party to the arbitration.**° Art. 3(9) replaces
the former Art. 3(8) of the 1999 Rules.

A party submitting a request under Art. 3(9) is required to meet the re- 208
quirements as set forth for a request to produce under Art. 3(3).**

345 See as an example regarding the authenticity of an audio tape: EDF (Services) Ltd
v. Romania, ICSID Case No. ARB/05/13 (29 August 2008), procedural order No. 3,
available at http://ita.law.uvic.ca/documents/EDFPO3.pdf [last visited 24 Septem-
ber 2011]; see also O’Mattey, Annotated Commentary, 472; O’Mattey, Document Pro-
duction, 191.
346 As to these requirements, see above, N 103-155.
 72 Article 3 Documents

209 As a matter of principle, an arbitral tribunal does not have the compe-
tence to decide on issues relating to a third party that is not a party
to the arbitration since the arbitral tribunal’s competence is based on
the arbitration agreement. If the requesting party requests the production
of documents that are in the control of a third party and if this party does
not produce these documents voluntarily, the arbitral tribunal is not in a
position to issue a procedural order against the third party since it does not
have any corresponding jurisdiction.

210 In this situation, the arbitral tribunal may take the steps available in ac-
cordance with the legal system under which it operates and ask the compe-
tent state court(s) for assistance in taking evidence. Art. 3(9) provides
for limited power of the arbitral tribunal; it merely requests the arbitral
tribunal to consider the legal options that are available.**”

211 The decisive question in this context is thus whether the relevant lex arbi-
tri provides for a state court to assist an arbitral tribunal in obtaining docu-
ment production from a party that is not a party to the arbitration.**

PAP. Certain national arbitration laws allow the parties and the arbitral tribunal
to request assistance in taking evidence from a third party by a compe-
tent state court, e.g. Art. 27 Model Law, Art. 184(2) PILS, Art. 34(2) and
43 English Arbitration Act 1996.%*°

213 The respective state court will only grant such assistance if and to the ex-
tent available under its own procedural rules.*°° If, therefore, document
production is not available under the respective law, the state court will not
issue such an order against a third party.

214 The court called to assist may in turn itself request legal assistance from
other courts (in particular under the Hague Convention on the Taking of
Evidence in Civil and Commercial Matters) 35!
25 As set out above, the revised Art. 3(9) provides that a party may also seek
leave from the arbitral tribunal to take steps to obtain assistance of a

347 Q’Ma.tey, Document Production, 191.

348 Id., 191. Accordingly, a party may consider whether the seat of the arbitration should
be in a jurisdiction in which state courts enforce document production orders of an
arbitral tribunal; Born, 1923.
349
IBA Review Suscommitree 2010, 11; Girssercer/Voser, 740. In England, a party may
apply to a court to compel the attendance of a witness and to bring with him or
her any material documents in his or her possession; in the United States, under
the Federal Arbitration Act, the arbitral tribunal may summon a person to attend
before it and to produce any material documents, REDFERN/HUNTER/BLACKABY/PARTASIDES,
N 6.127; O’Mattey/Conway, 375-377. As to Art. 184(2) PILS, see PILS (Basel)-Scunet-
ber, Art. 184 N 55-64.
350 PILS (Basel)-ScHnerper, Art. 184 N 61.
351 Td., Art. 184 N 63.
Article 3 Documents 73

state court, as the arbitral tribunal considers appropriate. This reflects that
national laws may empower local courts to order document production in
support of arbitral proceedings, and any such application may be assisted
by, or may even be conditional upon, the party obtaining permission from
the arbitral tribunal.?°

The new possibility for the parties to seek leave could be interpreted as 216
restricting a party’s right to take action, because the party is required to
first seek leave of the arbitral tribunal before attempting to obtain court
assistance in document production. However, Art. 3(9) does not expressly
prohibit parties from involving a local court without first seeking leave
from the arbitral tribunal.*°? Given the generally rather detailed language of
the Rules, it seems fair to assume that the drafters had no intention to limit
the parties’ options, but rather wanted to provide for a further option.

Pursuant to Art. 3(9), the arbitral tribunal may only ask for assistance by Phy)
the state courts if it determines that the documents would be relevant
to the case and material to its outcome (Art. 3(9))**. This is in line with
Art. 4(9) (as amended by the 2010 Revision) regarding a witness who is
not willing to appear voluntarily at the request of a party.*°> Moreover, the
arbitral tribunal must have come to the conclusion that the requirements of
Art. 3(3), as applicable, have been satisfied.

In deciding upon the request, the arbitral tribunal will also take into account 218
whether any of the reasons for objections set forth in Art. 9(2) apply.**¢

In practice, an arbitral tribunal will generally take Art. 3(9) as a measure 219
of last resort only and will consider a request for assistance in involving
a local state court only when it is convinced that there is indeed a need for
the respective document production?” and that it is likely that the respec-
tive state court will take action.

=F Request to Produce by Arbitral Tribunal (par. 10)

Art. 3(10) provides that the arbitral tribunal, at any time before the 220
arbitration is concluded, may request any party to produce documents,
request any party to use its best efforts to take, or itself take, any steps

352 Grit/Tawit/KREINDLER, 30.

353 Q’Mattey, Document Production, 192.
354 As to relevance and materiality, see above, N 129-144.
355 Grit/TAwiL/KREINDLER, 30. See below, Art. 4 N 80.
356 Tq. 30; as to Art. 9(2) see below, Art. 9 N 18-48.
357 Final award, Pt II, Ch. H, par. 25, Methanex Corp v United States of America, un-
reported 3 August 2005 NAFTA/UNCITRAL, available at http://ita.law.uvic.ca/docu-
ments/MethanexFinalAward.pdf [last visited 24 September 2011]; see also O’Mattey,
Document Production, 191-192.
 74 Article 3 Documents

that it considers appropriate to obtain documents from any person or or-

ganisation. A party to whom such request is addressed may object for any
of the reasons set forth in Art. 9(2). In these cases, Art. 3(4-8) shall apply
correspondingly.

221 Art. 3(9) of the 1999 Rules had only entitled the arbitral tribunal to request
a party to produce documents on its own motion. The revised rule (in Art.
3(10)) authorizes an arbitral tribunal to take legal steps itself or to request
a party to take legal steps to obtain documents from a non-party.

222 It is generally accepted that the arbitral tribunal may on its own initiative
request a party to produce documents, unless the parties have agreed
otherwise.3°* The arbitral tribunal is required under certain arbitral rules
to establish the facts of the case by all appropriate means,*°? which is
also understood to mean that the arbitral tribunal is entitled, on its own
initiative, to order a party to produce documents that have not yet been
introduced as evidence.?©

223 This power is to be seen in connection with and subject to the general rules
as to what party bears the burden of allegation and proof. In general,
the Rules do not amend the general rules in this regard, but simply provide
a framework for the taking of evidence.

224 The arbitral tribunal may order document production on its own initiative
only if it considers the respective document(s) to be relevant to the case
and material to its outcome. The arbitral tribunal must give an oppor-
tunity to the requested party to raise objections against the request to
produce by the arbitral tribunal. The requested party may raise the same
substantive objections that are available against a request issued by one
party against the other.** If the requested party raises such objections, the
arbitral tribunal must decide on them, based on the same considerations as
set out above.** The arbitral tribunal may order the production of the re-
quested document by way of a procedural order only if it does not consider
the objections of the party to be valid.

225 If the requested party fails to comply with the respective procedural or-
der, the arbitral tribunal may draw adverse inferences pursuant to Art.
9(5).363

358 Bercer/KELLerHALs, N 1214.

359 IBA Review Suscommittee 2010, 11; see e.g., Art. 25(1) and (5) ICC Rules 2012 (former
Art. 20(1) and (5) ICC Rules 1998).
360 TBA Review Suscommrrtee 2010, 11.
sel ideas
362 N 163-171; IBA Review Suscommrttee 2010, 11.
3€3 See below, Art. 9 N 54-69.
Article 3 Documents TAS)

Arbitral tribunals are often empowered under the relevant civil procedure 226
laws to ask local state courts for assistance in the taking of evidence on
their own motion. Such assistance may, however, not always extend to
document production.?*

Apart from ordering a party to produce, the arbitral tribunal may also re- 227
quest a party to use its best efforts to obtain documents (Art. 3(10)(ii));
this may include involving a local state court’s assistance.

However, “ultimate oversight and control over this process should remain 228
with the arbitral tribunal".*°° Yet, depending on the circumstances, a party
may be better positioned to take such steps, e.g. because it is based in
the country in question.3©

A possible interpretation of Art. 3(10)(ii) is that an arbitral tribunal may re- 229
quest a party to obtain documents that are in the possession of related
entities. Arbitral tribunals have held that a party may be expected to pro-
duce documents held by entities they have a significant relationship with.
Under what circumstances this should be the case, and what "relationship"
actually means is for the arbitral tribunal to decide in the specific case. It
has been suggested that this would encompass an affiliation through which
a party could reasonably be expected to exert or have influence over an-
other entity. Consequently, a party alleging that a document is outside of
its direct control since it is in the possession of a parent or sister company
may be requested to undertake best efforts to obtain and produce the
document under Art. 3(10).%°’

VII. Additional Documents - Second Round of Document

Submission (par. 11)
Art. 3(11) provides that, within the time ordered by the arbitral tribunal, 230
the parties may submit to the arbitral tribunal and to the other parties
any additional documents which they intend to rely on and which they
believe have become relevant to the case and material to its outcome as a

364 KaurMaNN-KOHLER/BARTSCH 21; cf. Bercer/KeLterHats, N 1111; Reprern/Hunter/Biackasy/

Partasipes, N 7.40-7.45.
365 TBA Review Suscommitee 2010, 11.
Scout utile
367 "T]he Tribunal wishes to clarify that, for a party to claim that documents are not in
its control, it must have made ‘best efforts’ to obtain documents that are in the pos-
session of persons or entities with whom or which the party has a relevant relation-
ship." Procedural Order 8(1), William Ralph Clayton v Government of Canada (PCA
Case 2009-04), unreported 25 November 2009, available at http://www.pca-cpa.
org/upload/files/Bilcon-ProceduralOrderNo8.pdf [last visited 23 September 2011];
see also O’Mattey, Document Production, 193.
 76 Article 3 Documents

consequence of the issues raised in documents, witness statements or ex-

pert reports submitted or produced, or in other submissions of the parties.

231 Under the revised language, a party may submit additional documents
(also) if it merely intends to rely on them (in contrast to the correspond-
ing 1999 rule in Art. 3(10), where submitting additional documents was
provided for (only) if the document was believed to have become relevant
etcirs)

232 Allegations or documents submitted by the other party, written witness

statements or expert reports may render it necessary for a party to submit
additional documents. Thus, Art. 3(11) provides for the possibility of a sec-
ond round of document submission.°” The parties may therefore pro-
vide additional documentary evidence, e.g. in support of contentions and/
or arguments aiming at contradicting arguments or evidence introduced by
the counterparty.

233 Again, the respective submissions must be filed within the time limit set
by the arbitral tribunal.

VIII. Form of Submission or Production, Copies, Electronic

Documents, Multiple Copies and Translations
(par. 12)
A. General Remarks

234 Art. 3(12) deals with certain issues of the form of submission or pro-
duction of documents: the requirement of conformity of copies to origi-
nals and presentation for inspection upon request (Art. 3(12)(a)), the form
of submission and production of documents maintained in electronic form
(Art. 3(12)(b)), no obligation for production of multiple copies of essentially
identical documents unless held otherwise (Art. 3(12)(c)), and translations
of documents (Art. 3(12)(d)).
235 The 2010 Revision brought the additions of Art. 3(12)(b) and 3(12)
(c) which are helpful.27 Moreover, the word "fully" has been omitted in
the revised Art. 3(12)(a), thereby dropping the requirement that copies
must "fully" conform to the originals.372

368 See also Annex 1, Art. 3 (11).

O’Mattey, Document Production, 193.
IBA Review Suscommittee 2010, 7; RaeSCHKE-KESSLER, Production, 413.
Von Secesser, IBA Rules, 745.
O’Mattey, Document Production, 193.
Article 3 Documents Lif

B. Conformity of Copies and Presentation for Inspection

(par. 12(a))

As a rule, only copies, not the originals of the documents, must be submit- 236
ted or produced in arbitral proceedings, in line with the practice that the
filing of copies will in most cases suffice.3”3

If copies are submitted or produced, they must of course conform to the 237
Originals (Art. 3(12)(a)).3”

Generally, the presumption is that a copy conforms to the original unless 238
it has been shown that there are serious questions as to its authenticity.3”5

The copy of an original must only conform to the document as the docu- 239
ment was initially established by the author.?”6

Art. 3(12)(a) applies to all types of production requests. 240

The arbitral tribunal may —- in the specific circumstances - have reason to 241
believe that a submitted copy does not conform to the original. In this case,
it may order the party having submitted the copy to present the original
of the document for inspection by the arbitral tribunal and the other parties,
during an evidentiary hearing in accordance with Art. 8. If necessary, the
inspection may be carried out by forensic experts.?””

The other parties may apply to the arbitral tribunal to issue a procedural 242
order to that extent if they have reason to believe that the copy submitted
does not correspond to the original.

If the party that submitted the copy fails to comply with an order to pro- 243
duce the original for inspection and fails to state valid reasons, the arbitral
tribunal may draw negative inferences (Art. 9(5)).°”

373 IBA Review Suscommrttee 2010, 12; Craic/Park/Pautsson, 429; PILS (Basel)-ScHNerver,
Art. 184 N 16.
374 TBA Review Suscommittee 2010, 12.
375 O’Mattey, Document Production, 194.
376 RaescHKe-KessLer, Production, 413: "The recipient of a letter, for example, may later
add handwritten notes on that letter. These notes do not belong to the original do-
cument of the sender. If the recipient wants to introduce the letter into the arbitral
proceedings as a document written by the sender, the recipient may remove from
the copy his or her own hanawritten notes on the original because they do not belong
to the original document. A different approach applies if the recipient has written his
or her own manifestations of legal importance on the document."
377 Reprern/HunTeR/BLAckaBy/Partasipes, N 6.134.
S78 Ef. Art. 9 N 54-57;
 78 Article 3 Documents

G Documents Maintained in Electronic Form (par. 12(b))

244 Pursuant to Art. 3(12)(b), documents maintained in electronic form must

be submitted or produced in the form most convenient or economical
that is reasonably useable by the recipients, unless the parties agree oth-
erwise or, in the absence of such agreement, the arbitral tribunal decides
otherwise.

245 The 2010 Review Subcommittee recognised that the costs of taking evi-
dence in electronic form can vary widely depending on the form in which
documents must be submitted. Accordingly, the new rule contained in Art.
3(12)(b) provides that the default form of production of electronic docu-
ments shall be the form most convenient or economical to the producing
party that is reasonably useable by the recipient.

246 The parties may have diverging interests regarding the form in which
electronic documents must be produced. The requesting party may, for
example, seek production of electronic documents with full metadata. The
other party may object on the grounds that the metadata is of little evi-
dentiary value, confidential or expensive to review. The parties may also
have different views as to whether the documents should be produced in
electronic or paper format.?”°

247 Art. 3(12)(b) clarifies that - unless otherwise agreed or ordered - it is for
the producing party to determine the form in which the electronic
documents are produced, and the requesting party is not entitled to re-
quest production in any particular form, subject to the proviso that the
form chosen must be reasonably usable by the recipients.°°

248 This default format will, in general, not be the native format with full
metadata, as submissions in this format can be unduly expensive and in-
convenient. In cases where electronic document production is likely to play
a role in the arbitration, the question in which form the electronic docu-
ments should be produced should be addressed early on in the proceedings,
in particular in the consultation provided for under Art. 2(1) and Art. 2(2)
(c).38

D. No Multiple Copies (par. 12(c))

249 Under Art. 3(12)(c), a party is not obliged to produce multiple copies of
documents which are essentially identical, unless the arbitral tribunal de-
cides otherwise.

379 Git/Tawit/KReINDLeR, 29; see also above, N 49-59.

380 Giit/Tawit/KReInDLer, 29.
782 TBA Review Suscommiree 2010, 12; see also above, Art. 2. N 7.
Article 3 Documents
a 79
ee

The 2010 Review Subcommittee recognised that electronic transmission 250

and storage of documents often leads to the existence of multiple copies of
the same electronic document. Therefore, the 2010 Revision introduced
the new rule contained in Art. 3(12)(c).
In some cases, multiple copies may be individually relevant to the dis- 251
pute. In other cases, the production of multiple copies may unduly increase
the costs of reviewing the documents for the other party, and even be at
odds with the parties’ obligation to conduct themselves in good faith in the
taking of evidence, in accordance with par. 3 of the Preamble.2*2

E. Translations (par. 12(d))

Art. 3(12)(d) provides that if translations of documents are submitted, they 252
must be submitted together with the originals, marked as translations,
and shall identify the original language.

The Rules do not determine whether translations are required in the arbi- 253
tral proceedings, whether particular documents may be translated in parts
only, how to resolve disputes regarding translations or how the submission
of translations is to be scheduled.**

IX. Confidentiality (par. 13)

Art. 3(13) provides that any document submitted or produced by a party or 254
non-party in the arbitration and not otherwise in the public domain shall be
kept confidential by the arbitral tribunal and by the other parties, and
shall be used only in connection with the arbitration. This requirement shall
apply except and to the extent that production may be required of a party
for certain reasons. The arbitral tribunal may issue orders to set forth the
terms of this confidentiality. This requirement shall be without prejudice to
all other obligations of confidentiality in the arbitration.

Confidentiality under Art. 3(12) of the 1999 Rules had only covered docu- 255
ments that were produced upon request by the other party or by order of
the arbitral tribunal, whilst the revised Art. 3(13) extends the scope of
confidentiality to all documents, including documents that were submit-
ted voluntarily by the parties and documents (voluntarily or involuntarily)
submitted or produced by a third party.**

Moreover, Art. 3(13) authorizes a party to disclose documents that were 256
submitted or produced in the arbitration to the extent that a party may be

382 Iq., 12; see also above, Preamble N 14-17.

383 IBA Review Suscommittee 2010, 12.
384 Iq, 12-13; von Secesser, IBA Rules, 745; Giit/Tawit/Kreinvier, 29-30.
 80 Article 3 Documents

required to fulfil a legal duty, protect or pursue a right, or enforce or chal-

lenge an award in bona fide legal proceedings before a state court or other
judicial authority.2®5 In addition, the new language provides for an exception
as to documents that are in the public domain. The revised language sets
forth the extent and scope of the confidentiality rule in a clear manner.*°°

Zo Art. 3(13) applies to all documents produced or submitted in the ar-

bitral proceedings regardless of why or how they were produced and/or
submitted, by parties or by non-parties.*”’ Ail documents must be kept
confidential by the arbitral tribunal and by the other parties, and the re-
spective documents may be used only in connection with the arbitration,
unless one of the exceptions*®* applies.**

258 The requirement to keep documents confidential does not apply to docu-
ments that are already in the public domain*” or are made public prior
to submission or production in the arbitration. The parties remain free to
make their own documents public at any time.*%?

259 The 1999 Working Party as well as the 2010 Review Subcommittee dis-
cussed at length what confidentiality should be given to documents sub-
mitted and/or produced in accordance with the Rules. It generally remains
a controversial topic to what extent confidentiality should be given to
arbitral proceedings, in particular regarding intellectual property and in-
vestment treaty-based arbitrations.*°

260 Art. 3(13) expressly provides that the requirements of confidentiality shall
be without prejudice to all other obligations of confidentiality in the arbi-
tration. This is because other rules applicable to the arbitration may also
impose requirements that are relevant to confidentiality, or the parties or
the arbitral tribunal may agree or determine additional rules relating to
confidentiality (in this context, see also Art. 9(4) which applies to all types
of evidence**?). Consequently, the parties must, in order to determine what
level of confidentiality applies to documents, look at the institutional or
ad hoc rules pursuant to which they are conducting the arbitration, or to
the parties’ agreement or the legal regime governing the arbitra-
tion.>*

385 IBA Review suscommittee 2010, 13.

386 Q’Maitey, Document Production, 194.
387 IBA Review Suscommrttee 2010, 13; Grit/Tawit/KreinoLer, 29-30.
388 See N 256 above.
389 IBA Review Suscommittee 2010, 13.
390 Giit/Tawit/Kreinoter, 30.
391 pare TBA Review Suscommittee 2010, 13.
B02 Co rnec
393 Cf. Art. 9 N 50-53 below.
394 IBA Review Suscommrttee 2010, 13.
Article 3 Documents 81

The exception (added in the 2010 Revision) allowing disclosure of confi- 261
dential documents if required to fulfil a legal duty, protect or pursue a right,
or enforce or challenge an award in bona fide legal proceedings before a
state court or other judicial authority reflects exceptions to the strict ap-
plication of a confidentiality duty as recognised under many domestic
laws.°95

Under Art. 3(13), a "public interest" or a general "interest of justice being 262
done" does not constitute an exception to the confidentiality rule.3%

The Rules take no position with respect to the confidentiality of non-docu- 263
mentary evidence such as oral testimony. However, a transcript recording
oral testimony would be subject to confidentiality protection as a document
submitted or produced by a non-party.3”

In practice, arbitral tribunals often issue protective orders to protect the 264
parties against wider dissemination of internal documents they have sub-
mitted and/or produced. Regardless of confidentiality obligations, it seems
prudent to remove any doubt by use of express confidentiality orders.°%®

In practice, confidentiality of documents can also be increased by providing 265

for "counsel only" review or for limited inspection of documents at a
single venue only, without a right or possibility to make copies.*%°

In any case, it is advisable to discuss issues and procedures of confi- 266

dentiality early in consultation under Art. 2(1) (e.g., proper retention or
deletion of evidence following conclusion of the arbitral proceedings and
any challenge or enforcement proceedings).*”°

X. Separate Issues or Phases (par. 14)

If the arbitration is divided into separate issues or phases ("bifurcation"), 267
the arbitral tribunal may schedule the submission of documents and re-
quests to produce separately for each issue or phase.

Art. 3(14) is a new addition to the Rules and allows the arbitral tribunal 268
to schedule the taking of documentary evidence in phases. The procedure
was already provided for under the 1999 Rules regarding witness testi-

395 Grt/Tawi/KreInpLer, 30: “It is worth noting that the legal proceedings to enforce or
challenge an award must be bona fide and not, for example, brought solely to cir-
cumvent the confidentiality requirements."
396 Cpaic, 170.
397 IBA Review Suscommittee 2010, 13.
398 Born, 1917.
oe los £917,
400 IBA Review Suscommittee 2010, 13.
 82 Article 3 Documents

mony (Art. 4(4)) and was expanded in the 2010 Revision to documentary
evidence.*”

269 Accordingly, the arbitral tribunal may organise documentary production to

correspond to the respective phases of the arbitration in bifurcated pro-
ceedings.

270 The arbitral tribunal may, e.g., deal with the issue of jurisdiction sepa-
rately, or there may be a separate phase regarding the merits or the
quantum.’

271 Organising document production in accordance with the respective phase

of the proceedings is also in line with the general principle of efficiency.
It can be an important means to manage time and control costs, depend-
ing on the circumstances of the case.*°? "This provision clearly bears the
hallmark of the Rules, namely efficiency and avoiding unnecessary cost, by
allowing disclosure to be limited to that which is necessary at any given
stage of the arbitration. "** Still, the provision allows for flexibility since it is
not mandatory and contemplates consultation between the arbitral tribunal
and the parties.*°

272 The parties may propose using the procedure set forth in Art. 3(14), or the
arbitral tribunal may apply it on its own initiative.*°° In any case, it is for the
arbitral tribunal to decide whether it wishes to have separate document
production for separate phases.

OTA 14s
402 See Art. 2 N 16-22 above.
403 TBA Review suscommittee 2010, 14.
404 Giit/Tawit/KREINDLER, 29.
“AE Vie), 2S).
IBA Review suscommittee 2010, 14.
Article 4 Witnesses of Fact 83

Article 4 Witnesses of Fact

Within the time ordered by the Arbitral Tribunal, each Party shall
identify the witnesses on whose testimony it intends to rely and the
subject matter of that testimony.

Any person may present evidence as a witness, including a Party or

a Party’s officer, employee or other representative.

It shall not be improper for a Party, its officers, employees, legal

advisors or other representatives to interview its witnesses or po-
tential witnesses and to discuss their prospective testimony with
them.

The Arbitral Tribunal may order each Party to submit within a speci-
fied time to the Arbitral Tribunal and to the other Parties Witness
Statements by each witness on whose testimony it intends to rely,
except for those witnesses whose testimony is sought pursuant
to Articles 4.9 or 4.10. If Evidentiary Hearings are organised into
separate issues or phases (such as jurisdiction, preliminary deter-
minations, liability or damages), the Arbitral Tribunal or the Parties
by agreement may schedule the submission of Witness Statements
separately for each issue or phase.
Each Witness Statement shall contain:

(a) the full name and address of the witness, a statement regard-
ing his or her present and past relationship (if any) with any of
the Parties, and a description of his or her background, quali-
fications, training and experience, if such a description may be
relevant to the dispute or to the contents of the statement;

(b) a full and detailed description of the facts, and the source of the
witness’s information as to those facts, sufficient to serve as
that witness’s evidence in the matter in dispute. Documents on
which the witness relies that have not already been submitted
shall be provided;
(c) a statement as to the language in which the Witness Statement
was originally prepared and the language in which the witness
anticipates giving testimony at the Evidentiary Hearing;

(d) an affirmation of the truth of the Witness Statement; and

(e) the signature of the witness and its date and place.

If Witness Statements are submitted, any Party may, within the

time ordered by the Arbitral Tribunal, submit to the Arbitral Tri-
bunal and to the other Parties revised or additional Witness State-
ments, including statements from persons not previously named
as witnesses, so long as any such revisions or additions respond
only to matters contained in another Party’s Witness Statements,
84 Article 4 Witnesses of Fact

Expert Reports or other submissions that have not been previously

presented in the arbitration.

If a witness whose appearance has been requested pursuant to Ar-

ticle 8.1 fails without a valid reason to appear for testimony at an
Evidentiary Hearing, the Arbitral Tribunal shall disregard any Wit-
ness Statement related to that Evidentiary Hearing by that witness
unless, in exceptional circumstances, the Arbitral Tribunal decides
otherwise.
If the appearance of a witness has not been requested pursuant
to Article 8.1, none of the other Parties shall be deemed to have
agreed to the correctness of the content of the Witness Statement.

If a Party wishes to present evidence from a person who will not

appear voluntarily at its request, the Party may, within the time
ordered by the Arbitral Tribunal, ask it to take whatever steps are
legally available to obtain the testimony of that person, or seek
leave from the Arbitral Tribunal to take such steps itself. In the
case of a request to the Arbitral Tribunal, the Party shall identify
the intended witness, shall describe the subjects on which the wit-
ness’s testimony is sought and shall state why such subjects are
relevant to the case and material to its outcome. The Arbitral Tri-
bunal shall decide on this request and shall take, authorize the re-
questing Party to take or order any other Party to take, such steps
as the Arbitral Tribunal considers appropriate if, in its discretion, it
determines that the testimony of that witness would be relevant to
the case and material to its outcome.
10. At any time before the arbitration is concluded, the Arbitral Tribu-
nal may order any Party to provide for, or to use its best efforts to
provide for, the appearance for testimony at an Evidentiary Hearing
of any person, including one whose testimony has not yet been of-
fered. A Party to whom such a request is addressed may object for
any of the reasons set forth in Article 9.2.

Contents Note
i 2010 Revision 1
II. General Remarks 4
III. Identification of Witnesses (par. 1) 6
IV. Who Can Be a Witness (par. 2) 8
V. Interviewing Witnesses (par. 3) 12
VI. Witness Statements 22
A. | General Remarks (par. 4) 22
B. Submission (par. 4) 30
C. Content (par. 5) 36
lh Identity of the Witness (par. 5(a)) By
2s Statement of Facts (par. 5(b)) 38
3: Language (par. 5(c)) 48
4. Affirmation of Truth and Signature (par. 5(d) and (e)) 49
D. Rebuttal Witness Statements (par. 6) 50
Article
ea
r 4 Witnesses of Fact n 85

VII. Right to Examine Witnesses Who Have Submitted a Witness Statement 57

A. 2010 Revision: Omission of the General Duty to Appear Before
the Arbitral Tribunal Sf
B. Waiver of Appearance (par. 8) 61
C. ‘Failure to Appear (par. 7) 68
1b General Rule 68
Dis Waiver of Appearance by the Parties 69
33 Waiver of Appearance by the Arbitral Tribunal 70
4. Witnesses Who Are Unavailable for Examination Because
of Objective Reasons Ths}
oe Unexcused Non-Appearance 75
VIII. Evidence of Recalcitrant Witnesses (par. 9) 78
IX. Witness Appearance Ordered by the Arbitral Tribunal (par. 10) 85

Other Rules
Art. 25(3) ICC; Art. 25 Swiss Rules; Art. 25 UNCITRAL; Art. 20 LCIA; Art. 35-36
ICSID; Art. 54 WIPO.

I. 2010 Revision

The former Art. 4(7) of the 1999 Rules provided that each witness whose
witness statement had been submitted had to appear for testimony at an
evidentiary hearing, unless the parties agreed otherwise. In the 2010 Revi-
sion, this provision was deleted. Instead, a new Art. 8(1) was introduced,
according to which each witness has to appear for testimony at the eviden-
tiary hearing if his or her appearance is requested by the arbitral tribunal
or any party. As a consequence, the wordings of Art. 4(7) and (8) were
adapted. These amendments may have an impact on how witness state-
ments are treated in practice.*°’

In addition, the 2010 Revision introduced further clarification on pre-hear-

ing contacts with witnesses (Art. 4(3)) and the content of the witness
statements (Art. 4(5)).

Finally, the revised Art. 4(9) provides that the arbitral tribunal may allow
the parties to take steps to obtain testimony from a person who is not
willing to appear voluntarily at such party’s request (instead of taking
such steps itself).

II. General Remarks

Few differences between common law and civil law procedure are
as striking as the attitudes toward the testimony of witnesses. The pre-

407 Cf. N 57-77 below.

86 Article 4 Witnesses of Fact

sentation of witnesses - in particular the role of judges and counsel - and

the weight given to witness evidence are fundamentally different.‘

In international arbitration, the different approaches to witness testimony

are converging due to the fact that often practitioners of both systems
are involved in the same case.*°? Some rules explicitly take a mixed ap-
proach as do the Rules: Art. 4 provides for the submission of witness
statements and cross-examination and allows the arbitral tribunal to ques-
tion witnesses itself and even to summon witnesses which were not named
by the parties.

III. Identification of Witnesses (par. 1)

Art. 4(1) provides that each Party shall identify the witnesses on whose
testimony it intends to rely and the subject matter of that testimony within
the time ordered by the arbitral tribunal. This should prevent the opposing
party from being surprised by unexpected witnesses of fact.*1°

The provision leaves great discretion to the arbitral tribunal in what form
and by what time the witnesses shall be identified. Pursuant to one com-
mon and reasonable method, the parties may be ordered to identify the
evidence adduced or to be adduced to each allegation of fact in the briefs
submitted. In the alternative, the parties may be allowed to make general
references to evidence in their briefs and be ordered to submit a detailed
list of the evidence they intend to rely on, indicating the content and rel-
evance of each item, later in the proceedings.

IV. Who Can Be a Witness (par. 2)

Internationally, a great variety of approaches exists with regard to the
question who can be a witness. Many civil law systems traditionally have
a relatively narrow definition of witnesses, excluding in particular parties
and persons who have an interest in the outcome of the proceedings.*"! In
contrast, common law systems usually provide a wide notion of witnesses,
sometimes even including experts.*1?

Etsinc/TownsenpD, 62; Derains, Preuve, 783-789.

GrirFIN, 26; Marriott, Evidence, 254; E.sinc/Townsend, 63; Derains, Preuve, 789 and
797.
410 IBA Workinc Party 1999, 25; Born, 1841.
GrirFIN, 24-25; FiscHer-Zernin/JUNKER, 21-22; IBA WorkinG Party 1999, 26; OETIKER,
Witnesses, 253; Derains, Preuve, 796.
Nater-Bass in Commentary Swiss Rutes, Art. 25 N 7; BUHLer/Dorcan, 7-10; RaescHKE-
Kess.er, Beweisaufnahme, 64; Derains, Preuve, 796.
Article 4 Witnesses of Fact 87

Art. 4(2) states that any person may present evidence as a witness, includ- 9
ing a party or a party’s officer, employee or other representative. The Rules
thereby rightly follow a broad notion widely accepted in international arbi-
tration, pursuant to which in principle, anyone capable of commenting
on the facts based on his or her own perception may be a witness.‘
This reflects the current practice in international arbitration.** Unlike some
institutional rules,*1° the Rules do not distinguish between witnesses and
other persons.*?®

Although the Rules in principle accept that party-appointed experts are 10

to be treated in a similar manner as witnesses, they do not include such
experts in the notion of witnesses (Art. 4), but provide for distinct rules
with specific requirements (Art. 5). Experts, who in contrast to witnesses
appraise objective technical data accessible to everyone, can therefore not
be named as witnesses.7*?”

The broad notion of witness is tempered by the fact that the arbitral tribu- ail
nal can weigh witness testimonies within its discretion to appraise the
evidence presented.*!® In this respect it can and will consider in particular
the relationship of a witness with the parties. Thus, the testimony of a par-
ty’s executive might be given less weight than testimony of an independent
witness of fact.*1°

V. Interviewing Witnesses (par. 3)

Traditionally, in many jurisdictions counsel were not allowed to have con- 12
tact to their party’s witnesses before the hearing.*”° This prohibition is nec-
essarily linked to the fact that witnesses are not questioned by counsel,
but by the court in these jurisdictions. As a consequence of the absence
of pre-hearing contacts with the witnesses, witness evidence is generally
not regarded as a reliable source of evidence by counsel practising in such

413 Bercer/KeLLterHaAts, N 1220; Biessinc, 44; Nater-Bass in Commentary Swiss Rutes, Art. 25
N 7; Cratc/Park/Pautsson, 437-438; Poupret/Besson, N 656; BUHLER/DorGAN, 7-10; KNoF,
54 and 60; Gétnas, 31-32; Garirrin, 26; Lew/Mistetis/Krou, 570; IBA WorkinG Party
1999, 26; IBA Review Suscommittee 2010, 15; Derains, Témoins, 227-229; Derains,
Preuve, 797-798; Reprern/Hunter/Biackasy/Partasipes, N 6.87; Oetiker, Witnesses,
253; GirsBercer/Voser, 217; HascHer, 10; Born, 1840.
414 Bercer/KELLERHALS, N 1220; Nater-Bass in Commentary Swiss Rutes, Art. 25 N 7; BLEssING,
44; Peter, Schiedsordnung, 62.
415 E.g. Art. 25(3) ICC Rules.
416 IBA WorkiNnG Party 1999, 26.
417 IBA WorkinG Party 1999, 25; Poupret/Besson, N 656.
418 Cf, Art. 9 N 3-16 below.
419 BuHter/Dorcan 9-11; Géunas, 31-33; IBA Workinc Party 1999, 26; Oetiker, Witnesses,
254.
420 TBA WorkinG Party 1999, 27.
 88 Article 4 Witnesses of Fact

jurisdictions. In other - mainly common law - jurisdictions, counsel are

traditionally allowed to have more or less intense pre-hearing contacts with
witnesses.

13 The Rules rightly do not follow the restrictive approach, but allow for con-
tacts between counsel and witnesses. However, the language used is quite
cautious: Art. 4(3) states that it shall not be improper for a party, its of-
ficers, employees, legal advisors or other representatives to interview its
witnesses or potential witnesses. In the 2010 Revision, it was added that it
shall also not be improper for a party to discuss their prospective testimony
with the (potential) witnesses.

14 The diffidence of the wording may be explained by the fact that the possibil-
ity of pre-hearing contacts with witnesses may still be against the ethical
rules of the national bar for certain counsel.*?+

15 According to current practice, counsel are in general permitted to have

contact with the witnesses before the hearing.*?? In view thereof, the term
"interview" used in Art. 4(3) should not be understood narrowly, but in line
with the modern position that contacts between counsel and witnesses are
in principle allowed and that witnesses may be prepared for the hearing.
The latter is now explicitly confirmed by the reference to discussing the
prospective testimony with the witness.4? On the other hand, it is clear that
counsel must in general not influence the witnesses and must in particular
not coax or lead them into untrue or deliberately incomplete statements.*74

16 Therefore, counsel must proceed with caution in preparing witnesses to

obtain a well-balanced result. They need to keep in mind that the credibility
of a witness is just as decisive for the result of evidence as the content of
his or her testimony. An overly prepared witness will rapidly lose credibility.
Conversely, the credibility of the underprepared witness can also suffer, in
particular if the witness does not remember his or her testimony provided
in a witness statement or the facts on which he or she is supposed to tes-
tify.

421 IBA WorkinG Party 1999, 27; Born, 2309-2310.

422 Nater-Bass in Commentary Swiss Rutes, Art. 25 N 24; Scunerper, Witnesses, 306; von
Secesser, Witness Preparation, 224; WirtH, 13; Bercer/KetterHats, N 1224; Craic/Park/
Pautsson, 433 and 441; Reorern/Hunter/Biackasy/Partasipes, N 6.140; BUHLER/Dorean,
12 and 20; Knor, 60; ScHLacprer, 68; Van Houtte, 108-113; GriFFIN, 28; Poupret/BESSON,
N 660; HascHer, 12; Born, 2310.
423 IBA Review Suscommittee 2010, 16.
4°4 Harter, N 2481-2515; von Secesser, Witness Preparation, 225; WirtH, 13; ReEDFERN/
HunTer/Btackasy/Partasipes, N 6.140; Girssercer/Voser, 218.
425 BUHLeR/Dorcan, 20.
Article
I
a 4 Witnesses of Fact 89
=

When preparing their witnesses, counsel should ask them above all and iL7/
from the beginning to tell the truth.*2° Further, the witnesses should be
invited to study the relevant documents once again before their oral testi-
mony.*?” Counsel may also discuss possible questions and answers with the
witnesses*** and acquaint them with the strategies of the parties.*?° This will
allow them to understand the context of their testimony.

Most witnesses will not be familiar with the examination situation, be it 18

direct or cross-examination. Counsel are therefore allowed to familiarise
the witnesses with the examination techniques, e.g. by simulating
direct examination or cross-examination by the opposing party.*° Further,
counsel may discuss with the witnesses the general guidelines for respond-
ing to cross-examination and tribunal questions, which are in particular:422

e the witness should always tell the truth;

e the witness should carefully listen to the question;

e if the witness does not hear the question, he or she should ask for it to
be repeated;

e if the witness does not understand the question, he or she should ask
for an explanation;

e the witness should not answer compound questions;

e the witness is allowed to pause and think before answering - he or she

should not think with his or her mouth;

e the witness should correct any factual errors in the question;

e the witness should answer only the question that is asked;

e the witness should not volunteer information;

e if appropriate, the witness may simply answer "yes" or "no";

e if necessary, the witness may explain his or her answer succinctly;

e the witness should never guess - if he or she does not know the answer,
he or she should say so;

e the witness should never argue;

e the witness should not make speeches;

426 Harter, N 2514, with a number of further suggestions.

427 BunLter/DorGAN, 20; Roney, 432; Maven, 438.
428 Concurring Harter, N 2503-2513.
429 Roney, 432.
430 Roney, 433; Mavpen, 439; Harter, N 2508.
431 Roney, 434; cf. Harter, N 2514.
 90 Article 4 Witnesses of Fact

e the witness should avoid absolutes ("never say never or always");

e the witness should and may admit what he or she has to admit;

e the witness should have the courage to persist in what he or she does
not have to admit;

e the witness should always maintain eye contact with the arbitral tribu-
nal;

e the witness may let his or her personality come through.

il) The arbitral tribunal will be aware that the witnesses were prepared by
counsel and will take this in due account when weighing the witness testi-
mony.4%?

20 From the perspective of the arbitral tribunal, it is advisable to issue sup-

plemental procedural rules on this issue by which the parties can be
guided because under many laws and arbitration rules, it is not entirely
clear to which extent the preparation of witnesses is permissible.*7? Such
rules issued by the arbitral tribunal will also have the effect that both par-
ties will apply the same criteria even if they have different legal back-
grounds. Furthermore, it enables parties’ counsel to point out any restric-
tions on contacting or preparing witnesses to which they are bound by law
or codes of professional conduct. If a stricter standard applies to one party
and the other party does not agree to comply with such stricter standard,
the arbitral tribunal must take this into account when appraising the wit-
ness testimony.

21 Although it seldom occurs in practice, it is also entirely admissible for a

party to examine the witnesses of the opposing party in advance of
the witness hearing, for the purposes of preparation.*3* Of course, such
examination serves for preparation not of the witnesses but of the counsel
for the parties.

VI. Witness Statements

A. General Remarks (par. 4)

22 The 2010 Rules contain a new definition of the term "Witness Statement",
which means a written statement of testimony by a witness of fact. Hence,

432 Nater-Bass in Commentary Swiss Rutes, Art. 25 N 24; Biessinc, 45-46; BUHLER/Dorean,
11; IBA Workine Party 1999, 27; PILS (Basel)-Scunerper, Art. 184 N 25; RAESCHKE-
Kesster, Beweisaufnahme, 64-65.
“33 Von SeGesser, 223; ScHiacprer, 68; Poupret/Besson, N 660; Born, 2310.
434 Nater-Bass in Commentary Swiss Rutes, Art. 25 N 25; Btessinc, 46. Critical van HouTtE,
109-110.
Article 4 Witnesses of Fact 91

whenever the Rules refer to witness statements, they do not mean oral
statements made by a witness in an evidentiary hearing, but written wit-
ness statements.

Witness statements permit the arbitral tribunal and the parties to prepare 23
for the witness hearing more selectively and in a shorter time and therefore
tend to be more cost efficient.**> In many cases, the witness statements
alone will contain sufficient information, so that the oral examination of
many witnesses will neither be necessary from the viewpoint of the arbitral
tribunal nor required by the parties.*3

The admissibility of witness statements in international arbitration is nowa- 24

days undisputed. In fact, it is standard practice to present witness state-
ments.*?” Art. 4(4), like modern institutional arbitration rules,“2° expressly
allows the arbitral tribunal to order each party to submit within a specified
time to the arbitral tribunal and to the other parties a written statement by
each witness on whose testimony it intends to rely. It is in the full discretion
of the arbitral tribunal whether to order such witness statements or not.
Although it is standard to obtain witness statements, the arbitral tribu- 25
nal should not order or allow them without due consideration.*® In
particular, it should be kept in mind that a serious preparation of witness
statements, in particular if they are intended to fully replace the witnesses’
direct examination, may involve much time and effort and thus create sub-
stantial costs for the parties.**° This may outweigh one of the said advan-
tages of having witness statements, i.e. cost efficiency.

Before making its decision, the arbitral tribunal should evaluate alterna- 26
tives for the presentation of witnesses. In certain cases, in particular
if the number of witnesses and the issues on which they are to testify are
limited, witness statements may be foregone entirely and the witnesses
may be submitted only to direct oral examination, either by counsel or the

435 WirtH, 14; Nater-Bass in Commentary Swiss Rutes, Art. 25 N 21; PILS (Basel)-ScHnerper,
Art. 184 N 24; Léw, Witness Statements, 96; Bercer/KetterHats, N 1222; Craic/Park/
Pautsson, 433; BUHLER/DorGAN, 12-13; ScHiaepreR, 65-66; GrirFin, 27; IBA WorkING
Party 1999, 27; Oetiker, Witnesses, 254; Born, 1830.
436 Cpraic/ParK/PauLsson, 434; Knor, 64 and 71; WirtH, 14; Nater-Bass in Commentary Swiss
Rutes, Art. 25 N 21; Grirrin, 27; TaLterico/BeHrenot, 300-301; IBA WorkinG Party 1999,
27; Oetiker, Witnesses, 254; Girspercer/Voser, 217.
437 Lévy, Witness Statements, 96; Nater-Bass in Commentary Swiss Rutes, Art. 25 N 21;
Craic/Park/PAULsSON, 432-434; Reorern/Hunter/BLAckaBy/Partasipes, N 6.137; BERGER/
KeLLERHALS, N 1222; Knor, 60-61; ScHiaeprer, 65; Grirrin, 27; Oetiker, Witnesses, 255;
Derains, Témoins, 230; SHore, 79-80; Derains, Preuve, 798; GIRSBERGER/VoSER, 217;
Born, 1828-1829.
438 E.g, Art. 25(3) Swiss Rules; Art. 20(3) LCIA Rules.
439 IBA WorkinG Party 1999, 27; Oemixer, Witnesses, 255; SHore, 79.
440 WirtH, 14; Oetiker, Witnesses, 255.
 92 Article 4 Witnesses of Fact

arbitral tribunal.4#* In other circumstances, it may be useful to have short

witness statements which do not serve as substitute for direct oral exami-
nation, but indicate on what issues a witness may testify.*”

27 It is submitted that the arbitral tribunal should discuss this question

with the parties at an early stage of the proceedings. It will increase the
efficiency of the proceedings if (a) the form in which witness evidence has
to be presented is shaped to the requirements of the concrete case and
(b) the respective rules are common ground and clear from the outset.

28 Where it is not clear at the beginning of the proceedings whether witness

statements will contribute to the efficiency of the proceedings, the arbitral
tribunal may suspend its decision until the parties have submitted their
briefs and it is clear for which assertions of facts witness testimony is nec-
essary at all.4”

29 If the arbitral tribunal allows witness statements, it should also determine

whether all witnesses have to deliver witness statements, or whether the
parties can also present the testimony of certain witnesses only orally. As
a rule, it is not recommended to admit both types of evidence from wit-
nesses simultaneously.” If the arbitral tribunal admits witness statements,
it should therefore order that only persons who submit a witness statement
shall be heard as witnesses. To permit otherwise would tend to subvert
the purposes of requiring witness statements.** This solution is provided
for in Art. 4(4), pursuant to which the arbitral tribunal may order that the
parties shall submit witness statements by each witness on whose testi-
mony they intend to rely. Only if a party can demonstrate good reason why
the submission of a witness statement was not possible should the arbitral
tribunal make an exception.*** Two necessary exceptions are already con-
tained in Art. 4(4): the parties need not present witness statements from
recalcitrant witnesses (Art. 4(9)) and from witnesses the appearance of
which was ordered by the arbitral tribunal (Art. 4(10)).

B. Submission (par. 4)
30 The witness statements must be submitted at the same time to the arbi-
tral tribunal and the other parties (Art. 4(4)).

441
BUHLeR/Dorcan, 13; WirtH, 14; Oetiker, Witnesses, 255.
442
Cf. in this regard Oetiker, Sense and Nonsense, 29-41.
443
Oetiker, Witnesses, 255; cf. also Wirth, 14.
444
Levy, Witness Statements, 100; Oetiker, Witnesses, 255.
445
BuxHter/Dorcan, 16; Oetiker, Witnesses, 255.
pon Tdee2 55)
Article
I
I 4 Witnesses of Fact 93
I

The question at what point in time the witness statements must be sub- 31
mitted is of great practical relevance. There are two main alternatives:
(a) submission of the witness statements together with the correspond-
ing brief (simultaneously with the documentary evidence), or (b) simul-
taneous submission of all witness statements by both parties after con-
clusion of the exchange of briefs and before the witness hearing.“

If the witness statements are submitted together with the briefs, the ar- 32
bitral tribunal and the opposing party come to know the content of the
witnesses’ testimony immediately. This can lead to an acceleration of
the proceedings, in particular since the opposing party can comment on
the content of the witness statements in its next brief and can have its
witnesses deal with issues raised in the witness statements of the oppos-
ing party.*** However, the claimant will often deem it as a disadvantage if
it must disclose its witness testimony first.**9 In addition, the claimant will
usually want to submit supplementary witness statements in response to
the respondent’s factual allegations and witness statements, because it
does not know, at least not definitively, the respondent's assertions of fact
at the time when it must submit its own witness statements.

If the witness statements are to be submitted simultaneously after the ex- 33

change of the briefs, the parties have the opportunity to prepare them in
full knowledge of the opposing party’s assertions of facts in the briefs.
The parties, however, cannot comment in their briefs on the content of the
other party’s witness statement. This disadvantage is tempered by the fact
that the parties will be given the opportunity, in any case after the witness
hearing, to comment in writing, or orally, on the result of the evidentiary
proceedings. Further, the parties will usually be allowed to submit rebuttal
witness statements in which their witnesses can make further statements
of facts in response to the other party’s witness statements (Art. 4(6)).*°

The Rules do not opt for one or the other alternative. Art. 4(4) only states 34
that the arbitral tribunal may order the submission of witness statements
within a specified time. There is no doubt that the arbitral tribunal may
set different time limits for the claimant and the respondent in line with the
sequence of briefs or provide for various rounds of submissions of witness
statements.*!

447 TBA Workinc Party 1999, 28; Oetiker, Witnesses, 261; Born, 1825, who states that the
second approach "is increasingly disfavored in contemporary international arbitrati-
on".
448 IBA WorkiNnG Party 1999, 28; Oetiker, Witnesses, 261.
449 Crarc/ParK/PAULSSON, 433; von MeHREN/SALOMON, 287; Oetiker, Witnesses, 261.
450 Oeniker, Witnesses, 262.
451 Cf. also Art. 4(6) and N 50-56 below.
 94 Article 4 Witnesses of Fact

35 Art. 4(4), last sentence, further allows the arbitral tribunal, or the parties
by agreement, to schedule the submission of witness statements separate-
ly for separate issues or phases if the evidentiary hearings are organised
into separate issues or phases (such as jurisdiction, preliminary determina-
tions, liability or damages). This makes clear that several evidentiary hear-
ings may be organised in the same proceedings and that, as a consequence,
witness statements may also be required at different stages of the proceed-
ings. This addendum is redundant in view of the arbitral tribunal’s freedom
to set various time limits for the submission of witness statements.

Cy Content (par. 5)

36 Art. 4(5) sets out in a rather detailed manner what the witness state-
ments need to contain.

1. Identity of the Witness (par. 5(a))

37 In order to duly perceive the content of a witness’ testimony, it is impor-

tant to know who the witness is, what his or her relations to the par-
ties are and what his or her professional background is. For that purpose,
Art. 4(5)(a) requires that each witness statement shall contain

e the full name and address of the witness,

e astatement regarding his or her present and past relationship (if any)
with any of the parties, and

e a description of his or her background, qualifications, training and ex-

perience, if such a description may be relevant to the dispute or to the
contents of the statement.

2. Statement of Facts (par. 5(b))

38 The witness statement must contain a full and detailed description of

the facts sufficient to serve as that witness’ evidence in the matter in
dispute (Art. 4(5)(b)). Under the 1999 Rules, this fitted in with the fact
that the witness statements were intended to replace in full the direct
examination of witnesses.*5* Under the revised Art. 8(1), the parties are
explicitly allowed to request the appearance of their own witnesses. Some
parties might be tempted to reduce the scope of the witness statements
they submit because they may call their own witnesses for testimony. How-
ever, it is submitted that Art. 8(1) does not qualify the rule that the witness

452 Cf. Hascuer, 11.

Article 4 Witnesses of Fact
a 95
lS

statement must contain a full and detailed description of the facts in any
respect.
Art. 4(5)(b) requires a full description of the relevant facts. It is sub- 39
mitted that this provision does not conflict with the parties’ freedom to
determine on what issues a certain witness is called. However, it does mean
that the witness must give a full statement of his or her perception of the
issues he or she is called for. Counsel will often be confronted with the
situation that they would like a witness to give testimony on certain facts
while not revealing other facts. If the respective facts, on the basis of a
good faith assessment of counsel, cannot be separated by objective factors
such as topic, time, place etc., they must either be stated in full or be fully
omitted.

The requirement of a detailed description of the facts reflects the fact 40

that the witness statement will usually replace the direct examination of
that witness. This will enhance the comprehensibility of the statement and
will add to its plausibility. However, a too detailed narration of events after
a long period of time may also jeopardize the plausibility of a witness state-
ment. In this respect, it is of utmost importance to indicate the source of
additional information, e.g. contemporaneous documents.**?

In view of (i) the costs related to the preparation of comprehensive witness 41

statements, (ii) the fact that the statements are often drafted by coun-
sel (and are therefore of limited authenticity) and (iii) some arbitrators’
preference to have an oral direct examination of the witnesses or to
interview the witnesses themselves, the arbitral tribunal may order, or the
parties agree, that the witness statements shall not serve as the witness’
evidence and therefore do not need to contain a full account of facts.4%4
E.g. if the witness statement should only give an overview of the issues on
which a witness can testify without replacing in full his or her direct exami-
nation, the account of facts can be narrowed down to a brief summary of
each issue without going into details.

The witness statement should be, if practicable, in the witness’ own 42

words. Hence, the witnesses should draft their witness statements them-
selves, or at least prepare the first draft.*°° Counsel should hold back with
editing the witness statements, in particular with regard to the choice of
words and style.*°°

453 Cf, N 47 below.

454 Cf. in this regard Oetiker, Sense and Nonsense, 37-41.
455 Oetiker, Witnesses, 256.
456 Oeriker, Witnesses, 256; Peter, Witness Conferencing, 52-53, is of the opinion that
the prospect of "witness conferencing" enhances the quality of witness statements.
 96 Article 4 Witnesses of Fact

43 In practice, arbitral tribunals will, however, often encounter witness state-

ments which were, in a more or less obvious manner, drafted or substan-
tially edited by counsel.*°” On some occasions, the arbitral tribunal will
even find that the descriptions of the relevant facts contained in different
witness statements are identical to a large extent, using exactly the same
language. Or the witness statements contain wording which is identical to
parts of the briefs submitted by the parties. It is evident that the credibility
of such witness statements will be limited compared to witness statements
genuinely originating from the witness, unless they are accompanied by
documentary evidence.*°®

44 Although the problem of low credibility of overly edited witness state-

ments is well known among counsel and arbitrators and the suggestions
made above are obvious, many sophisticated practitioners still undertake
massive efforts at re-shaping witness statements.*°? One reason might be
that the handling of numerous witness statements becomes even more
burdensome if the witnesses are asked to do the drafting themselves. Is-
sues of timing, inability and language skills may arise. The review of wit-
ness statements genuinely drafted by the witnesses will take more time
than just reviewing the amendments made by the witness to a proposed
wording.*®© Further, it will be difficult, sometimes even impossible, to focus
the witness statements on the pertinent issues**! and to avoid conflicting
language between different witness statements if they are drafted by the
witnesses. The latter issue may be of relevance also for strategic considera-
tions: Witness statements drafted by the witnesses, but conflicting among
themselves, may be more harmful to the outcome of a case than uniform,
but less credible witness statements.*®
45 Witness statements must not replace or complete the allegations and
substantiation of the relevant facts by the parties in their submissions
to the arbitral tribunal.**? They are means of evidence and serve to estab-
lish the parties’ allegations made in their submissions. In principle, witness
statements should therefore limit themselves to confirm and support the
facts alleged in the briefs, and should not refer to other facts. This being
said, it is clear that a witness may give a full picture of his or her perception
of the relevant facts, so that the witness statement may be broader than

“57 Levy, Witness Statements, 97; Oetiker, Witnesses, 256; Derains, Témoins, 230; Suore,
79.
458
Veeper, Lawyer's Duty, 444; ScHtaeprer, 73; Oetiker, Witnesses, 256.
Veeder, Lawyer’s Duty, 445; ScHiaeprer, 68-69; Oetiker, Witnesses, 256.
Oetiker, Witnesses, 256.
Levy, Witness Statements, 97; ScHLaepreR, 69; OeTIKER, Witnesses, 256.
Oetiker, Witnesses, 256.
ScHURMANN, 433-438; Lévy, Witness Statements, 99; ScHLAEPFER, 67.
Article 4 Witnesses of Fact 97

the respective pleadings.** This will in particular occur if the witness state-
ments are drafted by the witnesses on their own. Also, the witness state-
ments should not contain speculation, legal or other argument and similar
matters; although witness statements ignoring these principles will usually
not be struck from evidence, they will also not advance a party's case.*
Furthermore, Art. 4(5)(b) requires that the source of the witness’ in- 46
formation as to facts described is disclosed. The main purpose of this
requirement is to reveal to the reader whether the witness knows the facts
described from (a) his or her own perception of events, (b) other available
information sources such as documents, or (c) oral statements of third per-
sons (hearsay). This will allow the arbitral tribunal to appropriately weigh
the evidence given. Depending on the circumstances, the description of
the source of the witness’ information must be fairly detailed. If this is not
the case, the arbitral tribunal should address this issue in the hearing if not
brought up by the other party.

Finally, in the 2010 Revision, a new sentence was added to Art. 4(5)(b), 47
pursuant to which documents on which the witness relies and which
have not already been submitted shall be provided, i.e. attached to the
witness statement. On the one hand, this is a very sensible rule since it will
clarify on what documents, if any, the witness bases his or her affirmations.
On the other hand, this rule gives leeway to potential abuse in that a party
tries to introduce additional documentary evidence by attaching it to wit-
ness statements. This danger exists in particular if the witness statements
have to be submitted only after the full exchange of briefs. Hence, the ar-
bitral tribunal should be careful in admitting such documents as documen-
tary evidence or, even better, include a rule in the procedural rules clearly
stating to which extent the parties may rely on documents submitted only
in their witness statements.

cB Language (par. 5(c))

In the 2010 Revision, a new requirement for the content of the witness 48
statement was included: it must state the language in which the witness
statement was originally prepared and the language in which the witness
anticipates giving testimony at the evidentiary hearing. This conveys useful
information to the arbitral tribunal. On the one hand, it may explain why
the language of a witness statement originally prepared not in the witness’
mother tongue contains linguistic errors or a language level which may not
be attributed to the witness, but rather to the translator (or the translat-

464 Oetiker, Witnesses, 256.

465 Born, 1829-1830.
 98 Article 4 Witnesses of Fact

ing counsel). On the other hand, it will be clear from the outset which wit-
nesses may be heard in the language of the proceedings and which need
interpretation.

4. Affirmation of Truth and Signature (par. 5(d) and (e))

49 Pursuant to Art. 4(5)(d) and (e), the witness statement must contain an
affirmation of the truth of the statement, the signature of the witness and
its date and place. Hence, the witness statement under the Rules is an
unsworn voluntary declaration of a witness which contains an affirma-
tion of the truth of the statement and the signature of the witness.*** Other
forms such as affidavits (voluntary declarations of a person under oath)
and depositions (interrogation of a party or of its witnesses by counsel of
the parties in the absence of the arbitral tribunal) are not required.*®” This
is reasonable, inter alia because the admissibility of these other forms is
unclear in many jurisdictions.*©

D. Rebuttal Witness Statements (par. 6)

50 Art. 4(6) explicitly grants the parties the right to submit rebuttal witness
statements. It is submitted that such right flows from the right to be heard,
so that the parties are entitled to do so even without an authorisation
by the arbitral tribunal. The arbitral tribunal is only called to set a re-
spective time limit in order to ensure equal treatment of the parties and a
smooth procedure. The omission of rebuttal witness statements does not
limit the respective parties’ right to challenge the witness statements sub-
mitted by the other parties by other means, in particular by the examina-
tion of these witnesses at the evidentiary hearing.*©

51 The rebuttal witness statements may consist of revised or additional

witness statements. To revise a witness statement means that the wit-
ness may add descriptions of additional facts or further elaborate on facts
already described in its original witness statement. In principle, the witness
may also amend its earlier description of certain facts. However, this must
be done with caution since it may jeopardise the credibility of the witness.
Still, it is always possible that the statements of other persons as to certain
facts elicit more detailed recollections. This should be indicated by appro-
priate wording in an amended statement (e.g. "In view of Mr X’s witness
statement, I can state more precisely as follows").

466 GrirFIN, 28; TALLERICO/BEHRENDT, 300; Oetiker, Witnesses, 257.

487 IBA Workinc Party 1999, 28; Oetiker, Witnesses, 257.
468 Craic/Park/PauLsson, 433.
469 Cf. Procedural Order of 16 December 2003 in ICC Case No. 12575, in: Decisions on
ICC Arbitration Procedure, ICC Bull 2010 Special Supplement, 67-68.
Article 4 Witnesses of Fact 99

The rebuttal witness statements may include statements from persons a2

not previously named as witnesses.
The possible scope of the rebuttal witness statements is limited in two 53
respects:

Firstly, any revisions or additions in the rebuttal witness statement may 54

only respond to matters contained in a witness statement, expert
report or other submission of the other party. Hence, the parties are not
allowed to introduce new descriptions of facts unless they directly respond
to a statement submitted by the other party. This limitation is necessary
to prevent the parties from holding back certain descriptions of facts in the
first round of witness statements for strategic reasons.

Secondly, rebuttal witness statements are only allowed on matters that BS

have not been previously presented in the arbitration. The word "pre-
viously" refers to the time of the submission of the witness statements,
expert reports or other submissions, in which the rebutted statements are
contained. Hence, witness evidence on any issue presented in the briefs of
any party or in any other document submitted before that time must be
presented in the first round of witness statements. Art. 4(6) does not al-
low to present testimony on such issues only in the rebuttal witness state-
ments. Again, this rule is directed against the strategic holding back of
witness evidence.

While the purpose of this second limitation provided for in Art. 4(6) is in 56
principle justified, it may lead to overly lengthy and numerous witness
statements. In certain circumstances, it may be more efficient to allow the
parties to include testimony on issues previously presented in the arbitra-
tion in the rebuttal witness statements only. Therefore, it is submitted that
the arbitral tribunal should apply the second limitation of Art. 4(6) with
some flexibility in practice.

VII. Right to Examine Witnesses Who have Submitted

a Witness Statement
A. 2010 Revision: Omission of the General Duty to Appear
Before the Arbitral Tribunal

The 1999 Rules provided for a general rule pursuant to which each wit- Dy,
ness whose witness statement was submitted had to appear for testimony
at an evidentiary hearing, unless the parties agreed otherwise (Art. 4(7) of
the 1999 Rules). This duty of the witnesses and the consequences of non-
compliance were extensively discussed.
 100 Article 4 Witnesses of Fact

58 The 2010 Rules take another approach to this issue. A new Art. 8(1) was
introduced, pursuant to which each party must inform the arbitral tribunal
and the other parties of the witnesses whose appearance it requests
within the time ordered by the arbitral tribunal. Only if a witness’ appear-
ance was requested by a party or by the arbitral tribunal, the duty to ap-
pear is triggered.

59 This rule is in line with the current general practice, according to which
witnesses only appear if their examination was requested,*”? and with the
fact that most parties will accept witness statements only under the condi-
tion that they will be able to cross-examine the witnesses of the opposing
party orally.47! It is also reflected in some arbitration rules.*”

60 Generally, the parties are responsible for the appearance of the wit-
nesses they have called at the witness hearing.*”? If a party is not in a posi-
tion to ensure the appearance of a witness, the arbitral tribunal may step
in.474 It has to be noted though that the means of the arbitral tribunal to
summon witnesses are limited.

B. Waiver of Appearance (par. 8)

61 As stated in the revised Art. 8(1), a witness whose witness statement was
submitted must appear only if any party or the arbitral tribunal requested
SO.

62 There are three aspects of this rule which need to be highlighted:

63 Firstly, it was already stated that each party has the right to cross-exam-
ine a witness who has submitted a witness statement. Each party is free
to waive such right to cross-examination. In practice, the parties frequently
waive examination of numerous witnesses, thereby contributing consider-
ably to the efficiency of the proceedings.

64 Secondly, a unilateral waiver of the party entitled to cross-examination

is in principle sufficient. However, the revised wording of Art. 8(1) makes it
clear that any party, i.e. also the party who presented the respective wit-
ness, and the arbitral tribunal may request his or her appearance. Hence,
the unilateral waiver of the party entitled to cross-examination will lead to

470 IBA Review Suscomoittee 2010, 17.

Craic/Park/Pautsson, 433; von MEHREN/SALOMON, 287; OETIKER, Witnesses, 257-258.
472 E.g. Art. 20(4) LCIA Rules.
PILS (Basel)-Scunetper, Art. 184 N 26; BUHLer/Dorcan, 19; Lew/Misteus/Kro., 572;
ScHneIperR, Witnesses, 309; Nater-Bass in Commentary Swiss Rutes, Art. 25 N 10; Oenixer,
Witnesses, 265; Hascuer, 11.
PILS (Basel)-ScuHnetper, Art. 184 N 26; Nater-Bass in Commentary Swiss Rutes, Art. 25
N 10.
Article 4 Witnesses of Fact 101

the non-appearance of such witness unless any other party or the arbitral
tribunal request the appearance.

However, it is submitted that whenever the witness statements are intended 65

to substitute for the direct examination of witnesses, the parties should not
be allowed to request that their own witnesses, the cross-examination
of whom was waived by the opposing party, are heard.*”5 This increases the
incentive to submit complete and balanced witness statements. Under the
2010 Rules, the arbitral tribunal needs to include a respective procedural
rule which limits the right to request the appearance of a witness pursuant
to Art. 8(1) if it wants to follow this approach.

Thirdly, Art. 8(1) makes it clear that the arbitral tribunal is free to hear 66
any witness offered by the parties, even if none of the parties requests the
appearance of such witness. This is also in line with Art. 4(10), pursuant to
which the arbitral tribunal may order the hearing of any person, including
one whose testimony was not offered by the parties.

Most importantly, Art. 4(8) clarifies that, if the appearance of a witness was 67
not requested pursuant to Art. 8(1), none of the other parties shall be
deemed to have agreed to the correctness of the content of the wit-
ness statement.*”° In fact, the parties who did not submit the respective
witness statement are at liberty to challenge its content with other means,
such as documentary evidence or a testimony to the contrary of another
witness.*7”

Cc Failure to Appear (par. 7)

ie General Rule
Art. 4(7) states that, if a witness whose appearance was requested pur- 68
suant to Art. 8(1) fails without a valid reason to appear for testimony at
an evidentiary hearing, the arbitral tribunal must disregard any witness
statement related to that evidentiary hearing by the witness unless, in
exceptional circumstances, the arbitral tribunal decides otherwise.*” Ac-
cordingly, pursuant to the general rule, the witness statement of a witness
who cannot be examined orally must not be taken into account by the
arbitral tribunal. There are a number of explicit and implicit exceptions to
this rather strict and inflexible rule which need to be discussed.

475 Lévy, Witness Statements, 101; critical ScHiacprer, 71; Oetiker, Witnesses, 258.
476 BUHLER/DorGAN, 15; Oetiker, Witnesses, 258.
477 Oetiker, Witnesses, 258.
478 Equivalent rules are provided for in Art. 20(4) LCIA and Art. 54(d) WIPO. Cf. Hascuer,
as
 102 Article 4 Witnesses of Fact

2. Waiver of Appearance by the Parties

69 As was already stated above, the parties may waive the appearance of a
witness whose witness statement was submitted at the evidentiary hearing.
As a consequence thereof, the corresponding witness statement must be
regarded as a valid means of evidence which remains in the records.*”
However, the parties who did not request the appearance must not be
deemed to have agreed to the correctness of the content of the witness
statement. Rather, the arbitral tribunal must appraise the witness state-
ment in light of the further evidence obtained.**° This is a reasonable ar-
rangement promoting the efficiency of the proceedings.***

3. Waiver of Appearance by the Arbitral Tribunal

70 Even if the parties can request to cross-examine witnesses of the opposing

party (and also to examine their own witnesses) pursuant to Art. 8(1), it is
within the power and discretion of the arbitral tribunal to deny, in the
context of an anticipated appraisal of evidence, examination of a witness
called by one party if it deems the testimony of this witness to be irrelevant
(Art. 9(2)(a)).**
71 Nevertheless, the arbitral tribunal should be hesitant not to hear wit-
nesses who have delivered witness statements if this is contrary to the
request of one party and should decide on the relevance of the testimony of
a witness only after having heard the witness.*®> Still, this should not lead
the arbitral tribunal to agree without due consideration to lengthy hearings
in which numerous witnesses are examined on issues which are of no or
only very limited relevance.

We If the arbitral tribunal decides not to hear a witness whose examination was
requested, the witness’ written statement remains in the file. However, it
is obvious that the arbitral tribunal will usually attribute little weight to such
testimony since it declined to have the witness examined.**4

PILS (Basel)-Scunerper, Art. 184 N 24; Scunerper, Witnesses, 307-308; Oetiker, Wit-
nesses, 258.
Oetiker, Witnesses, 259; cf. Lévy, Witness Statements, 101.
BUHLeR/Dorcan, 16; Oetiker, Witnesses, 259.
Bercer/KeterHats, N 1221; BUHLeR/Dorcan, 17; GrirFIN, 26; Lew/Mistetis/Krou, 572;
Marriott, 283; Poupret/Besson, N 659; Oetiker, Witnesses, 259; Derains, Preuve, 798.
Dissenting Levy, Witness Statements, 101. Switzerland: DFT 4P.196/2003 of 4 Janua-
ry 2004, ASA Bull 2004, 592, 600-601; France: CA Paris, 15 March 1984, Soubaigne
v. Limmareds Skogar, 1985 Rev. Arb. 285; England: CA in Dalmia Dairy Industries v.
National Bank of Pakistan, [1978] 2 Lloyd’s Rep. 223, at 270.
483
BuUHLeR/Dorcan, 17-18; Oetiker, Witnesses, 259.
484
Oetiker, Witnesses, 259.
Article 4 Witnesses of Fact 103

4. Witnesses Who Are Unavailable for Examination Because

of Objective Reasons

Art. 4(7) provides that a witness statement shall only be disregarded if the 73
respective witness does not appear for testimony at an evidentiary hearing
without a valid reason. If a witness is indeed willing to appear for exami-
nation, but is unable to do so for objective reasons (such as serious illness,
overly long travel distance, etc.), it is justified as a general rule to leave the
witness statement in the records.*®> The arbitral tribunal has to take into
consideration, within the scope of its unrestricted appraisal of evidence, the
circumstance based on which the witness did not appear.‘

This approach is reasonable - at least under Swiss law - even if the ap- 74
plicable rules of procedural law (arbitration agreement of the parties, ar-
bitration rules, procedural rules issued by the arbitral tribunal) contain a
mandatory rule that witness statements be removed from the record if the
witness does not appear. If the arbitral tribunal were not to take the witness
statement of such witness into consideration, even though it is relevant,
this might amount to a violation of the right to be heard, potentially lead-
ing to the annulment of the arbitral award on the basis of Art. 190(2)(d)
PILS or the refusal of enforcement based on Art. V(1)(b) NYC. In contrast,
the violation of any rules or procedural laws that may mandate removal
from the record is not considered as a sufficient basis for successfully con-
testing an arbitration award under the case law of the Swiss Federal Su-
preme Court.*%”

5. Unexcused Non-Appearance

Pursuant to the general rule of Art. 4(7), a witness statement has no evi- US
dentiary value whatsoever if the respective witness fails to appear al-
though his or her appearance was requested.*® This strict position can be
justified by the already mentioned fact that the parties and the arbitral
tribunal will as a rule admit witness statements only under the reservation
that they can orally examine the witnesses to the extent desired. Only in
exceptional circumstances may the arbitral tribunal determine otherwise
(Art. 4(7)).

485 E.g. DFT 4P.74/2006 of 19 June 2006, cons. 6.3.

486 Oemiker, Witnesses, 259-260.
487 For Art. 190(2)(d) PILS: DFT 4P.74/2006 of 19 June 2006, cons. 6.3; DFT 4P.23/2006
of 27 March 2006, cons. 4.2; DFT 4P.93/2004 of 1 July 2004, cons. 2.1; DFT 117 II
347. For Art. 190(2)(e) PILS: DFT 4P.23/2006 of 27 March 2006, cons. 4.2; DFT 128
III 191. Oetiker, Witnesses, 260.
488 Lévy, Witness Statements, 102; Schnerper, Witnesses, 308; BUHLER/Dorcan, 16.
 104 Article 4. Witnesses of Fact

76 This general rule is, however, not without controversy. According to a lib-
eral approach, the arbitral tribunal may decide in its free discretion un-
der which circumstances it will admit written statements of witnesses who
refuse to appear for examination.*®® If the arbitral tribunal leaves witness
statements of recalcitrant witnesses in the record, it has to make special
allowance when appraising the evidence for the circumstance that their
credibility is limited, for lack of an opportunity to cross-examine the wit-
ness orally.*°

We, It is submitted that the liberal approach should be preferred over the
strict rule of Art. 4(7). It gives the arbitral tribunal the necessary flexibili-
ty.*°! Moreover, it takes into account the circumstance that the opposing
party may well wish to refer to explanations in the witness statement of a
recalcitrant witness. If the statement is removed from the record, this will
no longer be possible.**? The liberal approach is also in line with case law of
e.g. the Swiss Federal Supreme Court, pursuant to which Art. 182(3) PILS
does not confer a right to oral cross-examination of witnesses who have
submitted a written statement*® and the violation of mandatory procedural
rules is not considered as a ground for successfully contesting an arbitra-
tion award.*”

VIII. Evidence of Recalcitrant Witnesses (par. 9)

78 Possibly, not all witnesses a party may want to rely on are under its own
control. Therefore, a party wishing to present evidence from a person who
will not appear voluntarily at its request may ask the arbitral tribunal
to take whatever steps are legally available to obtain the testimony of that
person or seek leave from the arbitral tribunal to take such steps itself
(Art. 4(9)).
79 Pursuant to the wording of Art. 4(9), such request must be made within
the time ordered by the arbitral tribunal. It is submitted that the time
limit meant is the general one set for the identification of witnesses. The
arbitral tribunal need not set a particular time limit for such requests.
80 In its request, the party must identify the proposed witness, describe the
issues on which the witness’ testimony is sought and state why such issues
are relevant to the case and material to its outcome. Only if the arbitral
tribunal determines in its discretion that the testimony of that witness is

Craic/Park/PAULSSON, 433; VON MEHREN/SALOMON, 288; OeTIKER, Witnesses, 260.

CratG/Park/PAULSSON, 433; JeRmINI, 608; Oetiker, Witnesses, 260.
Oemiker, Witnesses, 261.
9 Wale PASH
DFT 4P.196/2003 of 4 January 2004, cons. 4.2.2.2, ASA Bull 2004, 592.
494 Cf. N 74 above.
Article 4 Witnesses of Fact 105

relevant to the case and material to its outcome, it is called to decide on

the request and take the necessary steps (Art. 4(9)).4°5 This double step
avoids unnecessary efforts to ensure the appearance of a witness. Often,
when the request is filed, the arbitral tribunal will not be in a position to
determine the issue on a well-informed basis. It is submitted that the arbi-
tral tribunal may therefore defer its decision until it becomes clear whether
the testimony of that witness could actually be relevant to the case and
material to its outcome.

The resources of the arbitral tribunal to obtain the testimony of a person 81

who will not appear voluntarily are limited. In particular, it has no means
of coercing a witness to obey a summons.“ Still, in some occasions,
a person will be more willing to appear at an evidentiary hearing if (also)
called by the arbitral tribunal and not by a party only.

Pursuant to the revised Art. 4(9), the arbitral tribunal may also author- 82
ize the requesting party, or order any other party, to take such steps as
the arbitral tribunal considers appropriate. This new explicit competence
mirrors the fact that under many /eges arbitri, the parties are also al-
lowed to apply to a state court for support in evidentiary matters (see e.g.
Art. 184(2) PILS).*9”
Many national laws allow the arbitral tribunal or a party to call upon the 83
assistance of a state court judge.’ In Swiss arbitral proceedings,
Art. 184(2) PILS can serve as basis for applying to the state court judge
for assistance with regard to witness testimony. The arbitral tribunal or
the party interested in the examination of a witness may request the state
court judge at the seat of the arbitration to assist in the taking of evidence
by summoning recalcitrant witnesses.‘ If a recalcitrant witness is not lo-
cated at the seat of the arbitration, the tribunal nevertheless has to ap-
proach the state court judge at its seat; that judge then has to prosecute
the request through the channels of legal assistance.°*°° As an alternative,

495 IBA WorkiNG Party 1999, 29.

496 Nater-Bass in Commentary Swiss Rutes, Art. 25 N 10; BUHLER/Dorcan, 18.
497 IBA Review Suscommrree 2010, 18.
498 BuHLerR/DorcAN, 18; Lew/Misteuis/Kroit, 572; IBA WorkinG Party 1999, 29; Oetiker, Wit-
nesses, 265. Cf. also Art. 27 Model Law.
499 Nater-Bass in Commentary Swiss Rutes, Art. 25 N 10; PILS (Zurich)-Votken, Art. 184
N 18; BerGer/KetterHats, N 1226; Oetiker, Witnesses, 265. Critical PILS (Basel)-Schnet-
per, Art. 184 N 62, with referrals. Decisions of the President of the Geneva Civil Court
of 9 May 1990, ASA Bull 1990, 283, and of 15 October 1990, ASA Bull 1994, 306. Cf.
also the decision of the Neuchatel Civil Court of 16 February 2001, ASA Bull 2003,
142, in which the judge at the seat of the arbitration ordered a witness to answer a
list of questions submitted to him by the arbitral tribunal.
500 PILS (Zurich)-Vo.Ken, Art. 184 N 22-23; Oetiker, Witnesses, 265; Cf. also RUeDE/Ha-
DENFELDT, 266.
 106 Article 4 Witnesses of Fact

the arbitral tribunal may ask the state court judge at its seat to request
through the channels of legal assistance that the witness be heard by the
state court judge at its domicile.*”

84 Instead of using this competence, arbitral tribunals will often take the
non-appearance of a witness into account when appraising the evi-
dence.°2 The Swiss Federal Supreme Court has decided that an arbitral
tribunal does not violate the parties’ right to be heard if it does not to seek
the assistance of the state court judge in summoning witnesses ex Officio
in the absence of a motion by the parties, but instead waives hearing the
respective witnesses.°°? The same applies if a witness fails to appear who
was summoned not by motion of a party, but by resolution of the arbitral
tribunal.°%

IX. Witness Appearance Ordered by the Arbitral Tribunal

(par. 10)
85 Pursuant to Art. 4(10), the Arbitral Tribunal may, at any time before the ar-
bitration is concluded, order any party to provide, or to use its best efforts
to provide, the appearance for testimony at an evidentiary hearing of
any person, including one whose testimony has not yet been offered.

86 Firstly, this provision empowers the arbitral tribunal wishing to hear tes-
timony from a particular witness to instruct the parties to produce
such witness for examination.*© This power allows the arbitral tribu-
nal amongst others to order the examination of a witness whose witness
statement was submitted, but whose appearance was not requested by the
parties.°°° In practice, the assessment of a case and of the relevant issues
by the arbitral tribunal sometimes diverges from that of all parties involved.
In such situations, it is mandatory for the arbitral tribunal to ensure that
evidence is given on the issues it considers to be pertinent.

87 Secondly, Art. 4(10) allows the arbitral tribunal to order the appearance for
testimony at an evidentiary hearing of persons whose testimony has
not yet been offered in the arbitral proceedings. It is submitted that this
inquisitorial power is very far-reaching and should be applied cautiously by

50 rere
ASA Bull 1994, 309.
50 N
PILS (Basel)-ScuHnerper, Art. 184 N 56-57; Nater-Bass in Commentary Swiss Rutes, Art. 24
N 10; RUeDe/HADENFELDT, 263-264; BUHLER/Dorcan, 18; Oetiker, Witnesses, 265.
503
DFT of 15 March 1993, ASA Bull 1993, 398, 408-409 (in DFT 119 II 271, the rele-
vant cons. 7 is not published); DFT 4P.221/1996 of 25 July 1997, ASA Bull 2000, 96,
103-104.
504
DFT of 28 January 1997, ASA Bull 1998, 118, 126.
505 GrirFIN, 26.
506 Cf. N 66 above.
oa
Article 4 Witnesses of Fact 107

the arbitral tribunal. It is correct that arbitral tribunals should endeavour

to effectively resolve the dispute before them and not merely to settle the
proceedings.°°” However, it must be left to the discretion of the parties as
to which arguments and evidence they wish to present in support of their
position. There is a relevant difference between the taking of evidence from
witnesses which were offered, but for whom the parties waived oral exami-
nation, and from persons who were not named as witnesses by any party.

A valid exception based on which the arbitral tribunal should hear per- 88
sons not offered as witnesses are those rare circumstances in which an ar-
bitral tribunal must consider certain aspects ex officio and the parties have
not, or at least not adequately, commented on these aspects. Even in this
area, however, the arbitral tribunal must be cautious, since it runs the risk
of exceeding its powers.°

The revised Art. 4(10) allows the party to whom the arbitral tribunal ad- 89
dresses a request for the appearance of a witness to object for any of the
reasons set forth in Art. 9(2). In this case, the arbitral tribunal must decide
whether the grounds for exclusion from evidence of the requested witness
are given.

507 Oeniker, Witnesses, 263; cf. WirTH, 10-11.

508 Oetiker, Witnesses, 263.
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Article 5 Party-Appointed Experts 109

Article 5 Party-Appointed Experts

1. A Party may rely on a Party-Appointed Expert as a means of evi-

dence on specific issues. Within the time ordered by the Arbitral
Tribunal, (i) each Party shall identify any Party-Appointed Expert
on whose testimony it intends to rely and the subject-matter of
such testimony; and (ii) the Party-Appointed Expert shall submit an
Expert Report.

2. The Expert Report shall contain:

(a) the full name and address of the Party-Appointed Expert, a

statement regarding his or her present and past relationship (if
any) with any of the Parties, their legal advisors and the Arbi-
tral Tribunal, and a description of his or her background, quali-
fications, training and experience;

(b) a description of the instructions pursuant to which he or she is

providing his or her opinions and conclusions;

(c) a statement of his or her independence from the Parties, their

legal advisors and the Arbitral Tribunal;
(d) a statement of the facts on which he or she is basing his or her
expert opinions and conclusions;
(e) his or her expert opinions and conclusions, including a descrip-
tion of the methods, evidence and information used in arriving
at the conclusions. Documents on which the Party-Appointed
Expert relies that have not already been submitted shall be pro-
vided;
(f) if the Expert Report has been translated, a statement as to the
language in which it was originally prepared, and the language
in which the Party-Appointed Expert anticipates giving testimo-
ny at the Evidentiary Hearing;

(g) an affirmation of his or her genuine belief in the opinions ex-

pressed in the Expert Report;
(h) the signature of the Party-Appointed Expert and its date and
place; and
(i) if the Expert Report has been signed by more than one person,
an attribution of the entirety or specific parts of the Expert Re-
port to each author.
3. If Expert Reports are submitted, any Party may, within the time
ordered by the Arbitral Tribunal, submit to the Arbitral Tribunal and
to the other Parties revised or additional Expert Reports, includ-
ing reports or statements from persons not previously identified
as Party-Appointed Experts, so long as any such revisions or ad-
110 Article 5 Party-Appointed Experts

ditions respond only to matters contained in another Party’s Wit-

ness Statements, Expert Reports or other submissions that have
not been previously presented in the arbitration.

4. The Arbitral Tribunal in its discretion may order that any Party-
Appointed Experts who will submit or who have submitted Expert
Reports on the same or related issues meet and confer on such is-
sues. At such meeting, the Party-Appointed Experts shall attempt
to reach agreement on the issues within the scope of their Expert
Reports, and they shall record in writing any such issues on which
they reach agreement, any remaining areas of disagreement and
the reasons therefore.
5. If a Party-Appointed Expert whose appearance has been requested
pursuant to Article 8.1 fails without a valid reason to appear for
testimony at an Evidentiary Hearing, the Arbitral Tribunal shall dis-
regard any Expert Report by that Party-Appointed Expert related to
that Evidentiary Hearing unless, in exceptional circumstances, the
Arbitral Tribunal decides otherwise.
6. If the appearance of a Party-Appointed Expert has not been re-
quested pursuant to Article 8.1, none of the other Parties shall be
deemed to have agreed to the correctness of the content of the Ex-
pert Report.

Contents Note
Ip 2010 Revision a
II. Reliance on a Party-Appointed Expert (par. 1) 4
III. Identification of Party-Appointed Expert (par. 1) 7
IV. Expert Report 9
A. General Remarks S
B. |Submission (par. 1) 10
C. Content (par. 2) ig}
a Identity of the Expert (par. 2(a)) 14
2X Description of Instructions (par. 2(b)) A?
35 Statement of Independence (par. 2(c)) 19
4. Statement of Facts (par. 2(d)) 23
5. Expert’s Opinion and Conclusions (par. 2(e)) 24
6. Language (par. 2(f)) 28
Hi Affirmation of Genuine Belief (par. 2(g)) 29
8. Signature (par. 2(h)) 30
9. Attribution to Several Authors (par. 2(i)) 31
V. Rebuttal Expert Reports (par. 3) 32
VI. Expert Meeting (par. 4) 39
VII. Right to Examination of Party-Appointed Experts 43
A. 2010 Revision: Omission of the General Duty to Appear Before
the Arbitral Tribunal 43
B. Waiver of Appearance (par. 6) 47
C. Failure to Appear (par. 5) Sil
1 General Rule Si
Ds Waiver of Appearance by the Parties 53
3; Waiver of Appearance by the Arbitral Tribunal 55
Article 5 Party-Appointed Experts ial

4. Experts Who are Unavailable for Examination Because of

Objective Reasons 58
5s Unexcused Non-Appearance 60

Other Rules
Art. 25(3) ICC; Art. 25 and 27(4) Swiss Rules; Art. 27(4) UNCITRAL; Art. 21(2)
LCIA; Art. 35-36 ICSID; Art. 55(c) WIPO.

i. 2010 Revision

The former Art. 5(4) of the 1999 Rules provided that each party-appointed
expert whose expert report had been submitted had to appear for testi-
mony at an evidentiary hearing unless the parties agreed otherwise. In the
2010 Revision, this provision was deleted. Instead, a new Art. 8(1) was
introduced, according to which each party-appointed expert has to appear
for testimony at the evidentiary hearing if his or her appearance is request-
ed by the arbitral tribunal or any party. As a consequence, the wording of
Art. 5(5) and (6) was adapted. These amendments may have an impact on
how expert reports from party-appointed experts are treated in practice.5”

The 2010 Revision also introduced a new requirement pursuant to which

each party has to identify any party-appointed expert on whose testimony
it intends to rely and the subject-matter of such testimony before submit-
ting the respective expert report (Art. 5(1)). Furthermore, the required
content of the expert report was substantially expanded (Art. 5(2)). In
particular, a duty to disclose the instructions to the party-appointed expert
and the requirement of a statement of independence were included.
Also, the former requirement of an affirmation of truth was replaced by one
of genuine belief. The fact that expert reports are sometimes rendered by
more than one person was reflected in a provision which requires the attri-
bution of the entirety or specific parts of the expert report to each author.

Finally, Art. 5(3) now explicitly provides for the possibility to submit rebut-
tal expert reports by party-appointed experts, thereby mirroring Art. 4(6)
regarding witness statements.

II. Reliance on a Party-Appointed Expert (par. 1)

Art. 5(1) allows a party to rely on a party-appointed expert as a means of
evidence on specific issues. Therefore, reports by party-appointed experts
must not be treated as mere submissions by parties, as the procedural
rules in certain jurisdictions provide. Rather, the party-appointed expert’s

509 Cf. N 43-60 below.

il) Article 5 Party-Appointed Experts

opinion has its own weight which depends on his or her competence and
credibility.

The parties are entirely free whether to avail themselves of party-ap-

pointed experts as means of evidence or not. The arbitral tribunal neither
needs to give its consent to this form of evidence, nor does it have a
possibility to interfere with the submission of reports by party-appointed
experts.

Although party-appointed experts are treated analogously to witnesses of

fact (which is evidenced by the term "expert witness" widely used), in
contrast to the latter, their testimony primarily relates not to observations
of facts, but to opinions.®° Their position can be situated somewhere be-
tween that of witnesses of fact and of parties’ counsel.°? Expert witness
evidence nowadays plays a significant, often decisive role in arbitral pro-
ceedings.°*!?

III. Identification of Party-Appointed Expert (par. 1)

Art. 5(1)(i) provides that each Party shall identify any party-appointed
expert on whose testimony it intends to rely and the subject matter of that
testimony within the time ordered by the arbitral tribunal. This should pre-
vent the opposing party from being surprised by unexpected expert reports
by party-appointed experts.

The provision leaves great discretion to the arbitral tribunal by what time
the party-appointed experts shall be identified. Pursuant to one common
and reasonable method, the parties may be ordered to identify the evi-
dence adduced or to be adduced to each allegation of fact in the briefs
submitted. In the alternative, the parties may be allowed to make general
references to evidence in their briefs and be ordered to submit a detailed
list of the evidence they intend to rely on, indicating the content and rel-
evance of each item, later in the proceedings.

IV. Expert Report

A. General Remarks

From a procedural point of view, reports from party-appointed experts are

treated in a similar fashion as witness statements. They will in prin-
ciple only stand as evidence if the party-appointed expert appears at the

510 Scunerper, Experts, 447.

BE Gy, CLG,
512 Nater-Bass in Commentary Swiss Rutes, Art. 25 N 8; REDFERN/HUNTER/BLACKABY/PARTASIDES,
N 6.152-6.154.
Article 5 Party-Appointed Experts UTS

evidentiary hearing and is available for examination by the other party and
the arbitral tribunal.° Art. 5(2) states in rather detailed manner what the
expert report needs to contain. The revised Art. 6(4) provides for analo-
gous requirements for reports by tribunal-appointed experts.>!4

B. Submission (par. 1)

Pursuant to Art. 5(1)(ii), a party-appointed expert must submit his or her 10

expert report within the time ordered by the arbitral tribunal. The ques-
tion when the expert report must be submitted has to be distinguished
from the question when party-appointed experts must be identified.®*5 It is
possible that the arbitral tribunal requires the parties to identify the party-
appointed experts on whose testimony they intend to rely and the subject-
matter of such testimony at a relatively early stage, e.g. in the briefs, but
allows the parties to submit the reports only at a later stage, e.g. together
with the witness statements.

The options for the arbitral tribunal to tackle the issue of when the expert ial
reports must be submitted are analogous to those with regard to witness
statements.°*° When scheduling the submission of expert reports, the arbi-
tral tribunal should consider the interaction of the report with other submis-
sions made by the parties.°”

Although the wording of Art. 5(1)(ii) seems to imply that the party-appoint- 12
ed expert submits his or her report directly to the arbitral tribunal, this does
not seem to be appropriate. Rather, the expert report should be treated like
documentary evidence and witness statements and therefore be submit-
ted by the parties to the arbitral tribunal and the other parties.

C. Content (par. 2)
Art. 5(2) sets out in a rather detailed manner what the party-appointed lg}
expert’s report needs to contain.

a Identity of the Expert (par. 2(a))

In order to duly perceive the content of an expert report, it is important to 14

understand who the party-appointed expert is, what his or her rela-
tions to the parties, their legal advisors and the arbitral tribunal are and

513 Scuneiper, Experts, 447.

514me Cf, Art. 6 N 48-61 below.
515 Cf, N 7-8 above.
516 Cf, N 7-8 above.
517 TBA WorkING Party 1999, 30.
 114 Article 5 Party-Appointed Experts

what his or her professional background is. For that purpose, Art. 5(2)(a)
requires that the party-appointed expert’s report states:
e the full name and address of the expert;

e a statement regarding his or her present and past relationship (if any)
with any of the parties, their legal advisors and the arbitral tribunal;
and

e a description of his or her background, qualifications, training and expe-

rience.>8

15 The 2010 Revision introduced a requirement for the party-appointed expert

to disclose his or her present or past relationship to the party’s legal
advisor(s) and the arbitral tribunal. The former requirement is impor-
tant to avoid that legal advisors always employ the same expert who in turn
renders particularly favourable opinions.

16 In order to give the arbitral tribunal a better perception of who the expert
is, he or she should also attach a full CV to the report.

2. Description of Instructions (par. 2(b))

We, The opinions expressed by an expert generally depend very much on the
questions put before him or her and the instructions given to the expert. In
the case of a party-appointed expert, this is not necessarily transparent.
Furthermore, the party may reshape the questions and instructions after
having obtained a first (draft) opinion. Or certain opinions which do not fit
in with the position of the respective party are left out in the final report.
18 Hence, the reliability of reports by party-appointed experts may be in-
creased (and the danger of reports being overly influenced by the parties
reduced) if the expert has to disclose his or her instructions. Accordingly,
the newly introduced Art. 5(2)(b) requires that the party-appointed ex-
pert’s report contain a description of the instructions pursuant to which he
or she is providing his or her opinions and conclusions.5!° Such description
should also include any amendments to the instructions.

ch Statement of Independence (par. 2(c))

19 Pursuant to Art. 5(2)(c), the party-appointed expert’s report must embrace
a statement of his or her independence from the parties, their legal advi-

518 Contrary to the provision regarding witnesses, Art. 5 requires that this information
must always be given since it will in any case be material for the assessment of the
report.
519 Harris, 213.
Article 5 Party-Appointed
eS
i Ra Ee eaExperts aks)
‘ eT

sors and the arbitral tribunal.52° While Art. 5(2)(a) requires mere disclosure
of a past or present relationship with any of the parties, their legal advisors
and the arbitral tribunal, Art. 5(2)(c) requires the expert to evaluate any
such relationships and attest that he or she is "independent".52!

This new provision emphasises the duty of each party-appointed expert to 20

assess the case in an independent and neutral fashion, while it does not
want to exclude experts with some connection to the participants or the
subject-matter of the case.* This fits in with the fact that a party-appoint-
ed expert is not a party representative (although some of these experts
seem to think that this is their role).

The Chartered Institute of Arbitrators recently published a Protocol for 21

the Use of Party-Appointed Expert Witnesses in International Ar-
bitration which is drawing on the reforms that have been undertaken in
some common law jurisdictions with regard to expert witnesses.°?3 The
Protocol also requests that the expert shall be independent of the party by
which he or she was appointed (Art. 4(1) of the Protocol).°4

Obviously, receiving payment for services as an expert does not preclude 22

"independence”.**> However, the expert must not have any financial inter-
est in the outcome of the case or otherwise have relationships that would
prevent him or her from providing an honest and frank opinion.*6

4. Statement of Facts (par. 2(d))

The expert report must contain a statement of the facts on which he or she 23
is basing the opinions and conclusions (Art. 5(2)(d)). Since the core of the
expert report is not the description of facts, but the conclusions drawn and
opinions expressed, the description of facts does not need to be full and
detailed as in witness statements. Rather, the representation of the facts
should be made in a manner which allows comprehending and following
the expert’s opinions and conclusions. Still, the factual basis on which the
expert draws his or her conclusions must be clearly identified.

520 Oo Harris, 212.

521 TBA Review Suscommittee 2010, 19; critical Harris, 213, who pleads in favour of a test
which focuses on impartiality.
522 TBA Review Suscommittee 2010, 19.
523 Jones, 137.
524 Jones, 141-142.
525 TBA Review Suscommittee 2010, 19.
526 Id.
 116 Article 5 Party-Appointed Experts

5. Expert’s Opinions and Conclusions (par. 2(e))

24 Most importantly, the expert report must include the expert’s opinions and
conclusions (Art. 5(2)(e)). The reader of the report should be enabled to
clearly distinguish between the facts on which the opinions and conclu-
sions are based and the opinions and conclusions themselves. Usually, it
would seem appropriate for the report to provide for separate sections or
sub-sections.

25 In order to allow the reader to easily perceive the content of the expert
report, it may be sensible to identify the questions put to the expert®”’
at the beginning of the report and to provide - in the sense of an execu-
tive summary - for brief and clear answers to these questions at the end
of the report.

26 The statement of opinions and conclusions of an expert report must include

a description of the methods, evidence and information used in arriving at
the conclusions (Art. 5(2)(e)). Basically, the expert report should state
the reasoning of the expert in a manner that may be comprehended by
the parties and the arbitral tribunal.°*°

2, Finally, in the 2010 Revision, a new sentence was added to Art. 5(2)(e),
pursuant to which documents the party-appointed expert is relying
on and which have not already been submitted shal! be provided, i.e. at-
tached to the expert report. On the one hand, this is a very sensible rule
since it will make clear on what documents, if any, the party-appointed
expert bases its affirmations. On the other hand, this rule gives leeway to
potential abuse in that a party may try to introduce additional documentary
evidence by attaching it to the expert report. This danger exists in particu-
lar if the expert report is submitted only after the full exchange of briefs.
Hence, the arbitral tribunal should be careful in admitting such documents
as documentary evidence or, even better, include a rule in the procedural
rules clearly stating to which extent the parties may rely on documents
submitted only by party-appointed experts in their expert reports.

6. Language (par. 2(f))

28 If the expert report was translated, a statement is required as to the lan-

guage in which it was originally prepared, and the language in which
the party-appointed expert anticipates giving testimony at the evidentiary
hearing (Art. 5(2)(f)). This conveys useful information to the arbitral tribu-

°27 Cf. in this regard also Art. 5(2)(b) which requires the disclosure of the instructions to
the expert, including the questions put before him or her.
528 IBA Review Suscommittee 2010, 19.
Article 5 Party-Appointed Experts 117

nal. On the one hand, it may explain why the language of an expert report
originally prepared not in the expert’s mother tongue contains linguistic
errors or, to the contrary, a language level which may not be attributed to
the expert, but rather to the translator (or the translating counsel). On the
other hand, it will be clear from the outset which expert may be heard in
the language of the proceedings and which needs interpretation.

Be Affirmation of Genuine Belief (par. 2(g))

In the 2010 Revision, the requirement for an expert report to contain a 29

statement of truth was (rightly) omitted. The expert report does not ex-
press facts, but (to the degree possible, objectively reasoned) opinions.
In line with this, the revised Art. 5(2)(g) requires an affirmation by the
party-appointed expert of his or her genuine belief in the opinions ex-
pressed.°”? Hence, the expert needs to declare that he or she actually
believes what is stated in the report.

8. Signature (par. 2(h))

Pursuant to Art. 5(2)(h), the expert report must contain the signature 30
of the expert and its date and place. If the signature is lacking, the arbi-
tral tribunal will order the party submitting the respective expert report to
obtain the signature within a short time limit. If the expert report remains
unsigned, the arbitral tribunal will have to disregard it unless there are suf-
ficient objective reasons why the party-appointed expert is not in a position
to sign the report.

9. Attribution to Several Authors (par. 2(i))

Pursuant to Art. 5(2)(i), if multiple persons sign an expert report, e.g. if chil
an organisation is hired as an expert or two experts produce a joint report,
the expert report must indicate whether it is attributable as a whole to a
single author or, if not, which specific parts thereof may be attributed to
each co-author.°° This information allows the arbitral tribunal and the
parties to assess whether the opinions were expressed by the person who
is an expert in the respective field (if several experts produce a joint expert,
they will often have different fields of expertise). Furthermore, it puts the
arbitral tribunal and the parties in a position to determine which experts
should attend the evidentiary hearing and to prepare for questioning one
or more of the co-authors.**?

529 Harris, 213-214.

530 TBA Review Suscommrtree 2010, 19.
531 TBA Review Suscommittee 2010, 20.
 118 Article 5 Party-Appointed Experts

V. Rebuttal Expert Reports (par. 3)

82 Art. 5(3) explicitly grants the parties the right to submit rebuttal expert
reports. It is submitted that such right flows from the right to be heard,
so that the parties are entitled to do so even without the authorisation
by the arbitral tribunal. The arbitral tribunal is only called to set a re-
spective time limit in order to ensure equal treatment of the parties and a
smooth procedure.

5S) The rebuttal expert reports may consist of revised or additional expert
reports. To revise an expert report means that the expert may add addi-
tional facts and/or further opinions and conclusions. In principle, the expert
may also amend his or her earlier description of certain facts and/or opin-
ions and conclusions. However, this must be done with caution since it may
jeopardise the credibility of the expert. Still, it is always possible that the
opinions and conclusions of other experts elicit further considerations. This
should be indicated by appropriate wording in an amended report (e.g. "In
view of Mr X’s expert report, I can state more precisely as follows").

34 The possible scope of the rebuttal expert reports is limited in two re-
spects:
35 Firstly, any revisions or additions in the rebuttal expert reports must re-
spond only to matters contained in a witness statement, expert
report or other submission of the other party. Hence, the parties are not
allowed to introduce new descriptions of facts unless they directly respond
to a statement submitted by the other party. This limitation is necessary
to avoid that the parties hold back certain opinions and conclusions of their
party-appointed experts in the first round of expert reports for strategic
reasons.
36 Secondly, rebuttal expert reports are only allowed on matters that have
not been previously presented in the arbitration. The word "previously"
refers to the time of the submission of the witness statements, expert re-
ports or other submissions, in which the rebutted opinions and conclusions
are contained. Hence, expert reports on any issue presented in the briefs
of any party or in any other document submitted before that time must be
presented in the first round of expert reports. Art. 5(3) does not allow to
present arguments on such issues only in the rebuttal expert reports. Again,
this rule is directed against the strategic holding back of expert opinions.

37 While the purpose of this second limitation provided for in Art. 5(3) is in
principle justified, it may lead to overly lengthy and numerous expert re-
ports. Each party will need to anticipate whether the other party will be able,
and actually will submit, expert reports on each of the matters presented
Article 5 Party-Appointed
a
a A Experts 119
2Td

in the arbitration and then decide on the basis of this anticipation whether
to submit own expert reports to contest. In certain circumstances, it may
be more efficient to allow the parties to include expert reports on issues
previously presented in the arbitration in the rebuttal expert reports only.
Therefore, it is submitted that the second limitation of Art. 5(3) should not
be applied too strictly in practice.

Rebuttal expert reports may also be submitted by persons not previous- 38

ly named as party-appointed experts. This appears to contradict the re-
quirement pursuant to which each party must identify any party-appointed
expert on whose testimony it intends to rely within the time ordered by the
arbitral tribunal (Art. 5(1)). It is submitted, however, that the requirement
to identify party-appointed experts does not limit the possibility to submit
rebuttal expert reports by party-appointed experts which were not named
before since they are commissioned in relation (and limited) to issues not
previously presented.

VI. Expert Meeting (par. 4)

By virtue of Art. 5(4), the arbitral tribunal may order that any party-ap- 39
pointed experts who will submit or have submitted expert reports on the
same or related issues meet and confer on such issues. The provision ex-
plicitly states that ordering such a meeting is in the full discretion of the
arbitral tribunal. Accordingly, the parties do not have a formal right to
request that such meeting be held.

The expert meeting provided for by Art. 5(4) must not be confused with 40
so-called expert conferencing.* Whereas the latter takes place at the
evidentiary hearing in the presence of the arbitral tribunal and the parties,
the expert meeting is held between the experts only.
The aim of the expert meeting is to reduce any differences between the 41
opinions expressed to the extent possible and therefore to narrow down
the scope of issues on which expert evidence must be given at the
evidentiary hearing. The party-appointed experts must attempt to reach
agreement on the issues within the scope of their expert reports, and they
must record in writing any such issues on which they reach agreement, any
remaining areas of disagreement and the reasons therefore (Art. 5(4)).

Party-appointed experts are not party representatives, but a means of 42

evidence offered by the parties. Accordingly, the agreement of the party-
appointed experts on certain factual findings or common conclusions does
not formally bind the parties. They must be allowed to offer further

>a GE Art: 6 N32.

 120 Article 5 Party-Appointed Experts

evidence if they do not share the findings as agreed between the party-
appointed experts, although it will in practice often be difficult for a party to
get around the findings shared by the expert whom it had itself appointed.

VII. Right to Examination of Party-Appointed Experts

A. 2010 Revision: Omission of the General Duty to Appear

Before the Arbitral Tribunal

43 The 1999 Rules provided for a general rule pursuant to which each party-
appointed expert whose expert report had been submitted to appear for
testimony at an evidentiary hearing, unless the parties agreed otherwise
(Art. 5(4) of the 1999 Rules).

44 The revised 2010 Rules take another approach to this issue. A new Art. 8(1)
was introduced, pursuant to which each party must inform the arbitral
tribunal and the other parties of the party-appointed experts whose
appearance it requests within the time ordered by the arbitral tribunal.
Only if a party-appointed expert’s appearance is requested by any party or
by the arbitral tribunal, the duty to appear is triggered.

45 This rule is in line with the current general practice, according to which
party-appointed experts appear only if their examination is requested. It
also takes account of the fact that most parties will only accept party-ap-
pointed expert reports to be given more weight than mere written factual
allegations by the parties if the parties are granted the opportunity to chal-
lenge the expert’s views.

46 Generally, the parties are responsible for the appearance of the party-
appointed experts which they have called at the witness hearing. If a party
is not in a position to ensure the appearance of a party-appointed expert,
the arbitral tribunal should assume this duty (although it has to be noted
that its means in this respect are limited).

B. Waiver of Appearance (par. 6)

47 As stated in the revised Art. 8(1), a party-appointed expert whose expert
report had been submitted must appear only if any party or the arbitral
tribunal requests so.

48 This explicitly includes the right of the arbitral tribunal to request the ap-
pearance even if none of the parties does. In many cases, it will be
sensible from the arbitral tribunal’s view to have the expert examined orally
Article 5 Party-Appointed Experts 121

since it will allow the expert to make his or her report come to life upon
examination.%3

The unilateral waiver of the expert’s appearance by the opposite party 49

is in principle sufficient. However, the revised wording of Art. 8(1) makes
it clear that any party, i.e. also the party who presented the respective
party-appointed expert, and the arbitral tribunal may request his or her
appearance. Hence, the unilateral waiver of the opposite party will lead to
the non-appearance of such witness unless any other party or the arbitral
tribunal requests the appearance.

Art. 5(6) clarifies that an agreement of the parties pursuant to which a 50

party-appointed expert does not need to appear for testimony at an evi-
dentiary hearing shall not be considered to reflect an agreement as to the
correctness of the content of such expert’s report. This is appropriate: the
parties are at liberty to challenge expert reports by other means, such
as documentary evidence, another expert report or another expert’s testi-
mony to the contrary.

Cc. Failure to Appear (par. 5)

1. General Rule

Art. 5(5) states that, if a party-appointed expert whose appearance was re- Sil
quested pursuant to Art. 8(1) fails to appear for testimony at an evidentiary
hearing without a valid reason, the arbitral tribunal must disregard its
expert report unless, in exceptional circumstances, the arbitral tribunal
determines otherwise. Accordingly, pursuant to the general rule, the expert
report of a party-appointed expert who cannot be examined orally must
not be taken into account by the arbitral tribunal. There are a number of
explicit and implicit exceptions to this rather strict and inflexible rule which
need to be discussed in the following.

It was suggested that the report of a party-appointed expert who does 52

not appear at the evidentiary hearing, despite a request for appearance,
might be taken into account by the arbitral tribunal as part of the party’s
written argument.*” The arbitral tribunal should in normal cases not fol-
low this suggestion: Firstly, the parties should plead their cases in their
briefs, not by expert reports. Secondly, in the interest of due process, there
should be a high incentive for a party-appointed expert to actually appear
at the evidentiary hearing. This incentive would be lowered if the arbitral
tribunal took the expert report into account as party pleadings in case of

533 Cf, generally KreinoLer, Oral Testimony, 87.

534 Scunerper, Experts, 447.
 122 Article 5 Party-Appointed Experts

non-appearance. Thirdly, the words of a party-appointed expert may still

have a different weight than the arguments developed by counsel, even if
the expert does not appear. It is therefore to be expected that a report ofa
non-appearing expert would have more weight than mere party pleadings.
Hence, party-appointed experts should be treated as a means of evidence,
not as party representatives.*°

2. Waiver of Appearance by the Parties

S}S} As was already stated above, the parties may waive the appearance of a
party-appointed expert whose expert report was submitted at the eviden-
tiary hearing. As a consequence thereof, the report of a party-appointed
expert whose examination was waived by the opposing party must be re-
garded as a valid means of evidence which remains in the records. How-
ever, the arbitral tribunal must appraise this expert report in light of the
further evidence obtained.

54 If the arbitral tribunal has some doubts about the accurateness of the ex-
pert report or if it wishes to examine the expert for other reasons, it must
request the appearance of the party-appointed expert pursuant to
Art. 8(1). If the expert refuses to appear, it will in general be appropriate
to disregard the expert report.

3. Waiver of Appearance by the Arbitral Tribunal

55 Even if the parties may request to cross-examine experts appointed by the

opposing party (or to examine their own party-appointed experts) pursuant
to Art. 8(1), it is within the power and discretion of the arbitral tribunal to
deny, in the context of an anticipated appraisal of evidence, the examina-
tion of a party-appointed expert if it deems the content of his or her report
to be irrelevant.

56 The arbitral tribunal should be hesitant not to hear party-appointed ex-

perts who have delivered an expert report, if this is contrary to the request
of a party. Rather, the arbitral tribunal should allow for the examination
and decide on the relevance of the expert's findings after the hearing. Still,
it is submitted that the arbitral tribunal may take a stricter approach than
with regard to witnesses, since the relevance and the scope of an expert
report may be appraised better in advance than the scope of the testimony
of witnesses of fact.

7 If the arbitral tribunal decides not to hear a party-appointed expert whose

cross-examination was requested, the expert’s report will remain on file.

535 Similar Bercer/KeLterHAts, N 1228.

Article 5 Party-Appointed Experts 123

However, it is obvious that the arbitral tribunal will attribute little weight to
such expert report since it declined to have the expert examined.

4. Experts Who are Unavailable for Examination Because

of Objective Reasons

Art. 5(5) provides that an expert report shall only be disregarded if the re- 58
spective party-appointed expert does not appear at an evidentiary hearing
without a valid reason. If a party-appointed expert is indeed willing to
appear for examination, but is unable to do so for objective reasons (such
as serious illness, overly long travel distance, etc.), it is justified as a rule
to leave the expert report in the record. The arbitral tribunal has to take
into consideration, within the scope of its unrestricted appraisal of evidence,
the circumstance that the expert has not appeared.

This approach is reasonable - at least under Swiss law - even if the 59

applicable rules of procedural law (arbitration agreement of the parties,
arbitration rules, procedural rules issued by the arbitral tribunal) contain
a mandatory rule that expert reports be removed from the record if the
party-appointed expert does not appear. If the arbitral tribunal were not to
take the expert report of such a party-appointed expert into consideration,
even though it is relevant, this might amount to a violation of the right to
be heard, potentially leading to the annulment of the arbitral award on
the basis of Art. 190(2)(d) PILS or the refusal of enforcement based on
Art. V(1)(b) NYC. In contrast, the violation of any rules or procedural laws
mandating removal from the record is not viewed in the case law of the
Swiss Federal Supreme Court as a sufficient basis for successfully contest-
ing an arbitration award.°*

5. Unexcused Non-Appearance

With regard to witnesses who have produced a witness statement, it was 60

argued above that a liberal approach should be taken if they refuse to ap-
pear.°?” It is submitted that this is not the case for party-appointed experts.
Unlike witnesses, party-appointed experts are under a specific contrac-
tual obligation towards their principal to appear at the evidentiary hear-
ing. Hence, there is no circumstance which could excuse the expert’s
refusal to appear. Taking a different position would allow the parties to
decide for the non-appearance of an expert for strategic considerations.

536 With regard to witness statements, cf. for Art. 190(2)(d) PILS: DFT 4P.74/2006 of 19
June 2006, cons. 6.3; DFT 4P.23/2006 of 27 March 2006, cons. 4.2; DFT 4P.93/2004
of 1 July 2004, cons. 2.1; DFT 117 II 347. For Art. 190(2)(e) PILS: DFT 4P.23/2006
of 27 March 2006, cons. 4.2; DFT 128 III 191.
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Article 6 Tribunal-Appointed Experts 125

Article 6 Tribunal-Appointed Experts

1. The Arbitral Tribunal, after consulting with the Parties, may appoint
one or more independent Tribunal-Appointed Experts to report to it
on specific issues designated by the Arbitral Tribunal. The Arbitral
Tribunal shall establish the terms of reference for any Tribunal-Ap-
pointed Expert Report after consulting with the Parties. A copy of
the final terms of reference shall be sent by the Arbitral Tribunal to
the Parties.

2. The Tribunal-Appointed Expert shall, before accepting appointment,

submit to the Arbitral Tribunal and to the Parties a description of
his or her qualifications and a statement of his or her independ-
ence from the Parties, their legal advisors and the Arbitral Tribunal.
Within the time ordered by the Arbitral Tribunal, the Parties shall
inform the Arbitral Tribunal whether they have any objections as
to the Tribunal-Appointed Expert’s qualifications and independence.
The Arbitral Tribunal shall decide promptly whether to accept any
such objection. After the appointment of a Tribunal-Appointed Ex-
pert, a Party may object to the expert’s qualifications or independ-
ence only if the objection is for reasons of which the Party becomes
aware after the appointment has been made. The Arbitral Tribunal
shall decide promptly what, if any, action to take.
3. Subject to the provisions of Article 9.2, the Tribunal-Appointed Ex-
pert may request a Party to provide any information or to provide
access to any Documents, goods, samples, property, machinery,
systems, processes or site for inspection, to the extent relevant to
the case and material to its outcome. The authority of a Tribunal-
Appointed Expert to request such information or access shall be the
same as the authority of the Arbitral Tribunal. The Parties and their
representatives shall have the right to receive any such information
and to attend any such inspection. Any disagreement between a
Tribunal-Appointed Expert and a Party as to the relevance, materi-
ality or appropriateness of such a request shall be decided by the
Arbitral Tribunal, in the manner provided in Articles 3.5 through 3.8.
The Tribunal-Appointed Expert shall record in the Expert Report any
non-compliance by a Party with an appropriate request or decision
by the Arbitral Tribunal and shall describe its effects on the deter-
mination of the specific issue.

4. The Tribunal-Appointed Expert shall report in writing to the Arbitral

Tribunal in an Expert Report. The Expert Report shall contain:

(a) the full name and address of the Tribunal-Appointed Expert, and
a description of his or her background, qualifications, training
and experience;
126 Article 6 Tribunal-Appointed Experts

(b) a statement of the facts on which he or she is basing his or her

expert opinions and conclusions;

(c) his or her expert opinions and conclusions, including a descrip-

tion of the methods, evidence and information used in arriving
at the conclusions. Documents on which the Tribunal-Appointed
Expert relies that have not already been submitted shall be pro-
vided;
(d) if the Expert Report has been translated, a statement as to the
language in which it was originally prepared, and the language
in which the Tribunal-Appointed Expert anticipates giving testi-
mony at the Evidentiary Hearing;
(e) an affirmation of his or her genuine belief in the opinions ex-
pressed in the Expert Report;
(f) the signature of the Tribunal-Appointed Expert and its date and
place; and

(g) if the Expert Report has been signed by more than one person,
an attribution of the entirety or specific parts of the Expert Re-
port to each author.

5. The Arbitral Tribunai shall send a copy of such Expert Report to

the Parties. The Parties may examine any information, Documents,
goods, samples, property, machinery, systems, processes or site
for inspection that the Tribunal-Appointed Expert has examined
and any correspondence between the Arbitral Tribunal and the
Tribunal-Appointed Expert. Within the time ordered by the Arbitral
Tribunal, any Party shall have the opportunity to respond to the
Expert Report in a submission by the Party or through a Witness
Statement or an Expert Report by a Party-Appointed Expert. The
Arbitral Tribunal shall send the submission, Witness Statement or
Expert Report to the Tribunal-Appointed Expert and to the other
Parties.

6. At the request of a Party or of the Arbitral Tribunal, the Tribunal-Ap-

pointed Expert shall be present at an Evidentiary Hearing. The Ar-
bitral Tribunal may question the Tribunal-Appointed Expert, and he
or she may be questioned by the Parties or by any Party-Appointed
Expert on issues raised in his or her Expert Report, the Parties’ sub-
missions or Witness Statement or the Expert Reports made by the
Party-Appointed Experts pursuant to Article 6.5.
7. Any Expert Report made by a Tribunal-Appointed Expert and its
conclusions shall be assessed by the Arbitral Tribunal with due re-
gard to all circumstances of the case.
8. The fees and expenses of a Tribunal-Appointed Expert, to be funded
in a manner determined by the Arbitral Tribunal, shall form part of
the costs of the arbitration.
Article 6 Tribunal-Appointed Experts 127

Contents Note
Ne 2010 Revision i
II. Appointment of Experts by the Arbitral Tribunal 3
A. General Remarks (par. 1) 3
B. Duty to Appoint an Expert 7
C. Exclusion of the Arbitral Tribunal’s Power 10
D. Duty to Consult with the Parties (par. 1) 13
E. Choosing the Expert 15
Fe Contractual Relationship of the Expert al7/
G. Right of the Arbitral Tribunal to Release the Expert 19
H. Scope of the Expert’s Task 20
III. Expert’s Terms of Reference (par. 1) 22
IV. Qualification and Independence of Expert (par. 2) 29
A. — Description of Qualifications 29
B. Statement of Independence shit
C. Objection by the Parties 33
V. The Parties’ Duty to Provide Information (par. 3) Si
A. In General 37,
B. The Expert’s Power to Request Information and Documents 38
C. The "Relevant and Material"-Test 41
D. Providing Access to Documents etc. 44
E- Right to be Heard 46
Fs Failure to Comply with Expert’s Request 47
VI. Expert Report (par. 4) 48
A. Submission 48
B. Content 49
1he Identity of the Expert (par. 4(a)) 50
Ba Statement of Facts (par. 4(b)) 53
3 Expert’s Opinion and Conclusions (par. 4(c)) 54
4. Language (par. 4(d)) 58
5. Affirmation of Genuine Belief (par. 4(e)) 59
6. Signature (par. 4(f)) 60
Fie Attribution to Several Authors (par. 4(g)) 61
VII. Parties’ Right to Respond to the Expert’s Report (par. 5) 62
VIII. Parties’ Right to Question the Expert (par. 6) 65
IX. Assessment of Expert Report (par. 7) 67
X. Cost Allocation (par. 8) T2
XI. Appointment of an Additional Expert 73

Other Rules
Art. 25(4) and 37(1) ICC; Art. 27 Swiss Rules; Art. 27 UNCITRAL; Art. 21 LCIA;
Art. 55 WIPO.

1 2010 Revision
The 2010 Revision introduced a new limitation of the parties’ right to ob-
ject to the expert’s qualifications and independence: after the appointment
of a tribunal-appointed expert, such objections may be made only for rea-
sons of which the party becomes aware after the appointment has been
made (Art. 6(2)).
128 Article 6 Tribunal-Appointed Experts

Furthermore, Art. 6(4) now contains a comprehensive list of the required

content of the expert report, which corresponds in most parts to the
required content of expert reports by party-appointed experts.

II. Appointment of Experts by the Arbitral Tribunal

A. General Remarks (par. 1)

Art. 6(1), first sentence, allows the arbitral tribunal, after consulting with
the parties, to appoint one or more independent tribunal-appointed experts
to report to it on specific issues designated by the arbitral tribunal. The
power of the arbitral tribunal to appoint experts is widely recognised,
even in the absence of an explicit authorisation in the arbitrators’ mandate
and/or the applicable procedural rules.°%°

Although Art. 6(1) does not contain any provision in this regard, it is clear
that the arbitral tribunal may appoint an expert at its own discretion as
well as at the request of a party.**°

In view of the fact that the parties have specifically chosen the arbitra-
tors for deciding the dispute at hand, the arbitral tribunal should avoid
delegating the assessment of relevant issues to experts. Rather, it
should carefully scrutinise the parties’ submissions in order to clearly and
restrictively define the issues to be submitted to the expert.**° This is par-
ticularly true if the arbitrators were appointed because of their expertise in
the subject matter of the dispute.

When considering whether to appoint an expert at its own discretion, the

arbitral tribunal must, inter alia, take into account the imminent costs
and the (sometimes substantial) delay of the proceedings.*

B. Duty to Appoint an Expert

Pursuant to the Swiss Federal Supreme Court's standing practice, the arbi-
tral tribunal is under a duty to approve a party’s request that an expert
be appointed if it is brought forward in due time and form and if the party
undertakes to pay the necessary advance on costs, unless there are valid
reasons pursuant to which an expert report is not necessary to decide the

$38 PILS (Basel)-Scunerper, Art. 184 N 34; Oetiker in Commentary Swiss Rutes, Art. 27 N 2;
Welss/Burei Locatetu, 484; Poupret/Besson, N 663; REDFERN/ HUNTER/ BLACKABY/PARTASIDES,
N 6.158; LorcHer, 485; GirsBercer/Voser, 220; Born, 1860.
°°? Oeriker in Commentary Swiss Rutes, Art. 27 N 3; Aben, 637; Weigand-Trrmmann/Duve,
Art. 27 UNCITRAL N 2; Bercer/KetverHats, N 1232; Poupret/Besson, N 663.
540 Scunetper, Experts, 452; Oetiker in Commentary Swiss Rutes, Art. 27 N 9.
541 Weiss/BUrc LocaTetu, 483; SCHNEIDER, Experts, 455.
Article 6 Tribunal-Appointed Experts 129

issue at stake. If the request is brought by both parties jointly or concur-

rently, the arbitral tribunal should usually grant such request, although it is
not bound to approve it unless the involvement of independent experts has
been formally agreed by the parties.5%

It is controversial whether the arbitral tribunal is under a duty to appoint

an expert on its own motion if it lacks certain knowledge required to
properly decide the dispute.°** A discussion on this issue was triggered by a
decision of the Swiss Federal Supreme Court, finding that an arbitral tribu-
nal which does not have the necessary technical knowledge must impera-
tively, and even in the absence of a party’s request, appoint an expert, un-
less the expertise would be useless for the decision of the issues at stake.55
It is submitted that such duty of the arbitral tribunal is irreconcilable with
the nature of arbitration.°**° In fact, in two more recent decisions, the Court
has answered the question in the negative, setting out that such a duty
subsists only if a party requests the appointment of an expert.°*”

But even if such duty existed, the arbitral tribunal would not be obliged
to advance the fee of the expert out of the advance on costs which the
parties have paid to cover the envisaged fees of the arbitral tribunal. Hence,
the parties would need to pay an additional advance on costs. They would
therefore be able to block an expertise ordered by the arbitral tribunal on
its own motion by not advancing the respective costs.°

(oe Exclusion of the Arbitral Tribunal’s Power

The parties may derogate the arbitral tribunal’s power to appoint ex- 10
perts by agreement. If the parties stipulate such derogation, the arbitral
tribunal is bound thereby.*4? Despite of a derogation of the arbitral tribu-
nal’s power to appoint experts, the evidence submitted by the parties may

542 DFT of 10 June 1996, ASA Bull 4/2000, 770; DFT of 11 May 1992, ASA Bull 3/1992,
397; Weiss/Burel Locatetu, 484-485; Miter, Case Law, 100; Poupret, 614-615; Oeti-
KER in Commentary Swiss Rutes, Art. 27 N 5; Bercer/KeLterHats, N 1230; more restrictive
ScHNEIDER, Experts, 454.
543 ScHneiper, Experts, 454; Weiss/BUrei Locatetu, 485; Oetiker in Commentary Swiss RULES,
Art. 27 N 6.
544 Cf. e.g. PILS (Basel)-ScHnever, Art. 184 N 35; Weiss/BUrci Locateti, 484; Bercer/
KELLERHALS, N 1232; Poupret/Besson, N 664.
545 DFT of 25 May 1992, ASA Bull 3/1992, 397.
546 Bercer/KELLERHALS, N 1232.
547 N DFT of 10 June 1996, ASA Bull 4/2000, 769-770; confirmed in DFT of 16 October
2003, ASA Bull 2/2004, 377-378; cf. also Poupret, 614.
548 We1ss/BUrGI LocaTeLll, 484; Oetiker in Commentary Swiss Rutes, Art. 27 N 4.
549 wo PILS (Basel)-ScHnerper, Art. 184 N 34; Werss/BUrG1 LocaTeLtt, 486; Poupret/BEsson,
N 663; Poupret, 616-617; Oetiker in Commentary Swiss Rutes, Art. 27 N 7; BerGer/KEL-
LERHALS, N 1235; LOrcHErR, 485-486.
 130 Article 6 Tribunal-Appointed Experts

include statements of party-appointed experts since they are not affected

by such derogation.°*°

ial In the absence of the power to appoint experts, the arbitral tribunal must
decide the case on the basis of the evidence offered by the parties. If
the evidence produced by the parties is not sufficient to support their re-
spective claims and defences, the arbitral tribunal should proceed on the
basis of the rules on the burden of proof pursuant to the applicable law.°°?
If this approach still does not allow the arbitral tribunal to come to a proper
decision, it may choose to avail itself of a possible competence to decide ex
aequo et bono’? to circumvent the existing difficulties. As an ultimate pos-
sibility, the arbitral tribunal may decide to step down.**? However, in view
of its mandate to resolve the parties’ dispute, the arbitral tribunal should
avoid this ultima ratio.

12 The arbitral tribunal may also consider disregarding the parties’ dero-
gation of its power to appoint experts: Since it is accepted that procedural
rules agreed upon by the parties are not mandatory procedural rules, the
arbitral tribunal will thereby not expose the award to annulment.°*

D. Duty to Consult with the Parties (par. 1)

13 Art. 6(1), first sentence, explicitly states that the arbitral tribunal may ap-
point an expert only after consulting the parties. However, the provision
does not indicate on what the arbitral tribunal needs to consult with the
parties.

14 Such consultation shall include on the one hand the duty to inform the
parties (i) that an expert will be appointed, (ii) whom the arbitral tribunal
intends to appoint and (iii) what the expert shall report on. On the other
hand, the arbitral tribunal must give the parties the opportunity to express
their opinion on each of these issues. The decision remains with the ar-
bitral tribunal.>5>

E: Choosing the Expert

15 With regard to the choice of the expert, the arbitral tribunal is in principle
free to appoint an appropriate person. It may ask the parties to try to

Oetiker in Commentary Swiss Rutes, Art. 27 N 7.

Welss/Bore Locate, 486; Oetiker in Commentary Swiss Rutes, Art. 27 N 7.
552 Cf. e.g. Art. 187(2) PILS.
Weiss/BUrei LocaTettt, 486; Poupret/Besson, N 663; Oetiker in Commentary Swiss RULES,
Art. 27 N 7; Bercer/KeLterHats, N 1235.
DFT 117 II 346, c. 1.b.aa; Bercer/KeterHats, N 1235; Poupret/Besson, N 663.
Oetiker in Commentary Swiss Rutes, Art. 27 N 8.
Article 6 Tribunal-Appointed Experts 131

agree on an expert or require each party individually to identify possible

experts and to submit a respective list. If the arbitral tribunal lacks knowl-
edge of appropriate experts, it may also request specialised institutions for
a proposal,*°° e.g. the ICC International Centre for Expertise, WIPO or na-
tional or international professional organisations. In any event, the arbitral
tribunal must hear the parties in respect of the expert to be appointed.°°”

Experts may be appointed as individuals, institutions or companies.°@ 16

In particular, where complex issues are to be reported on, the appoint-
ment of an institution or a company is often appropriate.°5? The Rules do
not contain any limitation in this respect. If an institution or a company is
appointed, one (or several) responsible individual(s) within the company
must be identified, in order to be able to comply with the parties’ right to
be heard amongst other matters.5®

E, Contractual Relationship of the Expert

Upon appointment of the expert by the arbitral tribunal, a contractual iy)

relationship between the parties and the expert is created.°*! The
position taken by some authors pursuant to which the arbitral tribunal (or
its members jointly) become(s) a party to the contract with the expert®®
should not be followed. As a consequence of the contractual relationship
between the parties and the expert, the parties are directly liable to the
expert for his or her remuneration and the expert has a contractual liability
towards the parties to duly submit the expert report.°® On the basis of this
contractual relationship, the expert may also become liable to the parties
for any damage caused. Furthermore, the parties may at any time jointly,
and without the possibility of interference by the arbitral tribunal, release
the expert from his or her duties and/or, if the applicable law so permits,
terminate the expert’s contract.°”

Under Swiss law, the contract between the parties and the expert must 18
be qualified either as a work contract (Art. 363-379 CO) or as an ordinary

556 ScHneiper, Experts, 456.

557 Bercer/KELLeRHALS, N 1233; PILS (Basel)-ScuHnerper, Art. 184 N 36; Poupret/Besson,
N 665; Knor, 74-75; Vermette, 195-196.
558 Oeiker in Commentary Swiss Rutes, Art. 27 N 10.
559 Scyneiver, Experts, 456; more restrictive Weiss/BUrci LocaTetu, 488.
560 ScHnerper, Experts, 456; Weiss/Burci Locate, 488; Oetiker in Commentary Swiss RULES,
Art. 27 IN 10°
561 We1ss/BURGI LocaTeLll, 496-497; LorcHER, 486.
562 Cf, e.g. Weser, 196.
563 | 6rcHER, 486.
564 Oetiker in Commentary Swiss Rutes, Art. 27 N 12.
 132 Article 6 Tribunal-Appointed Experts

mandate (Art. 394-406 CO).%* The qualification is of some importance with

regard to issues of termination and liability. Pursuant to the Swiss Federal
Supreme Court, the contract qualifies as work contract only if the result of
the expert’s report may be verified on the basis of objective criteria; other-
wise, it has to be qualified as an ordinary mandate.*® Swiss authors usually
argue that the contractual relationship between the parties and the expert
is a mixed contract, containing elements of both types of contract.°°”

G. Right of the Arbitral Tribunal to Release the Expert

19 The arbitral tribunal’s competence to appoint experts includes the power to

release an expert from his or her duties if it becomes clear that the expert
is for some reason not in a position to properly fulfil his or her assignment.
Unlike the parties, the arbitral tribunal may only base its decision to do so
on objective reasons. In any case, the tribunal must consult with the par-
ties before releasing an expert.°®

H. Scope of the Expert’s Task

20 Tribunal-appointed experts are assigned to advise the arbitral tribunal on

technical questions and issues as well as other issues requiring spe-
cial expertise to be properly assessed and determined. The experts shall
confer the necessary expertise onto the arbitral tribunal.°°

21 Some authors allow for a wider scope of the expert’s assignment, in-
cluding the summarisation of voluminous evidence and the presentation
thereof in usable form, the preservation of certain evidence and the ex-
pression of views on the claims altogether.°” It is submitted that such tasks
would go beyond the competence of an expert envisaged by Art. 6.57! Still,
it is understood that the parties may provide for, or agree to, such wider
scope of the expert’s tasks. For example, they may grant the expert the
power to make a decision on certain factual issues which binds the parties
("Schiedsgutachten"). However, such additional competences need to be
agreed upon explicitly by the parties and may not be conferred onto the
expert by the arbitral tribunal based on Art. 6 alone.5” Or, if the arbitral

°°5 Weser, 192; under German law, the contract is qualified as a work contract pursuant
to § 631 BGB: LorcHer, 486, with references to case law.
566 DFT 127 III 328 = ASA Bull 2/2002, 285.
°°? Weiss/Burel Locatetu, 495-496; PILS (Basel)-Scunerver, Art. 184 N 38.
568 Oetiker in Commentary Swiss Rutes, Art. 27 N 14.
569 Oetiker in Commentary Swiss Rutes, Art. 27 N 15.
°7° Oo PILS (Basel)-Scuneoer, Art. 184 N 33; Scuneter, Experts, 450; cf. also VeRMEILLE,
193.
571
Oetiker in Commentary Swiss Rutes, Art. 27 N 18.
572 Poupret/Besson, N 666.
Article 6 Tribunal-Appointed Experts 133

tribunal considers it as appropriate for an expert to summarise voluminous

evidence, the parties may agree on the appointment of such expert.

III. Expert’s Terms of Reference (par. 1)

Pursuant to Art. 6(1), second sentence, the arbitral tribunal shall establish 22
the terms of reference for any tribunal-appointed expert report after con-
sulting with the parties. The provision does not state what the expert’s
terms of reference need to contain. They should on the one hand define
the tasks assigned to the expert and the issues on which the expert shall
report and on the other hand set out the terms of the assignment.

When determining the issues on which the expert shall report, the 23
arbitral tribunal must consult with the parties. It will usually be appropri-
ate to ask the parties to suggest questions to be submitted to the expert.”
When eventually deciding which questions suggested shall be submitted to
the expert, the arbitral tribunal must bear in mind that it is not the expert’s
task to provide the basis for a case which a party failed to make. It is upon
the parties to sufficiently substantiate their claims or defences.°”

As to the terms of the expert’s assignment, the tribunal must first of all de- 24
termine the expert’s remuneration. This should usually be done within
the expert’s terms of reference, but may also be determined in a procedur-
al order or separately based on a budget or cost estimate of the expert.”
The remuneration scheme also becomes part of the contract between the
parties and the expert.°”

Further, the arbitral tribunal should provide for the expert’s schedule, fix- 25
ing a time limit to complete his or her work.°”” Also the question of whether
the expert may use auxiliary persons in completing his or her task should
be resolved.°”
Finally, the expert’s terms of reference should contain a confidentiality 26
obligation and a referral to the duty to act to the best of his or her
knowledge.°” These obligations become part of the contract between the
parties and the expert.

57 Ww
PILS (Basel)-ScHneiper, Art. 184 N 38; Bercer/KeLterHats, N 1233; Lorcner, 492; VerR-
MEILLE, 197-198.
574 Scunerper, Experts, 451.
575 ScHneIper, Experts, 459; Weiss/BUrer Locatetu, 494-495.
uw

576 Oetiker in Commentary Swiss Rutes, Art. 27 N 24; LorcHer, 491.

577 Scuneiper, Experts, 460; Weiss/Burei Locatetu, 494.
578 on| 6rcHER, 492.
579 If the seat of the arbitral tribunal is in Switzerland, Art. 307 of the Swiss Criminal
Code (duty of truthfulness) may be referred to; Weiss/BUrer Locaretu, 493.
 134 Article 6 Tribunal-Appointed Experts

27 It will usually be appropriate for the arbitral tribunal to draw up the ex-
pert’s terms of reference after the expert’s appointment. In certain cir-
cumstances, it may however be more convenient to prepare the terms of
reference beforehand, in particular if the definition of issues will facilitate
the search of an appropriate expert.®®° Equally, it seems appropriate for the
arbitral tribunal (or its chairperson only) to liaise with the expert during
the preparation of the terms of reference. The arbitral tribunal may also
choose to prepare draft terms of reference and submit them to the expert
and the parties for comments before issuing them in their final form.*** In
any event, the parties must be heard regarding the content of the terms
of reference.°°?

28 The last sentence of Art. 6(1) provides that a copy of the final terms of
reference shall be communicated to the parties. Since the tribunal must
consult with, and must hear, the parties before appointing the expert and
issuing the expert’s terms of reference, the communication of a copy of the
final version will usually only be a formal step which concludes the expert’s
appointment.°*®?

IV. Qualification and Independence of Expert (par. 2)

A. Description of Qualifications

29 Pursuant to Art. 6(2), the tribunal-appointed expert must submit to the

arbitral tribunal and to the parties a description of his or her qualifications
before accepting an appointment. It is obvious that an expert must have
the necessary expertise to determine the issues which are put before
him or her. This is particularly the case if the expert is appointed by the
arbitral tribunal, which usually means that the arbitral tribunal will more
heavily rely on his or her opinions and conclusions than on the ones ex-
pressed by a party-appointed expert.

30 The information given by the tribunal-appointed expert is the basis for

any objection by a party regarding his or her qualifications.

B. Statement of Independence
31 Pursuant to Art. 6(2), first sentence, the tribunal-appointed expert, before
accepting the appointment, must submit to the arbitral tribunal and to
the parties a statement of his or her independence from the parties, their

98° ScHneIper, Experts, 458; Oetiker in Commentary Swiss Rutes, Art. 27 N 20.
581 PILS (Basel)-ScHnetper, Art. 184 N 38; ScHNeIper, Experts, 458; Oetiker in Commentary
Swiss Rutes, Art. 27 N 22; Vermette, 198.
582 Poupret/Besson, N 665.
$83 Oetiker in Commentary Swiss Rutes, Art. 27 N 28.
Article 6 Tribunal-Appointed Experts 135

legal advisors and the arbitral tribunal. This is in line with the rule that an
expert must be as impartial, unbiased and independent as a judge or
arbitrator.°**

In the statement of independence, the expert should disclose any exist- 32

ing facts or circumstances that may, in the eyes of the parties, give rise
to doubts as to the arbitrator’s impartiality or independence, or thereafter
as soon as he or she learns about them. An expert who has made a dis-
closure considers him- or herself to be impartial and independent of the
parties despite the disclosed facts and therefore capable of performing his
or her duties as expert. Any doubt as to whether an expert should disclose
certain facts or circumstances should be resolved in favour of disclosure.5*

Cc. Objections by the Parties

Within the time ordered by the arbitral tribunal, the parties shall inform 33
the arbitral tribunal whether they have any objections as to the tribunal-
appointed expert’s qualifications and independence (Art. 6(2), second sen-
tence). In order to allow the parties to properly assess whether they have
any objections, the arbitral tribunal must send them a copy of the expert’s
description of his or her qualifications and his or her statement of
independence. The description of qualifications will allow the parties to
assess whether the expert has the skills and expertise required in the par-
ticular case. The statement of independence will contain any referrals to
possible connections to the parties and/or the arbitral tribunal which, in the
view of the expert, are not detrimental to his or her independence. This will
allow the parties to assess whether the expert is truly independent.

The arbitral tribunal must decide promptly whether to accept any such 34
objection (Art. 6(2), third sentence). If the arbitral tribunal accepts an ob-
jection by the parties, it must appoint another person as expert. If it rejects
the objection, the objecting party must assess under the applicable /ex ar-
bitri whether it can, or as the case may be, needs to reiterate its objection
before the national courts.
In the 2010 Rules, an important qualification of the parties’ right to object 35
was introduced (Art. 6(2), fourth sentence): After the appointment of a
tribunal-appointed expert, a party may only object to the expert’s qualifica-
tions or independence for reasons of which the party becomes aware after

584 DFT 126 III 251; SpUHLeR/GeHRI, 19; Bercer/KeLLeRHALS, N 1234; Poupret/Besson, N 667;
LorcHER, 487; Born, 1862.
585 The standard set in Part I(3) of the IBA Guidelines on Conflicts of Interest in Inter-
national Arbitration may be taken as a yardstick.
 136 Article 6 Tribunal-Appointed Experts

the appointment has been made. Otherwise, any such objection is consid-
ered to have been waived.

36 If an objection is legitimately raised after the appointment, the arbitral

tribunal must decide promptly what, if any, action to take. This means in
particular that the arbitral tribunal is not obliged to revoke the mandate of
the expert. E.g. if the qualifications of the experts prove to be insufficient
after the appointment, a pragmatic solution may be the appointment of a
second (sub-)expert.

V. The Parties’ Duty to Provide Information (par. 3)

A. In General

37 The starting point of the expert’s enquiry are the pleadings and docu-
ments submitted by the parties in the arbitration which are, depending
on the tribunal’s decision, transmitted to the expert in full or in extracts.°%
However, the expert is not limited to the submissions made by the parties.
Rather, he or she is granted the power to request additional information
and documents.

B. The Expert’s Power to Request Information and Documents

38 Pursuant to Art. 6(3), first sentence, the expert may require the parties
to provide any information or access to any documents, goods, samples,
property, machinery, systems, processes or site for inspection, to the ex-
tent relevant to the case and material to its outcome. For that purpose, the
tribunal-appointed expert has the same authority as the arbitral tribu-
nal to request such information or access (Art. 6(3), second sentence).

39 The expert’s inspection right is not limited to information and docu-

ments which were duly introduced in the proceedings. Hence, the
expert may ask for information and documents which have not been in-
troduced in the proceedings before. This may be very far-reaching. The
arbitral tribunal, therefore, has to make sure that the expert’s enquiry does
not go beyond the limits of the case as duly presented and introduced by
the parties.

40 In principle, a party may be asked by the expert to give information or to

produce documents serving the other party’s case. It is submitted that
the expert should if ever possible avoid such situations since the parties’
duty under Art. 6(3) must not cause a shift of the burden of proof. It is up
to the tribunal to ensure that this does not occur.

°8° Scunerper, Experts, 460; Oetiker in Commentary Swiss Rutes, Art. 27 N 29.
Article
a 6 Tribunal-Appoint
A ede
Experts 137,

( The "Relevant and Material"-Test

The scope of the expert's right to request information and documents is 41

limited firstly by the fact that such information and documents must be rel-
evant to the case and material to its outcome. The test to be applied
is the same as otherwise where these criteria are used.°°’
Further, information or documents which have to be excluded from evi- 42
dence or production pursuant to Art. 9(2) may not be requested by the
expert (Art. 6(3), first sentence).58

If there is a disagreement between the expert and a party as to the rel- 43

evance, materiality or appropriateness of a request, the arbitral tribunal is
called to decide in the manner provided for in Art. 3(5-8).5®° This allows the
expert to act independently from the arbitral tribunal and puts the latter in
a position to nevertheless effectively control what a party is required to
produce and to ensure that the expert’s report is not based on irrelevant
information and documents. However, the tribunal’s competence to decide
such disputes on relevance may lead to delicate issues about a possible
bias of the arbitral tribunal, because it may need to appraise the relevance
of certain evidence at an early stage of the proceedings.°*

D. Providing Access to Documents etc.

The parties are under an obligation to provide the expert with access to any 44
relevant documents, goods, samples, property or sites for inspection upon
his or her request. Since the expert’s right is limited to obtain access, the
parties are not obliged to hand over copies of documents or the goods
and samples to be inspected to the expert.°*

One important consequence of this limitation is that the documents in- 45

spected by the expert do not automatically become part of the file.
Should the expert base its report on documents etc. not duly introduced
in the proceedings by the parties before, the party who intends to rely on
such documents must, if still possible, either introduce them properly in the
proceedings or make a request for production of such documents by the
other party. Otherwise, the documents etc. may not be directly relied on as
evidence. This is an appropriate counterweight to the expert’s far-reaching
power to request access to information which the parties did not submit in
the proceedings.

587 Cf. in detail Art. 3 N 129-144 above.

588 Cf, Art. 9 N 18-48 below.
589 Cf, Art. 3 N 164-206 above.
590 Apen, 639; Oetiker in Commentary Swiss Rutes, Art. 27 N 32.
591 Oemker in Commentary Swiss Rutes, Art. 27 N 33.
 138 Article 6 Tribunal-Appointed Experts

E; Right to be Heard

46 The parties and their representatives have the right to receive any in-
formation obtained by the expert and to attend any inspection of docu-
ments by the expert (Art. 6(3), third sentence). Such rights are the nec-
essary consequence of the parties’ right to be heard. The arbitral tribunal
must ensure that this obligation is strictly complied with by the expert.°”

F. Failure to Comply with Expert’s Request

47 A party’s failure to comply with the expert’s request has no immediate

consequences. Pursuant to Art. 6(3), last sentence, the tribunal-appoint-
ed expert may only record the non-compliance by a party with an appropri-
ate request or decision by the arbitral tribunal in his or her expert report
and describe the effects of non-compliance on the determination of the
specific issue. It is then up to the arbitral tribunal to determine the con-
sequences of such non-compliance. It can treat the failure to give certain
information or to produce certain documents to the expert in the same
way as a party’s failure to produce certain documents requested by the
arbitral tribunal itself. Hence, it may infer that such information or docu-
ment would be adverse to the interests of that party.°°? There is no other
sanction against a party not providing the requested information or not
producing the documents asked for to the expert.®™” Still, the applicable /ex
arbitri may allow the arbitral tribunal to address the state courts in order to
enforce an information or production request by the expert.

VI. Expert Report (par. 4)

A. Submission

48 The tribunal-appointed expert must report in writing to the arbitral tri-

bunal (Art. 6(4)). Although not provided for explicitly, the arbitral tribunal
may ask the expert to first submit a draft report.®°> This puts the arbitral
tribunal in a position to control whether each of the questions submitted to
the expert is dealt with appropriately. If this is not the case, the arbitral tri-
bunal may return the draft report to the expert for revision. It may further
be sensible to submit the draft also to the parties for comments.5%°

592 | 6RcHER, 492.

59? Art. 9(6); cf. Art. 9 N 54-69 below; cf. also Bercer/KeLLerHats, N 1233.
594 Oetiker in Commentary Swiss Rutes, Art. 27 N 31.
°°5 Weiss/Burci Locatetu, 495; LorcHer, 493-494; VERMEILLE, 202.
596
oO
Oo
wo
LORCHER, 494; VerMEILLE, 202.
Article 6 Tribunal-Appointed Experts
a 139

B. Content

Art. 6(4) sets out in a rather detailed manner what the tribunal-appointed 49
expert’s report needs to contain.

1. Identity of the Expert (par. 4(a))

In order to duly perceive the content of an expert report, it is important 50

to understand who the tribunal-appointed expert and what his or her
professional background is. For that purpose Art. 6(4)(a) requires the tri-
bunal-appointed expert’s report to state:

e the full name and address of the expert;

¢ adescription of his or her background, qualifications, training and expe-

rience.°%”

In order to give the arbitral tribunal a better perception of who the expert 5
is, the expert should also attach a full CV to the report.

The tribunal-appointed expert’s report does not need to contain any state- 52
ment as to his or her independence. The issue of independence is dealt
with for tribunal-appointed experts before they may accept an appointment
(see Art. 6(2)).

2. Statement of Facts (par. 4(b))

The expert report must contain a statement of the facts on which the ex- 53
pert is basing his or her opinions and conclusions (Art. 6(4)(d)). Since the
core of the expert report is not the description of facts, but the conclusions
‘drawn and opinions expressed, the description of facts does not need to
be full and detailed as in witness statements. Rather, the representation
of the facts should be made in a manner which allows comprehending and
following the expert’s opinions and conclusions. Still, the factual basis on
which the expert draws his or her conclusions must be clearly identified.

3. Expert’s Opinion and Conclusions (par. 4(c))

Most importantly, the expert report must include the expert’s opinions and 54
conclusions (Art. 6(4)(c)). The reader of the report should be enabled to
clearly distinguish between the facts on which the opinions and conclu-
sions are based and the opinions and conclusions themselves. Usually, it

597 Contrary to the provision regarding witnesses, Art. 6 requires that this information
must always be given since it will in any case be material for the assessment of the
report.
 140 Article 6 Tribunal-Appointed Experts

seems appropriate for the report to contain separate sections or sub-sec-

tions.

55 In order to allow the reader to easily perceive the content of the expert
report, it may be sensible to identify the questions put to the expert at
the beginning of the report and to provide - in the sense of an executive
summary - for brief and clear answers to these questions at the end of the
report.

56 The statement of opinions and conclusions of an expert report must include

a description of the methods, evidence and information used in arriving at
the conclusions (Art. 6(4)(c)). Basically, the expert report should state the
reasoning of the expert in a manner that may be comprehended by the
parties and the arbitral tribunal.

57 Pursuant to Art. 6(4)(c) in fine, documents the tribunal-appointed ex-

pert is relying on and which have not already been submitted must be
provided, i.e. attached to the expert report. This will make clear on what
documents, if any, the tribunal-appointed expert bases his or her affirma-
tions.

4. Language (par. 4(d))

58 If the expert report was translated, a statement is required as to the lan-

guage in which it was originally prepared, and the language in which the
tribunal-appointed expert anticipates giving testimony at the evidentiary
hearing (Art. 6(4)(d)). This conveys useful information to the arbitral tribu-
nal. On the one hand, it may explain why the language of an expert report
originally prepared not in the expert’s mother tongue contains linguistic
errors or, to the contrary, a language level which may not be attributed to
the expert, but rather to the translator (or the translating counsel). On the
other hand, it will be clear from the outset which expert may be heard in
the language of the proceedings and which needs interpretation.

=e Affirmation of Genuine Belief (par. 4(e))

59 The expert report does not express facts, but (to the degree possible ob-
jectively reasoned) opinions. In line with this, Art. 6(4)(e) requires from
the expert an affirmation of his or her genuine belief in the opinions ex-
pressed (but not a statement of truth). Hence, the expert needs to declare
that he or she actually believes what is stated in the report.
Article 6 Tribunal-Appointed Experts 141

6. Signature (par. 4(f))

Pursuant to Art. 6(4)(f), the expert report must contain the signature of 60
the expert and its date and place. If the signature is lacking, the arbitral tri-
bunal will need to obtain the signature from the expert. If the expert report
remains unsigned, the arbitral tribunal will have to disregard the report
unless there are sufficient objective reasons why the tribunal-appointed
expert is not in a position to sign the report.

a Attribution to Several Authors (par. 4(g))

Pursuant to Art. 6(4)(g), if more than one person sign an expert report, 61
e.g. if an organisation is hired as an expert or two experts produce a joint
report, it must be indicated whether the report is attributable as a whole to
a singie author or, if not, which specific parts thereof may be attributed
to each co-author.** This information allows the arbitral tribunal and the
parties to assess whether the opinions were expressed by the person who
is an expert in the respective field (if several experts produce a joint report,
they will often have different fields of expertise). Furthermore, the arbitral
tribunal and the parties will be able to determine which experts should at-
tend the evidentiary hearing and to prepare for the examination of one or
more of the co-authors.°%

VII. Parties’ Right to Respond to the Expert’s Report

(par. 5)
The arbitral tribunal has to send a copy of the expert’s report to the parties 62
upon receipt (Art. 6(5), first sentence) and to grant the parties the opportu-
nity to respond to the report in a submission by the party or through a wit-
ness statement or an expert report by a party-appointed expert (Art. 6(5)
third sentence). The parties’ right to respond to the expert's report is a fun-
damental element of the right to be heard.” The arbitral tribunal must
send the submission, witness statement or expert report to the tribunal-
appointed expert and to the other parties (Art. 6(5), last sentence).

The Swiss Federal Supreme Court has found that the parties’ right to be 63
heard is complied with if they have the opportunity to discuss the ex-
pert’s report before the arbitral tribunal.® Yet, the arbitral tribunal

598 IBA Review Suscommittce 2010, 19.

599 TBA Review Suscommittee 2010, 20.
600 PILS (Basel)-ScHnetper, Art. 184 N 41; ScHnerper, Experts, 462; Poupret, Expertise,
621; SpuHterR/GeHri, 19; Lew/Mistetis/KRoiL, 575; Oeriker in Commentary Swiss RULES,
Art. 27 N 35.
601 DFT of 1 July 1991, ASA Bull 4/1991, 417; PILS (Basel)-ScHnerer, Art. 184 N 40;
Poupret, 623; Poupret/Besson, N 665.
 142 Article 6 Tribunal-Appointed Experts

and/or the expert should consider granting the parties an opportunity to

express their views on important issues for the expert’s report before it is
completed.°

64 In order to be able to duly respond to the expert report, the parties are en-
titled to examine any information, documents, goods, samples, property,
machinery, systems, processes or site for inspection which the tribunal-
appointed expert has examined and any correspondence between the arbi-
tral tribunal and the tribunal-appointed expert (Art. 6(5), second sentence).
This allows the parties to scrutinise relevant documents relied upon by the
expert that are in the possession of the other party. This may sometimes
include documents which were not introduced in the proceedings by any
party. Hence, a party may obtain important additional factual knowledge
by this means. Yet, as mentioned above,°°? documents relied upon by the
expert, but not previously introduced into the proceedings by any party,
do not automatically become part of the file. Neither the parties nor the
arbitral tribunal may therefore directly rely on them. If a party wishes to
base its case on such information, it must, if still possible, try to effect the
production of such documents by the other party in order to introduce them
properly into the proceedings.”

VIII. Parties’ Right to Question the Expert (par. 6)

65 In principle, the expert’s mandate consists only of the submission of a writ-
ten report. However, at the request of a party or the arbitral tribunal, the
expert may be summoned for a hearing (Art. 6(6), first sentence). At
such a hearing, the arbitral tribuna! may question the tribunal-appointed
expert on the content of his or her report (Art. 6(6), second sentence).
Equally, the parties or their party-appointed experts have the right to ques-
tion the tribunal-appointed expert on any issue raised in his or her expert
report, the parties’ submissions or witness statements or the expert re-
ports made by party-appointed experts. In many cases, it will be sensible
to have the expert examined orally since it will allow the expert to make
his or her report come to life upon examination.®©5 It is submitted that the
appearance of a tribunal-appointed expert is governed by Art. 6(6) and
not Art. 8(1), although the wording of the latter seems to include tribunal-
appointed experts ("any experts").

°°? PILS (Basel)-Scxnerver, Art. 184 N 40; Weiss/Burct Locarettt, 497-498; Oemiker in Com-
MENTARY Swiss Rutes, Art. 27 N 36.
LAC haNTAS:
6°4 Oemiker in Commentary Swiss Rutes, Art. 27 N 37.
6°5 Cf. generally Kreino.er, Oral Testimony, 87.
Article 6 Tribunal-Appointed Experts 143

If appropriate, the arbitral tribunal may authorise the expert to amend or 66

extend his or her report after the hearing.®*

IX. Assessment of Expert Report (par. 7)

The arbitral tribunal must assess the expert report made by a tribunal- 67
appointed expert and its conclusions with due regard to all circumstances of
the case (Art. 6(7)). In this connection, it is important to recall the arbitral
tribunal’s competence to freely appraise the evidence.

It is of particular importance that the arbitral tribunal must not delegate 68

its mandate to decide the dispute between the parties.®” This means that
it must avoid assigning the direct decision of legal questions to an expert.®8
Equally, it is crucial for the arbitral tribunal to remain independent from the
expert. It must not treat an expert as an additional member of the arbitral
tribunal. The different functions of an arbitrator and an expert must at all
times be duly distinguished.*°

The arbitral tribunal must form its own view on the questions dealt with in 69
the expert’s report and is not bound by the expert’s findings.®° This
is all the more important as experts often have an influential position in
arbitral proceedings.®"

In line with this prerogative, the expert must in principle not participate 70
in the deliberations of the arbitral tribunal.*'? Rather, the arbitral tribunal
must obtain all information it needs from the expert for making the award
either from the written expert report or through the questioning of the ex-
pert at the evidentiary hearing.

Some authors do not categorically exclude the expert’s participation in TA

the arbitral tribunal’s deliberations under restricted circumstances.°* This
raises important and difficult issues with regard to the parties’ right to be
heard.** It should therefore be avoided if ever possible. Should an arbitral
tribunal nevertheless wish to have the expert participate in the delibera-
tions (e.g. because it is impossible to convey the knowledge necessary to

606 Oetiker in Commentary Swiss Rutes, Art. 27 N 38.

607 Oetiker in Commentary Swiss Rutes, Art. 27 N 16; Reprern/Hunter/BLackasy/ParTASIDES,
N 6.157; LorcHEr, 487.
608 Bercer, Wirtschaftsschiedsgerichtsbarkeit, 301; LorcHer, 487.
609 Oetiker in Commentary Swiss Rutes, Art. 27 N 16.
610 PILS (Basel)-ScuHnerper, Art. 184 N 42; ScHnerper, Experts, 463; Werss/BUrct Locaretut,
499; Knor, 75.
611 Wetss/BUrGI LocaTeLu, 499.
612 Werss/BurcI Locatettut, 499-500; Bercer/KeLterHAts, N 1236; VermerLte, 203.
613 SpyHLeR/GEHRI, 24; PILS (Basel)-ScHneIper, Art. 184 N 43; Scunerper, Experts, 464.
614 Wetss/BUrGI Locate, 499; BeRGeR/KELLERHALS, N 1236.
 144 Article 6 Tribunal-Appointed Experts

decide the dispute in an adequate manner), it must take appropriate pre-

cautions to preserve the parties’ right to be heard.®*

X. Cost Allocation (par. 8)

72 Pursuant to Art. 6(8), the fees and expenses of a tribunal-appointed expert
must be funded as determined by the arbitral tribunal. It may in particular
request a specific advance on costs from the parties. The duty to pay an ad-
vance on costs will usually be imposed on the party basing its case on facts
to which the expert’s report will relate. If both parties wish to rely on the
expert’s report to prove their case, they will be ordered to advance equal
shares. The same solution will apply in case of doubt. The commencement
of the expert’s work is usually conditional on the payment of the advance.®*®
The fees and expenses of a tribunal-appointed expert form part of the
costs of the arbitration and will be allocated accordingly.

XI. Appointment of an Additional Expert

Us Although this is not explicitly provided for in Art. 6, it is submitted that the
arbitral tribunal’s competence to appoint experts includes the competence
to order an additional expert’s report on issues which were already the
subject of the report by an expert appointed in the first place. It may do so
upon application of one or both parties or on its own motion, consider-
ing however that the parties may avoid an additional expertise ordered by
the tribunal by not advancing the respective costs.

74 The arbitral tribunal will appoint an additional expert if the first expert’s re-
port is not conclusive, if it does not deal properly with the issues submit-
ted to the expert or if the parties successfully challenged the conclusions
of the first expert’s report. The additional expert may be asked to review
the first expert’s report and to comment thereon or to make his or her own
additional report.®’ It is clear that this must be the exception.

®15 Oetiker in Commentary Swiss Rutes, Art. 27 N 18; similar ScHNeIper, Experts, 464.
626 Scuneiver, Experts, 459; Werss/Burct Locatetu, 494-495.
617 Oetiker in Commentary Swiss Rutes, Art. 27 N 41.
Article 7 Inspection 145

Article 7 Inspection

Subject to the provisions of Article 9.2, the Arbitral Tribunal may, at

the request of a Party or on its own motion, inspect or require the in-
spection by a Tribunal-Appointed Expert or a Party-Appointed Expert
of any site, property, machinery or any other goods, samples, systems,
processes or Documents, as it deems appropriate. The Arbitral Tribu-
nal shall, in consultation with the Parties, determine the timing and
arrangement for the inspection. The Parties and their representatives
shall have the right to attend any such inspection.

Contents Note
le 2010 Revision 1
II. Introduction 2
III. Arbitrators’ Power to Order Any Kind of Inspection 5
A. On Its Own Motion 5
B. Ona Party’s Request 8
C. — Limitations According to Art. 9(2) ikl
IV. Parties’ Right to Assist the Arbitral Tribunal in the Taking of Evidence ig)
V. Conduct of the Inspection 16

Other Rules
Art. 16(3) and 27(2) Swiss Rules; Art. 29(3) UNCITRAL; Art. 21(1)(b), Art. 22(1)(d)
and (e) LCIA; Art. 33 AAA; Art. 50 WIPO.

I. 2010 Revision

In the context of the 2010 Revision, the title of Art. 7 was changed from "On-
site inspection" to "Inspection" as inspections may not only take place on
site.®!® Further, Art. 7 clarifies in its revised version that the inspection may
be carried out by a tribunal-appointed or a party-appointed expert,
and it extends the list of objects capable of inspection to samples and
systems.

II. Introduction
Art. 7 gives the arbitral tribunal the power to inspect or require the
inspection by a tribunal-appointed or party-appointed expert of any site,
property, machinery or any other goods, samples, systems, processes or
documents, as it deems appropriate, unless the parties have agreed other-
wise.°? This provision reflects the view that the arbitral tribunal must be
given all appropriate means in support of its decision-making process. For

618 Cf, KUHNER, 674.

619 Reprern/HUNTER/BLACKABY/Partasipes, N 6.175; Lew/Misteus/Kroi, N 22-93; Roney/MUL-
LER, 65.
146 Article 7 Inspection

example, inspections may be necessary if the arbitral tribunal needs to

familiarise itself with the specific issues of the case. On-site inspections, in
particular, are mostly recommended in disputes regarding the operation of
industrial plants®° or construction, engineering and mining disputes®*. It
can, however, also be considered in complex financial matters where an
inspection of additional documents or processes is necessary.

Art. 7 gives the arbitral tribunal a broad discretion to order inspections.

However, an opposing arbitration agreement by the parties as well as the
privileges stated in Art. 9(2) may limit the arbitral tribunal’s power to order
inspections.

The arbitral tribunal should, when ordering inspections, always bear in mind
the expenses such inspections are bound to cause, particularly in relation
to the benefit gained.*? The cost-intensity of inspections as well as the
logistical difficulties in organising inspections attended by the arbitral
tribunal, the parties and their representatives are often reasons why in-
spections are rarely conducted in arbitral proceedings.*?

III. Arbitrators’ Power to Order Any Kind of Inspection

A. On Its Own Motion
The arbitral tribunal has the power to order an inspection on its own
motion. The parties shall be given sufficient advance notice of any inspec-
tion the arbitral tribunal orders to conduct.®** Art. 7 states that the arbitral
tribunal shall in consultation with the parties determine the timing and ar-
rangement for the inspection.

Art. 7 lists the objects that can be inspected, such as any site, property,
machinery or any other goods, samples, systems, processes or documents.
The wording of this list is broad, providing Art. 7 a rather ample scope.

Art. 7 states an efficient method of evidence-taking and confers upon the

arbitral tribunal a considerable amount of discretion. Despite the ar-
bitral tribunal’s power to order the inspection of any goods or sites it deems
appropriate, the arbitral tribunal also needs to consider in its decision-
making process any respective agreements between the parties, the
chosen arbitration rules and applicable national laws, as well as the

620 Craic/Park/Pautsson, N 458.

Lew/Mistetts/Kréit, N 22-93; ReDFERN/HunTER/BLackasy/Partasives, N 6.173.
REDFERN/HunTER/Btackasy/Partasipes, N 6.174.
623 Cf, McILwratH/Savace, N 5-226.
624 Cf, Art. 24(2) Model Law.
Article 7 Inspection 147

costs and time to be spent compared to the benefit gained by conduct-

ing an inspection.

B. On a Party’s Request
Art. 7 states that the parties may file a request for the conduct of an in-
spection. According to the wording of the revised Art. 7, the parties may
also appoint an expert to carry out the inspection. It is essential for the
arbitral tribunal to ensure at all times that the principle of equal treat-
ment is strictly observed.*®*°

Art. 7 is silent on the question until when during the proceedings re-
quests for inspection may be filed by the parties. In any event, parties
may file requests for inspection in accordance with the procedural rules
agreed upon with the arbitral tribunal. The parties should, however, further
be allowed to request inspections if statements made by a party in its final
submission trigger the need for any respective measures.

Finally, the arbitral tribunal should always consider the necessary 10

costs and efforts in relation to the benefit of an inspection.®°

Lo Limitations According to Art. 9(2)

The arbitral tribunal may not order an inspection if such order violates 11
Art. 9(2). This provision expressly states that the arbitral tribunal shall
exclude from evidence any document, statement, oral testimony or /nspec-
tion for any reason of privilege as set forth in subsections (a) to (g). The
decision whether there is a ground for refusal is in the sole discretion of the
arbitral tribunal (by analogous application of Art. 3(5-8)).°’

In addition, the arbitral tribunal shall at all times consider the parties’ 12
private autonomy to conduct the proceedings in line with their specific
procedural expectations and needs: In particular, the arbitral tribunal shall
render its decisions in consideration of the parties’ agreement and the spe-
cific arbitration rules to be applied. The following arbitration rules contain
provisions regarding inspections: the Swiss Rules (Art. 16(3) and 27(2)),
the UNCITRAL Rules (Art. 29(3)), the LCIA Rules (in particular Art. 21(1)
(b) and Art. 22(1)(d) and (e)), the AAA Commercial Arbitration Rules (in
particular Art. 33) and the WIPO Rules (in particular Art. 50). The ICC
Rules are silent on the question of inspections. Many national statutes also

625 Reprern/HunTER/BLackaBy/Partasipes, N 6.176.

626 Reprern/HunTeR/BLackasy/Partasipes, N 6.174: “It is more common, in modern practice,
for models, photographs, drawings or even videotape films to be used to fulfill the
purpose that would have been served by a site inspection."
627 Cf, RaeScHKE-KESSLER, Beweisaufnahme, 73.
 148 Article 7 Inspection

assume that the arbitrators have the power to order inspections, such as
Art. 24(2) Model Law and Section 38(4) English Arbitration Act 1996. It is,
however, generally accepted (subject to an agreement by the parties to the
contrary) that the arbitral tribunal is authorised to undertake inspections,
even where the applicable procedural rules do not explicitly say so.°*

IV. Parties’ Right to Assist the Arbitral Tribunal

in the Taking of Evidence
13 The parties or their representatives shall generally be given the oppor-
tunity to attend the inspection. Art. 7 is clear on this point.®? In light
of due process, a party may be excluded from attending an inspection only
in exceptional circumstances. For example, if a party could gain access
to business secrets of the other party due to the inspection, it might be
arguable to exclude it from participating in an inspection.®° The question
remains if it is admissible (especially in light of the principle of equal treat-
ment of the parties and the enforcement of any resulting award) to exclude
only one of the parties to the arbitration.®* In such situations, an arbitral
tribunal might consider entrusting an independent expert to conduct the
inspection.®* In principle, however, the arbitral tribunal should order an
inspection to be held in the presence of the parties and/or their representa-
tives.

14 As mentioned, the parties are generally invited to attend an inspection.

They may, however, also waive their right to accompany the arbitral tri-
bunal or the tribunal-appointed or party-appointed expert. Art. 33 AAA
Commercial Arbitration Rules, ¢.g., provides that in the event one or all
parties are not present at the inspection, the arbitral tribunal shall make
an oral or written report to the parties and afford them an opportunity to
comment.

15 While the parties should attend the inspection, they cannot be forced to do
so. Should a party nevertheless fail to make a particular object available for
inspection without satisfactory explanation, the arbitral tribunal may infer
that the result of such inspection would be adverse to the interests
of that party.°*? Further, the arbitral tribunal might, in cases where it is
deemed all the same necessary to conduct the inspection, ask the national

Roney/MUtter, 65; Jenkins/Stessincs, 256.

Art. 7: "[...] The Parties and their representatives shall have the right to attend any
such inspection."
630 Cf. LacHmann, N 1488.
Cf. Reprern/Hunter/Biackasy/Partasives, N 6.177.
By analogous application of Art. 3(8).
633 Art. 9(6).
Article 7 Inspection 149

courts for assistance if the law at the seat of the arbitration provides for
such assistance.®4

V. Conduct of the Inspection

The arbitral tribunal shall, in consultation with the parties, determine 16
the timing and arrangement for the inspection. The Rules are silent
on the specific contents of such arrangement. The arbitral tribunal shall,
therefore, determine the arrangement together with the parties in advance.
It is good practice for the arbitral tribunal to issue a procedural order pri-
or to the conduct of the inspection, specifying the details.°2® Such order
should, in particular, specify the participants of the inspection, its purpose,
the objects to be inspected and the parties’ rights regarding the conduct of
the inspection as well as their right to comment thereon or on the minutes
taken at the inspection, respectively.

The arbitral tribunal shall ensure that the results of the inspection are 17
minuted or recorded in a manner appropriate to the respective issue
in dispute.°° If the arbitrators, in the context of the inspection, observe
a matter they deem material to the case, they should draw this to the at-
tention of the parties and thus give them the opportunity to comment on
this issue.” The parties should be allowed to ask questions during the
inspection and thereafter to comment on the minutes taken. If, however,
the comments made during the inspection are also made part of the record,
the flexibility and usefulness of an inspection might be lost as a result of
the formality connected with the presence of a reporter to prepare a tran-
script.®® Likewise, remarks of employees present at the site, e.g. regarding
construction equipment, machines or processes, should not be considered
as direct evidence in the proceedings.*”

As far as the costs of the inspection are concerned, the arbitral tribunal 18
should make sure that they are covered by the parties’ advance payments
or invite the parties to pay the estimated costs before conducting the in-
spection.

634
KnoBlaAcH, 249.
6 5 Reprern/Hunter/Biackasy/Partasipes, N 6.177.
6 6 Poupret/Besson, N 668; cf. Bercer/KetterHats, N 1237.
6 7 Date, N 13-051.
6 8 Reprern/Hunter/Biackasy/Partasipes, N 6.178.
6Ww2 Craic/Park/Pautsson,
WwwWwWww
N 458.
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Article 8 Evidentiary Hearing 151

Article 8 Evidentiary Hearing

1. Within the time ordered by the Arbitral Tribunal, each Party shall
inform the Arbitral Tribunal and the other Parties of the witnesses
whose appearance it requests. Each witness (which term includes,
for the purposes of this Article, witnesses of fact and any experts)
shall, subject to Article 8.2, appear for testimony at the Evidentiary
Hearing if such person’s appearance has been requested by any
Party or by the Arbitral Tribunal. Each witness shall appear in per-
son unless the Arbitral Tribunal allows the use of videoconference
or similar technology with respect to a particular witness.

2. The Arbitral Tribunal shall at all times have complete control over
the Evidentiary Hearing. The Arbitral Tribunal may limit or exclude
any question to, answer by or appearance of a witness, if it consid-
ers such question, answer or appearance to be irrelevant, immate-
rial, unreasonably burdensome, duplicative or otherwise covered
by a reason for objection set forth in Article 9.2. Questions to a wit-
ness during direct and re-direct testimony may not be unreasonably
leading.

3. With respect to oral testimony at an Evidentiary Hearing:

(a) the Claimant shall ordinarily first present the testimony of its
witnesses, followed by the Respondent presenting the testimo-
ny of its witnesses;

(b) following direct testimony, any other Party may question such
witness, in an order to be determined by the Arbitral Tribunal.
The Party who initially presented the witness shall subsequently
have the opportunity to ask additional questions on the matters
raised in the other Parties’ questioning;
(c) thereafter, the Claimant shall ordinarily first present the testi-
mony of its Party-Appointed Experts, followed by the Respond-
ent presenting the testimony of its Party-Appointed Experts.
The Party who initially presented the Party-Appointed Expert
shall subsequently have the opportunity to ask additional ques-
tions on the matters raised in the other Parties’ questioning;

(d) the Arbitral Tribunal may question a Tribunal-Appointed Expert,

and he or she may be questioned by the Parties or by any Party-
Appointed Expert, on issues raised in the Tribunal-Appointed
Expert Report, in the Parties’ submissions or in the Expert Re-
ports made by the Party-Appointed Experts;
(e) if the arbitration is organised into separate issues or phases
(such as jurisdiction, preliminary determinations, liability and
damages), the Parties may agree or the Arbitral Tribunal may
152 Article 8 Evidentiary Hearing

order the scheduling of testimony separately for each issue or

phase;

(f) the Arbitral Tribunal, upon request of a Party or on its own mo-
tion, may vary this order of proceeding, including the arrange-
ment of testimony by particular issues or in such a manner that
witnesses be questioned at the same time and in confrontation
with each other (witness conferencing);
(g) the Arbitral Tribunal may ask questions to a witness at any
time.
4. A witness of fact providing testimony shall first affirm, in a man-
ner determined appropriate by the Arbitral Tribunal, that he or she
commits to tell the truth or, in the case of an expert witness, his or
her genuine belief in the opinions to be expressed at the Evidentiary
Hearing. If the witness has submitted a Witness Statement or an
Expert Report, the witness shall confirm it. The Parties may agree
or the Arbitral Tribunal may order that the Witness Statement or
Expert Report shall serve as that witness’s direct testimony.
5. Subject to the provisions of Article 9.2, the Arbitral Tribunal may
request any person to give oral or written evidence on any issue
that the Arbitral Tribunal considers to be relevant to the case and
material to its outcome. Any witness called and questioned by the
Arbitral Tribunal may also be questioned by the Parties.

Contents Note
ih 2010 Revision il
II. Introduction 6
A. — Scope of Application 6
B. Applicable Procedural Law 9
III. Appearance of Witnesses (par. 1) ial
IV. Leading Role of the Arbitral Tribunal (par. 2) 14
V. Sequence of Witness and Expert Presentation (par. 3) 19
A. Sequence of Direct Testimony (par. 3(a)) 21
B. Sequence of Cross-Examination and Re-Direct Examination
(par. 3(b)) 25
C. Sequence of Testimony for Party-Appointed Experts (par. 3(c)) 28
D. Questioning of Tribunal-Appointed Experts (par. 3(d)) 29
E. Bifurcation of Arbitral Proceedings (par. 3(e)) 30
F. Variations of Sequence/Witness Conferencing (par. 3(f)) 31
G. Arbitral Tribunal’s Power to Ask Questions (par. 3(g)) BS:
VI. Witnesses’ Affirmation of Telling the Truth (par. 4) 34
VII. Witnesses or Experts Requested by the Arbitral Tribunal (par. 5) Sy
VIII. Some Practical Aspects of Managing the Evidentiary Hearing 39

Other Rules
Art. 26 ICC; Art. 25 Swiss Rules; Art. 28 UNCITRAL; Art. 19 LCIA; Art. 20, 22, 23-28,
35 and 36 AAA; Art. 53 WIPO.
Article 8 Evidentiary Hearing 153

I. 2010 Revision
Art. 8(1) newly provides guidance on the appearance of witnesses at
the evidentiary hearing; it also considers the use of modern communication
technology such as videoconferencing.
According to the new wording of Art. 8(2), it is not sufficient any more for
the arbitral tribunal to consider a question to, answer by, or appearance of
a witness to be burdensome in order to limit or exclude it, but it needs to
be unreasonably burdensome.

Art. 8(3)(c-d) introduce a rule on the sequence in which party-appointed

and tribunal-appointed experts shall be questioned. Further, Art. 8(3)
(e) considers the order of testimony to be presented in case of constella-
tions where the proceedings have been bifurcated.

In Art. 8(4), the duty to tell the truth is extended to expert witnesses in-
sofar as they shall commit to state their genuine belief in the opinions
to be expressed at the evidentiary hearing.

Finally, Art. 8(5) in its revised version specifies that the arbitral tribunal
may request any person to give oral or written evidence on any issue the
arbitral tribunal considers to be relevant, as referring to the relevance to
the case, and material, as referring to the importance to its outcome.

II. Introduction
A. Scope of Application

The evidentiary hearing is defined as follows in the Definitions of the

Rules: “any hearing, whether or not held on consecutive days, at which the
arbitral tribunal, whether in person, by teleconference, videoconference or
other method, receives oral or other evidence". The evidentiary hearing is
also commonly known as the main hearing. Further, for the purpose of the
comments hereinafter, the term "witness" includes, as explicitly stated in
Art. 8(1), witnesses of fact as well as any experts unless it is expressly
referred to one of them separately.
Art. 8 proposes procedural guidelines according to which the arbitral tribunal
and the parties to the arbitration may conduct the main hearing. Compared
to the 1999 Rules, this article has undergone significant changes; Art. 8
in its revised version largely reflects what has become standard practice
for evidentiary hearings in international arbitration.“ Art. 8 does, how-
ever, not consider the possibility of preparatory hearings or any particular

CAORREES, 5211.
 154 Article 8 Evidentiary Hearing

period for the submission of documentary evidence,’ nor does it provide

guidance on how to structure the post-hearing briefs. Further, Art. 8 does
not provide for a fixed timeline for the evidence-taking process, nor does it
mention the parties’ possibility - often seen in practice - to make closing
statements at the hearing after the witnesses have been examined.

Even though the parties to an arbitration can agree on a different procedure,

it is a common practice in international arbitration to provide for at least
one hearing where the parties have the opportunity to orally present their
arguments and the arbitral tribunal may ask additional questions of under-
standing.* For this purpose, Art. 8 offers a significant framework on how
to organise a smooth conduct of the evidentiary hearing.

B. Applicable Procedural Law

In principle, the parties are free to agree upon the procedure to
present their evidence. In general, they do so in the arbitration agreement
or indirectly by their choice of the institutional rules to be applied. The
parties may also agree that the procedural rules of the state where the
arbitral tribunal has its seat shall be applicable (although this is usually not
recommended).

10 The question as to the applicable law on the taking of evidence in arbitral

proceedings in the absence of an agreement between the parties is con-
troversial.°** When entering into a business relationship, the parties often
do not agree on a detailed arbitration agreement which would provide for
a choice of law regarding procedural issues. Mostly, the parties only agree
on the arbitration rules to be applied; institutional rules do, however, not
always state the law applicable to the taking of evidence.*** The arbitral
tribunal is not obliged to follow the procedural rules of, or to apply the
methods of evidence-taking at the seat of the arbitration.®° It needs to be
careful, however, where certain principles regarding evidence are governed
by the /ex causae; in this case, the arbitral tribunal is bound to consider the
parties’ choice of law.’ Thus, the arbitral tribunal may apply the Rules as
guidelines where appropriate, even if not specifically adopted by the parties.
The parties’ agreement for the application of the Rules may often fill in a
procedural gap, particularly where the parties involved originate from juris-

641 See Art. 3.

642 Reprern/Hunter/Biackasy/Partasives, N 6.183; Born, 1831.
643WwW
Craic/Park/PauLsson, 415.
644 Poupret/Besson, N 643.
45 al Craic/Park/Pausson, 415.
646 Bercer, Arbitration, 427.
647N
Poupret/Besson, N 644.
Article 8 Evidentiary Hearing 1S)

dictions with distinctive rules governing the evidence procedure. Moreover,

the parties have strong interests to avoid surprises and render the proce-
dure of taking and presenting evidence more foreseeable.*® Therefore, the
parties’ choice of a set of arbitration rules or of the Rules is recommendable
and beneficial to the smooth conduct of presenting and taking evidence.

III. Appearance of Witnesses (par. 1)

Art. 8(1) holds that each witness whose appearance has been requested lal
by any party or by the arbitral tribunal shall appear for testimony at
the evidentiary hearing.*° This new provision helps avoiding that witnesses
who have provided uncontroversial witness statements are required to at-
tend an oral hearing.®°° Each witness shall appear in person unless the ar-
bitral tribunal allows the use of videoconference or similar technology with
respect to a particular witness.

If a witness whose appearance has been requested fails to appear for testi- 12
mony at the evidentiary hearing without a valid reason, the arbitral tribunal
shall disregard this person’s witness statement unless exceptional circum-
stances justify the absence (Art. 4(7)). In such cases, the arbitral tribu-
nal may, however, also seek judicial assistance by the competent state
court due to the arbitral tribunal’s lack of power to impose sanctions on a
recalcitrant witness.®*! If the uncooperative witness is not domiciled at the
seat of the arbitration, the arbitral tribunal nevertheless has to approach
the state court judge at its seat; the competent judge then may issue a
request for legal assistance for the attention of the competent state court
at the domicile of said witness.°”
If a party fails without satisfactory explanation to make witness testimony 13
available, the arbitral tribunal may also take the non-appearance of a
witness into account when appraising the evidence®’? and consequently
infer that such evidence would be adverse to the interests of that party
(Art. 9(6)).

IV. Leading Role of the Arbitral Tribunal (par. 2)

Generally, the Rules set forth a pragmatic approach as to the evidence-tak- 14
ing proceedings. According to Art. 8(2), the arbitral tribunal shall at all

648 Bercer, Arbitration, 428; RaescHKe-Kesster, Festschrift Briner, 662.

649 See also Art. 4 N 57-89.
650 Newmark, 168; cf. KOHNER, 674.
651 Bercer/KeLLeRHALS, N 1226.
652 Oenker, Witnesses, 265.
653 Id,
 156 Article 8 Evidentiary Hearing

times have complete control over the evidentiary hearing, a method

similar to civil law court procedure.** The power of the arbitral tribunal to
manage and control the evidentiary hearing is also widely recognised by
arbitration rules.®°

15 Pursuant to Art. 8(2), the arbitral tribunal may refuse to hear or limit
oral evidence on subjects it deems to be irrelevant, immaterial, unrea-
sonably burdensome,‘* duplicative or otherwise covered by a reason
for objection as set forth in Art. 9(2). Under the revised Rules, it is not
sufficient for refusal or restriction if the piece of evidence is burdensome as
such, but it must be unreasonably burdensome. It lies within the arbitral
tribunal’s discretion to determine whether or not a ground for any restric-
tion or exclusion of evidence is given either on a party’s request or on its
own motion.®”

16 Within the subject permitted, the arbitral tribunal may additionally forbid a
party’s question to a witness during direct and re-direct testimony which
is unreasonably leading. A question is leading if it is asked in such a
way as to suggest the answer.®® The opposing party may further raise an
objection if its witness is asked a leading or irrelevant question or a ques-
tion touching upon privileged matters (see Art. 9); it is within the arbitral
tribunal’s discretion to decide whether the objection should be sustained,
overruled or reserved.®°
il7/ The parties should thus aim at only submitting evidence that is relevant
to the case and material to its outcome and not duplicative. The par-
ties should, for the sake of efficiency of the proceedings, avoid submitting
any evidence giving rise to unnecessary costs and time efforts.

18 Even though the arbitral tribunal is given broad discretion under the Rules
to decide on the evidence-taking procedure, one might expect that it would
rather hear a witness (albeit with a limitation of the testimony to a specific
subject) than to exclude him or her from the hearing.®©° Further, the arbi-
tral tribunal will mostly consult with the parties before the evidentiary
654 TBA Review Suscommittee 2010, 23.
°° See, e.g., Art. 26(3) ICC Rules; Art. 14(2) LCIA Rules (unless otherwise agreed by
the parties); Art. 15(1) Swiss Rules; Art. 17(1) UNCITRAL Rules; Art. 20(1) Vienna
Rules; Art. 38(a) WIPO Rules.
65 oO
Bercer (Arbitration, 429) states the following as an example of when evidence may
turn out to be burdensome: "There are cases in the international practice where the
files are so voluminous that they have to be transmitted to the arbitrators by van
and each member of the tribunal does not get to the point of defense until he is ne-
arly at page 5,000."
” See also RaescHke-Kess.er, Festschrift Geimer, 863-864.
Hanotiau, Conduct of Hearings, 374.
659 Id.

BuxHier/Dorean, 17; Hanotiau, Conduct of Hearings, 373 fn. 22.

Article 8 Evidentiary Hearing MSY

hearing takes place and, if need be, issue a procedural order in this respect.
Accordingly, there is often a clear understanding between the parties and
the arbitral tribunal what the main issues of the evidence-taking procedure
are and where the parties run a risk of any question being restricted or
even excluded by the arbitral tribunal.

V. Sequence of Witness and Expert Presentation (par. 3)

Art. 8(3) is a guideline to facilitate the conduct of the hearings, giving a 19
general framework of the default order in which the witnesses and ex-
perts are to be presented and questioned. Art. 8(3) reflects the common
law approach of how to structure the evidentiary hearing.® The arbitral
tribunal may, however, on its own motion or at a party’s request, deviate
from this order (Art. 8(3)(f)).

The Rules do not state whether witnesses who have not yet testified may 20
attend other testimonies. According to some institutional arbitration rules,
the arbitral tribunal may decide that witnesses of fact not being a party to
the arbitration shall not attend the testimony given by other witnesses be-
fore the arbitral tribunal ("sequestration of witnesses" ).°° It is further
generally acknowledged that witnesses of fact who have not yet testified
may be excluded from attending other witnesses’ examinations.® Where a
fact witness is at the same time a party’s representative, the party’s right
to be in the hearing room may prevail over the exclusion of the witness.°
Expert witnesses are generally allowed to stay in the hearing room during
all testimonies.®°

A. Sequence of Direct Testimony (par. 3(a))

Art. 8(3)(a) starts with the direct examination of the witnesses, giving 21
the claimant an opportunity to first present the testimony of its witnesses.
Art. 8(3)(a), as an exception to the principle in Art. 8(1), refers to the
claimant’s witnesses of fact only, since Art. 8(3)(c) clarifies that the claim-
ant’s party-appointed experts are called thereafter.°

The claimant will either refer to the submitted written witness statement 22
or wish to question its witnesses orally. As mentioned before, the arbitral
tribunal may limit the subjects on which a witness may be questioned

661 Cf, KnoBLAcH, 213.

662 See Art. 28(3) UNCITRAL Rules; Art. 25(4) Swiss Rules; Art. 54(f) WIPO Rules;
Craic/Park/Pautsson, 440.
663
a
Born, 1846; BUHLER/DorcaN, 27.
664 Bonter/DorcaNn, 27; GELINAS, 43; Hanotiau, Conduct of Hearings, 375.
665 Hanotiau, Conduct of Hearings, 375.
S8eNREESW 522.
 158 Article 8 Evidentiary Hearing

(Art. 8(2)), provided that the party’s right to be heard is not violated.
The respondent’s witnesses shall follow, whereby the arbitral tribunal shall
ensure that the parties’ interests are treated and considered equally and
both parties have enough time to present their witnesses.°°’

23 It has become common practice in international arbitration for parties to

agree either on a dispension of direct examination altogether and to
rely on the written witness statement previously filed, or to allow the wit-
ness to make a short statement summarising the contents of his or her
witness statement in order to save time and costs.*°

24 Further, there is a growing tendency in international arbitration to allow

parties and their counsel to prepare a witness for his or her question-
ing at the hearing;®® this preparation must, however, not interfere with the
witness’s ability and duty to testify truthfully.°”°

B. Sequence of Cross-Examination and Re-Direct Examination

(par. 3(b))
25 Cross-examination is well established in international arbitration.®”* Dur-
ing cross-examination, the witness has the duty to also answer questions
on issues he or she was not primarily summoned for, provided the arbitral
tribunal does not consider such questions as violating Art. 8(2). In other
words, cross-examiners are not limited to issues covered in direct exami-
nation, but may also question the witness on issues not referred to in the
written witness statement in order to rebut the latter.°”

26 It is possible that new facts come to light when the witness is questioned
by the opposing party. Therefore, the party relying on and presenting the
witness may re-examine its own witness on these new issues to correct
the testimony given by the witness in response to the questions of the
other party or to have it reformulated in a more favourable way for the
party’s legal position ("re-direct examination").°> Even though Art. 8(3)
does not mention it explicitly, the arbitral tribunal may also give the other
party an opportunity to examine the witness once again on any additional

667
BUHLER/DorcaNn, 17.
66 @
GrirFIN, 27; REDFERN/HUNTER/BLACKaAByY/Partasipes, N 6.202; TACKABERRY/Marriott, N 2-794;
cf. VAN DEN Berc, 163. See also Art. 4 N 23-29.
69 See in more detail Art. 4 N 16-19.
670 Grirrin, 28.
$71 fas BuHter/Dorcan, 26.
$72 Cf, Grirrin, 28.
673 Cf. Oetiker, Witnesses, 268; van DEN Bere, 164.
Article 8 Evidentiary Hearing 159

issues which may have arisen during re-direct examination ("re-cross-

examination" ).°”
The arbitral tribunal will again need to bear in mind the parties’ right to be 27
treated equally and, therefore, it must consider the time exposure.°’5 The
equal treatment of the parties, however, does not implicitly mean equal al-
location of time. Depending on the specific issues of the case, it may be fair
and just to offer one party more time to present its arguments.*”6

Cc Sequence of Testimony for Party-Appointed Experts

(par. 3(c))
The claimant shall ordinarily first present the testimony of its party-ap- 28
pointed experts followed by the respondent. The party who was first to
present its party-appointed experts shall have the opportunity, after the
presentation of the experts by the other party, to ask additional questions,
but only on the matters raised in the other party’s questioning.

D. Questioning of Tribunal-Appointed Experts (par. 3(d))

The arbitral tribunal, the parties, and any party-appointed expert may 29
question a tribunal-appointed expert; questions are, however, only al-
lowed on issues raised in the tribunal-appointed expert report, in the par-
ties’ submissions or in the expert reports submitted by the party-appointed
experts.

|3H Bifurcation of Arbitral Proceedings (par. 3(e))

If the arbitral tribunal ordered a bifurcation of the proceedings, the par- 30

ties may agree on, or the arbitral tribunal may order the separate sched-
uling of testimony for each issue or phase. This makes sense because,
when dealing with a bifurcation of the proceedings, e.g. into a jurisdiction
and a liability phase, some witnesses or experts may only be able to give
testimony on the question of liability, but not on questions concerning the
possible jurisdiction of the arbitral tribunal.

F. Variations of Sequence/Witness Conferencing (par. 3(f))

The order of questioning witnesses and experts as described above may, 31

upon a party’s request or on the arbitral tribunal’s own motion, be varied

674 Hanotiau, Conduct of Hearings, 374; cf. Oetiker, Witnesses, 268; BerGer/KELLERHALS,
Nei223;
675 See "Béckstiegel Method" at N 44 below.
676 Oetiker, Witnesses, 268; BUHLER/Dorcan, 24.
 160 Article 8 Evidentiary Hearing

freely. The arbitral tribunal is also given the power to order the question-
ing of the parties’ witnesses at the same time and in confrontation with
each other. This manner of presenting witness testimony is known as "wit-
ness conferencing".°”’ Witness conferencing may prove to be an efficient
method of taking evidence, which "consists of assembling all the witnesses
around one table and confronting them with each other’s statements".°’”®
It may be particularly helpful where witnesses of both parties worked to-
gether on the disputed project and where the party-appointed experts pre-
sented contradicting expert reports.*”? Thus, witness conferencing or “hot-
tubbing" may help the arbitral tribunal to better understand contradictions
and to determine the weight and credibility of certain testimony.®° As wit-
ness conferencing is best used in addition to traditional cross-examination,
it is generally more time-consuming.®* Further, the advantages gained
from witness conferencing are highest when the arbitral tribunal is well-
prepared; witness conferencing thus puts a higher burden on the arbitral
tribunal with respect to preparation and conduct of the hearing.°*”

32 As to the sequence of examination in general, the arbitral tribunal may

examine the witnesses on the main points first in order to directly address
the significant issues and thereafter leave any further examination to the
parties.® In addition, even though it is more common in modern interna-
tional arbitrations for the closing submissions to be in writing ("post-hear-
ing briefs"), the parties may be given the opportunity to present some form
of oral closing statement after the witness testimony has been heard.®**

G. Arbitral Tribunal’s Power to Ask Questions (par. 3(g))

33 The arbitral tribunal has a wide discretion in asking the witnesses and
experts questions at any time during the evidentiary hearing. Arbitrators
may not only ask questions of fact, but also questions as to the credibility
of a witness if required by the specific circumstances of the case.®5

877 Poupret/Besson, N 658; see also Bercer/KeterHats, N 1221, 1223. For a detailed as-
sessment of witness conferencing see Peter, Witness Conferencing, 47-58; RaescHKE-
Kesster, Witness Conferencing, 415-428.
678
Poupret/Besson, N 658; RaescHke-Kesster, Festschrift Briner, 662.
679
Bercer/KetterHats, N 1223; cf. REDFERN/HunTER/BLAcKaBy/PARTASIDES, N 6.217-6.219; for
a list showing the pros and cons of witness conferencing see SutcuFFe/WirtH, 41-42.
680 Von Secesser, IBA Rules, 750.
§81 a Born, 1850-1851.
682 Hanotiau, Conduct of Hearings, 377.
°83 Oetiker, Witnesses, 267; cf. BUHLER/Dorcan, 25.
684 REDFERN/ HUNTER/Biackasy/Partasipes, N 6.229-6.230.
685 ur
Reprern/Hunter/Biackasy/Partasipes, N 6.206; cf. BUHLER/Dorcan, 9-10.
Article 8 Evidentiary Hearing 161

VI. Witnesses’ Affirmation of Telling the Truth (par. 4)

The Rules remain silent on the question whether or not the arbitral tribu- 34
nal has the power to take an oath. Particularly in common law countries,
arbitrators are permitted to do so; in other jurisdictions, however, as in
most civil law states, national law forbids arbitrators from administering an
oath.* The arbitral tribunal, therefore, may not a priori assume that it has
such a power.®*? Moreover, the arbitral tribunal will have to check its com-
petences from case to case based on the applicable laws or customs at the
seat of the arbitration (/ex arbitri) or at the place of the hearing.®@*

If no oath can be administered, Art. 8(4) describes the possibility for a 35

witness to affirm, in a manner determined appropriate by the arbitral
tribunal, that he or she commits to telling the truth or, in the case of an
expert witness, his or her genuine belief in the opinions to be expressed
at the evidentiary hearing.®* This affirmation by the witness is important,
because in some jurisdictions providing false testimony before an arbitral
tribunal may entail criminal sanctions.® It is thus suggested that these in-
structions by the arbitral tribunal be recorded in the minutes of the hearing
or in the transcript in order to furnish adequate proof later.°?

When presenting evidence, the parties in most arbitral proceedings submit 36

affidavits or simple witness statements which are solely signed by the re-
spective witness.°” If the witness has submitted a witness statement or
an expert report, the witness shall confirm it. The parties may agree, or
the arbitral tribunal may order, that the witness statement or the expert
report shall serve as that witness’s direct testimony (Art. 8(4)). It can be
derived there from that, in general, witnesses should still be questioned
orally even if they have filed a witness statement.®°”

VII. Witnesses or Experts Requested by the Arbitral

Tribunal (par. 5)
Art. 8(5) grants the arbitral tribunal a wide discretion reminiscent of in- of
quisitorial powers: the arbitral tribunal may request any person to

686 Born, 1848-1849.

687 For Germany see also RaescHKe-Kesster, Beweisaufnahme, 74.
688 RaescHKE-KESsSLerR, Beweisaufnahme, 74; BOHLER/DorcaN, 24.
689 "Often, the arbitral tribunal will also simply admonish the witness to tell the truth,
and sometimes it will additionally advise the witness of criminal sanctions applying
at the seat of the arbitration or at the physical place of the hearing." (IBA Review
Suscommitree 2010, 24); Grirrin, 28.
690 Bercer/KELLERHALS, N 1225; cf. Oetiker, Witnesses, 269.
691 ree Bercer/KeLLerHas, N 1225.
692 Reprern/Hunter/BiackaBy/Partasives, N 6.138; Roney/MOtter, 63.
693 KnoBLacH, 182.
 162 Article 8 Evidentiary Hearing

give oral or written evidence on any issue the arbitrators consider to be

relevant to the case and material to its outcome. Any witness called and
questioned by the arbitral tribunal may also be questioned by the parties.

38 The arbitral tribunal is therefore also empowered to order the testimony of

an expert who was not chosen by the parties in analogy to appointing an
expert pursuant to Art. 6.9 The choice of an independent expert may
help avoiding a "battle of experts" appointed by the parties in dispute.°°

VIII. Some Practical Aspects of Managing the Evidentiary

Hearing
39 Most arbitration laws and institutional arbitration rules do not contain spe-
cific provisions on how to structure the evidentiary hearing. This allows
for flexible solutions taking into account the particular circumstances in
the proceedings. Nevertheless, the parties are well-advised to agree on
a procedure to be applied as soon as possible in the arbitral proceed-
ings. Ideally, rules on which party will start examining the witnesses, how
the hearing is recorded, who has to organise an interpreter if a witness
does not testify in the language of the arbitration etc. are determined by
the arbitral tribunal in consultation with the parties at the outset of the
arbitral proceedings, e.g. at the first organisational hearing. For this pur-
pose, Art. 8 refers to appropriate and practice-oriented guidelines
that have proved to be reconcilable with parties having either a common
law or a civil law background.

40 From an organisational standpoint, the arbitral tribunal needs to deal

with the following aspects when preparing a hearing:

e the date of the hearing;

e the appropriate location of the hearing;

e the arrangement of any necessary transcripts and/or interpreters;

e the sequence of witnesses;

e the time management.

41 The arbitral tribunal shall in consultation with the parties determine the
date of the hearing as well as the appropriate hearing location or any other
administrative arrangements. Therefore, it is recommended for the arbitral
tribunal, after the written submissions and the evidence have been ex-
changed, to convene a pre-hearing meeting or telephone conference

6°4 Bercer, Wirtschaftsschiedsgerichtsbarkeit, 299-300.

65 Bercer, Wirtschaftsschiedsgerichtsbarkeit, 300.
Article 8 Evidentiary Hearing 163

with the parties and their representatives in order to prepare the conduct
of the evidentiary hearing as efficiently as possible.°*
Bearing in mind that the arbitral proceedings are mostly conducted in a 42
language different from the parties’ and their witnesses’ native language,
the arbitral tribunal must ensure an uninterrupted conduct of the hearings.
Where the arbitral tribunal wishes to hear a specific witness who may not
be able or does not wish to testify in the language of the arbitral proceed-
ings, the arbitral tribunal must provide for an interpreter. If the arbitral
tribunal chooses not to do so, it is the responsibility of the party presenting
the witness to arrange for the interpretation of that witness’s testimony.°%”
The interpreter needs to be independent from the parties.®®

It is generally recognised that witness testimony should be tape-record- 43

ed and that the verbatim transcripts prepared by a professional court
reporter should be served to the parties.°? If one party requests that a
transcript be taken, the arbitral tribunal may order such transcript notwith-
standing the other party’s objection, in particular when the specific case is
complex and of a certain magnitude or where the statements of witnesses
are anticipated to contradict.” The specific circumstances of a case (such
as cost-sensitivity) must, however, be considered and may demand for
other methods of recording, e.g. the taking of internal minutes of the tes-
timony or the issuing of a summary of the witnesses’ testimonies both by
the arbitral tribunal or its secretary, respectively.”

The parties are free to determine the time to be allocated to the conduct 44
of the evidentiary hearing. In terms of time- and cost-efficiency, however,
the parties may want to agree on a specific timeline before the hearing.
The "B6ckstiegel Method"”” is a well-known method of managing time
in hearings; it involves allocating a fixed amount of time to each party and
then providing the parties with broad freedom to use their allocated time
as they wish.” Consequently, within the time allotted, each party is free
to decide how much of its total time it wishes to spend on the examination
of which witness and expert.” Needless to say, also when applying this

696 Reprern/HuNTER/BLAcKaBy/Partasives, N 6.193; Roney/MUtter, 67; TAckABeRRY/MaRRIOTT,

N 2-761.
697 See also BUHLER/DorcaN, 21.
698 BuHLeR/DorGAN, 21; Oetiker, Witnesses, 270.
699Oo© Reprern/HunTer/Biackasy/Partasines, N 4.173; FoucHarD/GaILtarD/Gotpman, N 1288; Craic/
Park/Pautsson, 440; Roney/MULteR, 68; Born, 1849-1850.
700 Craic/Park/Pautsson, 440.
701 See BUHLER/DorcAN, fn. 75; Craic/Park/Pautsson, 440; Oetiker, Witnesses, 271-272.
702 Named after its "father", the renowned German arbitrator Karl-Heinz Béckstiegel.
703 Roney/MULLER, 67.
704 B6cKSTIEGEL, 7.
 164 Article 8 Evidentiary Hearing

method, a certain extent of flexibility must remain in order to adapt the

procedures to the specific circumstances of the case.
45 Arbitral proceedings are generally private and the hearings thus not open
to the public.’* Besides the parties and their representatives, the parties
may consent to the presence:of additional persons whose attendance may
be convenient, e.g. any specialists such as engineers, provided that they
are not requested to appear as witnesses or experts.”

INE Reprern/HunTER/Biackasy/Partasioes, N 6.189.

706 REDFERN/HUNTER/ BLACKABY/PARTASIDES, N
6.189; Roney/MULLER, 67.
Article 9 Admissibility and Assessment of Evidence 165

Article 9 Admissibility and Assessment

of Evidence

1. The Arbitral Tribunal shall determine the admissibility, relevance,

materiality and weight of evidence.
2. The Arbitral Tribunal shall, at the request of a Party or on its own
motion, exclude from evidence or production any Document, state-
ment, oral testimony or inspection for any of the following rea-
sons:
(a) lack of sufficient relevance to the case or materiality to its out-
come;
(b) legal impediment or privilege under the legal or ethical rules
determined by the Arbitral Tribunal to be applicable;

(c) unreasonable burden to produce the requested evidence;

(d) loss or destruction of the Document that has been shown with
reasonable likelihood to have occurred;

(e) grounds of commercial or technical confidentiality that the Arbi-

tral Tribunal determines to be compelling;

(f) grounds of special politica! or institutional sensitivity (including

evidence that has been classified as secret by a government or
a public international institution) that the Arbitral Tribunal de-
termines to be compelling; or
(g) considerations of procedural economy, proportionality, fairness
or equality of the Parties that the Arbitral Tribunal determines
to be compelling.
In considering issues of legal impediment or privilege under Article
9.2(b), and insofar as permitted by any mandatory legal or ethical
rules that are determined by it to be applicable, the Arbitral Tribu-
nal may take into account:

(a) any need to protect the confidentiality of a Document created or

statement or oral communication made in connection with and
for the purpose of providing or obtaining legal advice;

(b) any need to protect the confidentiality of a Document created or

statement or oral communication made in connection with and
for the purpose of settlement negotiations;

(c) the expectations of the Parties and their advisors at the time
the legal impediment or privilege is said to have arisen;

(d) any possible waiver of any applicable legal impediment or privi-

lege by virtue of consent, earlier disclosure, affirmative use of
166 Article 9 Admissibility and Assessment of Evidence

the Document, statement, oral communication or advice con-

tained therein, or otherwise; and

(e) the need to maintain fairness and equality as between the Par-
ties, particularly if they are subject to different legal or ethical
rules.
4. The Arbitral Tribunal may, where appropriate, make necessary ar-
rangements to permit evidence to be presented or considered sub-
ject to suitable confidentiality protection.

5. If a Party fails without satisfactory explanation to produce any

Document requested in a Request to Produce to which it has not
objected in due time or fails to produce any Document ordered to
be produced by the Arbitral Tribunal, the Arbitral Tribunal may in-
fer that such document would be adverse to the interests of that
Party.

6. If a Party fails without satisfactory explanation to make available

any other relevant evidence, including testimony, sought by one
Party to which the Party to whom the request was addressed has
not objected in due time or fails to make available any evidence, in-
cluding testimony, ordered by the Arbitral Tribunal to be produced,
the Arbitral Tribunal may infer that such evidence would be adverse
to the interests of that Party.

7. Ifthe Arbitral Tribunal determines that a Party has failed to conduct

itself in good faith in the taking of evidence, the Arbitral Tribunal
may, in addition to any other measures available under these Rules,
take such failure into account in its assignment of the costs of the
arbitration, including costs arising out of or in connection with the
taking of evidence.

Contents Note
Ik 2010 Revision 1
II. Assessment of Evidence by Arbitral Tribunals (par. 1) 3
A. Introduction 3
B Admissibility of Evidence 4
C. Burden of Proof 8
D. Standard of Proof 10
E Weight of Evidence 12
B. Stay of Proceedings 17
III. Exclusion of Evidence (par. 2) 18
A. Legal Privilege (par. 2(b) and 3) 19
ale Introduction 19
2 In-House Counsel 24
3. Conflict of Law Issues 28
4. List of Elements to Consider (par. 3) Syl
B. Other Reasons to Exclude Evidence (par. 2(a-g)) 36
ale Lack of Relevance or Materiality (par. 2(a)) 36
2h Legal Impediment (par. 2(b) and 3) Shy
Be Unreasonable Burden to Produce (par. 2(c)) 38
Article
a 9 Admissibility and Assessment of Evidence 167
ee, OY

4. Loss or Destruction (par. 2(d)) 41

5. Commercial and Technical Confidentiality (par. 2(e)) 43
6. Political or Institutional Sensitivity (par. 2(f)) 45
Ts Considerations of Procedural Economy, Proportionality,
Fairness or Equality 48
IV. Confidentiality Protection (par. 4) 50
V. Adverse Inference (par. 5-6) 54
A. Introduction 54
B. General Requirements 58
C. Production of all Corroborating Evidence by Requesting Party 59
D. Evidence Accessible to the Other Party 61
E; Reasonable Inference 63
E Consistence with Facts in the Record 64
G. Logical Relation to Evidence Withheld 65
H. Prima Facie Evidence by Requesting Party 67
Er. Sufficient Opportunity for Requested Party to Produce 68
VI. Cost Sanctions for Bad Faith Conduct (par. 7) 70

Other Rules
Art. 22(3) ICC; Art. 24(1-2) Swiss Rules; Art. 27(1) and 27(4) UNCITRAL; Art. 22(1)/(f)
LCIA; Rule 34(1) ICSID; Art. 48(a) and 52 WIPO.

i; 2010 Revision

In Art. 9(3), the Review Subcommittee provided additional non-binding

guidance on determining the applicable privileges under Art. 9(2)(b),
by referring in particular to the following criteria: (i) the confidentiality of
documents or communications for the purpose of providing legal advice, (ii)
the confidentiality of settlement negotiations, (iii) the expectations of the
parties, (iv) waiver of privilege, and (v) the need to maintain fairness and
equality between the parties.

In addition, the new Art. 9(7) specifically grants arbitral tribunals the dis-
cretion to sanction parties for breaches of good faith in the assignment
of the costs of arbitration.

II. Assessment of Evidence by Arbitral Tribunals (par. 1)

A. Introduction
As Rusty Park once remarked, “arbitrators decide cases neither by flipping
a coin nor by cutting a baby in half, but by weighing evidence".’*’ The prin-
ciple that arbitrators have discretion to determine the evidentiary weight of
evidence is generally accepted”” and expressly codified, for example, in
Art. 27(4) of the UNCITRAL Rules and Art. 24(2) of the Swiss Rules.

707 Park, Elephants and Pornography, 270.

708 Born, 1851-1852; Reorern/Hunter/Biackasy/Partasives, N 6.143; BERGER/KELLERHALS,
N 1238.
168 Article 9 Admissibility and Assessment of Evidence

B. Admissibility of Evidence

What is or is not admissible as evidence may vary significantly from one

jurisdiction to another. In some but not all countries, corporate officers can
testify for their company, and approaches to hearsay can be diverse among
jurisdictions.7°°

Restrictions on the admissibility may result from mandatory provisions

of the /ex fori or from international public policy, such as the prohibition to
rely on evidence obtained through illegal means.”*°

To protect an award from annulment, arbitrators are generally careful not

to exclude evidence in a way that could arguably prejudice one side’s right
to present its case. The general practice in international arbitration is to
admit evidence freely, leaving it to the arbitrators to assess its weight, and
the technical rules of evidence known to common law counsel are largely
absent from international arbitration.”"* The predisposition of many arbi-
trators for admitting evidence does not mean that an arbitrator should
allow undue surprise, misleading questions or testimony with little proba-
tive value. But it does mean that counsel should be encouraged to think
carefully before making objections.’”!2 And counsel should trust that arbitra-
tors are able to understand the probative value of testimony.

Swiss doctrine and jurisprudence consistently hold that the principle of

equal treatment and the right to be heard are not violated if the arbitral
tribunal, within its discretion to evaluate evidence, only accepts evidence
that is offered in due form and time.’»

(ee Burden of Proof

Even though rarely codified,’* it is widely accepted in international arbitra-

tion that each party shall have the burden of proof regarding the facts re-
lied on to support its claim or defence.”!5 According to civil law, the burden
of proof is governed by the applicable substantive law, while common law

709 Park, Elephants and Pornography, 270.

710 PILS (Basel)-Scneier, Art. 184 N 13-14; Bercer/KeLterHats, N 1207.
7) Born, 1853-1854 with further references; BUHLER/DorcAN, 28; BerRGER/KELLERHALS,
N 1205; cf. also par. 13 of the Procedural Order of 12 May 2003 in ICC Case No. 12169,
in: Decisions on ICC Arbitration Procedure, ICC Bull 2010 Special Supplement, 35:
"The Tribunal is not bound by any strict rules of evidence".
712 Park, Elephants and Pornography, 271.
73 DFT 119 II 386; DFT of 11 May 1992, ASA Bull 3/1992, 397; BerGer/KELLERHALS,
N 1208-1209; Nater-Bass in Commentary Swiss Rutes, Art. 25 N 28.
714 Cf. however Art. 27(1) UNCITRAL Rules and Art. 24(1) Swiss Rules.
715 Born, 1857; PILS (Basel)-ScHnetper, Art. 184 N 12; REDFERN/ HUNTER/ BLACKABY/PARTASIDES,
N 6.92.
Article 9 Admissibility and Assessment of Evidence 169

qualifies this principle as an issue of procedural law.”** In practice, this dis-

tinction does not play such an important role, because the burden of proof
is less important in international arbitration than in state court proceed-
ings. As Karrer points out, arbitrators should not strive to find a resolution
with as little effort as possible, but should attempt to hear sufficient evi-
dence to get a good picture of the relevant events on the basis of which an
award is rendered.” Justice will rarely be "seen to be done"’*8 if a case is
decided on the basis of the parties’ burden of proof.”

Only factual and contested assertions need to be proven. Under common

law, the substance matter of foreign law may also require proof, since it is
the common law view that foreign law constitutes a factual assertion.’2°

D. Standard of Proof

While the burden of proof (Beweis/ast) determines which party needs to 10

prove a certain allegation, the standard of proof (Beweismass) defines the
criteria to consider something as proven, i.e. the required level of proof.
If a strict proof is not possible, civil law tradition will generally require a
degree of probability "verging on certainty",”*1 while common law arbitra-
tors usually content themselves with a preponderance of evidence.’?* In
arbitration practice, it has been suggested that the standard of proof to be
achieved is close to the so-called "balance of probability”.’”*? According to
this principle, a fact is considered as proven if the arbitral tribunal is in a
position to say "we think it more probable than not", whereas, if the prob-
abilities are equal, the burden of proof will persist.’

A higher standard of proof is often required for important or delicate 1

questions such as bribery or other criminal actions.” The arbitral tribunal

716 PILS (Basel)-Scunerper, Art. 184 N 11.

717 Karrer, 108; cf. also Born, 1857 with further references.
718 The aphorism "Not only must justice be done; it must also be seen to be done” has
its basis in a judgment by Lord Hewart CJ in a leading English case on the impartiality
of judges, R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER
233).
719 Karrer, 108.
720 Nater-Bass in Commentary Swiss Rutes, Art. 24 N 5.
721 a The German term under Swiss law is “mit an Sicherheit grenzender Wahrscheinlich-
keit"; cf. DFT 130 III 132 cons. 3.2; ZPO (Basel)-Guyan, Art. 157 N 7-8 (mentioning
a numeric probability of 90%). Where mere causality must be proven (e.g. for tort
claims), "preponderant probability" (Gberwiegende Wahrscheinlichkeit) is sufficient
according to Swiss practice; cf. DFT 132 III 719-720 cons. 3.1; ZPO (Basel)-Guyan,
Art. 157 N 9 (mentioning a numeric probability of 75%).
722 \/on MEHREN, 127-128.
723 Born, 1857-1858; Reiner, 335.
724 Denning J in Miller v. The Minister of Pensions, [1947] 2 All ER 372.
725 Born, 1858-1859.
 170 Article 9 Admissibility and Assessment of Evidence

in ICC Case No. 6401726 stated for example that bribery must be proven by
"clear and convincing evidence".

E. Weight of Evidence

72 In general, arbitral tribunals tend to give less weight to uncorroborated

witness testimony than to evidence contained in contemporary docu-
ments.7’ Arbitrators also give greater weight to the evidence of a witness
that has been tested by cross-examination or by an examination by the
arbitrators themselves.’

13 In the process of assessing and weighing the evidence, arbitral tribunals

further distinguish between direct (or "primary") and indirect ("second-
ary" or "circumstantial") evidence. Direct evidence will naturally be given
more weight than indirect evidence.’”? Sometimes, however, direct evi-
dence will not be available to prove a certain allegation.

14 In determining the weight to be given to indirect evidence, arbitral tribunals

will look at the reasons for non-production of direct evidence. In cases
of revolutions, nationalisations, armed conflicts and civil unrest, for exam-
ple, documents and other physical evidence are often lost or destroyed.’”*°

15 In the absence of direct evidence, arbitral tribunals will often presume

or infer facts on the basis of other proven or accepted factual knowledge,
which effectively shifts the burden of proof to the other party.”

16 In the well-known Corfu Channel case of the International Court of Jus-

tice, the Court admitted indirect evidence with regard to an allegation by
the United Kingdom that Albania knew about the laying and presence of
mines in the Corfu Channel and thus was responsible for damage and loss
of life caused by the explosion of mines in Albanian territorial waters. The
IC) acknowledged that the United Kingdom could not produce any direct
evidence to prove its allegation, due to the exclusive territorial control of
Albania over the respective waters, and inferred that Albania was aware
of the mines. The judges noted that indirect evidence "is admitted in all
systems of law, and its use is recognized by international decisions. It must
be regarded as of special weight when it is based on a series of facts linked
together and leading logically to a single conclusion".722

728 International Arbitration Report 1/1992, B 19; cf. also RepFern/Hunter/BLaAckasy/PaRTA-

sipes, N 6.93-6.95.,
727
Cf. Brower/Brueschke, 186-188, regarding the practice of the US-Iran Claims Tribunal.
728
RebrerN/Hunter/Biackasy/Partasipes, N 6.144.
729
Pietrowsk!I, 380.
Cet (aly. SES
731 Iq,
732 1949 IC) Rep. 18.
Article 9 Admissibility and Assessment of Evidence v7

F Stay of Proceedings
The possibility of absence of evidence is a risk inherent in civil procedure. 17
Therefore, evidentiary problems such as pending parallel proceedings in
the course of which additional evidence may be expected to emerge can
usually not justify a stay of proceedings.” A party which was not able to
offer conclusive evidence in time has the opportunity to obtain a revision
of the arbitral award, provided that the further conditions for a revision are
fulfilled.734

III. Exclusion of Evidence (par. 2)

Art. 9(2) contains a catalogue of provisions allowing the arbitral tribunal, at 18
the request of a party or on its own motion, to limit or exclude certain evi-
dence. The list of examples should not be considered as conclusive. For
example, a party should be allowed to raise an objection that the formal
requirements for a document production request under Art. 3(3) have not
been met by the other side or that certain allegations contained in produc-
tion requests (e.g. as to the availability of evidence) are incorrect.7*5

A. Legal Privilege (par. 2(b) and 3)

7. Introduction

The issue of evidentiary privileges in international arbitration, in par- 19

ticular the attorney-client privilege,”** has been a hotly debated topic in
recent years. The reasons for the complexity of this matter are the
following: 7?’
a) the nature and concept of evidentiary privileges is different in civil law
and common law;

b) there are essential differences in the qualification of privileges as sub-

stantive or procedural matters in common and civil law;’*8

c) there are no established conflict of law rules for the determination of the
law applicable to privileges in international arbitration.

733 DFT 119 II 390; PILS (Basel)-Scunerver, Art. 184 N 50.

734 Cf. DFT 119 II 390.
735 Mutter, IBA Rules, 67-68.
736 Art. 9(2)(b) also applies to other forms of privilege such as the rights of witnesses
to refuse testimony or communications between doctors and patients. The issues
discussed below are applicable mutatis mutandis to these types of privileges.
737 Bercer, Evidentiary Privileges, 501-502.
738 Yon SCHLABRENDORFF/SHEPPARD (763-765) submit that legal privileges are both procedu-
ral and substantive in character.
 172 Article 9 Admissibility and Assessment of Evidence

20 In addition, arbitral tribunals are faced with two basic policy considerations
in the area of privilege. First, arbitrators should admit an appropriate privi-
lege objection raised in good faith. In other words, "disregarding privileges
and other rules while ordering the production of privileged documents is
simply not right as a matter of principle".”° Secondly, the need for pre-
dictability to safeguard the parties’ legitimate expectations as to the
application of a certain privilege standard is particularly strong in this field
because parties rely on privileges.” In other words, a “trial by ambush"
must be avoided:

"Parties are likely to be surprised, to say the least, to learn that their
agreement to arbitrate could have the effect of imposing on them a
general obligation to disclose all relevant documents including internal
communications and legal advice which would not be subject to disclo-
sure under their own domestic national procedures. "’**

7A Because the parties may have relied on different privileges with different
protection levels, it has been suggested to develop best practice stand-
ards by institutions such as the IBA instead of ad hoc decision-making
by arbitrators in a given case, in order to avoid unequal treatment of the
parties.74

22 In common law jurisdictions, the justification for the attorney-client privi-

lege focuses on the client who needs to be protected from comprehen-
sive discovery rights,’*? while the attorney secrecy in civil law jurisdictions
Originates in the secrecy obligation of attorneys who are subject to criminal
sanctions if they violate the professional duty of confidentiality, i.e. in the
integrity of the legal profession.’

23 This conceptuai difference has important implications:7*°

a) While the common law attorney-client privilege covers any communica-

tion (excluding facts) between client and attorney which have the main
purpose of providing legal services and may be invoked by clients and
attorneys, the civil law attorney secrecy covers everything the attorney
knows about the client’s affairs (including facts) and may be invoked by
attorneys only.

739 Hertzmann, 218; cf. also Born, 1912-1913.

740 Von SCHLABRENDORFF/SHEPPARD, 765-766.
741 SinDLER/WUSTEMANN, 621.
7eWN/OsERy LLGe
’ Regarding differences between the U.S. and the U.K., see Hertzmann, 208-209.
WN

744 Bercer, IBA Rules, 172; see also the comparison chart in Meyer-Hauser/Sieper, 164-
165.
745 Mever-Hauser/Sieper, 148.
Article 9 Admissibility and Assessment of Evidence 173

b) Whereas the attorney-client privilege is said to belong to the client, the

attorney secrecy must be claimed by the attorney.
c) Finally, the scope of the different concepts is not the same. Information
protected under one concept may not be protected by the other, which
may become particularly relevant in connection with information shared
by in-house counsel.746

PA In-House Counsel

In the U.S. and England, the attorney-client privilege applies to in-house 24

counsel, provided that the relevant communication relates to legal advice
and not to general business matters.”*” The situation in Continental Europe
is diverse. While the attorney secrecy does not apply to in-house coun-
sel in Switzerland, France, Sweden and Italy, the secrecy extends to both
outside and in-house counsel in Belgium, the Netherlands and Spain.”8 In
Germany, the legal situation appears to be far from settled.”

Under EU law, the current rules on privilege date from the EC)’s judg- 25
ment in AM&S Europe Ltd v. Commission,’”*° which was confirmed in the
ECJ’s recent Akzo Nobel! decision’*:. Essentially, written communications
are privileged if they are made between a company and an "independent"
lawyer (defined by the EC) as “Jawyers who are not bound to the client by
a relationship of employment"’**) who is qualified to practice in the EU, and
are made for the purpose and in the interest of the company’s rights of
defence in relation to Commission proceedings. Under the Akzo Nobel test,
therefore, in-house counsel and even outside counsel not qualified in the
EU will not be covered by any rules on privilege.

Some commentators point out that the restrictive practice of the Commis- 26
sion and the European Courts will simply result in written evidence becom-
ing more and more rare.’*? Because of the growing size of legal depart-
ments and the expectations of business people that they can turn to their
in-house counsel for advice without any fear of disclosure, industry and

746 See N 24-27 below.

747 Upjohn v. United States, 449 U.S. 383, 392 (1981); Waterford v. The Common-
wealth (1987) 163 CLR 54.
748 Bercer, IBA Rules, 172-173 with further references; Herrzmann, 210. Regarding the
situation in Switzerland, see also Meyver-Hauser, N 45-46.
749 Bercer, IBA Rules, 173.
ZO T1982 (ECR 1575:
751 as Akzo Nobel Chemicals v. Commission, C-550/07 P, 14 September 2010.
752 Akzo Nobel Chemicals v. Commission, par. 41.
753 HertzmMann, 211.
 174 Article 9 Admissibility and Assessment of Evidence

company lawyer associations are petitioning for a revision of the AM&S

and Akzo case law.’

Oi Against this background, one may imagine situations where a request for
production of communications of Swiss in-house counsel is made and grant-
ed, and the documents are produced because the respective party does
not consider any privilege to be applicable. Sometime later, an identical
request is made with respect to U.S. in-house counsel and met by a claim
for privilege. Whatever approach the arbitral tribunal takes, the parties will
be treated unequally. Therefore, it is important for an arbitral tribunal to
decide early in the proceedings how privilege claims will be addressed.”

3: Conflict of Law Issues

28 The Rules remain silent on the question of which privilege rules or which
conflict rules should be applied by arbitral tribunals in determining what
information is privileged. It is generally acknowledged that there are no
established rules in this area, and the possible connecting factors are
numerous:7°°

e the applicable procedural law;

e the applicable substantive law;

e the law of the jurisdiction where enforcement of any order or award will
be sought;

e the law of the jurisdiction where the party or lawyer claiming protection
resides;

e the law of the piace where the information was created;

e the law of the place where the information was sent from, or to;

e the law where the record of the communication is stored;

e the law where the lawyer with whom the communication took place is
admitted.
29 The matter is further complicated by the fact that common law jurisdictions
tend to qualify evidentiary privileges as a substantive issue (i.e. subject to
the law applicable to the merits), while civil law jurisdictions are inclined
to qualify them as a procedural matter (subject to the /ex arbitri).’5” Ir-
respective of the legal qualification of privilege claims, it is generally ac-

754
HeitzmMaAnn, 211-212, with further references.
755
SINDLER/WUsTEMANN, 629; see also Art. 2 N 11 above.
756
SInDLER/WUstemann, 620; Meyer-Hauser, N 181; von SCHLABRENDORFF/SHEPPARD, 769-771.
757 Mever-Hauser, N 149-153.
Article 9 Admissibility and e
Assessment of Evidence
a ae NSD Ae}

knowledged that arbitral tribunals should do justice to the legitimate ex-

pectations of the parties when rendering choice of law decisions.”** Because
neither classification (as substantial or procedural law) is satisfactory’? and
the connecting factors listed above do not provide the necessary predict-
ability and certainty, arbitral practice has resorted to the "closest connec-
tion" or "centre of gravity" test, i.e. an application of the law of the place
where the entire attorney-client relationship has its predominant effects.’
Typically, this will be the law of the state where the attorney-client relation-
ship was established and which prevails even when the arbitral procedure is
conducted in another country.’*? Where a party and its attorney are based
in different countries, the party’s (and not the attorney’s) expectations are
decisive in this connection. Therefore, it is the law of the jurisdiction where
the party had its place of business when the relevant communication took
place which will be applied in most cases (and not the place where the at-
torney is admitted to the Bar).’° In case of witness testimony, it is the law
of the witness’s domicile which must be applied.7®

It must be taken into consideration, however, that an application of the 30

closest connection test will still not prevent an unfair treatment of the par-
ties under certain circumstances.’ Therefore, the doctrine advocates an
application in arbitral proceedings of the "most favourable privilege"
rule which has its origin in Art. 11 of the 1970 Hague Convention on the
Taking of Evidence.’”® This rule authorises courts to apply the law of the
party which accords the broadest protection to any given privilege issue.’

758 Bercer, Evidentiary Privileges, 508.

759 Meyer, 367-370.
760 Meyer-Hauser, N 190-195; Born, 1914. This solution is also in line with Art. 187(1)
PILS which provides that the arbitral tribunal shall decide the case according to the
rules of law chosen by the parties or, in the absence thereof, according to the rules of
law with which the case has the closest connection. See also Art. 4 of the 1980 Rome
Convention on the Law Applicable to Contractual Obligations, discussed by Herrzmann,
219-220. The closest connection test also corresponds to the "most significant re-
lationship" test favoured in the U.S. (American Law Institute, Restatement of Law,
Second, Conflict of Laws, § 188); cf. von ScHLABRENDORFF/SHEPPARD, 768-769.
761 ae Meyer-Hauser, N 195.
762 Bercer, Evidentiary Privileges, 511-512. On the other hand, Born favours, from the
perspective of predictability, an application of the law where the lawyer is qualified to
practice, because a lawyer will often be more sensitive and alert to issues of privilege
than the client, and will most naturally consider them from the perspective of his or
her legal system (Born, 1914).
763 Bercer, Evidentiary Privileges, 512.
764 See N 27 above.
765 The most favourable privilege rule has also been enacted in the EU under Art. 14(1)
of EC Regulation 1206/2001 enhancing judicial cooperation; cf. Herrzmann, 220-223.
766 Meyer-HauseR/SIEBER, 186; SINDLER/WUsTEMANN, 637; Bercer, Evidentiary Privileges, 518;
VON SCHLABRENDORFF/SHEPPARD, 771-774. See also Art. 7 of the ICDR Guidelines for Ar-
bitrators Concerning Exchange of Information, stipulating that the arbitral tribunal
should give "preference to the rule that provides the highest level of protection PE
 176 Article 9 Admissibility and Assessment of Evidence

Such an approach best takes into account the parties’ expectations be-
cause they can be confident that information privileged under their own
laws would never have to be produced. This solution also corresponds with
the underlying principle of Art. 9(2)(g) which authorises arbitral tribunals
to exclude evidence based on considerations of equality and fairness.’°

4. List of Elements to Consider (par. 3)

31 While Art. 9 of the 1999 Rules remained silent as to what specific con-
siderations arbitral tribunals might take into account when dealing with a
privilege issue, the new par. 3 contains a checklist of five specific elements
which were deemed relevant.’

32 Apart from the attorney-client privilege (Art. 9(3)(a)) and the parties’ ex-
pectations (Art. 9(3)(c)) which were already discussed above,’® the Rules
specifically mention that arbitral tribunals may take into account the con-
fidentiality of documents created or statements made in connection with
or for the purpose of settlement negotiations (Art. 9(3)(b)). This provision
acknowledges a respective transnational privilege principle,’”° also referred
to as "without prejudice" privilege. Furthermore, there is an unanimous
view today in international ADR practice that a general mediation privi-
lege exists.””1 The basic policy consideration underlying the settlement
privilege is also accepted in arbitration practice.’”* The broad language of
Art. 9(3)(b) ("in connection with and for the purpose of") makes it clear
that not only documents submitted during negotiations, but also internal
documents prepared for settlement discussions are privileged.’”? Finally, it
must be kept in mind that the right to rely on the settlement privilege is
subject to the good faith obligation under par. 3 of the Preamble. Therefore,
a party cannot invoke the settlement privilege if it has introduced a state-
ment or document during settlement negotiations solely for the purpose of
shielding this information from the other side in subsequent arbitration.’”

the parties, their counsel or their documents would be subject under applicable law
to different rules of privilege.
787 See N 48-49 below.
768 Bercer, IBA Rules, 171.
N 19-30 (attorney-client privilege) and N 20 (parties’ expectations).
Bercer, Settlement Privilege, 269-272, referring among others to the decisions of the
Iran-US Claims Tribunal in The Islamic Republic of Iran v. United States, Decision
No. 12-A1-FT (3 August 1983), 1 Iran-US CTR 189, 190; and to Mobil Oil Iran v. The
Islamic Republic of Iran, Partial Award No. 311-74/76/81/150-3 (14 July 1987), 16
Iran-US CTR 3, 55. Cf. also Born, 1914-1916.
Bercer, Settlement Privilege, 266-269, with further references.
Bercer, Settlement Privilege, 270-271, referring to the final award in ICC Case
No. 6653 (1993), Collection of ICC Awards III (1991-1995), 512-529, at 516.
Bercer, Settlement Privilege, 272-273.
UMN GE2TB= 274.
Article 9 Admissibility and Assessment of Evidence WT,

Art. 9(3)(d) stipulates that arbitral tribunals may take into account waiv- 33
ers of any applicable legal privilege by way of consent, earlier disclosure,
affirmative use of the document or statement, or otherwise. Because the
privilege belongs to the party under U.S. and English law, a party may
claim full protection for documents in its possession. In the civil law con-
text, however, only information in the lawyer's possession is protected. The
same information or advice attracts no protection in the hands of the cli-
ent.’””° While the privilege may be waived by a party under both systems, a
civil law attorney may continue to rely on the respective secrecy in some
jurisdictions despite a waiver by the party.’”6

Art. 9(3)(e) states that arbitral tribunals may take into account the need to 34
maintain fairness and equality between the parties, particularly if they
are subject to different legal or ethical rules, and thus specifies the general
rule under Art. 9(2)(g). The best way to maintain fairness and equality
between the parties with respect to rules of legal privilege is to apply the
"most favourable privilege" rule discussed above.’””
The revision has deliberately omitted specific directions as to which privi- 35
lege rule should apply to each party in all cases, or which conflict-of-law
rules should be employed, because it was impossible to find a short com-
mon denominator for the standards in the various jurisdictions and arbitral
tribunals should continue to be afforded a certain amount of flexibility and
discretion in matters of legal privilege.’

B. Other Reasons to Exclude Evidence (par. 2(a-g))

i. Lack of Relevance or Materiality (par. 2(a))

The principle that an arbitral tribunal may exclude evidence for lack of suf- 36
ficient relevance or materiality is well established in arbitration practice’”
and Swiss law”®°. Arbitral tribunals in Switzerland may reject a request for
the taking of evidence and/or close the proceedings if any remaining re-
quests for the taking of evidence appear to be irrelevant or inappropriate
to prove a certain fact.”* Similarly, arbitral tribunals may refuse to accept
further evidence if they anticipate, based on the present evidence, that

775 SinpterR/WUsTEMANN, 616 in relation to Swiss law, referring to a decision of the Swiss
Federal Supreme Court of 6 June 1988, DFT 114 III 108.
776 See Art. 13(1) of the Swiss Federal Act on Lawyers (BGFA); for U.K. law cf. Three
Rivers DC [2004] UKHL 48, [2005] 1 A.C. 610 at 635.
777 See N 30 above; Bercer, IBA Rules, 176; Carter, 179.
778 \/on Secesser, IBA Rules, 751; Carter, 179.
779 Petrocuitos, N 5.125 p. 220.
780 DFT 106 II 171; 116 II 644; PILS (Basel)-ScHnetper, Art. 184 N 50.
781 DFT 4P.23/2006 of 27 March 2006, cons. 3.1; Bercer/KetterHais, N 1239.
 178 Article 9 Admissibility and Assessment of Evidence

such further evidence would not change the conclusions.” Such anticipa-
ted assessment of evidence can only be reviewed in annulment proceed-
ings under the limited scope of public policy violations.’”*

Zs Legal Impediment (par. 2(b) and 3)

Sy Besides the attorney-client privilege and other types of evidentiary

privileges,’ there are further legal impediments which can be invoked in
international arbitrations, such as the seizure of assets or freezing orders.
The guidelines under Art. 9(3) also apply to these legal impediments.

3. Unreasonable Burden to Produce (par. 2(c))

38 Article 9(2)(c) permits the arbitral tribunal to exclude from production or

from evidence any documents or evidence which would be unreasonably
burdensome to produce. This may involve the following situations:

a) production of documents which, because of their sheer quantity, would

create an unreasonable burden on the respective party to produce (in-
cluding so-called "fishing expeditions");7*

b) documents in the possession, custody or control of a party which never-

theless are unreasonably difficult for the party to obtain;’*°

c) potential witnesses who have left a company and cannot be located

despite reasonable efforts such as inquiries with former work colleagues
and Internet research;’®’

d) the evidence already submitted or produced is sufficient to prove the

requesting party’s allegations.’®°

39 The issue of an unreasonable burden to produce will often come up in con-

nection with e-discovery. In this field, it is particularly important for the

782 DFT 4P.23/2006 of 27 March 2006, cons. 3.1 with reference to DFT 130 II 425
cons. 2.1 at 429. In this case, the arbitral tribunal had decided not to conduct any
evidence-taking, thus implicitly rejecting all the parties’ respective requests. Cf. also
DFT 4P.115/2003 of 16 October 2003, cons. 4.2, in ASA Bull 2/2004 364, at 377-378
with reference to DFT 119 Ib 505-506, concerning the refusal by an arbitral tribunal
to order any new examinations by an expert witness; Bercer/KeterHats, N 1239.
783
DFT 4P.23/2006 of 27 March 2006, cons. 3.1 with further references; DFT 4P.115/2003
of 16 October 2003, cons. 4.2, in ASA Bull 2/2004 364, at 378; BerGer/KELLERHALS,
N 1241.
784 As set forth in fn. 736 above.
785 IBA Review Suscommrmtee 2010, Art. 9 par. 7.
786 Id.

787 Investigations by private detectives would probably be considered as unreasonable

unless they concern a key witness with exclusive knowledge in a large case.
788
RAESCHKE-KesSLeR, Production, 429; cf. also N 36 above.
Article 9 Admissibility and Assessment of Evidence 179

arbitrators to limit the scope of production, because there is a high risk of

overreaching requests where electronic data are concerned. The arbitra-
tors should apply rather high standards as to relevancy and materiality
and invite the requesting party to demonstrate carefully why a particular
electronic document is necessary and more beneficial than other more eas-
ily accessible data.’”*? In order to reduce the burden on the producing party,
one could also consider shifting the costs of the production to the request-
ing party.7%°

With respect to physical evidence, however, arbitral tribunals are best ad- 40
vised to apply Art. 9(2)(c) with some reservation.’”!

4. Loss or Destruction (par. 2(d))

An arbitral tribunal may conclude that a party’s lack of access to evidence 41

arises from destruction of that evidence and may draw appropriate infer-
ences from non-production of such evidence. The doctrine lists six re-
quirements for drawing adverse inferences from the destruction of
evidence:7
1) an act of destruction must be shown to have occurred;

2) the destroyed evidence must be relevant to the dispute;

3) the destruction must be intentional;

4) the destruction must have occurred when legal proceedings were pend-
ing or foreseeable;

5) the destruction must be attributable to that party or to its agents; and

6) the party must have had a duty to preserve the destroyed evidence.

The routine destruction of documents is an important matter in connec- 42

tion with electronic evidence. Under the new U.S. e-discovery Federal
Rules,””2 failure to manage how electronic information is maintained and
periodically destroyed on a computer system is subject to sanctions. Any
U.S. organisation that destroys electronic information in the regular course
of its business should maintain written retention and destruction policies in

789 Meier, 188.

790 As it was apparently done in the case Zubulake v. UBS Warburg, 217 F.R.D. 309
(S.D.N.Y. 2003); cf. Meter, 188.
791 Cf. MU.ter, IBA Rules, 69.
792 SHarpe, 558, with further references.
793 See E-Discovery Amendments to the Federal Rules of Civil Procedure and Commit-
tee Comments, available at www.uscourts.gov/RulesAndPolicies/FederalRulemaking/
Overview.aspx. The new rules are applicable to all pending and future cases filed in
the federal court system as of 1 December 2006.
 180 Article 9 Admissibility and Assessment of Evidence

order to regularise the process and increase the likelihood of falling within
the safe harbour against sanctions.’”

5. Commercial and Technical Confidentiality (par. 2(e))

43 Art. 9(2)(e) restates the generally acknowledged principle that parties

should not gain unauthorised access to trade secrets.’ Such confidential
information includes for example:

e research & development information;

e recipes;

e information subject to banking secrecy;

e price calculations;

e sources of supply;

e distribution channels;

e agreements with suppliers and customers.

44 Art. 9(4) clarifies that arbitral tribunals may make necessary arrange-
ments to protect confidential information.’%

6. Political or Institutional Sensitivity (par. 2(f))

45 When an early draft of the Rules during the 1999 Revision referred only
to "commercial and technical confidentiality", certain international political
organisations pointed out that this term might not include confidentiality
within such organisations.”

46 Politically sensitive evidence includes e.g. technical data on weapons, al-

gorithms used for encryption programmes, certain information of national
banks, and confidential information of international organisations such as
the UN, the World Bank or the IMF.78 The respective documents or data are
usually classified as confidential, secret or top secret.”? National security
privileges (also referred to as "public interest immunity") have been ac-
knowledged by many international arbitral tribunals.8°

794 Smit/RoBINSON, 117.

Cf. e.g. Art. 162 of the Swiss Criminal Code. It might have been helpful to specify in
the Rules that the importance of confidential documents should be weighed against
the level of confidentiality; cf. KnostacH, 303.
796 See N 50-53 below.
797 TBA Review Suscommittee 2010, Art. 9 par. 8.
Cf. RaescHKe-Kesster, Production, 429.
Bercer, Evidentiary Privileges, 504.
800 Id.
Article 9 Admissibility and Assessment of Evidence 181

Whether an arbitral tribunal is actually bound to an exclusion of evi- 47

dence for reasons of national security®*! may be questionable.®” It is
certainly appropriate, however, to take such restrictions and the resulting
difficulties for the producing party into consideration when the evidence is
weighed.®

7. Considerations of Procedural Economy, Proportionality,

Fairness or Equality (par. 2(g))

The catch-all provision of Art. 9(2)(g) is intended to assure procedural 48

economy, proportionality, fairness and equality to all sides in the case.®™
With this provision, the drafters intended among others to ensure that ar-
bitral tribunals provide the parties with a fair and effective hearing.®> The
2010 Revision has added the criteria of procedural economy and propor-
tionality to those of fairness and equality, thereby placing more emphasis
on the requirement of efficiency in evidence-taking.

The principle of equal treatment of the parties is a fundamental right 49

codified in many arbitration codes and rules.®%

IV. Confidentiality Protection (par. 4)

Art. 9(4) clarifies that arbitral tribunals may take certain precautions to 50
prevent confidential evidence from unwarranted disclosure. The most elab-
orate provisions on confidentiality protection among the major arbitration
rules can be found in Art. 52 of the WIPO Rules. Confidentiality protection
is also mentioned e.g. in Art. 22(3) ICC Rules and Art. 20(6) ICDR Interna-
tional Arbitration Rules.
Art. 52 WIPO Rules provides the following steps in connection with applica- Syl
tions for protective measures:

1) A party invoking the confidentiality of any information it wishes or is

required to submit shall make an application to have the information
classified as confidential by notice to the arbitral tribunal (with a copy to
the other party), including the reasons for which it considers the infor-
mation to be confidential.

801 As proposed by Scntosser, N 835.

802 PILS (Basel)-Scunerper, Art. 184 N 14.
803
o&
o
Tq.; see also Pietrowski, 404-405.
804 TBA Review Suscommitree 2010, Art. 9 par. 9.
805 Tq.
806 Art, 18 Model Law, Art. 182(3) PILS, Art. 22(4) ICC Rules, Art. 17(1) UNCITRAL Ru-
les, Art. 15(1) Swiss Rules; cf. Petrocuitos, N 4.85-4.91.
 182 Article 9 Admissibility and Assessment of Evidence

2) The arbitral tribunal determines whether the stated reasons are valid,
i.e. whether a disclosure would cause serious harm to the invoking par-
ty.

3) If the information is classified as confidential, the arbitral tribunal de-

cides under which conditions and to whom the confidential information
may be disclosed (in part or in whole).

4) The arbitral tribunal shall require any person to whom the confidential
information is to be disclosed to sign an appropriate confidentiality
undertaking.
5) In exceptional circumstances, the arbitral tribunal may, after consul-
tation with the parties, designate a confidentiality advisor who will
determine in lieu of the arbitral tribunal whether the information is to be
classified and will decide on the respective conditions.

6) The arbitral tribunal may also appoint the confidentiality advisor as an

expert to report to the arbitral tribunal, on the basis of confidential
information, on specific issues designated by the arbitral tribunal, with-
out disclosing the confidential information to the other party or to the
arbitral tribunal.

By? The Rules mention the possibility to appoint an independent expert in

connection with objections to document production requests (Art. 3(8)).°°”
The same procedure should apply for confidentiality matters.®°°° The ap-
pointment of a confidentiality advisor is also recommended by the ICC in
its Draft Best Practice Note on the European Commission Acting as Amicus
Curiae in International Arbitration Proceedings, i.e. in EC-competition-law-
related arbitral proceedings.®°

53 Other possibilities to protect confidential information are to make certain

documents available "for attorneys’ eyes only" or to display documents
without the possibility of taking copies.®*°

V. Adverse Inference (par. 5-6)

A. Introduction

54 Often, parties in international arbitration depend on evidence under the

control of the other party to prove certain allegations. Because arbitrators

807 See Art. 3 N 190-205 above.

808 Mutter, IBA Rules, 68.
809 See par. 50 of the Note, reprinted in Andenas/Alpa (eds.), European Business Law
Review Special Edition 2008 - Arbitrating Competition Law Issues, at 216.
810 Cf, KnostacH, 154-156.
Article
a
B 9 Admissibility
0 and Assessment of Evidence 183
9

lack the power to compel production and judicial assistance®! is often cum-
bersome and too time-consuming, a party relying on documents from the
other side would be heavily disadvantaged if the latter could simply refuse
production without facing any consequences. While some arbitral tribunals
may revert to the imposition of financial penalties to compel production
(e.g. by so-called astreintes*'?), drawing adverse inferences is certainly a
more effective and less invasive method to cope with the retention of
harmful information. Some parties will simply not be impressed by mon-
etary sanctions, which are in any event difficult to enforce against recalci-
trant parties.

By threatening to draw adverse inferences and thus encouraging appropri- 55

ate disclosure, arbitrators ensure a complete evaluation of the merits and
thus a better enforceability and voluntary compliance with respective
awards.*? Ultimately, adverse inferences thereby promote efficiency and
fairness in international arbitration.®*

While the instrument of adverse inference is generally acknowledged by 56

the doctrine,®*5 legal provisions on this concept, apart from the Rules, are
rare. Art. 44 of the International Arbitration Rules of the Zurich Chamber of
Commerce authorised arbitral tribunals to "take into consideration the con-
duct of the parties during the procedure, in particular a refusal to cooperate
in the administration of proof".®*6

The primary source of case law on adverse inferences is the Iran-United Sy

States Claims Tribunal ("Claims Tribunal").®!? Because of the turmoil in
Iran following the Islamic revolution and the ensuing lack of documentary
evidence, the Claims Tribunal has been regularly confronted with requests

811 Which constitutes an alternative to drawing negative inferences, cf. Art. 184(2)
PILS.
812 Levy, Astreintes; Bercer/KetterHats, N 1156; Wyss, 199-200. Lévw and Wyss submit
that this sanction, which is of French origin, may also be ordered by arbitrators sit-
ting in Switzerland (Léw, Astreintes, 29; Wyss, 199). See also Art. 3 N 189 above.
813 Cf, SHarpe, 550, and Art. 41 ICC Rules, instructing arbitral tribunals to undertake
every effort to ensure that their award is enforceable.
81
SHarpe, 550.
81 usBorn, 1855-1856 and 1919-1921; Poupret/Besson, N 650; PILS (Basel)-Scunerper, Art.

184 N 21; Bercer/KetterHats, N 1240; Craic/Park/PauLsson, 456.

816 The ZCC Rules have been replaced by the Swiss Rules which do not contain any res-
pective provision.
817 In Swiss case law, one of the rare references to the Rules can be found in a decision
on adverse inference by the Swiss Federal Supreme Court of 25 July 1997 (ASA Bull
1/2000, 96-104). The arbitral tribunal’s refusal to draw an adverse inference from
the non-appearance of certain witnesses was upheld by the Supreme Court, taking
into account Art. 6 of the 1983 "Supplementary Rules Governing the Presentation
and Reception of Evidence in International Commercial Arbitration" which preceded
the 1999 Rules.
 184 Article 9 Admissibility and Assessment of Evidence

to draw adverse inferences because certain important documents were de-

stroyed, lost or not produced by the parties.*** These factors, combined
with the vast number of decisions rendered by the Claims Tribunal over the
last decades, provide a key source of information on the procedural issue
of adverse inference. Some of the most important cases shall be discussed
below.

B. General Requirements

58 Before drawing adverse inferences, arbitral tribunals must ensure that they
are applying this principle appropriately, with due regard to the circum-
stances of the case. The doctrine has identified the following general re-
quirements for drawing adverse inferences:®?

a) the party seeking the adverse inference must produce all available evi-
dence corroborating the inference sought;

b) the requested evidence must be accessible to the other party;

c) the inference sought must be reasonable, consistent with facts in the

record and logically related to the likely nature of the evidence with-
held;

d) the party seeking the adverse inference must produce prima facie evi-
dence; and

e) the other party must know, or have reason to know, of its obligation to
produce evidence rebutting the adverse inference sought.

G Production of all Corroborating Evidence by Requesting

Party

59 Arbitral tribunals will be reluctant to draw an adverse inference if the re-

questing party itself has access to corroborating evidence but has failed
to produce it.

60 In the Levitt case, the Claims Tribunal refused to draw an adverse in-
ference, despite Iran’s non-production of certain documents, because the
claimant did not even keep a copy of the main contract documents in its
New York office, but stored all relevant documents in Teheran. In addition,
the claimant failed to produce certain key employees as witnesses which

818 SHarpe, 551. It has been estimated that parties complied with only approximately half
of the Claims Tribunal’s production orders; Caron/Captan/PELLONPAA, 578.
819 See Brower/Bruescuke, 194-197, and the detailed comments by SHARPE, Summarised
in the following (N 58-69).
Article 9 Admissibility and Assessment of Evidence 185

could have corroborated its allegations related to the document production

requests.®°

D. Evidence Accessible to the Other Party

In the Edwards case, the claimant failed to convince the Claims Tribunal 61
that the respondents had come into actual possession of some important
business records the claimant had abandoned when he fled Iran in Novem-
ber 1979.81

Arbitral tribunals similarly may refuse to draw adverse inferences if certain 62

evidence is under the control of uncooperative third parties, as in the
INA Corporation case where the claimant was not held accountable for
the failure of organisations over which it had no control to provide certain
requested information.®?? An exception must apply, however, to situations
where the evidence is held by a parent, subsidiary or related company and
thus may be deemed to be accessible to the other party.®?3

E. Reasonable Inference

Inferences drawn by arbitral tribunals must be reasonable, i.e. in conform- 63

ity with the arbitrators’ common understanding of commercial practice. The
Claims Tribunal has developed the following reasonable inferences:*4

820 William J. Levitt v. Islamic Republic of Iran, Award No, 520-210-3 (29 August 1991),
27 Iran-US CTR 145, sect. 109 and 121. The fact that one witness had a financial
dispute with the claimant and did not testify because of this was regarded as the
claimant’s internal problem and therefore considered irrelevant. The respective ap-
proach is criticised by Born in that the criteria for applying an adverse inference
"are applied in an unrealistic fashion which approaches a denial of justice" (Born,
1920-1921).
821 George Edwards v. Government of the Islamic Republic of Iran, Award No. 451-251-2
(5 December 1989), 23 Iran-US CTR 290, sect. 11, citing H.A. Spalding, Inc. v. Mi-
nistry of Roads and Transport of the Islamic Republic of Iran, Award No. 212-437-3
(24 February 1986), 10 Iran-US CTR 22, at 31.
822 INA Corporation v. Government of the Islamic Republic of Iran, Award No. 184-161-1
(12 August 1985), 8 Iran-US CTR 373, at 381. Government agencies and private
companies failed to provide notifications or confirmations which could have had an
influence on the valuation of the claimant’s shares in a nationalised company.
823 Cremapves, 53.
824 Brunetti, 376-377.
 186 aa
5:15 Coe Article
LCS CU9 Admissibility
EU Gh oe ee eSof Evidence
and Assessment ee

a) in the absence of contemporaneous objections, invoices or payment

documents presented during the term of a contract are presumed to be
correct,®25 payable®* or evidencing satisfaction of payment*?’;

b) the failure to dispute an account for a lengthy period of time plac-

es a burden on the respondent to demonstrate that the account was
inaccurate;®8

c) a party which delays detailing its objection to a claim for payment

bears the burden of proving its justification;*°

d) where a party’s invoices typically contain substantiating documenta-

tion, the absence of such documentation presumably invalidates those
invoices.®°

F. Consistence with Facts in the Record

64 Adverse inferences must lead to conclusions consistent with facts in the

record. In the Corfu Channel case, for instance, the ICJ refused to draw
from the refusal of the United Kingdom to produce certain naval orders any
conclusions "differing from those to which the actual events gave rise".®*4

G. Logical Relation to Evidence Withheld

65 A party seeking an adverse inference must establish a logical connection

between the nature of the documents withheld and the inference derived
there from.

66 In the Riahi case,*** the claimant failed to produce certificates for 510
bearer shares. At the claimant’s request, the arbitral tribunal twice ordered

828 Houston Contracting Co. v. National Iranian Oil Co., Award No. 378-173-3 (22 July
1988), 20 Iran-US CTR 3 at 24-25; Lockheed Corp. v. Government of Iran, Award
No. 367-829-2 (9 June 1988), 18 Iran-US CTR 292 at 308.
826
RAM International Industries v. Air Force of the Islamic Republic of Iran, Award No.
DEC 118-148-2 (28 December 1993), 29 Iran-US CTR 383 at 390-391; Rockwell
International Systems, Inc. v. Government of the Islamic Republic of Iran, Award
No. 438-430-1 (5 September 1989), 23 Iran-US CTR 150.
Behring International, Inc. v. Islamic Republic of Iran Air Force, Award No. 523-382-3
(29 October 1991), 27 Iran-US CTR 218 at 234.
DIC of Delaware, Inc. v. Teheran Redevelopment Corp., Award No. 176-255-3
(26 April 1985), 8 Iran-US CTR 144 at 164.
Howard Needles Tammen and Bergendorff v. Government of the Islamic Republic of
Iran, Award No. 244-68-2 (8 August 1986), 11 Iran-US CTR 302 at 327.
Iran National Airlines Co. v. Government of the United States of America, Award
No. 335-B9-2 (30 November 1987), 17 Iran-US CTR 214 at 221.
United Kingdom v. Albania, judgment of 9 April 1949, [1949] ICJ Rep. 4, at 32.
Frederica Lincoln Riahi v. Government of the Islamic Republic of Iran, Award No. 600-
485-1 (27 February 2003), YB Comm. Arb. 1993, 464. Criticised by Born, at 1920.
Article 9 Admissibility and Assessment of Evidence 187

the respondent to produce the respective company’s share register. When

the respondent failed to produce the share register, the majority of the ar-
bitral tribunal refused to draw an adverse inference, concluding that Iranian
law does not require transfers of bearer shares to be entered into share
registers, and it was not convinced that the share register of the company
would show that the claimant owned the 510 bearer shares. Judge Brower
questioned this conclusion in his dissenting opinion, concluding that it was
unjust and inequitable to reward the respondent for its calculated flouting
of two separate production orders of the arbitral tribunal.

H. Prima Facie Evidence by Requesting Party

Arbitral tribunals should not draw any negative inference if the requesting 67
party has failed to introduce prima facie evidence for its claim, i.e. evi-
dence that is, under the circumstances, reasonably consistent, complete
and detailed.

£ Sufficient Opportunity for Requested Party to Produce

Whenever possible, arbitral tribunals should inform parties that adverse 68

inferences may be drawn against them from their failure to comply with
disclosure obligations.®? Otherwise, the party against whom the adverse
inference is drawn would not have an opportunity to rebut it, which could
raise due process concerns.®** A respective announcement should be in-
cluded in the terms of reference or the constitutional order, as the case may
be, and repeated in any production order.

The Avco case illustrates the danger of failing to advise the parties of 69
their evidentiary obligations.®*° At a pre-hearing conference, the chairper-
son stated that the claimant could submit an auditor’s report in lieu of
hundreds of invoices. Three years later, however, the arbitral tribunal (with
a new chairperson and with the Iran-appointed member now participating)
rejected the claimant’s invoice claims presented on this basis. Dissenting,
Judge Brower concluded that the arbitral tribunal had “misled the Claim-
ant, however unwittingly, regarding the evidence it was required to submit,
thereby depriving Claimant, to that extent, of the ability to present its
case”.®36 The claimant successfully raised this defence to prevent enforce-
ment of the award in U.S. courts.®”

833 Nater-Bass in Commentary Swiss Rutes, Art. 24 N 20.

834 Wesster, 51.
835 Avco Corp. v. Iran Aircraft Industry, Award No. 377-261-3 (18 July 1988), 19 Iran-
US CTR 200.
SP-id, atk231.
837 Iran Aircraft Industry v. Avco Corp., 980 F.2d 141 (2d Cir. 1992).
 1885i
cL) nee Article
oS oe 9 Admissibility
Ue en ee EEE EE eeof Evidence
and Assessment eee eee

VI. Cost Sanctions for Bad Faith Conduct (par. 7)

70 The new Art. 9(7) authorises arbitral tribunals to impose costs based on
bad faith conduct and constitutes a specific implementation of the good
faith principle under par. 3 of the Preamble. Although this provision does
not necessarily attribute powers to arbitral tribunals that they did not have
already, it may be expected to increase the frequency with which parties
request costs on this basis.%%°

TBs In the past, arbitral tribunals have regularly taken into account a party’s
bad faith conduct for the allocation of costs,**° e.g. when the respective
party caused unjustified delays or obstructed the proceedings,**° requested
excessive compensation,®*! or concluded an agreement contrary to bonos
mores®*?,

838 Coen KLASENeER, 161.

839 See ReliaStar Life Insurance Co. of NY v. EMC National Life, 564 F. 3d 81 (2d Cir.
2009), where the arbitral tribunal awarded respondent ReliaStar all legal fees becau-
se the claimant’s conduct had been "lacking in good faith", notwithstanding that the
contract explicitly required each party to bear its own attorneys’ fees; Park, Accuracy,
30; cf. also Gotanpa, 42-43.
840
ICC Case No. 8486 (1996), Collection of ICC Arbitral Awards IV (1996-2000) 321-
332, at 331, YB Comm. Arb. 1999, 172. In this case, the respondent made none of
the advance payments required, filed its counterclaim belatedly, refused to sign the
terms of reference, did not participate in the oral hearings, and appointed its counsel
at the last moment, i.e. shortly before comments on the evidence were due. Cf. also
PILS (Basel)-Wirtn, Art. 189 N 65.
84 re ICC Case No. 6527
(1991), Collection of ICC Arbitral Awards III (1991-1995) 185-
194, at 194, YB Comm. Arb. 1993, 44, 52.
84 N
ICC Case No. 6248 (1990), Collection of ICC Arbitral Awards III (1991-1995) 239-
255, at 254-255, YB Comm. Arb. 1994, 124, referring to a decision of the Zurich
Commercial Court of 9 May 1968, published in SJZ 1968, 354.
 Annex 1:
Comparison IBA Rules 1999 and 2010
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Comparison IBA Rules 1999 e
and 2010
E HE 191

The Rules

Preamble

1. These IBA Rules on the Taking of Evidence

in International-Commereialt Arbitration
(he“IBA
-Rules of Evidence”}-are intended
to gevernnprovide an efficient-and,
economical mannerand fair process for the

taking of evidence in international-

eommercial arbitrations, particularly those
between Parties from different legal
traditions. They are designed to supplement
the legal provisions and the institutional-er,
ad hoc_or other rules accerdite+te-whiehthe-
Parties are conducting theirthat apply to the
conduct of the arbitration.

2. Parties and Arbitral Tribunals may adopt the

IBA Rules of Evidence, in whole or in part, to

govern arbitration proceedings, or they may

vary them or use them as guidelines in
developing their own procedures. The
Rules are not intended to limit the
flexibility that is inherent in, and an
advantage of, international arbitration, and

Parties and Arbitral Tribunals are free to

adapt them to the particular circumstances
of each arbitration.

Comparison IBA Rules 1999 to 2010 prepared by the authors. © IBA Rules:
International Bar Association (IBA).
192 Annex 1

3. The taking of evidence shall be conducted

on the prineipleprinciples that each Party
shall act in good faith and be entitled to
know, reasonably in advance of any
Evidentiary Hearing_or any fact or merits
determination, the evidence on which the
other Parties rely.

Artielet Definitions

In the IBA Rules of Evidence:

~‘Arbitral Tribunal~. means a sole arbitrator or

a panel of arbitrators-validhydecidine
by
a ; sek

~‘Claimant~. means the Party or Parties who

commenced the arbitration and any Party
who, through joinder or etherwiseother wise >

becomes aligned with such Party or Parties;

9
~‘Document~. means a writing,

communication, picture, drawing, program

or data of any kind, whether recorded or_
Comparison IBA Rules
a g 1999 and 2010 193
e GD

maintained on paper;_or by electronic-means,

audio-er, visual reeerdings-or any other

recording informationmeans;

~‘Evidentiary Hearing~’ means any hearing,

whether or not held on consecutive days, at
which the Arbitral Tribunal, whether in

person, by teleconference, videoconference

or other method, receives oral or other
evidence;

~‘Expert Report~! means a written statement by

a Tribunal- Appointed Expert or a Party-

Appointed Expert-submitted-_pursuanttethe-
HBA
oidoddenve:
Rites

~‘General Rules~’ mean the institutional-er, ad

hoc or other rules aceordingthat apply to

bidh-the- Pass setae hesitie

conduct of the arbitration;

‘IBA Rules of Evidence’ or ‘Rules’ means these

IBA Rules
on the Taking of Evidence in_
In tional Arbitration th

revised or amended from time to time;

“‘Party~’ means a party to the arbitration;

~‘Party-Appointed Expert--neans—an_expert-
witness-presented
by-a’ means person
a or

organization appointed by a Party in order to

194
19600 we OE a ee 1
Annex

report on specific issues determined by the

Party;

“‘Request to Produce~! means a_written request

by a Party fer-a-precedural
order by-which the-
Arbitral- Hibunalyeuld direetthat another
Party te-produce decumentsDocuments;

~‘Respondent~. means the Party or Parties

9

against whom the Claimant made its claim,

and any Party who, through joinder or

etherwiseother wise, becomes aligned with
such Party or Parties, and includes a
Respondent making a counter- claim;

~‘Tribunal-Appointed Expert=! means a person

or organization appointed by the Arbitral
Tribunal in order to report to it on specific
issues determined by the Arbitral Tribunal;_
and

‘Witness Statement’ means a written statement

of testimony by a witness of fact.

Article 21 Scope of Application

1. Whenever the Parties have agreed ox the

Arbitral Tribunal has determined to
apply the IBA Rules of Evidence, the Rules
shall govern the taking of evidence, except
to the extent that any specific provision of
Comparison IBA Rules 1999 and 2010 195

them may be found to be in conflict with

any mandatory provision of law
determined to be applicable to the case
by the Parties or by the Arbitral Tribunal.

2. Where the Parties have agreed to apply the_

IBA Rules of Evidence,
they shall be_
deemed
to have agreed, in the absence
of
a contrary indication,to the version as
current on the date of such agreement.

3. Incase of conflict between any provisions of

the IBA Rules of Evidence and the General
Rules, the Arbitral Tribunal shall apply the
IBA Rules of Evidence in the manner that
it determines best in order to accomplish
the purposes of both the General Rules
and the IBA Rules of Evidence, unless the

Parties agree to the contrary.

4. In the event of any dispute regarding the

meaning of the IBA Rules of Evidence, the

Arbitral Tribunal shall interpret them

according to their purpose and in the
manner most appropriate for the
particular arbitration.

5. Insofar as the IBA Rules of Evidence and

the General Rules are silent on any matter
concerning the taking of evidence and the
Parties have not agreed etherwiseother
wise, the Arbitral Tribunal mayshall
196
270 ee ES eee
Annex
ee
1

conduct the taking of evidence as it deems

appropriate, in accordance with the
general principles of the IBA Rules of
Evidence.

Article Consultation
2 on Evidentiary Issues

ie The Arbitral Tribunal shall consult the

Parties at the earliest appropriate time in
the proceedings and invite them to consult
each other with a view to agreeing on an
efficient, economical and fair process for
the taking of evidence.

. The consultation on Evidentiary issues

may address the scope, timing and manner
of the taking of evidence, including:

(a) the preparation and submission of

Witness Statements and Expert
Reports;

(b) the taking of oral testimony at any

Evidentiary Hearing;
(c) the requirements, procedure and format
applicable to the production of
——Documents;
(d) the level of confidentiality protection to
be afforded to evidence in the arbitration;
__and
(e) the promotion of efficiency, economy
and conservation of resources in
connection with the takingof evidence.
Comparison IBA Rules 1999 and 2010 197

x The Arbitral Tribunal is encouraged to

identify to the Parties, as soon as it
considers it to be appropriate, any issues:
(a) that the Arbitral Tribunal may regard
as relevant to the case and material to its

outcome; and/or
(b) for which a preliminary determination
may be appropriate.

Article 3Documents

ie Within the time ordered by the Arbitral

Tribunal, each Party shall submit to the
Arbitral Tribunal and to the other Parties
all decumentsDocuments available to it on
which it relies, including public
documentsDocuments and those in the
public domain, except for any
decumentsDocuments that have already
been submitted by another Party.

Within the time ordered by the Arbitral

Tribunal, any Party may submit to the
Arbitral Tribunal_and to the other Parties
a Request to Produce.

, A Request to Produce shall contain:

(a)
(i) a description of aeach requested
decumentDocument sufficient to identify
it, or (ii) a description in sufficient
198 Annex 1

detail (including subject matter) of a

narrow and specific requested category
of decumentsDocuments that are
reasonably believed to exist;_in the case
of Documents maintained in
electronic form, the requesting Party
may, or the Arbitral Tribunal may
order that it shall be required to,
identify specific files, search terms,
individuals or other means of searching
for such Documents in an efficient and

economical manner;
(b}a-deseription
ef(b) a statement as to

how the decuments-Documents

requested are relevant to the case and
material to theits outcome-efthe-case;
and

¢e}(c)
(i) a statement that the decuments-
Documents
requested are not in the possession,
custody or control of the requesting Party;
and of the reason or a statement of the
reasons why it would be unreasonably
burdensome for the requesting Party to
produce such Documents, and (ii) a
statement of the reasons why thatthe
requesting Party assumes the
decumentsDocuments requested te-beare
in the possession, custody or control of
the-otheranother Party.

4. Within the time ordered by the Arbitral

Tribunal, the Party to whom the Request
Comparison IBA Rules 1999 and 2010 199

to Produce is addressed shall produce to

the other Parties and,ifthe Arbitral
Tribunal andso orders, to the-ether-
Partiesit, all the decumentsDocuments
requested in its possession, custody or
control as to which itmakes no objection-
pede.

5. Ifthe Party to whom the Request to

Produce is addressed has ebjectionsan_
objection to some or all of the
decumentsDocuments requested, it shall
state themthe objection in writing to the
Arbitral Tribunal and the other Parties
within the time ordered by the Arbitral
Tribunal. The reasons for such

ebjectionsobjection shall be any of those

set forth in Article 92.9.2 or a failure to
satisfy any of the requirements of Article

3.3.

6. Upon receipt of any such objection, the

Arbitral Tribunal may invite the relevant
Parties to consult with each other with a

view to resolving the objection.

7. Either Party may, within the time ordered_

by the Arbitral Tribunal, request the
Arbitral Tribunal to rule on the objection.
The Arbitral Tribunal shall_then, in
consultation with the Parties and in timely
fashion, consider the Request to Produce
200 Annex 1

and the ebjectionsobjection. The Arbitral

Tribunal may order the Party to whom
such Request is addressed to produce te-

theseany requested decumentsDocument

in its possession, custody or control as to
which the Arbitral Tribunal determines
that (i) the issues that the requesting Party
wishes to prove are relevant to the case and
material to theits outcome-efthe-case-and;
(ii) none of the reasons for objection set
forth in Article 9.2 apphyapplies; and (iii) the
requirements of Article 3.3 have been
satisfied. Any such Document shall be
produced to the other Parties and, if the
Arbitral Tribunal so orders, to it.

. In exceptional circumstances, if the

propriety of an objection can ent~be
determined only by review of the
decumentDocument, the Arbitral Tribunal
may determine that it should not review
the decumentDocument. In that event, the

Arbitral Tribunal may, after consultation

with the Parties, appoint an independent
and impartial expert, bound to
confidentiality, to review any such
decumentDocument and to report on the
objection. To the extent that the objection
is upheld by the Arbitral Tribunal, the
expert shall not disclose to the Arbitral
Tribunal and to the other Parties the
Comparison IBA Rules 1999 and 2010
a 201

contents of the deceumentDocument

reviewed.

9. Ifa Party wishes to obtain the production of

decumentsDocuments from a person or
organization who is not a Party to the
arbitration and from whom the Party
cannot obtain the decumentsDocuments
on its own, the Party may, within the time
ordered by the Arbitral Tribunal, ask it to
take whatever steps are legally available to
obtain the requested decuments—Fhe
Party

deta state s-a such doeuments-are-

relevant and matertal tothe outeomeof
the-ease Documents, or seek leave from
the Arbitral Tribunal to take such steps
itself. The Party shall submit such request
to the Arbitral Tribunal and to the other

Parties in writing, and the request shall

contain the particulars set forth in Article
3.3,
applicable.
as The Arbitral Tribunal
shall decide on this request and shall take-
the -necessary steps+f, authorize the
requesting Party to take, or order any
other Party to take, such steps
as the
Arbitral Tribunal considers appropriate
if, in its discretion, it determines that (i)
the decumentsswould
be relevant and
materia/Documents would be relevant to
the case and material to its outcome, (ii)
the requirements of Article 3.3, as
applicable, have been satisfied and (iii)
202 Annex 1

none of the reasons for objection set forth

in Article 9.2 applies.

10. FheArbitral Tribunal atAt any time before

the arbitration is concluded, the Arbitral
Tribunal may (i)_request aPartyte-
en rte aaa and el
Fergal: aE ter?

berelevant
and material te the-outeome oF
the-case_A _ParymayobjecHto such aany_
Party to produce Documents, (ii) request
any Party to use its best efforts to take or
(iii) itself take, any step that it considers
appropriate to obtain Documents from
any person or organization. A Party to
whom such a request for Documents is
addressed may object to the request sased-
enfor any of the reasons set forth in Article
9.2. HaParty+raisesIn
such an-ebjection, the-
TT ee eee

the_procedures-set
forth in Article 3-7.cases,
Article 3.4 to Article 3.8 shall apply
correspondingly.

1 —_. Within the time ordered by the Arbitral

Tribunal, the Parties may submit to the
Arbitral Tribunal and to the other Parties
any additional decumentsDocuments on
which they intend to rely or which they
Comparison IBA Rules 1999 and 2010 203

believe have become relevant to the case

and material_to its outcome as a
consequence of the issues raised in
decumentsDocuments, Witness
Statements or Expert Reports submitted
or produced-by-anetherParty, or in other
submissions of the Parties.

12. With respect to the form of submission or

production of Documents:
+-H(a) copies are-submitted_orpreduced—
they—mustof Documents shall conform
fally-to the originals—At_and, at the
request of the Arbitral Tribunal, any
original mustshall be presented for
inspection=;
(b) Documents that a Party maintains in
electronic form shall be submitted or
produced in the form most convenient
or economical to it that is reasonably
usable
by the recipients, unless the
Parties agree other wise or, in the
absence of such agreement, the Arbitral
Tribunal decides other wise;
(c)
a Party is not obligated to produce
multiple copies of Documents which are
essentially identical unless the Arbitral
Tribunal decides other wise; and
(d) translations of Documents shall be
submitted together with the originals and
marked as translations with the original
language identified.
204 Annex 1

133 Adi
decumentsAny Document submitted
or produced by a Party pursuanttethe-
IBA
Evidencetorbyaor
Rules of non-Party
pursuantte Article 3-8)in the arbitration
and_not_ other wise in the public domain
shall be kept confidential by the Arbitral
Tribunal and bythe other Parties, and-

they shall be used only in connection with

the arbitration. This requirement shall
apply except and to the extent that
disclosure may be required of a Party to
fulfil a legal duty, protect or pursue a legal
right, or enforce or challenge an award in
bona fide legal proceedings before a state
court or other judicial authority. The
Arbitral Tribunal may issue orders to set
forth the terms of this confidentiality. This
requirement isshall be without prejudice
to all other obligations of confidentiality
in the arbitration.

14, If the arbitration is organised into

separate issues or phases (such as

jurisdiction, preliminary determinations, |

liability or damages), the Arbitral
Tribunal may, after consultation with the
Parties, schedule the submission of
Documents and Requests to Produce
separately for each issue or phase.
Comparison IBA Rules 1999 and 2010 205

Article 4 Witnesses of Fact

1. Within the time ordered by the Arbitral

Tribunal, each Party shall identify the
witnesses on whose testimony it
reliesintends to rely and the subject matter
of that testimony.

Any person may present evidence as a

witness, including a Party or a Party’s
officer, employee or other representative.

. It shall not be improper for a Party, its

officers, employees, legal advisors or other
representatives to imterviewinter_view its
witnesses or potential witnesses_and to
discuss their prospective testimony with
them.

. The Arbitral Tribunal may order each

Party to submit within a specified time to
the Arbitral Tribunal and to the other
Parties a-written-statement Witness _
Statements by each witness on whose
testimony it relesintends to rely, except for
those witnesses whose testimony is sought
pursuant to Article4+10
(the “Witness-
Statement?)Articles 4.9 or 4.10. If
Evidentiary Hearings are organized
enorganised into separate issues or phases
(such as jurisdiction, preliminary
determinations, liability andor damages),
206 Annex 1

the Arbitral Tribunal or the Parties by

agreement may schedule the submission
of Witness Statements separately for each
Evidentiary Heatineissue or phase.

5. Each Witness Statement shall contain:

(a) the full name and address of the witness,

a statement regarding
his or her present
and past relationship (if any) with any of
the Parties, and a description of his or her

background, qualifications, training and

experience, if such a description may be
relevant and-matertalto the dispute or to
the contents of the statement;

(b) a full and detailed description of the

facts, and the source of the witness’s

information as to those facts, sufficient to

serve as that witness’s evidence in the

matter in dispute. Documents on which
the witness relies that have not already
been submitted shall be
provided;
(c) a statement as to the language in which
the Witness Statement was originally
prepared and the language in which the
witness anticipates giving testimony at
the Evidentiary Hearing;
(d)
an affirmation of the truth of the
statementWitness Statement; and

(de) the signature of the witness and its date

and place.

6. If Witness Statements are submitted, any

Party may, within the time ordered by the
Comparison IBA Rules 1999 V
a
E and 2010 207

Arbitral Tribunal, submit to the Arbitral

Tribunal and to the other Parties revised
or additional Witness Statements,

including statements from persons not

previously named as witnesses, so long as
any such revisions or additions onke
respond onlyto matters contained in
another Party’s Witness Statement
erStatements, Expert Repertandsuch-
mattersReports or other submissions that

have not been previously presented in the

arbitration.

7. If a witness whe-has-submitted-a—Witness—

Statement-dees-netappearwhose
rance has beenr te rsuant

to Article 8.1 fails without a valid reason

to_appear for testimony at an Evidentiary

Hearing;-exeept-by-agreement-ofthe-
Parties, the Arbitral Tribunal shall
disregard thatany Witness Statement_
related to that Evidentiary Hearing by that
witness unless, in exceptional

circumstances, the Arbitral Tribunal

determines-otherwisedecides other wise.
 Annex 1
208

8. Ifthe Parties agree thatappearance of a

witness whe-has submitted-a-Witness-
Statement
dees not need to-appear for
, Hetlentatertentiad “sie!

an-agreement
shal not be considered to-
reflectan-agreementasnot been requested
pursuant to Article 8.1, none of the other
Parties shall be deemed to have agreed to
the correctness of the content of the

Witness Statement.

9. If a Party wishes to present evidence from

a person who will not appear voluntarily
at its request, the Party may, within the
time ordered by the Arbitral Tribunal, ask
it to take whatever steps are legally
available to obtain the testimony of that
person-Fhe, or seek leave from the
Arbitral Tribunal to take such steps itself.
In the case of a request to the Arbitral
Tribunal, the Party shall identify the
intended witness, shall describe the
subjects on which the witness’s testimony
is sought and shall state why such subjects
are relevant to the case and material to
theits outcome-efthe-ase. The Arbitral
Tribunal shall decide on this request and
shall take-+the-necessary-stepsif, authorize
the requesting Party to take or order any
other Party to take, such steps as the
Arbitral Tribunal considers appropriate
if, in its discretion, it determines that the
Comparison IBA Rules 1999 and 2010 209

testimony of that witness would be relevant

to the case and material to its outcome.

10. Fhe Arbitral FHibunalmay,atAt any time

before the arbitration is concluded, th

Arbitral Tribunal may order any Party to

provide for, or to use its best efforts to

provide_for, the appearance for testimony

at an Evidentiary Hearing of any person,
including one whose testimony has not yet
been offered.A Party to whom such a
request is addressed may object for any of
the reasons set forth in Article 9.2.

Article 5 Party-Appointed Experts

1. A Party may rely on a Party-Appointed

Expert as a means of evidence on specific
issues. Within the time ordered by the
Arbitral Tribunal, aParty—(i)_
each Party
shall identify any
Party-Appointed Expert
on whose testimonyit intends
to rely and_
the subject-matter of such testimony; and
(ii) the Party-Appointed Expert shall
submit an Expert Report.

The Expert Report shall contain:

(a) the full name and address of the Party-
Appointed Expert, a statement regarding
his or her present and past relationship (if
any) with any of the Parties, their legal
advisors and the Arbitral Tribunal,
and a
210 ee Annex 1
e
210)

description of his or her background,

qualifications, training and experience;

(b) a description of the instructions pursuant
to which he or she is providing his or her
opinions and conclusions;
(c) a statement of his or her independence
from the Parties, their legal advisors and
the Arbitral Tribunal;
(d) a statement of the facts on which he or
she is basing his or her expert opinions
and conclusions;
(ee) his or her expert opinions and
conclusions, including a description of
the methedmethods, evidence and

information used in arriving at the

conclusions. Documents on which the

Party-Appointed Expert relies that have

not already been submitted shall be
provided;

(dan
aHirmation
efthetruth ofthe Expert
Report;andf) if the Expert Report has
been translated, a statement as to the
language in which it was originally
prepared, and the language in which the
Party-Appointed Expert anticipates
giving testimony at the Evidentiary
Hearing;
(g) an affirmation of his or her genuine
belief in the opinions expressed in the
Expert Report;

(eh) the signature of the Party-Appointed

Expert and its date and place-;_and
(4) if the Expert Report has been signed by
more than one person, an attribution of
Comparison IBA Rules 1999 and 2010 211

the entirety
or specific parts of
the Expert
Report to each author.

ER If Expert Reports are submitted,

any Party
may, within the time ordered by the
Arbitral Tribunal, submit to the Arbitral
Tribunal and to the other Parties revised
or additional Expert Reports, including
reports or statements from persons not

previously identified as Party-Appointed

Experts, so
long as any such revisions or
additions respond only to matters
contained in another Party’s Witness
Statements, Expert Reports or other
submissions that have not been previously
presented in the arbitration.

The Arbitral Tribunal in its discretion

may order that any Party-Appointed

Experts_who will submit or who have
submitted Expert Reports on the same or
related issues meet and confer on such
issues. At such meeting, the Party-
Appointed Experts shall attempt to reach
agreement on thesethe issues as-te-which-
they-had
differences-of
opinion inwithin the
scope
of their Expert Reports, and they shall
record in writing any such issues on which
they reach agreement:
212 Annex 1

any remaining areas of disagreement and

the reasons therefore.

. Ifa Party-Appointed Expert dees-net

appearwhose appearance has been
requested pursuant to Article 8.1 fails
without a valid reason to appear _for
testimony at an Evidentiary Hearing;
except
by-agreementoftheParties-
accepted
bythe Arbitral -Tribunal, the
Arbitral Tribunal shall disregard his-or-
herany Expert Report_by that Party-
Appointed Expert related to that
Evidentiary Hearing unless, in
exceptional circumstances, the Arbitral
Tribunal determines-otherwisedecides
other wise.

. If the Parties-agreethatappearance of a
Party-Appointed Expert dees-net-needte-
f : Phe

Hearing,
such-an-agreement
shall net be-
considered
to+eflect an-agreementashas |
not been requested pursuant to Article
8.1, none of the other Parties shall be
deemed to have agreed to the correctness
of the content of the Expert Report.

Article 6 Tribunal-Appointed Experts

. The Arbitral Tribunal, after having

consultedconsulting with the Parties, may
Comparison IBA Rules 1999 and 2010 213

appoint one or more independent

Tribunal-Appointed Experts to report to it
on specific issues designated by the
Arbitral Tribunal. The Arbitral Tribunal
shall establish the terms of reference for
any Tribunal-Appointed Expert
reportReport after hayine
eonsuttedconsulting with the Parties. A
copy of the final terms of reference shall
be sent by the Arbitral Tribunal to the
Parties.

2. The Tribunal-Appointed Expert shall,

before accepting appointment, submit to
the Arbitral Tribunal and to the Parties a
description of his or her qualifications
and_a statement of his or her
independence from the Parties, their legal
advisors and the Arbitral Tribunal. Within
the time ordered by the Arbitral Tribunal,
the Parties shall inform the Arbitral
Tribunal whether they have any
objections as to the Tribunal-Appointed
Expert’s_qualifications and independence.
The Arbitral Tribunal shall decide

promptly whether to accept any such

objection._After the appointment of a_
Tribunal- Appointed Expert, a Party may
object to the expert’s qualifications or
independence only if the objection is for
reasons of which the Party becomes aware_
after the appointment has been made. The
214
Oe a SS EE eee
Annex 1

Arbitral Tribunal shall decide promptly

what, if any, action to take.

Ree | if co iaiee

3. Subject to the provisions of Article 9.2, the

Tribunal- Appointed Expert may request
a Party to provide any information or to
provide access to any Documents, goods,
samples, property, machinery, systems,
processes or site for inspection, to the
extent relevant to the case and material to

its
outcome.
The authority of a Tribunal-
Appointed Expert to request such
information or access shall be the same as
the authority of the Arbitral Tribunal. The
Parties and their representatives shall have
the right to receive any such information
and to attend any such inspection. Any
disagreement between a Tribunal-
Appointed Expert and a Party as to the
relevance, materiality or appropriateness
of such a request shall be decided by the
Arbitral Tribunal, in the manner provided
in Articles 3.5 through 3-43.8. The
Tribunal- Appointed Expert shall record
in the repertExpert Report any non-
compliance by a Party with an
Comparison IBA Rules 1999 and 2010
i 215
(se

appropriate request or decision by the

Arbitral Tribunal and shall describe its

effects on the determination of the

specific issue.

4. The Tribunal-Appointed Expert shall

report in writing to the Arbitral Tribunal_
in an Expert Report. The Fribenal-
vated E att dese acu
; bea eas
if . 1 os,

eonchisiens-Expert Report shall contain:

(a) the full name and address of the
Tribunal- Appointed Expert, and a
description of his or her background,
qualifications, training and experience;
(b) a statement of the facts on which he or
she is basing his or her expert opinions
and conclusions;

(c) his or her expert opinions and

conclusions, including a description of
the methods, evidence and information
used in arriving at the conclusions.
Documentson which the Tribunal-
Appointed Expert relies that have not.
already been submitted shall be provided;
(d)if the Expert Report has been translated,
a statement as
to the
language in which it
was originally prepared,
and the language
in which the Tribunal-Appointed Expert
anticipates giving testimony at the
Evidentiary Hearing;
216 Annex 1

(e) an affirmation of his or her genuine belief

in the opinions expressed in the Expert
Report;
(f) the signature of the Tribunal-Appointed
Expert and its date and place; and
(g) if the Expert Report has been signed by
more than one person, an attribution of
the entirety or specific parts of the Expert
Report to each author.

. The Arbitral Tribunal shall send a copy of

such Expert Report to the Parties. The
Parties may examine any document
information, Documents, goods, samples,
property, machinery, systems, processes or
site for inspection that the Tribunal-
Appointed Expert has examined and any
correspondence between the Arbitral
Tribunal and the Tribunal;-Appointed

Expert. Within the time ordered by the

Arbitral Tribunal, any Party shall have the
opportunity to respond to the
reportExpert Report in a submission by the
Party or through a Witness Statement or
an Expert Report by a Party-Appointed
Expert. The Arbitral Tribunal shall send
the submission, Witness Statement or
Expert Report to the Tribunal-Appointed
Expert and to the other Parties.

. At the request of a Party or of the Arbitral

Tribunal, the Tribunal-Appointed Expert
shall be present at an Evidentiary Hearing.
Comparison IBA Rules 1999 and 2010 217

The Arbitral Tribunal may question the

Tribunal-Appointed Expert, and he or she
may be questioned by the Parties or by
any Party- Appointed Expert on issues
raised in his or her Expert Report, the
Parties’ submissions or ##Witness_
Statementor the Expert Reports made by
the Party- Appointed Experts pursuant to
Article 6.5.

7. Any Expert Report made by a Tribunal-

Appointed Expert and its conclusions shall
be assessed by the Arbitral Tribunal with
due regard to all eiteum—stances-
circumstances of the case.

8. The fees and expenses of a Tribunal-

Appointed Expert, to be funded in a
manner determined by the Arbitral
Tribunal, shall form part of the costs of
the arbitration.

Article 7-On-Site Inspection

Subject to the provisions of Article 9.2, the

Arbitral Tribunal may, at the request of a

Party or on its own motion, inspect or require
the inspection by a Tribunal- Appointed _
Expert or a Party-Appointed Expert of any site,
property, machinery or any other goods-er-
process,
or decuments, samples, systems,
processesor Documents, as it deems
218
i
eS
Annex
SS
1

appropriate. The Arbitral Tribunal shall, in

consultation with the Parties, determine the
timing and arrangement for the inspection.
The Parties and their representatives shall have
the right to attend any such inspection.

Article 8 Evidentiary Hearing

1. Within the time ordered by the Arbitral

Tribunal, each Party shall inform the
Arbitral Tribunal and the other Parties of

the witnesses whose appearance it

requests. Each witness (which term
includes, for the purposes of this Article,
witnesses of fact and any experts) shall,
subject to Article 8.2, appear for testimony
at the Evidentiary Hearingif such person’s
appearance has been requested by any
Party or by the Arbitral Tribunal. Each
witness shall appear in person unless the
Arbitral Tribunal allows the use of

videoconference or similar technology

with respect to a particular witness.

2. The Arbitral Tribunal shall at all times have

complete control over the Evidentiary
Hearing. The Arbitral Tribunal may limit
or exclude any question to, answer by or
appearance of a witness-Gvhichterm-
peludeseterd £ thi sire

witnesses-_of
fact-and any Experts), if it
considers such question, answer or
Comparison IBA Rules 1999 and 2010

appearance to be irrelevant, immaterial,

unreasonably burdensome, duplicative or
other wise covered by a reason for
objection set forth in Article 9.2.
Questions to a witness during direct and
redirectre-direct testimony may not be
unreasonably leading.

Ite With respect to oral testimony at an

Evidentiary Hearing:
2-Fhe(a)
the Claimant shall ordinarily first
present the testimony of its witnesses,
followed by the Respondent presenting
the testimony of its witnesses;and+then-
Bed ge Cia :
= Deen totouing:

(b) following direct testimony, any other

Party may question such witness, in an
order to be determined by the Arbitral
Tribunal. The Party who initially
presented the witness shall subsequently
have the opportunity to ask additional
questions on the matters raised in the
other Parties’ questioning-Fhe;
(c) thereafter,
the Claimant shall ordinarily
first present the testimony of its Party-
Appointed Experts, followed by the
Respondent presenting the testimony of
its Party-Appointed Experts. The Party.
who initially presented the Party-
Appointed Expert shall subsequently have
the opportunity to ask additional
220 Annex 1

questions on the matters raised in the

other Parties’ questioning;
(d) the Arbitral Tribunal mayquestion a
Tribunal- Appointed Expert, and he or
she may be questioned bythe Parties or
by any Party- Appointed Expert, on
issues raised in the Tribunal-Appointed
Expert Report, in the Parties’ submissions
or in the Expert Reports made by the
Party-Appointed Experts;
(e) if the arbitration is organised into
separate issues or
phases (such as
jurisdiction, preliminary determinations,
liability and damages), the Parties may
agree or the Arbitral Tribunal may order
the scheduling
of testimony separately for
each issue or phase;
(f) the Arbitral Tribunal, upon request of a

Party or on its own motion, may vary this

order of proceeding, including the
arrangement of testimony by particular
issues or in such a manner that witnesses
presented
_by different Parties be
questioned at the same time and in
confrontation with each other—Fhe_
(witness conferencing);
(g) the Arbitral Tribunal may ask questions
to a witness at any time.

. “nyA witness_of fact providing testimony

shall first affirm, in a manner determined

appropriate by the Arbitral Tribunal, that

he or she isteHingthe+truthcommits to tell
Comparison IBA Rules 1999 and 2010 P27aih

the truth or,

in the case of an expert_
witness, his or her genuine belief in the
opinions to be expressed at the
Evidentiary Hearing. If the witness has
submitted a Witness Statement or an

Expert Report, the witness shall confirm it.

The Parties may agree or the Arbitral
Tribunal may order that the Witness
Statement or Expert Report shall serve as
that witness’s direct testimony.

. Subject to the provisions of Article 9.2, the

Arbitral Tribunal may request any person
to give oral or written evidence on any issue
that the Arbitral Tribunal considers to be
relevant to the case and material_to its_
outcome. Any witness called and
questioned by the Arbitral Tribunal may
also be questioned by the Parties.

Article 9 Admissibility and Assessment of

Evidence

iL, The Arbitral Tribunal shall determine

the admissibility, relevance, materiality and

weight of evidence.

The Arbitral Tribunal shall, at the request

of a Party or on its own motion, exclude
from evidence or production any
decumentDocument, statement, oral
222 Annex 1

testimony or inspection for any of the

following reasons:
(a) lack of sufficient relevance to
case
the or
materiality_to its outcome;

(b) legal impediment or privilege under the

legal or ethical rules determined by the
Arbitral Tribunal to be applicable;
(c) unreasonable burden to produce the
requested evidence;
(d) loss or destruction of the
documentDocument that has been-
reasonably shown with reasonable
likelihood to have occurred;

(e) grounds of commercial or technical

confidentiality that the Arbitral Tribunal
determines to be compelling;
(f) grounds of special political or
institutional sensitivity (including
evidence that has been classified as secret
by a government or a public international
institution) that the Arbitral Tribunal
determines to be compelling; or

(g) considerations of procedural economy,

proportionality, fairness or equality of the
Parties that the Arbitral Tribunal
determines to be compelling.

. In considering issues of legal impediment

or privilege under Article 9.2(b), and
insofar as permitted by any mandatory
legal or ethical rules that_are determined
by it to be applicable, the Arbitral
Tribunal may take into account:
Comparison IBA Rules 1999 and 2010 223

(a) any need to protect the confidentiality of

a Document created or statement or oral

communication made in connection with

and for the purpose of providing or

obtaining legal advice;
(b) any need to protect the confidentiality of
a Document created or statement or oral

communication made in connection with

and for the purpose of settlement
negotiations;
(c) the expectations of the Parties and their
advisors at the time the legal impediment
or privilege is said to have arisen;
(d) any possible waiver of any applicable
legal impediment or privilege by virtue of
consent, earlier disclosure, affirmative
use of the Document, statement, oral
communication or advice contained

therein,or other wise; and

(e) the need to maintain fairness and equality
as between the Parties, particularly if they
are subject to different legal or ethical
rules.

. The Arbitral Tribunal may, where

appropriate, make necessary
arrangements to permit evidence to be
presented or considered subject to
suitable confidentiality protection.

If a Party fails without satisfactory

explanation to produce any
decumentDocument requested ina
224 Annex 1

Request to Produce to which it has not

objected in due time or fails to produce
any decumentDocument ordered to be
produced by the Arbitral Tribunal, the
Arbitral Tribunal may infer that such
document would be adverse to the
interests of that Party.

. Ifa Party fails without satisfactory

explanation to make available any other
relevant evidence, including testimony,

sought by one Party to which the Party to

whom the request was addressed has not
objected in due time or fails to make
available any evidence, including
testimony, ordered by the Arbitral Tribunal
to be produced, the Arbitral Tribunal
may infer that such evidence would be
adverse to the interests of that Party.

. Ifthe Arbitral Tribunal determines that a

Party has failed to conduct itself in good

faith in the takingof evidence, the Arbitral
Tribunal may, in addition to any other
measures available under these Rules, take
such failure into account in its assignment
of the costs_of the arbitration, including
costs arising out of or in connection with
the taking of evidence.
 Annex 2:
ICC Techniques for Controlling Time
and Costs in Arbitration
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ICC Techniques for Controlling Time and Costs in Arbitration 227

Table of Contents Para.

Preface
Introduction
Arbitration agreement
PEL CING FARIS OSs 55UAE dita wniaatReanolosodpenaduinaniidey coeale sav RMT ATARLAEaG Ie iz
election. and. APDOINEMENL Of ArIRFALGMS 1. sccvwes<ccesscsieevedecetsstherveveddvacguare 3-5
PSE AERACK. EN OOE
OU Oa ereaeear ods dohersoned ennai tel veers dock coer Te ace eit eons 6
Aime: limits tomrenderig: HheaWward isi. CW adds. dhieieeds ARR beveled vavueshalewe 7
OM USHIOMMEG. LCG GRICE AUON 5 wy cancentinrneunadagncav edguseadeat eccricer tetera pi onal 8
Initiation of proceedings. .................ccccccceeeeceeeceueeneeees a ti nees deter interets 9-18
SEISCHONKOL.COUNSENR cay sax otorecten ser here Le is ee 9,10
GOUSESWIEMEXPERIEMCE ian mend tenon nag astnaciapinicemase eee eee eaten eeeaa ee 9
COUMSEIRWIENBENIIG Sitectiae sas gnaccaiton nent noscutasneanesiede Omeren me meena eh. coer eee eae 10
SECLUDED. OF. MERE ACOR a pscie sais etna edo ote HOR I iil aly
USCLOMSOLe ya DIL ALO teat saat meet ar eh ea o on oe aeG aoe een Ses 11
AGPICLALOLS AMIEL CIM Cie ascneancnaacchiteh teas seetes ease Me ata akc geet ane anen ee ace meee ers 12
SelechionrancsappoOmemeNs DY slCOCs weanrecancssonisereoannesect tne oneaeeteen hh eee ae ils!
AOI GTODICERIONS eee sweeten st atencnntcc oe tare ten ttaeseot are een aerate ae onion 14
Selecting arbitrators with strong case-management SKilIS ..........ccccseeeseese eee 15
Request for Arbitration and ANSWEF ................ccccsececeeeeeeeeeeeasseeneas 16,17
COMPIVINGEVHEM EMEP CoPUlOS ya, s0taederseesdcans necandreseneee ecdueraheans saceneaatene 16717
Preliminary procedural ISSUES.. .......:<5<ctressecscsssucconesuascurdeaucasssageevauvenss 18-43
Fangtiage: of the arbitration. suiasiimcsteeee cee comecta tes suc sdaeeedsacumeoneene 18,19
Determination of language by the arbitral tribUNal ..........ccceeeeeeeeeeeen ensues 18
Proceedings involving two Or More lANQUAGES ........ccseeeecesececececeseceeeeeeusaeas 19
Relationship among the Terms of Reference, the provisional
timetable and the early case-management conference ................ 20-23
MEEMS OF REGEFENCC 2. asec. snacrscasucods cdr acsexerd tiene cows eatactet:dunuenee dee addntee 24-30
Summanies:of claims. ang. relief SOUGNE S. (Aivecracstecuonevsscnentnc cpereenethesWenneeare 24
Useofidiseretionuin apportionMeENnk.Of .COSUS* es cteensdiucrdsionsteaevdsciesenstvercesres 25
Empowering chairman on procedural ISSUES ........:.:ccececssececececerseeteneneveueers 26
Administrative secretary to the arbitral triDUNal ...........cceeceee eeeeeeeeeeeeeeeeeees 27
NESdiTOkiad DN YVSICAl MICEQEING panes usddeewa tee cule snunnecsirdvinctdatvtavoie sebecbciadncestbeenrneds 28
GEOUMECKD Alt Sin: sre wateanrebewnar ss sacardsoercdendwdedsanssmradonadetddoadecawncne deaNeusponnenacs 29
COMMAS WithALEICLe LOO cs oenar daraninancendengcaeanseddsanepapaeesatenaunsaden morals 30
Early case-management CONfeEreNnCe ..............cccccecee eeeeee eee eeeeneeees 31-34
TliMING Of CASE-MANAGEMENE COMPETENCE: jiirecsserscvesroepsehecninesndcsusescuenneteans Syl
BROACEVS CASES AGEIMEM stan -ancnnobsen trench. conus derase sacivmekecscmenianesisssm327535
(CIEINE ciaweinieGels
& henner eee arene Ree RR, PEPPER pcre BCA ACE nde dadet na oenonc iagpoacocr 34
Timetable for the proceedingS .............cccccecceseeeeeeeeeeeeeeeeeeen easeenenens 35-42
Compliance with the provisional timetable ........:..csceseecseeeeeeeeeens Rreare etree 35
NECCM Omnia tin Ghaa detegnaty ens ute acer sinaipighaadueerer ete nerruectacl Sue gene atibncsceneata 36
FIMIMOLUNE MC AMNGUA ALC a masecenasy ceaeserarscsueseersemsaansaese srodeesessvuseecstomdaes sates: Bz
PRE-NESFING CONTEIENCE icicceccsicessaserivervecinesscencdivecenncnesenvecasveucensenrandard ddan 38
WISCHOMA Ese Ra eee aae OR Stace dent ac aerremnedecsidertedenaranastandomeares sates. saneaneans tas 39
ShonteahiGnreavstic GimesPChlOUSecarereces carimvadany ders conned sindasndeswasandnanmnosecaes 40
BifUigecatlomMrand) PaltlaleAWAKAS:smvracartmescace oereevandeoenssdape avednelcnste igncasisnannievaleas41
Briefing everyone involved iN the CASC.....cseeeeeeeeeee nett eeneeneenee neaneaneeeeeeenees 42

Report of the ICC Commission on Arbitration. © International Chamber of

Commerce (ICC). Reproduced with permission of ICC. Originally published as
ICC Publication 843 and in the ICC International Court of Arbitration Bulletin
Vol. 18 No. 1 (2007); also available on the website of ICC <www.iccwbo.org>
and in the ICC Dispute Resolution Library <www.iccdrl.com>.
228 Annex 2

SettlEMOENt «......5..ccccnecssecnceateucewanaasecemesOasdncsecansusennenisnais(eemadaenateeustes dats 43

Arbitral tribunal’s role in promoting SettleMENt........ccceeeeeeeereeeneeeee eter eeenees 43
Subsequent procedure for the arbitration. ..............:::ccseeeeeeeeeeeeeeees n 44-86
TATFOGUCTION 205 cance sececec ccs ceseseaeannneesee senor acest coca calsnames se@p@mmemetsetsdaesissceae 44
Written SUDMISSIONS ............... cece cece ene ee eee ee eee eeeeeeseneeneeneneeeeeeeeasegs 45-51
Setting out the case in full early in the ProceedingS .........sssssseseeeneeneeeeeneees 46
AVOIGING rePAtition .........cesceessccnssscncecsccecneenenseecsseuseececesscscsaceeencaseesecneaees 47
Sequential or SIMUItANEOUS CELIVETY .......ccceee eee eee eee ee seen eee eee een eeeeeeeeeen eee eanes 48
Specifying form and CONtENL.........cccceecesecerensecaeeeneeeeeenssaneeansenceeeeeseneeeess 49
Limiting the length Of SUDMISSIONS ...........cseceeeeeeeeeneeeeeneeneeueeeeseeeeeaeeneeneees 50
Limiting the number Of SUDMISSIONS ..........ccseceeeee eneneees 51
teenesteeeeeeeeenseenereeenen
Documentary eCVIGENCE .............ccc teeeeeeeee eeeeee eneeseaeneneneeeeenee
ccccecec ees 52-60
Organization Of COCUMENKS..........:sssesessceseneseeseesceseenececneeseeesenesercusceeoeenes 52
Producing documents on which the parties rely ........::.ceeseeeeneeeeneeeeeneneneens 53
Establishing procedure for requests for PrOGUCTION.........cecececeeneneneeeeeeeeeeees 54
Managing requests for production efficiently ..........cccceceeeeeeeeeeneeenenenenenenens 55
Avoiding AUplICatiONny.c.sscc-ca:cescnc seeenmee ometteen ets erat neta tetebe tetseae
<tea~<sesc matstetan 56
Selection of documents to be provided to the arbitral tribunal..............:000085 57
Minimizing creationiof, RardlGoplesieee rer crcecceree: we c= -rteerteraet aesteteie
nebok feeee teetelaete 58
TRANSLATIONS) asaeusnvnemyes esenese
»cRGeseeeenee Meeite “ORR eneetae veccnsn e
nine=achtete oeereias aerate 59
Authenticity, of COCUMENES csc. ccaca.-=0n<sace csncen
Seeeaneaume redeereedtceetaaaeeehae cemeee ts60
COFrESPONGENCE ii is555)c005 cane cctncnstenawasisansnesat h@hnaaeale
acltsesmeeeerens aneseeaecaees 61,62
Correspondence between, COUNSE .....<.:.:.<s0-a raseses =61
scssines ss dubs saesceblelsetsleselsmsinens
Sending correspondence to the arbitral tribUnal..............cscececeeeeeeeeeeeeeeeees 62
Witness. statements i... cscs. acecck vadecss dacman ses aes soe san cautouettenties sbemeitereeineets 63,64
Limiting :thenumber offwitnheSSesiia.cs. vss. sxcxr ene c- canteen teres seecebeeea sees ase ecemee 63
Minimizing the number of rounds of witness stateMents .........ceceeeeeeeee eeeeeee 64
Expert EVidenCe farsi. .5520-25522-secssuenssaaseseaneeeaaee Sadizennii eh ek SE 65—71
Presumption that expert evidence not required ............:.ccecceceeesceeceeeeceeees 65
[€Ciinternational centre for expentise ‘ep waccssenuaee aeseene. setseeeeeeeeeee eee ee 66
Clarity regarding the subject matter and scope Of reports...........ccceeeeceeeeenes 67
Number Of, experts: .ccscscsienacenidee demons awe geeen ea ageee a tee BSCR eine SARIN. eee Sees sean Bee te 68
Number Of repOrts.......2,.<.4+<caiabasaane oemSeen eee ae eeeens
chee ene:sdayecapenc ee arene 69
MeEetINgS:Of EXDOItS xa vacssacnnaccecqa eettinca
nance senencadesunseeannet nesaas
qeeee Reena eee eeeeete70
USe OF SINGIE EXPECT. .vssssoceceerececanatedTecsaasqad cael oaeeen eeekenanaeeeteek
ceeeee eee ene ZAl
GC: Lt * ene ene aoc Be ape PEPE Er RRRBREE st Sec cmc acinareb cincogccrmererncecsinigcncecnanecnae 72-84
Minimizing the length and number of hearingS ............sccceseesececcecececeecesenes 72
Choosing the best location for hearinGS =2......ssasseesseee aeenceaea ee ee eene LS
felephonezand Video/conferenCinG es.c..cs1ceesesesaasss sae cccenene. eee 74
Providing submissions, in: good) times....cc-seeece eee. seeeeseeeecaee
eee eee eee Ths
Cut-off date for evidence... <cjcca.asede a:teed teeeteen eecee cseine
nee eet eee e 76
Identifying core dOCUMENES., «04 <scacscunaddsduncuctarcseuce=<baaxesakeaee ae ee aan eee TET
Agendai.and timetable.) ..<csisdsscesnecca causens necassesc
see=oay eee eee ccecs 78
AVOICING, FEPCEITION ..c..0: cas cacencevagaaea cee tseese aseosteo sanansa eee ee e 79
Neéd for witnesses to APPEAL scdscvdeuswvssucoas-nbengusacoaereeasne ene aet
ee 80
Use of written statements as direct CVIGENCE...........cecceccceccusceecceceuscanceeceucs 81
WIENESS CONFERENCING. ..cs<.ciesaienasunsann Wenacecase,ou
beeen eee Beeeen 82
LIMICING;ChOSS=EXAMUIMAtION cs... cn accets teeta ceeaee es See eet eee nn 83
CIOSING SUDMISSIONS 5...cs<u2s.cdneasceapaceeeenteeeetuees eles act etrcene: 84
COSES | iiacssassscien csntard
ignsbeagenseeeeee toenema seein” axzadax eayg
fern mana a en 85
Using allocation of costs to encourage efficient conduct
OF ENE PrOCEEMiNGS oren xxctnacscocugs ee te eee nn nts
cenehaccens eens saseata 85
ICC Techniques for Controlling Time and Costs in Arbitration 229

Preface

One of the salient characteristics of arbitration as a dispute resolution

mechanism is that the rules of arbitration themselves present a frame-
work for arbitral proceedings but rarely set out detailed procedures for the
conduct of the arbitration. For example, rules of arbitration do not gener-
ally specify whether there should be one, two or more exchanges of briefs.
They do not contain any detailed provisions concerning document produc-
tion. They do not specify how hearings should be conducted and how wit-
nesses, if any, should be heard.

This important characteristic entails that the specific procedures can be tai-
lor-made as appropriate for each dispute and adapted to the legal cultures
of the parties and the arbitrators. In order to establish the appropriate pro-
cedures for a given arbitration, it is useful and efficient for the parties and
the tribunal to make conscious decisions as early as possible on the pro-
cedures best suited to the dispute at hand. In making those decisions, it
is possible to shape the arbitral proceedings so that the duration and cost
of the arbitration are commensurate with what is at stake in the case and
appropriate in light of the claims and issues presented.

With the above in mind, the Task Force on Reducing Time and Costs in Arbi-
tration, set up by the ICC Commission on Arbitration and excellently co-
chaired by Yves Derains and Christopher Newmark, has prepared the fol-
lowing document setting out a large number of techniques which can be
used for organizing the arbitral proceedings and controlling their duration
and cost. This document can provide valuable assistance to the parties and
the tribunal in developing appropriate procedures for their arbitration. It is
intended to encourage them to create a new dynamic at the outset of an
arbitration, whereby the parties can review the suggested techniques and
agree upon appropriate procedures and, if they fail to agree, the tribunal
can decide upon such procedures. For example, an arbitral tribunal can
send this document to the parties at the start of the proceedings, indicat-
ing that early in the proceedings they might seek to agree upon appropriate
procedures in consultation with the tribunal. In that process, all may agree
upon the use of certain techniques. If one party wishes to use a particu-
lar technique and the other party does not, the tribunal, after obtaining the
views of each party on the matter, can decide whether or not to adopt that
procedure. The use of this approach, coupled with the proactive involve-
ment of the tribunal in the management of the proceedings, can result in
meaningful savings of time and cost in the arbitration.
230 Annex 2

The techniques suggested in the document are not intended to be exhaus-

tive. On the contrary, they are open-ended, and the parties and the tribunal
are encouraged to think of this document as a basis from which to develop
the procedures to be used. Indeed, it is the intention of the ICC Commis-
sion on Arbitration to revise and republish this document in the future, tak-
ing into account further suggestions which will emerge from the use of the
document. As a corollary, it should be clear that parties and arbitrators are
in no way obligated to follow any of the techniques. Moreover, the docu-
ment is a product of the ICC Commission on Arbitration and not of the ICC
International Court of Arbitration and thus it is not part of or interpretative
of the ICC Rules of Arbitration or in any way binding upon the Court. Rather,
it is a practical tool designed to stimulate the conscious choice of arbitral
procedures with a view to organizing an arbitration which is efficient and
appropriately tailor-made. Finally, while this document was conceived with
the ICC Rules of Arbitration in mind, the vast majority of the techniques as
well as the dynamics generated by the document can be used in all arbi-
trations.

It is the sincere hope of the Task Force that this document will be used and
be of use in the crafting of efficient arbitration procedures in which time and
cost will be proportionate to the needs of the dispute.

Peter M. Wolrich
Chairman, ICC Commission on Arbitration

Introduction

Statistics provided by the ICC International Court of Arbitration based on

ICC cases that went to a final award in 2003 and 2004 show that the costs
incurred by the parties in presenting their cases constituted the largest part
of the total cost of ICC arbitration proceedings. On average, the costs in
these ICC arbitration cases were spread as follows:

Costs borne by the parties to present their cases: 82%

(including, as the case may be, lawyers> fees and expenses, expenses
related to witness and expert evidence, and other costs incurred by the
parties for the arbitration other than those set forth below)

Arbitrators’ fees and expenses: 16%

Administrative expenses of ICC: 2%

It follows that if the overall cost of the arbitral proceedings is to be mini-
mized, special emphasis needs to be placed on steps aimed at reducing the
ICC Techniques for Controlling Time and Costs in Arbitration 254

costs connected with the parties’ presentation of their cases. Such costs
are often caused by unnecessarily long and complicated proceedings with
unfocused requests for disclosure of documents and unnecessary witness
and expert evidence. Costs can also be unnecessarily increased when coun-
sel from different legal backgrounds use procedures familiar to them in a
manner that leads to needless duplication.

The increasing and, on occasion, unnecessary complication of the proceed-

ings seems to be the main explanation for the long duration and high cost
of many international arbitrations. The longer the proceedings, the more
expensive they will be.

These Techniques for Controlling Time and Costs in Arbitration are designed
to assist arbitral tribunals, parties and their counsel in this regard.

Pursuant to Article 15 of the ICC Rules of Arbitration, the procedure in an

ICC arbitration is governed firstly by the ICC Rules and, where they are
silent, by any rules which the parties or, failing them, the arbitral tribunal
may settle on. Many other arbitration rules provide for similar solutions. As
a result, arbitrations may be conducted using different procedural tradi-
tions, depending on the origins of the parties, their counsel and the arbi-
trators.

These Techniques provide guidance to the parties and their counsel on cer-
tain procedures that they may be able to agree upon for the efficient man-
agement of their proceedings. The solutions proposed herein are not the
only ones available and it is not suggested that they are appropriate to all
kinds of arbitrations.
This document can be provided to the parties by the arbitral tribunal as
soon as it has received the file, so that they can discuss and seek to reach
agreement on procedures suitable for their case. If the parties cannot reach
agreement, the Techniques may also assist the arbitral tribunal in adopt-
ing procedures that it considers appropriate, taking into account its obliga-
tion, under Article 20(1) of the ICC Rules, to establish the facts of the case
within as short a time as possible, whilst ensuring that each party has a
reasonable opportunity to present its case.

The Techniques are in no way prescriptive, nor should they be regarded as

a code of best practice. Rather, they provide ideas that may assist in arriv-
ing at procedures that are efficient and will reduce both cost and time. Cer-
tain procedures will be appropriate for one arbitration, but inappropriate
for another. There may be other procedures not mentioned here that are
well suited to a particular case. In all instances, it is for the parties and the
arbitral tribunal to select the procedures that are best suited for the case.
232 Annex 2

The table of contents to this document can serve as a checklist of points to

consider.

The Techniques embody two underlying principles. First, wherever possible,

the parties and the arbitral tribunal should make a conscious and deliber-
ate choice early in the proceedings as to the specific procedures suitable
for their case. Second, the arbitral tribunal should work proactively with the
parties to manage the procedure from the outset of the case.

While the main focus of the Techniques is to provide guidance on the pro-
cedure during the arbitration, the first two sections give suggestions on the
drafting of arbitration agreements and the initiation of arbitral proceed-
ings.

Arbitration agreement

KEEPING CLAUSES SIMPLE

1 Simple, clearly drafted arbitration clauses will avoid uncertainty and dis-
putes as to their meaning and effect. They will minimize the risk of time
and costs being spent on disputes regarding, for example, the jurisdic-
tion of the arbitral tribunal or the process of appointing arbitrators. In
all cases, ensure that the arbitration clause conforms with any relevant
applicable laws.

2 Use of the standard ICC arbitration clause, which can be found in the
booklet containing the ICC Rules of Arbitration (ICC Publication 838), is
recommended. Modifications to the standard clause can result in un-
intended and undesirable consequences. In addition to the standard
clause, specify in separate sentences the place of the arbitration, the
language of the arbitration and the rules of law governing the contract.
Be cautious about adding further provisions to this clause relating to the
procedure for the arbitration. However, multi-party and multi-contract
transactions may require specific additional provisions.

SELECTION AND APPOINTMENT OF ARBITRATORS

3 High-value and complex contracts can give rise to small disputes for
which a three-member tribunal may be too expensive. Although parties
may desire the certainty of appointing either a one- or a three-person
tribunal in their arbitration agreement, consideration should be given to
staying with the standard ICC arbitration clause and providing for one or
more arbitrators. This will enable ICC to appoint or the parties to agree
ICC Techniques for Controlling Time and Costs in Arbitration 233

on a sole arbitrator where the specific nature of any subsequent dispute

does not warrant a three-person tribunal (See ICC Rules, Article 8(2)).

If the parties wish ICC to select and appoint all members of the arbitral
tribunal (see paragraph 13 below), then the following wording can be
used: "All arbitrators shall be selected and appointed by the ICC Inter-
national Court of Arbitration."

Adding special requirements as to the expertise and qualifications of

arbitrators to be appointed will reduce the pool of available arbitrators
and may increase the time taken to select a tribunal.

FAST-TRACK PROCEDURES
6 Consideration may be given to setting out fast-track procedures in the
arbitration clause. Indeed Article 32(1) of the ICC Rules enables the
parties to shorten time limits provided for in the Rules, while Article
32(2) enables the Court to extend those shortened time limits when
necessary. Fast-track procedures are designed to enable an arbitration
to proceed quickly, given the specific nature of the contract and disputes
that are likely to arise. However, experience shows that in practice it is
difficult at the time of drafting the clause to predict with a reasonable
degree of certainty the nature of disputes and the procedures that will
be suitable for those disputes. Also, disagreements can arise later as to
the interpretation or application of fast-track clauses. Careful thought
should therefore be given before such provisions are included in an ar-
bitration agreement. Once a dispute has arisen, the parties could at that
time agree upon a fast-track procedure, if appropriate.

TIME LIMITS FOR RENDERING THE AWARD

mi One commonly used provision that can give rise to significant difficulties
is the requirement that an award be produced within a certain number
of weeks or months from the commencement of the arbitration. Such
specific time limits can create jurisdictional and enforcement problems
if it turns out that the time limit specified is unrealistic or not clearly
defined.

SUBMISSION TO ICC ARBITRATION

8 If the parties agree to submit a dispute to ICC arbitration after the dis-
pute has arisen, they can consider specifying in some detail the proce-
dure for the arbitration, taking into account the nature of the dispute in
234 Annex 2

question. This procedure may include some of the suggestions set out
below to reduce time and costs.

Initiation of proceedings

Selection of counsel

COUNSEL WITH EXPERIENCE

9 Consider appointing counsel with the skills necessary for handling the
arbitration at hand. Such counsel are more likely to be able to work with
the arbitral tribunal and the other party>s counsel to devise an efficient
procedure for the case.

COUNSEL WITH TIME

10 Ensure that the counsel you have selected has sufficient time to devote
to the case.

Selection of arbitrators

USE OF SOLE ARBITRATOR

11 After a dispute has arisen, consider agreeing upon having a sole arbitra-
tor, when appropriate. Generally speaking, a one-person tribunal will
be able to act more quickly than a three-person tribunal, since discus-
sions between tribunal members are not needed and diary clashes for
hearings will be minimized. A one-person tribunal will obviously also be
cheaper.

ARBITRATORS WITH TIME

12 Whether selecting a sole arbitrator or a three-person tribunal, it is ad-
visable to make sufficient enquiries to ensure that the individuals se-
lected have sufficient time to devote to the case in question. If there is
particular need for speed, this must be made clear to ICC so that it can
be taken into consideration when making any appointments.

SELECTION AND APPOINTMENT BY ICC

13 Consider allowing ICC to select and appoint the arbitral tribunal, wheth-
er it be a sole arbitrator or a three-person tribunal. This will generally
be the quickest way to constitute the arbitral tribunal, if there is no
ICC Techniques for Controlling Time and Costs in Arbitration 235

agreement between the parties on the identity of all arbitrators. It will

also reduce the risk of challenges, facilitate the constitution of a tribunal
with a variety of specialist skills and create a different dynamic within
the arbitral tribunal. If the parties wish to have input into the selection
of the tribunal by ICC at this stage, they can request that ICC disclose
the names of possible arbitrators for selection by ICC in accordance with
a procedure to be agreed upon by the parties in consultation with ICC.

AVOIDING OBJECTIONS
14 Objections to the appointment of an arbitrator, whether or not war-
ranted, will delay the constitution of the arbitral tribunal. When selecting
an arbitrator, give careful thought as to whether or not the appointment
of that arbitrator might give rise to an objection.

SELECTING ARBITRATORS WITH STRONG CASE-MANAGEMENT

SKILLS
15 A tribunal that is proactive and skilled in case management will be able
to assist in managing the arbitration so as to make it as cost- and time-
effective as possible, given the issues in dispute and the nature of the
parties. This may be of particular value where the parties wish to use a
fast-track procedure. Careful consideration should therefore be given to
selecting tribunal members, especially the sole arbitrator or chairman.

Request for Arbitration and Answer

COMPLYING WITH THE ICC RULES
16 The Claimant should ensure that it includes all of the elements required
by Article 4 of the ICC Rules in its Request for Arbitration. Failure to do
so can result in the Secretariat needing to revert to the Claimant before
the Request can be forwarded to the Respondent in accordance with
Article 4(5). This causes delay. Similarly, when filing its Answer, the Re-
spondent should include all elements required by Article 5 of the Rules.

17 The ICC Rules do not require a Request for Arbitration or an Answer to

set out full particulars of either the claim or defence (or, where appli-
cable, a counterclaim). Whether or not detailed particulars of the claim
are given in the Request for Arbitration can have an impact on the ef-
ficient management of the arbitration. Where the Request does contain
detailed particulars of the claim, and a similar approach is taken by the
Respondent in the Answer, the parties and the arbitral tribunal will be in
a position to hold a case-management conference to establish the pro-
236 Annex 2

cedure for the arbitration at a very early stage in the proceedings (see
paragraphs 31-34 below).

Preliminary procedural issues

Language of the arbitration

DETERMINATION OF LANGUAGE BY THE ARBITRAL TRIBUNAL
18 If the parties have not agreed on the language of the arbitration, the
arbitral tribunal should consider determining the language of the arbi-
tration by means of a procedural order, pursuant to Article 16 of the ICC
Rules, prior to establishing the Terms of Reference and after ascertain-
ing the position of the parties.

PROCEEDINGS INVOLVING TWO OR MORE LANGUAGES

19 In general, the use of more than one language should be considered
only when doing so would reduce rather than increase time and cost.
If the parties have agreed or the arbitral tribunal has decided that the
arbitration will be conducted in two or more languages, the parties and
the arbitral tribunal should consider agreeing upon practical means to
avoid duplication. In cases where the members of the arbitral tribunal
are fluent in all applicable languages, it may not be necessary for docu-
ments to be translated. Consideration should also be given to avoiding
having the Terms of Reference, procedural orders and awards in more
than one language. If it is not possible to avoid preparing one or more of
those documents in more than one language, the parties would be well
advised to agree that only one version shall be binding.

Relationship among the Terms of Reference, the

provisional timetable and the early case-management
conference
20 Pursuant to Article 18 of the ICC Rules, the Terms of Reference must be
drawn up as soon as the arbitral tribunal has received the file from the
Secretariat (see paragraphs 24-30 below). Article 18(4) also requires
the arbitral tribunal to establish a provisional timetable for the conduct
of the arbitration either when drawing up the Terms of Reference, or as
soon as possible thereafter.

21 While an early case-management conference (sometimes called a "pro-

cedural conference") is not required under the ICC Rules, such confer-
ICC Techniques for Controlling Time and Costs in Arbitration 237

ences are commonly used in ICC arbitrations. Such a conference can

play an important role in enabling the parties and the arbitral tribunal
to discuss and agree on a procedure that is tailored to the specific case
and enables the dispute to be resolved as efficiently as possible (see
paragraphs 31-34 below).

22 Where the parties have set out their cases in sufficient detail in the
Request for Arbitration and the Answer, it may be possible to hold a
case-management conference during the meeting at which the Terms
of Reference are finalized and immediately following their signature. In
such circumstances, it may be possible for the provisional timetable
required by Article 18(4) to include detailed provisions on procedure for
the entire arbitration.

23 Where the case has not been set out in such detail at the time the
Terms of Reference are finalized, it may be necessary to defer the case-
management conference until after the parties have set out their cases
in sufficient detail. In such circumstances, the provisional timetable re-
quired by Article 18(4) will need to describe the steps that the parties
are to take in order promptly to set out their cases in sufficient detail
prior to the case-management conference. At the case-management
conference, a revised provisional timetable can be established and com-
municated to the parties and the International Court of Arbitration in
accordance with Article 18(4).

Terms of Reference

SUMMARIES OF CLAIMS AND RELIEF SOUGHT

24 The arbitral tribunal should consider whether it is appropriate for it to
draft the summary of claims and/or the relief sought or whether it would
assist if each party provided a draft summary for inclusion in the Terms
of Reference in accordance with Article 18(1)(c) of the ICC Rules. In
the latter case, the arbitral tribunal should consider requesting that the
parties limit their summaries to an appropriate fixed number of pages.
Further guidance on preparing Terms of Reference can be found in the
article of Serge Lazareff ("Terms of Reference", ICC International Court
of Arbitration Bulletin Vol. 17/No.1-2006, pp. 21-32).

USE OF DISCRETION IN APPORTIONMENT OF COSTS

25 The arbitral tribunal should consider promptly informing the parties that
any unreasonable failure to comply with procedures agreed or ordered
in the arbitration or any other unreasonable conduct will be taken into
238 Annex 2

account by the arbitral tribunal in determining who shall bear what por-
tion of the costs of the arbitration, pursuant to Article 31 of the ICC
Rules (see further at paragraph 85 below under the heading <Costs>).

EMPOWERING CHAIRMAN ON PROCEDURAL ISSUES

26 Where there is a three person tribunal, it may not be necessary for all
procedural issues to be decided upon by all three arbitrators. The par-
ties should consider empowering the chairman to decide on certain pro-
cedural issues alone. In all events, consider authorizing the chairman to
sign procedural orders alone.

ADMINISTRATIVE SECRETARY TO THE ARBITRAL TRIBUNAL

27 Consider whether or not an administrative secretary to the arbitral tri-
bunal would assist in reducing time and cost. If it is decided to use
such a secretary, the parties and the arbitral tribunal should take into
account the Note from the Secretariat of the ICC Court concerning the
Appointment of Administrative Secretaries by Arbitral Tribunals (pub-
lished in the ICC International Court of Arbitration Bulletin, Vol. 6/No.
2-November 1995, pp. 77-78) which deals with the duties of the secre-
tary, the secretary’s independence, the tribunal’s responsibility for the
secretary’s work, and the basis for payment of the secretary.

NEED FOR A PHYSICAL MEETING

28 Consider whether it is appropriate to agree upon and sign the Terms of
Reference without a physical meeting, e.g. by way of a telephone or vid-
eo conference, as appropriate. In making that decision, the advantages
of having a physical meeting at the start of the proceedings should be
weighed against the time and cost involved.

COUNTERPARTS
29 If there is no physical meeting for signing the Terms of Reference, the
arbitral tribunal should consider having the Terms of Reference signed
in counterparts.

COMPLIANCE WITH ARTICLE 18(3)

30 If a party refuses to take part in drawing up the Terms of Reference or
refuses to sign them, the arbitral tribunal should make certain that the
Terms of Reference to be submitted to the International Court of Arbi-
ICC Techniques for Controlling Time and Costs in Arbitration 239

tration for approval pursuant to Article 18(3) of the ICC Rules do not
contain any provisions that would require the parties’ agreement or any
decisions by the arbitral tribunal.

Early case-management conference

TIMING OF CASE-MANAGEMENT CONFERENCE
31 Consider holding a case-management conference (sometimes called
a "procedural conference") as soon as the parties have set out their
respective cases in sufficient detail for the arbitral tribunal and the
parties to identify the issues in the case and the procedural steps that
will be necessary to resolve the case. If the Request for Arbitration and
the Answer do not set out the substance of the case in such detail, con-
sideration should be given to holding the case-management conference
as soon as this has been done (see paragraph 23 above).

PROACTIVE CASE MANAGEMENT

32 At the case-management conference, directions concerning the proce-
dure for the arbitration will be agreed upon or ordered. The more in-
formation the arbitral tribunal has about the issues in the case prior to
such conference, the better able it will be to assist the parties to devise
a procedure that will deal with the dispute as efficiently as possible.
For example, a tribunal that has made itself familiar with the details of
the case from the outset can be proactive and give appropriate, tailor-
made suggestions as to the issues to be addressed in documentary and
witness evidence, the areas on which it will be assisted by expert evi-
dence, and the extent to which disclosure of documents by the parties
is needed in order to address the issues in dispute. The techniques set
out in this document can be used by the arbitral tribunal and the parties
at the case-management conference to assist in arriving at the most
appropriate procedures (see section entitled <Subsequent procedure for
the arbitration> below). A provisional timetable with the shortest times
that are realistic should be established.
33 The arbitral tribunal should consider informing the parties that it will
proactively manage the procedure throughout the arbitration so as to
assist the parties in resolving the dispute as efficiently as possible.
240
2400
ee TES Annex 2

CLIENT ATTENDANCE

34 The parties should consider having a person from within the clients or-
ganization attend the case-management conference. Client representa-
tives and witnesses, including any experts, should be kept informed of
the input that will be required from them in order to comply with each
step in the provisional timetable. The arbitral tribunal may specifically
request that client representatives attend this conference.

Timetable for the proceedings

COMPLIANCE WITH THE PROVISIONAL TIMETABLE
35 The arbitrators and the parties should make all reasonable efforts to
comply with the provisional timetable. Extensions and revisions of the
timetable should be made only when justified. Any revisions should be
promptly communicated to the Court and the parties in accordance with
Article 18(4) of the ICC Rules.

NEED FOR A HEARING

36 Consider whether or not it is necessary for there to be a hearing in order
for the arbitral tribunal to decide the case. If it is possible for the arbitral
tribunal to decide the case on documents alone, this will save significant
costs and time.

FIXING THE HEARING DATE

37 If a hearing is necessary, then early in the proceedings (ideally at the
early case-management conference) consider fixing the date for this
hearing. This will reduce the likelihood that the arbitral proceedings will
become drawn out and will enable the procedure leading up to the hear-
ing to be adapted to the time available.

PRE-HEARING CONFERENCE
38 Consider organizing a conference with the arbitral tribunal, which may
be by telephone, to discuss the arrangements for any hearing. At such
a pre-hearing conference, held a suitable time before the hearing itself,
the parties and the arbitral tribunal can discuss matters such as time
allocation, use of transcripts, translation issues, order of witnesses and
other practical arrangements that will facilitate the smooth conduct of
the hearing. The arbitral tribunal may consider using the occasion of the
ICC Techniques for Controlling Time and Costs in Arbitration 241

pre-hearing conference to indicate to the parties the issues on which it

would like the parties to focus at the forthcoming hearing.

liho} AG)coe
39 The arbitral tribunal should consider discussing with the parties how IT
systems can be used during the arbitration. The parties can be referred
to the ICC publication Using Technology to Resolve Business Disputes
(2004 Special Supplement of the ICC International Court of Arbitration
Bulletin), which contains useful guidance on the use of IT in interna-
tional arbitration proceedings. The parties can also be offered the use
of the online ICC service NetCase, which enables correspondence and
documents for the arbitration to be stored and exchanged within a se-
cure online environment hosted by ICC. Consideration can also be given
to the use of video and telephone conferences for procedural and other
hearings where attendance in person is not essential.

SHORT AND REALISTIC TIME PERIODS

40 In deciding upon the length of the final hearing and the amount of time
required for all procedural steps up until that hearing, choose the short-
est times that are realistic. Unrealistically short time periods are likely
to result in a longer rather than a shorter proceeding, should they need
to be re-scheduled.

BIFURCATION AND PARTIAL AWARDS

41 The arbitral tribunal should consider bifurcating the proceedings or ren-
dering a partial award when doing so may genuinely be expected to
result in a more efficient resolution of the case.

BRIEFING EVERYONE INVOLVED IN THE CASE

42 As soon as the proceedings are started, parties should give thought to
the input that will be needed in order to comply with each step in the
anticipated timetable. Once the timetable is set, the parties should con-
sider precisely what input is needed in order to meet the timetable. It
will be useful for all relevant personnel to be briefed accordingly (e.g.
management within the client organization, witnesses, internal and ex-
ternal lawyers, experts, etc.). This will greatly assist in enabling eve-
ryone to reserve the time they need to provide input at the relevant
point in the procedure and will assist in enabling each party to adhere to
deadlines set in the timetable.
242 Annex 2

Settlement

ARBITRAL TRIBUNAL’S ROLE IN PROMOTING SETTLEMENT

43 The arbitral tribunal should consider informing the parties that they are
free to settle all or part of the dispute at any time during the course of
the ongoing arbitration, either through direct negotiations or through
any form of ADR proceedings. For example, ADR proceedings can be
conducted under the ICC ADR Rules, further information on which can
be found in the article of Peter Wolrich entitled "ICC ADR Rules: The Lat-
est Addition to ICC’s Dispute Resolution Services" (in ADR-International
Applications, 2001 Special Supplement of the ICC International Court of
Arbitration Bulletin). The parties may also request the arbitral tribunal
to suspend the arbitration proceedings for a specific period of time while
settlement discussions take place.

Subsequent procedure for the arbitration

Introduction
44 The paragraphs that follow give guidance on the points to be discussed
by the parties and the arbitral tribunal when establishing procedural
directions for the arbitration. They provide suggestions that may assist
in reducing the cost and duration of the proceedings.

Written submissions

45 Written submissions come in different forms and are given different

names. They include the Request for Arbitration and Answer, statements
of case and defence, memorials or other written arguments, and open-
ing and closing written submissions. These comments apply to written
submissions generally.

SETTING OUT THE CASE IN FULL EARLY IN THE PROCEEDINGS

46 If the parties set out their cases in full early in the proceedings, this will
enable the parties and the arbitral tribunal to understand the key issues
at an early stage and adopt procedures to address them in its procedur-
al orders (see paragraphs 17, 22-23 and 31 above). It will help ensure
that the procedure used during the case is efficient and that time and
costs are not spent on matters that turn out to be of no direct relevance
to the issues that need to be determined.
ICC Techniques for Controlling Time and Costs in Arbitration 243

AVOIDING REPETITION
47 Avoid unnecessary repetition of arguments. Once a party has set out its
position in full, it should not be necessary to repeat the arguments at
later stages (for example, in pre-hearing memorials, oral submissions
and post-hearing memorials), and the arbitral tribunal may direct that
there be no such repetition.

SEQUENTIAL OR SIMULTANEOUS DELIVERY

48 Consider whether it is more effective for written submissions to be se-
quential or simultaneous. Whilst simultaneous submissions enable both
parties to inform each other of their cases at the same time (and this
may make things quicker), it can also result in inefficiency if the parties
raise different issues in their submissions and extensive reply submis-
sions are required.

SPECIFYING FORM AND CONTENT

49 Consider specifying the form and content of written submissions. For
example, clarify whether the first round of written submissions should
or should not be accompanied by witness statements and/or expert re-
ports.

LIMITING THE LENGTH OF SUBMISSIONS

50 Consider agreeing on limiting the length of specific submissions. This
can help focus the parties on the key issues to be addressed and is likely
to save time and cost.

LIMITING THE NUMBER OF SUBMISSIONS

51 Consider limiting the number of rounds of submissions. This may help
to avoid repetition and encourage the parties to present all key issues in
their first submissions.

Documentary evidence
ORGANIZATION OF DOCUMENTS
52 From the outset of the case the parties should consider using a coherent
system for numbering or otherwise identifying documents produced in
the case. This process can start with the Request for Arbitration and the
Answer, and a system for the remainder of the arbitration can be es-
244 Annex 2

tablished with the arbitral tribunal at the time of the case-management

conference.

PRODUCING DOCUMENTS ON WHICH THE PARTIES RELY

53 The parties will normally each produce the documents upon which they
intend to rely. Each party should consider avoiding requests for produc-
tion of documents from another party unless such production is relevant
and material to the outcome of the case. When the parties have agreed
upon non-controversial facts, no documentary evidence should be need-
ed to prove those facts.

ESTABLISHING PROCEDURE FOR REQUESTS FOR PRODUCTION

54 When there are to be requests for the production of documents, the
parties and the arbitral tribunal should consider establishing a clear and
efficient procedure for the submission and exchange of documents. In
that regard, they could consider referring to Article 3 of the IBA Rules on
the Taking of Evidence in International Commercial Arbitration for guid-
ance. In addition, the parties and the arbitral tribunal should consider
establishing an appropriate time frame for the production of documents.
In most situations, this is likely to be after the parties have set out their
cases in full for the first time.

MANAGING REQUESTS FOR PRODUCTION EFFICIENTLY

55 Time and costs associated with requests for production of documents, if
any, can further be reduced by agreeing upon one or more of the follow-
ing:

e Limiting the number of requests;

e Limiting requests to the production of documents (whether in paper or
electronic form) that are relevant and material to the outcome of the
case;
e Establishing reasonable time limits for the production of documents;

e Using the Schedule of Document Production devised by Alan Redfern

and often referred to as the Redfern Schedule, in the form of a chart
containing the following four columns:

First Column: identification of the document(s) or categories of documents

that have been requested;

Second Column: short description of the reasons for each request;

ICC Techniques for Controlling Time and Costs in Arbitration 245

Third Column: summary of the objections by the other party to the produc-
tion of the document(s) or categories of documents requested; and

Fourth Column: left blank for the decision of the arbitral tribunal on each
request.

AVOIDING DUPLICATION
56 It is common for each of the parties to produce copies of the same
documents appended to their statements of case, witness statements or
other written submissions. Avoiding duplication where possible will save
costs.

SELECTION OF DOCUMENTS TO BE PROVIDED TO THE ARBITRAL

TRIBUNAL
57 It is wasteful to provide the arbitrators with documents that are not ma-
terial to their determination of the case. In particular, it will not usually
be appropriate to send to the arbitral tribunal all documents produced
pursuant to production requests. This not only generates unnecessary
costs, but also makes it harder for the arbitral tribunal to prepare ef-
ficiently.

MINIMIZING CREATION OF HARD COPIES

58 Consider minimizing the volume of hard copy paper that needs to be
produced. Exchanging documents in electronic form can reduce costs
(see the ICC publication Using Technology to Resolve Business Disputes
referred to in paragraph 39 above (2004 Special Supplement of the ICC
International Court of Arbitration Bulletin)).

TRANSLATIONS
59 Try to agree how translations of any documents are to be dealt with.
Minimizing the need for certified translations will reduce costs. Such cer-
tified translations may only be required where translation issues emerge
from unofficial translations.

AUTHENTICITY OF DOCUMENTS
60 Consider providing that documents produced by the parties are deemed
to be authentic unless and until such authenticity is challenged by an-
other party.
246 Annex 2
a
EEE

Correspondence
CORRESPONDENCE BETWEEN COUNSEL
61 Avoid unnecessary correspondence between counsel. The arbitral tribu-
nal may consider informing the parties that the persistent use of such
correspondence may be viewed as unreasonable conduct and be a fac-
tor taken into consideration by the arbitral tribunal in the exercise of its
discretion on costs (see paragraph 85 below).

SENDING CORRESPONDENCE TO THE ARBITRAL TRIBUNAL

62 Avoid sending correspondence between counsel to the arbitral tribunal
unless a decision of the arbitral tribunal is required. Any such corre-
spondence that is addressed to the arbitral tribunal should be copied to
the Secretariat in accordance with Article 3(1) of the ICC Rules.

Witness statements

LIMITING THE NUMBER OF WITNESSES

63 Every witness adds to the costs, both when a witness statement is pre-
pared and considered and when the witness attends to give oral evi-
dence. Costs can be saved by limiting the number of witnesses to those
whose evidence is required on key issues. The arbitral tribunal may
assist in identifying those issues on which witness evidence is required
and focusing the evidence from witnesses on those issues. This whole
process will be facilitated if the parties can reach agreement on non-
controversial facts that do not need to be addressed by witness evi-
dence.

MINIMIZING THE NUMBER OF ROUNDS OF WITNESS STATE-

MENTS
64 If there are to be witness statements, consider the timing for the ex-
change of such statements so as to minimize the number of rounds of
statements that are required. For example, consider whether it is pref-
erable for witness statements to be exchanged after all documents on
which the parties wish to rely have been produced, so that the witnesses
can comment on those documents in a single statement.
ICC Techniques for Controlling Time and Costs in Arbitration 247

Expert evidence
PRESUMPTION THAT EXPERT EVIDENCE NOT REQUIRED
65 It is helpful to start with a presumption that expert evidence will not
be required. Depart from this presumption only if expert evidence is
needed in order to inform the arbitral tribunal on key issues in dispute.

ICC INTERNATIONAL CENTRE FOR EXPERTISE

66 If either the parties or the arbitral tribunal require assistance in identi-
fying an expert witness, recourse can be had to the ICC International
Centre for Expertise pursuant to the ICC Rules for Expertise. Where an
ICC tribunal seeks a proposal from the Centre in respect of a tribunal-
appointed expert, the services of the Centre are available at no cost.
Further information regarding the operation of the ICC Rules for Exper-
tise and the services of the Centre can be found in the "Guide to ICC
Expertise", produced by the Task Force on Guidelines for ICC Expertise
Proceedings, chaired by Hilmar Raeschke-Kessler (published in the ICC
International Court of Arbitration Bulletin, Vol. 16/No. 1-Spring 2005,
pp. 19-31).

CLARITY REGARDING THE SUBJECT MATTER AND SCOPE

OF REPORTS
67 It is essential for there to be clarity at an early stage (by agreement, if
possible) over the subject matter and scope of any expert evidence to
be produced. This will ensure that experts with the same subject-matter
expertise are appointed by both parties and that they address the same
issues.

NUMBER OF EXPERTS
68 Other than in exceptional circumstances, it should not be necessary for
there to be more than one expert per party for any particular area of
expertise.

NUMBER OF REPORTS
69 Consider agreeing on a limit to the number of rounds of expert reports
and consider whether simultaneous or sequential exchange will be more
efficient.
248 Annex 2

MEETINGS OF EXPERTS
70 Experts will often be able to narrow the issues in dispute if they can
meet and discuss their views after they have exchanged reports. Con-
sideration should therefore be given to providing that experts shall take
steps to agree issues in advance of any hearing at which their evidence
is to be presented. Time and cost can be saved if the experts draw up a
list recording the issues on which they have agreed and those on which
they disagree.

USE OF SINGLE EXPERT

71 Consider whether a single expert appointed either by the arbitral tri-
bunal or jointly by the parties might be more efficient than experts ap-
pointed by each party. A single tribunal-appointed expert may be more
efficient in some circumstances. An expert appointed by the arbitral
tribunal or jointly by the parties should be given a clear brief and the
expert’s report should be required by a specified date consistent with
the timetable for the arbitration.

Hearings
MINIMIZING THE LENGTH AND NUMBER OF HEARINGS
72 Hearings are expensive and time-consuming. If the length and number
of hearings requiring the physical attendance of the arbitral tribunal and
the parties are minimized, this will significantly reduce the time and cost
of the proceedings.

CHOOSING THE BEST LOCATION FOR HEARINGS

73 Pursuant to Article 14(2) of the ICC Rules, hearings do not need to be
held at the place of arbitration. The arbitral tribunal and the parties can
select the most efficient place to hold hearings. In some cases, it may
be more cost-effective to hold hearings at a location that, for example,
is convenient to the majority of the witnesses due to give evidence at
that hearing.

TELEPHONE AND VIDEO CONFERENCING

74 For procedural hearings in particular, consider the use of telephone and
video conferencing, where appropriate. Also, consider whether certain
witnesses can give evidence by video link, so as to avoid the need to
travel to an evidentiary hearing.
ICC Techniques for Controlling Time and Costs in Arbitration 249

PROVIDING SUBMISSIONS IN GOOD TIME

75 The arbitral tribunal should be provided with all necessary submissions
(e.g. pre-hearing briefs, if any) sufficiently in advance of any hearing,
so as to enable it to read, prepare and become fully informed as to the
issues to be addressed.

CUT-OFF DATE FOR EVIDENCE

76 Consider fixing a cut-off date in advance of any evidentiary hearing,
after which no new documentary evidence will be admitted unless a
compelling reason is shown.

IDENTIFYING CORE DOCUMENTS

77 Consider providing the arbitral tribunal, in advance of any hearing, with
a list of the documents it needs to read in preparation for the hearing.
Where appropriate, this can be done by preparing and delivering to the
arbitral tribunal a bundle of "core" documents on which the parties rely.

AGENDA AND TIMETABLE

78 Consider agreeing on an agenda and timetable for all hearings, with an
equitable division of time for each party. Consider the use of a chess
clock to monitor the fair allocation of time.

AVOIDING REPETITION
79 Consideration should be given to whether it is necessary to repeat pre-
hearing written submissions in opening oral statements. This is some-
times done because of concern that the arbitral tribunal will not have
read or digested the written submissions. If the arbitral tribunal has
been provided with the documents it needs to read in advance of the
hearing and has prepared properly, this will not be necessary.

NEED FOR WITNESSES TO APPEAR

80 Prior to any hearing, consider whether all witnesses need to give oral
evidence. This is a matter on which counsel for the parties can confer
and seek to reach agreement.
250 Annex 2

USE OF WRITTEN STATEMENTS AS DIRECT EVIDENCE

81 Witness statements are commonly used as direct evidence at a hearing.
Cost and time can be saved by limiting or avoiding direct examination of
witnesses.

WITNESS CONFERENCING
82 Witness conferencing is a technique in which two or more fact or expert
witnesses presented by one or more parties are questioned together on
particular topics by the arbitral tribunal and possibly by counsel. Con-
sider whether this technique is appropriate for the arbitration at hand.

LIMITING CROSS-EXAMINATION
83 If there is to be cross-examination of witnesses, the arbitral tribunal,
after hearing the parties, should consider limiting the time available to
each party for such cross-examination.

CLOSING SUBMISSIONS
84 Consider whether post-hearing submissions can be avoided in order to
save time and cost. If post-hearing submissions are required, consider
providing for either oral or written closing submissions. The use of both
will result in additional time and cost. In order to give focus, the arbitral
tribunal should consider providing counsel with a list of questions or
issues to be addressed by the parties in the closing submissions. Any
written submissions should be provided by an agreed date as soon as
reasonable following the hearing.

Costs

USING ALLOCATION OF COSTS TO ENCOURAGE EFFICIENT CON-

DUCT OF THE PROCEEDINGS
85 The allocation of costs can provide a useful tool to encourage efficient
behaviour and discourage unreasonable behaviour. The arbitral tribunal
has discretion to award costs in such a manner as it considers appropri-
ate. It may be helpful to specify at the outset of the proceedings that
in exercising its discretion in allocating costs the arbitral tribunal will
take into account any unreasonable behaviour by a party. Unreason-
able behaviour could include: excessive document requests, excessive
legal argument, excessive cross-examination, dilatory tactics, exagger-
ated claims, failure to comply with procedural orders, unjustified interim
ICC Techniques for Controlling Time and Costs in Arbitration 25il

applications, unjustified failure to comply with the procedural calendar,

etc.

Deliberations and awards

86 Before closing the proceedings, the arbitral tribunal should ensure that
time has been reserved in each of the arbitrators’ diaries for prompt de-
liberation thereafter. The arbitral tribunal should promptly comply with
Article 22(2) of the ICC Rules and indicate to the Secretariat an approxi-
mate date by which it will submit the draft award to the International
Court of Arbitration. The arbitral tribunal shall use its best efforts to sub-
mit the draft award as quickly as possible. Further guidance on drafting
awards can be found in the article "Drafting Awards in ICC Arbitrations"
by Humphrey LLoyd, Marco Darmon, Jean-Pierre Ancel, Lord Dervaird,
Christoph Liebscher and Herman Verbist (published in the ICC Interna-
tional Court of Arbitration Bulletin, Vol. 16/No. 2-2005, pp. 19-40).
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 Annex 3:
UNCITRAL Notes on Organizing
Arbitral Proceedings
UNCITRAL Notes on Organizing Arbitral Proceedings 255

Preface

The United Nations Commission on International Trade Law (UNCITRAL)

finalized the Notes at its twenty-ninth session (New York, 28 May-14 June
1996). In addition to the 36 member States of the Commission, represent-
atives of many other States and of a number of international organiza-
tions had participated in the deliberations. In preparing the draft materials,
the Secretariat consulted with experts from various legal systems, national
arbitration bodies, as well as international professional associations.

The Commission, after an initial discussion on the project in 1993,<1> con-

sidered in 1994 a draft entitled "Draft Guidelines for Preparatory Confer-
ences in Arbitral Proceedings".<2> That draft was also discussed at several
meetings of arbitration practitioners, including the XIIth International Arbi-
tration Congress, held by the International Council for Commercial Arbi-
tration (ICCA) at Vienna from 3 to 6 November 1994.<3> On the basis of
those discussions in the Commission and elsewhere, the Secretariat pre-
pared "draft Notes on Organizing Arbitral Proceedings".<4> The Com-
mission considered the draft Notes in 1995,<5> and a revised draft in
1996,<6> when the Notes were finalized.<7>

<1> Report of the United Nations Commission on International Trade Law

on the work of its twenty-sixth session, Official Records of the General
Assembly, Forty-eighth Session, Supplement No. 17 (A/48/17) (reproduced
in UNCITRAL Yearbook, vol. XXIV: 1993, part one), paras. 291-296.

<2> The draft Guidelines have been published as document A/CN.9/396/

Add.1 (reproduced in UNCITRAL Yearbook, vol. XXV: 1994, part two, IV);
the considerations of the Commission are reflected in the report of the
United Nations Commission on International Trade Law on the work of its
twenty-seventh session, Official Records of the General Assembly, Forty-
ninth Session Supplement No. 17 (A/49/17) (reproduced in UNCITRAL
Yearbook, Vol. XXV: 1994, part two, IV), paras. 111-195.
<3> The proceedings of the Congress are published in Planning Efficient
Arbitration Proceedings/The Law Applicable in International Arbitration,
ICCA Congress Series No. 7, Kluwer Law International, The Hague, 1996.

<4> The draft Notes have been published as document A/CN.9/410 (and
will be reproduced in UNCITRAL Yearbook, vol. XXVI: 1995, part two, III).

UNCITRAL Notes on Organizing Arbitral Proceedings. © United Nations Com-

mission on International Trade Law (UNCITRAL). Reproduced with permission
of UNCITRAL. First published in UNCITRAL Yearbook, vol. XXVII: 1996, part
one; also available on the website of UNCITRAL <www.uncitral.org>.
256 Annex 3

<5> Report of the United Nations Commission on International Trade

Law on the work of its twenty-eighth session, Official Records of the Gen-
eral Assembly, Fiftieth Session, Supplement No. 17 (A/50/17) (and will
be reproduced in UNCITRAL Yearbook, vol. XXVI: 1995, part one), paras.
314-373.
<6> The revised draft Notes have been published as document A/CN. 9/423
(and will be reproduced in UNCITRAL Yearbook, vol. XXVII: 1996, part
two).

<7> Report of the United Nations Commission on International Trade Law

on the work of its twenty-ninth session, Official Records of the General
Assembly, Fifty-first Session, Supplement No. 17 (A/51/17) (and will be
reproduced in UNCITRAL Yearbook, vol. XXVII: 1996, part one), paras. 11
to 54.

UNCITRAL SECRETARIAT
VIENNA INTERNATIONAL CENTRE
P.O. BOX 500
A-1400 VIENNA
AUSTRIA

Telephone: (43-1) 26060-4060/61

Telefax: (43-1) 26060-5813
E-mail: uncitral@uncitral.org

CONTENTS

Preface

Introduction

List of matters for possible consideration in organizing

arbitral proceedings

Annotations
UNCITRAL Notes on Organizing Arbitral Proceedings 257

INTRODUCTION

Purpose of the Notes

1. The purpose of the Notes is to assist arbitration practitioners by listing

and briefly describing questions on which appropriately timed decisions on
organizing arbitral proceedings may be useful. The text, prepared with a
particular view to international arbitrations, may be used whether or not
the arbitration is administered by an arbitral institution.

Non-binding character of the Notes

2. No legal requirement binding on the arbitrators or the parties is imposed

by the Notes. The arbitral tribunal remains free to use the Notes as it sees
fit and is not required to give reasons for disregarding them.

3. The Notes are not suitable to be used as arbitration rules, since they do
not establish any obligation of the arbitral tribunal or the parties to act ina
particular way. Accordingly, the use of the Notes cannot imply any modifi-
cation of the arbitration rules that the parties may have agreed upon.

Discretion in conduct of proceedings and useful-

ness of timely decisions on organizing proceed-
ings

4. Laws governing the arbitral procedure and arbitration rules that parties
may agree upon typically allow the arbitral tribunal broad discretion and
flexibility in the conduct of arbitral proceedings.<8> This is useful in that
it enables the arbitral tribunal to take decisions on the organization of pro-
ceedings that take into account the circumstances of the case, the expec-
tations of the parties and of the members of the arbitral tribunal, and the
need for a just and cost-efficient resolution of the dispute.

<8> A prominent example of such rules are the UNCITRAL Arbitration Rules,
which provide in article 15(1)[article 17(1) of the 2010 UNCITRAL Arbitration
Rules]: "Subject to these Rules, the arbitral tribunal may conduct the arbitra-
tion in such manner as it considers appropriate, provided that the parties are
treated with equality and that at [an appropriate] stage of the proceedings
each party is given a [reasonable] opportunity of presenting [its] case.”
 Annex 3
258

5. Such discretion may make it desirable for the arbitral tribunal to give the
parties a timely indication as to the organization of the proceedings and the
manner in which the tribunal intends to proceed. This is particularly desira-
ble in international arbitrations, where the participants may be accustomed
to differing styles of conducting arbitrations. Without such guidance, a party
may find aspects of the proceedings unpredictable and difficult to prepare
for. That may lead to misunderstandings, delays and increased costs.

Multi-party arbitration

6. These Notes are intended for use not only in arbitrations with two par-
ties but also in arbitrations with three or more parties. Use of the Notes in
multi-party arbitration is referred to below in paragraphs 86-88 (item 18).

Process of making decisions on organizing arbi-

tral proceedings

7. Decisions by the arbitral tribunal on organizing arbitral proceedings

may be taken with or without previous consultations with the parties. The
method chosen depends on whether, in view of the type of the question
to be decided, the arbitral tribunal considers that consultations are not
necessary or that hearing the views of the parties would be beneficial for
increasing the predictability of the proceedings or improving the procedural
atmosphere.

8. The consultations, whether they involve only the arbitrators or also the
parties, can be held in one or more meetings, or can be carried out by
correspondence or telecommunications such as telefax or conference tele-
phone calls or other electronic means. Meetings may be held at the venue
of arbitration or at some other appropriate location.

9. In some arbitrations a special meeting may be devoted exclusively to

such procedural consultations; alternatively, the consultations may be held
in conjunction with a hearing on the substance of the dispute. Practices
differ as to whether such special meetings should be held and how they
should be organized. Special procedural meetings of the arbitrators and
the parties separate from hearings are in practice referred to by expres-
sions such as "preliminary meeting", "pre-hearing conference", "prepara-
tory conference", "pre-hearing review", or terms of similar meaning. The
terms used partly depend on the stage of the proceedings at which the
meeting is taking place.
UNCITRAL Notes on Organizing Arbitral Proceedings 259

List of matters for possible consideration in

organizing arbitral proceedings

10. The Notes provide a list, followed by annotations, of matters on which

the arbitral tribunal may wish to formulate decisions on organizing arbitral
proceedings.

11. Given that procedural styles and practices in arbitration vary widely,
that the purpose of the Notes is not to promote any practice as best prac-
tice, and that the Notes are designed for universal use, it is not attempted
in the Notes to describe in detail different arbitral practices or express a
preference for any of them.

12. The list, while not exhaustive, covers a broad range of situations that
may arise in an arbitration. In many arbitrations, however, only a limited
number of the matters mentioned in the list need to be considered. It also
depends on the circumstances of the case at which stage or stages of the
proceedings it would be useful to consider matters concerning the organi-
zation of the proceedings. Generally, in order not to create opportunities for
unnecessary discussions and delay, it is advisable not to raise a matter pre-
maturely, i.e. before it is clear that a decision is needed.

13. When the Notes are used, it should be borne in mind that the discretion
of the arbitral tribunal in organizing the proceedings may be limited by arbi-
tration rules, by other provisions agreed to by the parties and by the law
applicable to the arbitral procedure. When an arbitration is administered by
an arbitral institution, various matters discussed in the Notes may be cov-
ered by the rules and practices of that institution.

LIST OF MATTERS FOR POSSIBLE CONSIDERA-

TION IN ORGANIZING ARBITRAL PROCEEDINGS

1. Set of arbitration rules: paras. 14-16

If the parties have not agreed on a set of arbitration rules, would they
wish to do so: paras. 14-16

2. Language of proceedings 17-20

(a) Possible need for translation of documents, in full or in part 18

(b) Possible need for interpretation of oral presentations 19

(c) Cost of translation and interpretation 20

260
Oe
FS
Annex 3

3. Place of arbitration 21-23

(a) Determination of the place of arbitration, if not already agreed

upon by the parties 21-22

(b) Possibility of meetings outside the place of arbitration 23

Administrative services that may be needed for the arbitral tribunal to

carry out its functions 24-27

Deposits in respect of costs 28-30

(a) Amount to be deposited 28

(b) Management of deposits 29 (c) Supplementary deposits 30

Confidentiality of information relating to the arbitration; possible agree-

ment thereon 31-32

Routing of written communications among the parties and the arbitra-

tors 33-34

Telefax and other electronic means of sending documents 35-37

(a) Telefax 35
(b) Other electronic means (e.g. electronic mail and magnetic or opti-
cal disk) 36-37

Arrangements for the exchange of written submissions 38-41

(a) Scheduling of written submissions 39-40

(b) Consecutive or simultaneous submissions 41

£0: Practical details concerning written submissions and evidence (e.g.

method of submission, copies, numbering, references) 42
LGN Defining points at issue; order of deciding issues; defining relief or
remedy sought 43-46

(a) Should a list of points at issue be prepared 43

(b) In which order should the points at issue be decided 44-45

(c) Is there a need to define more precisely the relief or remedy

sought 46

12. Possible settlement negotiations and their effect on scheduling pro-

ceedings 47

13. Documentary evidence 48-54

UNCITRAL Notes on Organizing
A r Arbitral Proceedings 261
2

(a) Time-limits for submission of documentary evidence intended to

be submitted by the parties; consequences of late submission
48-49

(b) Whether the arbitral tribuna! intends to require a party to produce

documentary evidence 50-51

(c) Should assertions about the origin and receipt of documents and
about the correctness of photocopies be assumed as accurate 52

(d) Are the parties willing to submit jointly a single set of documen-
tary evidence 53

(e) Should voluminous and complicated documentary evidence be

presented through summaries, tabulations, charts, extracts or
samples 54

14. Physical evidence other than documents 55-58

(a) What arrangements should be made if physical evidence will be

submitted 56

(b) What arrangements should be made if an on-site inspection is

necessary 57-58

15: Witnesses 59-68

(a) Advance notice about a witness whom a party intends to present;

written witnesses’ statements 60-62

(b) Manner of taking oral evidence of witnesses 63-65

(i) Order in which questions will be asked and the manner in

which the hearing of witnesses will be conducted 63

(ii) Whether oral testimony will be given under oath or affirma-

tion and, if so, in what form an oath or affirmation should be
made 64
(iii) May witnesses be in the hearing room when they are not tes-
tifying 65

(c) The order in which the witnesses will be called 66

(d) Interviewing witnesses prior to their appearance at a hearing 67

(e) Hearing representatives of a party 68

16. Experts and expert witnesses 69-73

(a) Expert appointed by the arbitral tribunal 70-72

262 Annex 3

(i) The expert’s terms of reference 71

(ii) The opportunity of the parties to comment on the expert's

report, including by presenting expert testimony 72

(b) Expert opinion presented by a party (expert witness) 73

17. Hearings 74-85

(a) Decision whether to hold hearings 74-75

(b) Whether one period of hearings should be held or separate periods

of hearings 76

(c) Setting dates for hearings 77

(d) Whether there should be a limit on the aggregate amount of time

each party will have for oral arguments and questioning witnesses
78-79
(e) The order in which the parties will present their arguments and
evidence 80

(f) Length of hearings 81

(g) Arrangements for a record of the hearings 82-83

(h) Whether and when the parties are permitted to submit notes sum-
marizing their oral arguments 84-85

18. Multi-party arbitration 86-88

19. Possible requirements concerning filing or delivering the award 89-90

Who should take steps to fulfil any requirement 90

ANNOTATIONS

1. Set of arbitration rules

If the parties have not agreed on a set of arbitration rules, would they
wish to do so

14, Sometimes parties who have not included in their arbitration agreement
a stipulation that a set of arbitration rules will govern their arbitral pro-
ceedings might wish to do so after the arbitration has begun. If that occurs,
the UNCITRAL Arbitration Rules may be used either without modification
or with such modifications as the parties might wish to agree upon. In the
alternative, the parties might wish to adopt the rules of an arbitral insti-
UNCITRAL Notes on Organizing Arbitral Proceedings 263

tution; in that case, it may be necessary to secure the agreement of that

institution and to stipulate the terms under which the arbitration could be
carried out in accordance with the rules of that institution.

15. However, caution is advised as consideration of a set of arbitration rules

might delay the proceedings or give rise to unnecessary controversy.
16. It should be noted that agreement on arbitration rules is not a necessity
and that, if the parties do not agree on a set of arbitration rules, the arbi-
tral tribunal has the power to continue the proceedings and determine how
the case will be conducted.

2. Language of proceedings

17. Many rules and laws on arbitral procedure empower the arbitral tribu-
nal to determine the language or languages to be used in the proceedings,
if the parties have not reached an agreement thereon.

(a) Possible need for translation of documents, in full or in part

18. Some documents annexed to the statements of claim and defence or

submitted later may not be in the language of the proceedings. Bearing
in mind the needs of the proceedings and economy, it may be considered
whether the arbitral tribunal should order that any of those documents or
parts thereof should be accompanied by a translation into the language of
the proceedings.

(b) Possible need for interpretation of oral presentations

19. If interpretation will be necessary during oral hearings, it is advisable

to consider whether the interpretation will be simultaneous or consecutive
and whether the arrangements should be the responsibility of a party or
the arbitral tribunal. In an arbitration administered by an institution, inter-
pretation as well as translation services are often arranged by the arbitral
institution.

(c) Cost of translation and interpretation

20. In taking decisions about translation or interpretation, it is advisable to

decide whether any or all of the costs are to be paid directly by a party or
whether they will be paid out of the deposits and apportioned between the
parties along with the other arbitration costs.
264 Annex 3

3. Place of arbitration

(a) Determination of the place of arbitration, if not already

agreed upon by the parties

21. Arbitration rules usually allow the parties to agree on the place of arbi-
tration, subject to the requirement of some arbitral institutions that arbitra-
tions under their rules be conducted at a particular place, usually the loca-
tion of the institution. If the place has not been so agreed upon, the rules
governing the arbitration typically provide that it is in the power of the arbi-
tral tribunal or the institution administering the arbitration to determine the
place. If the arbitral tribunal is to make that determination, it may wish to
hear the views of the parties before doing so.

22. Various factual and legal factors influence the choice of the place of
arbitration, and their relative importance varies from case to case. Among
the more prominent factors are: (a) suitability of the law on arbitral proce-
dure of the place of arbitration; (b) whether there is a multilateral or bilat-
eral treaty on enforcement of arbitral awards between the State where the
arbitration takes place and the State or States where the award may have
to be enforced; (c) convenience of the parties and the arbitrators, including
the travel distances; (d) availability and cost of support services needed;
and (e) location of the subject-matter in dispute and proximity of evidence.

(b) Possibility of meetings outside the place of arbitration

23. Many sets of arbitration rules and laws on arbitral procedure expressly
allow the arbitral tribunal to hold meetings elsewhere than at the place of
arbitration. For example, under the UNCITRAL Model Law on International
Commercial Arbitration "the arbitral tribunal may, unless otherwise agreed
by the parties, meet at any place it considers appropriate for consultation
among its members, for hearing witnesses, experts or the parties, or for
inspection of goods, other property or documents" (article 20(2)). The pur-
pose of this discretion is to permit arbitral proceedings to be carried out in
a manner that is most efficient and economical.

4. Administrative services that may be needed

for the arbitral tribunal to carry out its func-
tions

24. Various administrative services (e.g. hearing rooms or secretarial serv-

ices) may need to be procured for the arbitral tribunal to be able to carry
UNCITRAL Notes on Organizing Arbitral Proceedings 265

out its functions. When the arbitration is administered by an arbitral insti-

tution, the institution will usually provide all or a good part of the required
administrative support to the arbitral tribunal. When an arbitration admin-
istered by an arbitral institution takes place away from the seat of the insti-
tution, the institution may be able to arrange for administrative services to
be obtained from another source, often an arbitral institution; some arbitral
institutions have entered into cooperation agreements with a view to pro-
viding mutual assistance in servicing arbitral proceedings.

25. When the case is not administered by an institution, or the involvement

of the institution does not include providing administrative support, usu-
ally the administrative arrangements for the proceedings will be made by
the arbitral tribunal or the presiding arbitrator; it may also be acceptable to
leave some of the arrangements to the parties, or to one of the parties sub-
ject to agreement of the other party or parties. Even in such cases, a con-
venient source of administrative support might be found in arbitral institu-
tions, which often offer their facilities to arbitrations not governed by the
rules of the institution. Otherwise, some services could be procured from
entities such as chambers of commerce, hotels or specialized firms provid-
ing secretarial or other support services.

26. Administrative services might be secured by engaging a secretary of

the arbitral tribunal (also referred to as registrar, clerk, administrator or
rapporteur), who carries out the tasks under the direction of the arbitral tri-
bunal. Some arbitral institutions routinely assign such persons to the cases
administered by them. In arbitrations not administered by an institution or
where the arbitral institution does not appoint a secretary, some arbitrators
frequently engage such persons, at least in certain types of cases, whereas
many others normally conduct the proceedings without them.

27. To the extent the tasks of the secretary are purely organizational (e.g.
obtaining meeting rooms and providing or coordinating secretarial ser-
vices), this is usually not controversial. Differences in views, however, may
arise if the tasks include legal research and other professional assistance
to the arbitral tribunal (e.g. collecting case law or published commentaries
on legal issues defined by the arbitral tribunal, preparing summaries from
case law and publications, and sometimes also preparing drafts of proce-
dural decisions or drafts of certain parts of the award, in particular those
concerning the facts of the case). Views or expectations may differ espe-
cially where a task of the secretary is similar to professional functions of the
arbitrators. Such a role of the secretary is in the view of some commenta-
tors inappropriate or is appropriate only under certain conditions, such as
that the parties agree thereto. However, it is typically recognized that it is
266 Annex 3

important to ensure that the secretary does not perform any decision-mak-
ing function of the arbitral tribunal.

5. Deposits in respect of costs

(a) Amount to be deposited
28. In an arbitration administered by an institution, the institution often sets,
on the basis of an estimate of the costs of the proceedings, the amount to
be deposited as an advance for the costs of the arbitration. In other cases it
is customary for the arbitral tribunal to make such an estimate and request
a deposit. The estimate typically includes travel and other expenses by the
arbitrators, expenditures for administrative assistance required by the arbi-
tral tribunal, costs of any expert advice required by the arbitral tribunal,
and the fees for the arbitrators. Many arbitration rules have provisions on
this matter, including on whether the deposit should be made by the two
parties (or all parties in a multi-party case) or only by the claimant.

(b) Management of deposits

29. When the arbitration is administered by an institution, the institution’s

services may include managing and accounting for the deposited money.
Where that is not the case, it might be useful to clarify matters such as the
type and location of the account in which the money will be kept and how
the deposits will be managed.

(c) Supplementary deposits

30. If during the course of proceedings it emerges that the costs will be
higher than anticipated, supplementary deposits may be required (e.g.
because the arbitral tribunal decides pursuant to the arbitration rules to
appoint an expert).

6. Confidentiality of information relating to the

arbitration; possible agreement thereon

31. It is widely viewed that confidentiality is one of the advantageous and

helpful features of arbitration. Nevertheless, there is no uniform answer in
national laws as to the extent to which the participants in an arbitration
are under the duty to observe the confidentiality of information relating to
the case. Moreover, parties that have agreed on arbitration rules or other
UNCITRAL Notes on Organizing Arbitral Proceedings 267

provisions that do not expressly address the issue of confidentiality can-

not assume that all jurisdictions would recognize an implied commitment
to confidentiality. Furthermore, the participants in an arbitration might not
have the same understanding as regards the extent of confidentiality that
is expected. Therefore, the arbitral tribunal might wish to discuss that with
the parties and, if considered appropriate, record any agreed principles on
the duty of confidentiality.

32. An agreement on confidentiality might cover, for example, one or more

of the following matters: the material or information that is to be kept con-
fidential (e.g. pieces of evidence, written and oral arguments, the fact that
the arbitration is taking place, identity of the arbitrators, content of the
award); measures for maintaining confidentiality of such information and
hearings; whether any special procedures should be employed for main-
taining the confidentiality of information transmitted by electronic means
(e.g. because communication equipment is shared by several users, or
because electronic mail over public networks is considered not sufficiently
protected against unauthorized access); circumstances in which confiden-
tial information may be disclosed in part or in whole (e.g. in the context of
disclosures of information in the public domain, or if required by law or a
regulatory body).

7. Routing of written communications among

the parties and the arbitrators

33. To the extent the question how documents and other written communi-
cations should be routed among the parties and the arbitrators is not set-
tled by the agreed rules, or, if an institution administers the case, by the
practices of the institution, it is useful for the arbitral tribunal to clarify the
question suitably early so as to avoid misunderstandings and delays.

34. Among various possible patterns of routing, one example is that a party
transmits the appropriate number of copies to the arbitral tribunal, or to
the arbitral institution, if one is involved, which then forwards them as
appropriate. Another example is that a party is to send copies simulta-
neously to the arbitrators and the other party or parties. Documents and
other written communications directed by the arbitral tribunal or the pre-
siding arbitrator to one or more parties may also follow a determined pat-
tern, such as through the arbitral institution or by direct transmission. For
some communications, in particular those on organizational matters (e.g.
dates for hearings), more direct routes of communication may be agreed,
even if, for example, the arbitral institution acts as an intermediary for doc-
268 Annex 3

uments such as the statements of claim and defence, evidence or written

arguments.

8. Telefax and other electronic means

of sending documents

(a) Telefax
35. Telefax, which offers many advantages over traditional means of com-
munication, is widely used in arbitral proceedings. Nevertheless, should
it be thought that, because of the characteristics of the equipment used,
it would be preferable not to rely only on a telefacsimile of a document,
special arrangements may be considered, such as that a particular piece
of written evidence should be mailed or otherwise physically delivered, or
that certain telefax messages should be confirmed by mailing or other-
wise delivering documents whose facsimile were transmitted by electronic
means. When a document should not be sent by telefax, it may, however,
be appropriate, in order to avoid an unnecessarily rigid procedure, for the
arbitral tribunal to retain discretion to accept an advance copy of a docu-
ment by telefax for the purposes of meeting a deadline, provided that the
document itself is received within a reasonable time thereafter.

(b) Other electronic means (e.g. electronic mail and magnetic

or optical disk)

36. It might be agreed that documents, or some of them, will be exchanged

not only in paper-based form, but in addition also in an electronic form
other than telefax (e.g. as electronic mail, or on a magnetic or optical disk),
or only in electronic form. Since the use of electronic means depends on the
aptitude of the persons involved and the availability of equipment and com-
puter programs, agreement is necessary for such means to be used. If both
paper-based and electronic means are to be used, it is advisable to decide
which one is controlling and, if there is a time-limit for submitting a docu-
ment, which act constitutes submission.
37. When the exchange of documents in electronic form is planned, it is
useful, in order to avoid technical difficulties, to agree on matters such as:
data carriers (e.g. electronic mail or computer disks) and their technical
characteristics; computer programs to be used in preparing the electronic
records; instructions for transforming the electronic records into human-
readable form; keeping of logs and back-up records of communications sent
UNCITRAL Notes on Organizing Arbitral Proceedings 269

and received; information in human-readable form that should accompany

the disks (e.g. the names of the originator and recipient, computer pro-
gram, titles of the electronic files and the back-up methods used); proce-
dures when a message is lost or the communication system otherwise fails;
and identification of persons who can be contacted if a problem occurs.

9. Arrangements for the exchange of written

submissions

38. After the parties have initially stated their claims and defences, they
may wish, or the arbitral tribunal might request them, to present further
written submissions so as to prepare for the hearings or to provide the basis
for a decision without hearings. In such submissions, the parties, for exam-
ple, present or comment on allegations and evidence, cite or explain law,
or make or react to proposals. In practice such submissions are referred to
variously as, for example, statement, memorial, counter-memorial, brief,
counter-brief, reply, réplique, duplique, rebuttal or rejoinder; the terminol-
ogy is a matter of linguistic usage and the scope or sequence of the sub-
mission.

(a) Scheduling of written submissions

39. It is advisable that the arbitral tribunal set time-limits for written sub-
missions. In enforcing the time-limits, the arbitral tribunal may wish, on
the one hand, to make sure that the case is not unduly protracted and, on
the other hand, to reserve a degree of discretion and allow late submissions
if appropriate under the circumstances. In some cases the arbitral tribu-
nal might prefer not to plan the written submissions in advance, thus leav-
ing such matters, including time-limits, to be decided in light of the devel-
opments in the proceedings. In other cases, the arbitral tribunal may wish
to determine, when scheduling the first written submissions, the number of
subsequent submissions.

40. Practices differ as to whether, after the hearings have been held, writ-
ten submissions are still acceptable. While some arbitral tribunals consider
post-hearing submissions unacceptable, others might request or allow them
on a particular issue. Some arbitral tribunals follow the procedure accord-
ing to which the parties are not requested to present written evidence and
legal arguments to the arbitral tribunal before the hearings; in such a case,
the arbitral tribunal may regard it as appropriate that written submissions
be made after the hearings.
270 Annex 3

(b) Consecutive or simultaneous submissions

41. Written submissions on an issue may be made consecutively, i.e. the

party who receives a submission is given a period of time to react with its
counter-submission. Another possibility is to request each party to make the
submission within the same time period to the arbitral tribunal or the insti-
tution administering the case; the received submissions are then forwarded
simultaneously to the respective other party or parties. The approach used
may depend on the type of issues to be commented upon and the time in
which the views should be clarified. With consecutive submissions, it may
take longer than with simultaneous ones to obtain views of the parties on
a given issue. Consecutive submissions, however, allow the reacting party
to comment on all points raised by the other party or parties, which simul-
taneous submissions do not; thus, simultaneous submissions might possi-
bly necessitate further submissions.

10. Practical details concerning written submis-

sions and evidence (e.g. method of submis-
sion, copies, numbering, references)

42.Depending on the volume and kind of documents to be handled, it might

be considered whether practical arrangements on details such as the fol-
lowing would be helpful:

e Whether the submissions will be made as paper documents or by elec-

tronic means, or both (see paragraphs 35-37);

e The number of copies in which each document is to be submitted;

e Asystem for numbering documents and items of evidence, and a method

for marking them, including by tabs;
e The form of references to documents (e.g. by the heading and the
number assigned to the document or its date);
e Paragraph numbering in written submissions, in order to facilitate pre-
cise references to parts of a text;

e When translations are to be submitted as paper documents, whether

the translations are to be contained in the same volume as the original
texts or included in separate volumes.
UNCITRAL Notes on Organizing Arbitral Proceedings PTpN

11. Defining points at issue; order of deciding

issues; defining relief or remedy sought

(a) Should a list of points at issue be prepared

43. In considering the parties’ allegations and arguments, the arbitral tri-
bunal may come to the conclusion that it would be useful for it or for the
parties to prepare, for analytical purposes and for ease of discussion, a
list of the points at issue, as opposed to those that are undisputed. If the
arbitral tribunal determines that the advantages of working on the basis of
such a list outweigh the disadvantages, it chooses the appropriate stage of
the proceedings for preparing a list, bearing in mind also that subsequent
developments in the proceedings may require a revision of the points at
issue. Such an identification of points at issue might help to concentrate on
the essential matters, to reduce the number of points at issue by agree-
ment of the parties, and to select the best and most economical process for
resolving the dispute. However, possible disadvantages of preparing such
a list include delay, adverse effect on the flexibility of the proceedings, or
unnecessary disagreements about whether the arbitral tribunal has decided
all issues submitted to it or whether the award contains decisions on mat-
ters beyond the scope of the submission to arbitration. The terms of ref-
erence required under some arbitration rules, or in agreements of parties,
may serve the same purpose as the above-described list of points at issue.

(b) In which order should the points at issue be decided

44. While it is often appropriate to deal with all the points at issue col-
lectively, the arbitral tribunal might decide to take them up during the
proceedings in a particular order. The order may be due to a point being
preliminary relative to another (e.g. a decision on the jurisdiction of the
arbitral tribunal is preliminary to consideration of substantive issues, or the
issue of responsibility for a breach of contract is preliminary to the issue of
the resulting damages). A particular order may be decided also when the
breach of various contracts is in dispute or when damages arising from var-
ious events are claimed.
45. If the arbitral tribunal has adopted a particular order of deciding points
at issue, it might consider it appropriate to issue a decision on one of the
points earlier than on the other ones. This might be done, for example,
when a discrete part of a claim is ready for decision while the other parts
still require extensive consideration, or when it is expected that after decid-
ing certain issues the parties might be more inclined to settle the remaining
ones. Such earlier decisions are referred to by expressions such as "partial",
DUP Annex 3

"interlocutory" or "interim" awards or decisions, depending on the type of

issue dealt with and on whether the decision is final with respect to the
issue it resolves. Questions that might be the subject of such decisions are,
for example, jurisdiction of the arbitral tribunal, interim measures of pro-
tection, or the liability of a party.

(c) Is there a need to define more precisely

the relief or remedy sought

46. If the arbitral tribunal considers that the relief or remedy sought is
insufficiently definite, it may wish to explain to the parties the degree of
definiteness with which their claims should be formulated. Such an expla-
nation may be useful since criteria are not uniform as to how specific the
claimant must be in formulating a relief or remedy.

12. Possible settlement negotiations and their

effect on scheduling proceedings

47. Attitudes differ as to whether it is appropriate for the arbitral tribunal

to bring up the possibility of settlement. Given the divergence of practices
in this regard, the arbitral tribunal should only suggest settlement negoti-
ations with caution. However, it may be opportune for the arbitral tribunal
to schedule the proceedings in a way that might facilitate the continuation
or initiation of settlement negotiations.

13. Documentary evidence

(a) Time-limits for submission of documentary evidence

intended to be submitted by the parties; consequences
of late submission
48. Often the written submissions of the parties contain sufficient informa-
tion for the arbitral tribunal to fix the time-limit for submitting evidence.
Otherwise, in order to set realistic time periods, the arbitral tribunal may
wish to consult with the parties about the time that they would reasona-
bly need.

49. The arbitral tribunal may wish to clarify that evidence submitted late
will as a rule not be accepted. It may wish not to preclude itself from
accepting a late submission of evidence if the party shows sufficient cause
for the delay.
UNCITRAL Notes on Organizing Arbitral Proceedings 2713

(b) Whether the arbitral tribunal intends to require

a party to produce documentary evidence
50. Procedures and practices differ widely as to the conditions under which
the arbitral tribunal may require a party to produce documents. Therefore,
the arbitral tribunal might consider it useful, when the agreed arbitration
rules do not provide specific conditions, to clarify to the parties the manner
in which it intends to proceed.

51. The arbitral tribunal may wish to establish time-limits for the produc-
tion of documents. The parties might be reminded that, if the requested
party duly invited to produce documentary evidence fails to do so within
the established period of time, without showing sufficient cause for such
failure, the arbitral tribunal is free to draw its conclusions from the failure
and may make the award on the evidence before it.

(c) Should assertions about the origin and receipt of docu-

ments and about the correctness of photocopies
be assumed as accurate

52. It may be helpful for the arbitral tribunal to inform the parties that it
intends to conduct the proceedings on the basis that, unless a party raises
an objection to any of the following conclusions within a specified period of
time: (a) a document is accepted as having originated from the source indi-
cated in the document; (b) a copy of a dispatched communication (e.g. let-
ter, telex, telefax or other electronic message) is accepted without further
proof as having been received by the addressee; and (c) a copy is accepted
as correct. A statement by the arbitral tribunal to that effect can simplify
the introduction of documentary evidence and discourage unfounded and
dilatory objections, at a late stage of the proceedings, to the probative
value of documents. It is advisable to provide that the time-limit for objec-
tions will not be enforced if the arbitral tribunal considers the delay justi-
fied.

(d) Are the parties willing to submit jointly a single set

of documentary evidence

53. The parties may consider submitting jointly a single set of documen-
tary evidence whose authenticity is not disputed. The purpose would be to
avoid duplicate submissions and unnecessary discussions concerning the
authenticity of documents, without prejudicing the position of the parties
concerning the content of the documents. Additional documents may be
inserted later if the parties agree. When a single set of documents would
be too voluminous to be easily manageable, it might be practical to select a
274 Annex 3

number of frequently used documents and establish a set of "working" doc-

uments. A convenient arrangement of documents in the set may be accord-
ing to chronological order or subject-matter. It is useful to keep a table of
contents of the documents, for example, by their short headings and dates,
and to provide that the parties will refer to documents by those headings
and dates.

(e) Should voluminous and complicated documentary evi-

dence be presented through summaries, tabulations, charts,
extracts or samples
54. When documentary evidence is voluminous and complicated, it may
save time and costs if such evidence is presented by a report of a person
competent in the relevant field (e.g. public accountant or consulting engi-
neer). The report may present the information in the form of summaries,
tabulations, charts, extracts or samples. Such presentation of evidence
should be combined with arrangements that give the interested party the
opportunity to review the underlying data and the methodology of prepar-
ing the report.

14. Physical evidence other than documents

55. In some arbitrations the arbitral tribunal is called upon to assess phys-
ical evidence other than documents, for example, by inspecting sam-
ples of goods, viewing a video recording or observing the functioning of a
machine.

(a) What arrangements should be made if physical evidence

will be submitted

56. If physical evidence will be submitted, the arbitral tribunal may wish to
fix the time schedule for presenting the evidence, make arrangements for
the other party or parties to have a suitable opportunity to prepare itself
for the presentation of the evidence, and possibly take measures for safe-
keeping the items of evidence.

(b) What arrangements should be made if an on-site inspection

is necessary

57. If an on-site inspection of property or goods will take place, the arbi-
tral tribunal may consider matters such as timing, meeting places, other
arrangements to provide the opportunity for all parties to be present, and
UNCITRAL Notes on Organizing Arbitral Proceedings 215

the need to avoid communications between arbitrators and a party about

points at issue without the presence of the other party or parties.

58. The site to be inspected is often under the control of one of the parties,
which typically means that employees or representatives of that party will
be present to give guidance and explanations. It should be borne in mind
that statements of those representatives or employees made during an on-
site inspection, as contrasted with statements those persons might make
as witnesses in a hearing, should not be treated as evidence in the pro-
ceedings.

15. Witnesses

59. While laws and rules on arbitral procedure typically leave broad free-
dom concerning the manner of taking evidence of witnesses, practices on
procedural points are varied. In order to facilitate the preparations of the
parties for the hearings, the arbitral tribunal may consider it appropriate to
clarify, in advance of the hearings, some or all of the following issues.

(a) Advance notice about a witness whom a party intends

to present; written witnesses’ statements

60. To the extent the applicable arbitration rules do not deal with the mat-
ter, the arbitral tribunal may wish to require that each party give advance
notice to the arbitral tribunal and the other party or parties of any witness
it intends to present. As to the content of the notice, the following is an
example of what might be required, in addition to the names and addresses
of the witnesses: (a) the subject upon which the witnesses will testify; (b)
the language in which the witnesses will testify; and (c) the nature of the
relationship with any of the parties, qualifications and experience of the
witnesses if and to the extent these are relevant to the dispute or the tes-
timony, and how the witnesses learned about the facts on which they will
testify. However, it may not be necessary to require such a notice, in partic-
ular if the thrust of the testimony can be clearly ascertained from the par-
ty’s allegations.
61. Some practitioners favour the procedure according to which the party
presenting witness evidence submits a signed witness’s statement contain-
ing testimony itself. It should be noted, however, that such practice, which
implies interviewing the witness by the party presenting the testimony, is
not known in all parts of the world and, moreover, that some practition-
ers disapprove of it on the ground that such contacts between the party
 Annex 3
276

and the witness may compromise the credibility of the testimony and are
therefore improper (see paragraph 67). Notwithstanding these reserva-
tions, signed witness’s testimony has advantages in that it may expedite
the proceedings by making it easier for the other party or parties to pre-
pare for the hearings or for the parties to identify uncontested matters.
However, those advantages might be outweighed by the time and expense
involved in obtaining the written testimony.

62. If a signed witness’s statement should be made under oath or similar

affirmation of truthfulness, it may be necessary to clarify by whom the oath
or affirmation should be administered and whether any formal authentica-
tion will be required by the arbitral tribunal.

(b) Manner of taking oral evidence of witnesses

(i) Order in which questions will be asked and the manner

in which the hearing of witnesses will be conducted

63. To the extent that the applicable rules do not provide an answer, it may
be useful for the arbitral tribunal to clarify how witnesses will be heard. One
of the various possibilities is that a witness is first questioned by the arbitral
tribunal, whereupon questions are asked by the parties, first by the party
who called the witness. Another possibility is for the witness to be ques-
tioned by the party presenting the witness and then by the other party or
parties, while the arbitral tribunal might pose questions during the ques-
tioning or after the parties on points that in the tribunal’s view have not
been sufficiently clarified. Differences exist also as to the degree of con-
trol the arbitral tribunal exercises over the hearing of witnesses. For exam-
ple, some arbitrators prefer to permit the parties to pose questions freely
and directly to the witness, but may disallow a question if a party objects;
other arbitrators tend to exercise more control and may disallow a question
on their initiative or even require that questions from the parties be asked
through the arbitral tribunal.

(ii) Whether oral testimony will be given under oath or affirma-

tion and, if so, in what form an oath or affirmation should
be made

64. Practices and laws differ as to whether or not oral testimony is to be

given under oath or affirmation. In some legal systems, the arbitrators are
empowered to put witnesses on oath, but it is usually in their discretion
whether they want to do so. In other systems, oral testimony under oath
UNCITRAL Notes on Organizing Arbitral Proceedings PALI

is either unknown or may even be considered improper as only an official

such as a judge or notary may have the authority to administer oaths.

(iii) May witnesses be in the hearing room when they

are not testifying

65. Some arbitrators favour the procedure that, except if the circumstances
suggest otherwise, the presence of a witness in the hearing room is limited
to the time the witness is testifying; the purpose is to prevent the witness
from being influenced by what is said in the hearing room, or to prevent
that the presence of the witness would influence another witness. Other
arbitrators consider that the presence of a witness during the testimony
of other witnesses may be beneficial in that possible contradictions may
be readily clarified or that their presence may act as a deterrent against
untrue statements. Other possible approaches may be that witnesses are
not present in the hearing room before their testimony, but stay in the
room after they have testified, or that the arbitral tribunal decides the
question for each witness individually depending on what the arbitral tribu-
nal considers most appropriate. The arbitral tribunal may leave the proce-
dure to be decided during the hearings, or may give guidance on the ques-
tion in advance of the hearings.

(c) The order in which the witnesses will be called

66. When several witnesses are to be heard and longer testimony is

expected, it is likely to reduce costs if the order in which they will be called
is Known in advance and their presence can be scheduled accordingly. Each
party might be invited to suggest the order in which it intends to present
the witnesses, while it would be up to the arbitral tribunal to approve the
scheduling and to make departures from it.

(d) Interviewing witnesses prior to their appearance

at a hearing

67. In some legal systems, parties or their representatives are permitted

to interview witnesses, prior to their appearance at the hearing, as to such
matters as their recollection of the relevant events, their experience, qual-
ifications or relation with a participant in the proceedings. In those legal
systems such contacts are usually not permitted once the witness's oral
testimony has begun. In other systems such contacts with witnesses are
considered improper. In order to avoid misunderstandings, the arbitral tri-
bunal may consider it useful to clarify what kind of contacts a party is per-
mitted to have with a witness in the preparations for the hearings.
278 Annex 3

(e) Hearing representatives of a party

68. According to some legal systems, certain persons affiliated with a party
may only be heard as representatives of the party but not as witnesses. In
such a case, it may be necessary to consider ground rules for determin-
ing which persons may not testify as witnesses (e.g. certain executives,
employees or agents) and for hearing statements of those persons and for
questioning them.

16. Experts and expert witnesses

69. Many arbitration rules and laws on arbitral procedure address the par-
ticipation of experts in arbitral proceedings. A frequent solution is that the
arbitral tribunal has the power to appoint an expert to report on issues
determined by the tribunal; in addition, the parties may be permitted to
present expert witnesses on points at issue. In other cases, it is for the par-
ties to present expert testimony, and it is not expected that the arbitral tri-
bunal will appoint an expert.

(a) Expert appointed by the arbitral tribunal

70. If the arbitral tribunal is empowered to appoint an expert, one possi-

ble approach is for the tribunal to proceed directly to selecting the expert.
Another possibility is to consult the parties as to who should be the expert;
this may be done, for example, without mentioning a candidate, by pre-
senting to the parties a list of candidates, soliciting proposals from the par-
ties, or by discussing with the parties the "profile" of the expert the arbitral
tribunal intends to appoint, i.e. the qualifications, experience and abilities
of the expert.

(i) The expert’s terms of reference

71. The purpose of the expert’s terms of reference is to indicate the ques-
tions on which the expert is to provide clarification, to avoid opinions on
points that are not for the expert to assess and to commit the expert to a
time schedule. While the discretion to appoint an expert normally includes
the determination of the expert’s terms of reference, the arbitral tribunal
may decide to consult the parties before finalizing the terms. It might also
be useful to determine details about how the expert will receive from the
parties any relevant information or have access to any relevant documents,
goods or other property, so as to enable the expert to prepare the report.
In order to facilitate the evaluation of the expert’s report, it is advisable to
UNCITRAL Notes on Organizing Arbitral Proceedings 279

require the expert to include in the report information on the method used
in arriving at the conclusions and the evidence and information used in pre-
paring the report.

(ii) The opportunity of the parties to comment on the expert's

report, including by presenting expert testimony

72. Arbitration rules that contain provisions on experts usually also have
provisions on the right of a party to comment on the report of the expert
appointed by the arbitral tribunal. If no such provisions apply or more spe-
cific procedures than those prescribed are deemed necessary, the arbitral
tribunal may, in light of those provisions, consider it opportune to deter-
mine, for example, the time period for presenting written comments of the
parties, or, if hearings are to be held for the purpose of hearing the expert,
the procedures for interrogating the expert by the parties or for the partic-
ipation of any expert witnesses presented by the parties.

(b) Expert opinion presented by a party (expert witness)

73. If a party presents an expert opinion, the arbitral tribunal might con-
sider requiring, for example, that the opinion be in writing, that the expert
should be available to answer questions at hearings, and that, if a party
will present an expert witness at a hearing, advance notice must be given
or that the written opinion must be presented in advance, as in the case of
other witnesses (see paragraphs 60-62).

17. Hearings

(a) Decision whether to hold hearings

74. Laws on arbitral procedure and arbitration rules often have provisions
as to the cases in which oral hearings must be held and as to when the arbi-
tral tribunal has discretion to decide whether to hold hearings.

75. If it is up to the arbitral tribunal to decide whether to hold hearings, the

decision is likely to be influenced by factors such as, on the one hand, that
it is usually quicker and easier to clarify points at issue pursuant to a direct
confrontation of arguments than on the basis of correspondence and, on
the other hand, the travel and other cost of holding hearings, and that the
need of finding acceptable dates for the hearings might delay the proceed-
ings. The arbitral tribunal may wish to consult the parties on this matter.
280 Annex 3

(b) Whether one period of hearings should be held

or separate periods of hearings

76. Attitudes vary as to whether hearings should be held in a single period

of hearings or in separate periods, especially when more than a few days
are needed to complete the hearings. According to some arbitrators, the
entire hearings should normally be held in a single period, even if the
hearings are to last for more than a week. Other arbitrators in such cases
tend to schedule separate periods of hearings. In some cases issues to be
decided are separated, and separate hearings set for those issues, with
the aim that oral presentation on those issues will be completed within the
allotted time. Among the advantages of one period of hearings are that it
involves less travel costs, memory will not fade, and it is unlikely that peo-
ple representing a party will change. On the other hand, the longer the
hearings, the more difficult it may be to find early dates acceptable to all
participants. Furthermore, separate periods of hearings may be easier to
schedule, the subsequent hearings may be tailored to the development of
the case, and the period between the hearings leaves time for analysing
the records and negotiations between the parties aimed at narrowing the
points at issue by agreement.

(c) Setting dates for hearings

77. Typically, firm dates will be fixed for hearings. Exceptionally, the arbi-
tral tribunal may initially wish to set only "target dates" as opposed to
definitive dates. This may be done at a stage of the proceedings when not
all information necessary to schedule hearings is yet available, with the
understanding that the target dates will either be confirmed or rescheduled
within a reasonably short period. Such provisional planning can be useful to
participants who are generally not available on short notice.

(d) Whether there should be a limit on the aggregate amount

of time each party will have for oral arguments and ques-
tioning witnesses

78. Some arbitrators consider it useful to limit the aggregate amount of

time each party has for any of the following: (a) making oral statements;
(b) questioning its witnesses; and (c) questioning the witnesses of the
other party or parties. In general, the same aggregate amount of time is
considered appropriate for each party, unless the arbitral tribunal consid-
ers that a different allocation is justified. Before deciding, the arbitral tri-
bunal may wish to consult the parties as to how much time they think they
will need.
UNCITRAL Notes on Organizing Arbitral Proceedings 281

79. Such planning of time, provided it is realistic, fair and subject to judi-
ciously firm control by the arbitral tribunal, will make it easier for the par-
ties to plan the presentation of the various items of evidence and argu-
ments, reduce the likelihood of running out of time towards the end of the
hearings and avoid that one party would unfairly use up a disproportion-
ate amount of time.

(e) The order in which the parties will present their arguments
and evidence

80. Arbitration rules typically give broad latitude to the arbitral tribunal to
determine the order of presentations at the hearings. Within that latitude,
practices differ, for example, as to whether opening or closing statements
are heard and their level of detail; the sequence in which the claimant and
the respondent present their opening statements, arguments, witnesses
and other evidence; and whether the respondent or the claimant has the
last word. In view of such differences, or when no arbitration rules apply, it
may foster efficiency of the proceedings if the arbitral tribunal clarifies to
the parties, in advance of the hearings, the manner in which it will conduct
the hearings, at least in broad lines.

(f) Length of hearings

81. The length of a hearing primarily depends on the complexity of the

issues to be argued and the amount of witness evidence to be presented.
The length also depends on the procedural style used in the arbitration.
Some practitioners prefer to have written evidence and written arguments
presented before the hearings, which thus can focus on the issues that
have not been sufficiently clarified. Those practitioners generally tend to
plan shorter hearings than those practitioners who prefer that most if not
all evidence and arguments are presented to the arbitral tribunal orally and
in full detail. In order to facilitate the parties’ preparations and avoid mis-
understandings, the arbitral tribunal may wish to clarify to the parties, in
advance of the hearings, the intended use of time and style of work at the
hearings.

(g) Arrangements for a record of the hearings

82. The arbitral tribunal should decide, possibly after consulting with the
parties, on the method of preparing a record of oral statements and testi-
mony during hearings. Among different possibilities, one method is that the
members of the arbitral tribunal take personal notes. Another is that the
presiding arbitrator during the hearing dictates to a typist a summary of
282 Annex 3

oral statements and testimony. A further method, possible when a secretary

of the arbitral tribunal has been appointed, may be to leave to that person
the preparation of a summary record. A useful, though costly, method is
for professional stenographers to prepare verbatim transcripts, often within
the next day or a similarly short time period. A written record may be com-
bined with tape-recording, so as to enable reference to the tape in case of
a disagreement over the written record.

83. If transcripts are to be produced, it may be considered how the persons

who made the statements will be given an opportunity to check the tran-
scripts. For example, it may be determined that the changes to the record
would be approved by the parties or, failing their agreement, would be
referred for decision to the arbitral tribunal.

(h) Whether and when the parties are permitted to submit

notes summarizing their oral arguments

84. Some legal counsel are accustomed to giving notes summarizing their
oral arguments to the arbitral tribunal and to the other party or parties.
If such notes are presented, this is usually done during the hearings or
shortly thereafter; in some cases, the notes are sent before the hearing.
In order to avoid surprise, foster equal treatment of the parties and facili-
tate preparations for the hearings, advance clarification is advisable as to
whether submitting such notes is acceptable and the time for doing so.

85. In closing the hearings, the arbitral tribunal will normally assume that
no further proof is to be offered or submission to be made. Therefore, if
notes are to be presented to be read after the closure of the hearings, the
arbitral tribunal may find it worthwhile to stress that the notes should be
limited to summarizing what was said orally and in particular should not
refer to new evidence or new argument.

18. Multi-party arbitration

86. When a single arbitration involves more than two parties (multi-party
arbitration), considerations regarding the need to organize arbitral proceed-
ings, and matters that may be considered in that connection, are generally
not different from two-party arbitrations. A possible difference may be that,
because of the need to deal with more than two parties, multi-party pro-
ceedings can be more complicated to manage than bilateral proceedings.
The Notes, notwithstanding a possible greater complexity of multi-party
arbitration, can be used in multi-party as well as in two-party proceedings.
UNCITRAL Notes on Organizing Arbitral Proceedings 283

87. The areas of possibly increased complexity in multi-party arbitration

are, for example, the flow of communications among the parties and the
arbitral tribunal (see paragraphs 33, 34 and 38-41); if points at issue are
to be decided at different points in time, the order of deciding them (para-
graphs 44-45); the manner in which the parties will participate in hearing
witnesses (paragraph 63); the appointment of experts and the participation
of the parties in considering their reports (paragraphs 70-72); the schedul-
ing of hearings (paragraph 76); the order in which the parties will present
their arguments and evidence at hearings (paragraph 80).

88. The Notes, which are limited to pointing out matters that may be con-
sidered in organizing arbitral proceedings in general, do not cover the draft-
ing of the arbitration agreement or the constitution of the arbitral tribunal,
both issues that give rise to special questions in multi-party arbitration as
compared to two-party arbitration.

19. Possible requirements concerning filing

or delivering the award

89. Some national laws require that arbitral awards be filed or registered
with a court or similar authority, or that they be delivered in a particular
manner or through a particular authority. Those laws differ with respect to,
for example, the type of award to which the requirement applies (e.g. to
all awards or only to awards not rendered under the auspices of an arbitral
institution); time periods for filing, registering or delivering the award (in
some cases those time periods may be rather short); or consequences for
failing to comply with the requirement (which might be, for example, inva-
lidity of the award or inability to enforce it in a particular manner).

Who should take steps to fulfil any requirement

90. If such a requirement exists, it is useful, some time before the award
is to be issued, to plan who should take the necessary steps to meet the
requirement and how the costs are to be borne.
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Index 285

Index

Index references refer to

[Article No. (or Preamble or Definitions)]: [annotation no.]

ZO LORE VISION ssa as Stipend vnctitns SOREWALAS. CASE. ishieetincnl 9:61

Preamble:1; 2:1; 3:1-2; 4:1; 5:1; - evidence accessible to the
6:1 721 821-5- 971-2
OUI Dalen suarseecansreneereace 9:61-62
=) failure toxdispUte erwene: soetteeees 9:63
A — general requirements............. 9:58
- INA Corporation case ............. 9:62
access to documents =i INSPECEON vimiccen aeeeties ehteen ers 7foals
~ no obligation to hand over =o MMVOLCES con ssanaccaitn
snags isteuaenwen e9:63
CLOCLIMEMES aritraicaenceNarane
sabeptesees 6:44 - Iran-United States Claims
- not automatically part of the file Tri DUM alle ccig peateee sale toyseperti 9:57
Cea tee eadrnee eet rtbaues son vokes 6:45 — judicial assistance...............0.. 9:54
ad hoc rules................ Preamble:11i = legal’proviSlOns.cs.cssce- tesco: 9:56
aa OVIEL CASE seen cte eceae tsi trai suite ea< 9:60
additional expert.................... 6:73
- logical relation to evidence
WICH RE Cire teteeee seact seuss seus 9:65-66
admissibility of evidence ....... 9:4-7
— monetary sanctions ............... 9:54
=—& COFPOrate OffiICeNnSwiiweres escasnsten el 9:4
— non-appearance of a witness... 8:13
Se COUE TORN ANC HIME cercveesdascesncas 9:7
- parent, subsidiary or related
SMINECARSAY can. ken snr emven vanes ears ansae 9:4
COMPANY cnn aemmestrivies
santagteln sarees 9:62
— mandatory provisions..........006 9:5
— party which delays detailing
= SODJECHONSs srevccendicetest
estesvesssssas 9:6 Its;ODjJ|ECtiON ossect. stereo nase 9:63
- predisposition for admitting — prima facie evidence by
PVICEMCSiarn rth i acbon -auchce dec reile ones 9:6 FEQGUESLING Party: 2.1.6 ..seceesscnees 9:67
- principle of equal treatment...... 9:7 — production of all corroborating
— probative value of testimony..... 9:6 evidence by requesting party
— technical rules of evidence........ 9:6 MAR ites eWeaa acto aanasense acne 9:59-60
— reasonable inference...........0.+ 9:63
adversarial procedure — rentention of harmful information
euann ieee ea aes Ae Preamble:
19 Tea MeN Ma en vane nersviewscamera 9:54
adverse inference SP RIANINCASES cance ouamaniiee
lunge Charice 9:66
Wa fae enadeatenvay Preamble:7; 9:54-69 - sufficient opportunity for requested
=" ANNOUNCEMENU iiiccscernccnncrseanes 9:68 party to prodUce........:.0.00+. 9:68-69

=e ASCE Crannaeanddudendveten
ted dares ee 9:54 - uncooperative third parties ..... 9:62

RAV CONGASE lewaawaer

rsa diaiete« cans. 9:69 affirmation of truth....4:49; 8:34-36
— better enforceability and = Gritninal SAnChONnsSicneru: «aint: 8:35
voluntary compliance ............. 9:55
— consistence with facts anticipated assessment
[Mc MGVFOCONGi: de. cmeecesuceca sare 9:64 Of EVIGENCE.........c
ceceee eee eees 9:36
= Corfu Channel CaS@s casasseevs ween 9:64
286 Index

appearance of party-appointed B
experts
PE GUESES meen aemdsres siete deielecieaistnsistelrere 5:44 bad faith conduct................ 9:70-71
- the parties are responsible
10) gidf= Sane saocbanandsonagorandaoondandac 5:46 balance of probability............. 9:10

appearance of witnesses best efforts see document

De Rane nee EDO ER ORAGHERO CAC 4:58,69 production (best efforts)
- responsibility of parties .......... 4:60 bifUrcatiONne isc. saccuserke
seen ans PRAMS 74/2
applicable law ...............:000065 25,20 — applicable law .....:.....¢.:ss0seunrs 2:20
="! FACTOMS acnacconeanes
cemenpicmeamenee teas PHALT/
applicable procedural law.... 8:9-10
oe U1NNeTALs Wl Aenesqpanonancootonndtancdcc 2:19
Arbitral Tribunal........... Definitions =P UURISCICEOMMerete-eecemneatmecmmessta 2:20
=P WalbilitWiacercseectenmccdetesaauceseacen PAL
arbitration clause .................000. 1:4
-— longer and more complex
arbitration hold ...................065 3:59 DFOCEeCINGS)s. cssceaceeesecmceactenacnst 2:18
=) QUAMLU Mimeensuscanearesianscuesemanie PISA
assessment of evidence............... 9 — reverse bifurcation........:..cc0- FPA
assessment of expert report = SECON PNASE cr .cracnenecesan
canesees 2:18
see document production
- arbitral tribunal not bound by
(bifurcation)
EXPEHUS MMGINGSreemsesse neces 6:69
— separate scheduling of testimony
— no delegation of arbitral
sbatsiv eineiaronds aascanaldadoaeu datalco stim natintee 8:30
tribunal’s mandate................. 6:68
— participation of expert in the Bockstiegel Method ................ 8:44
deliberatlons#-.c.csr.eccesecee
tees 6:70
— tribunal’s competence to freely bundles see submission of
appraise the evidence ............ 6:67 documents (bundles)

assistance of state courts burden of proof ..................04. 9:8-9

— appearance of witnesses at the = fOreignilaWwAachs.rmdccene medeneteere 9:9
evidentiary hearing.............06 8:12 - less important than in state
= INSPECEOMaliatearme
rcs uxcanieoemacans 7:15 COUrt ProceediNgS ......c..scscceeess 9:8
— obtaining document production from - only factual and contested
aru hGuDakty wasenarecsesaenet 3:209-219 ASSENCIOMNScascwmenacen
ccaetarensetecaeee 9:9
see order of document - qualification as substantive or
production (state court assistance procedural lAWasavaceeseas-aeese
arene 9:8
in taking evidence) see document production
(burden of proof)
ASTFEINCE sissaeseccsstonaneeee 9:54
see order of document burden to produce.............. 9:38-40
production (astreinte)
- documents difficult to obtain... 9:38
attorney-client privilege =e C= CISCOVELYnc.ccuquaresenn see 9:39
sau anisialetautnasen es tecice 2rd Ok 22724552 = hshingiexpeditionSs....aaeeeeseee 9:38

automatic 'discovery' see - quantity of documents............ 9:38

document production (no - sufficient evidence................. 9:38
automatic 'discovery') — supporting evidence............... 3:72
- witnesses who have left
A COMPANY tianecee tomate totes 9:38
Index 287

burdensome see documents - enforce or challenge an award

(burdensome for the requesting CATING Titeolay aNEAS ana OR 3:256,261,266
party) - fulfila legal duty ........... 3:256,261
- institutional or ad hoc rules....3:260
C - intellectual property and
investment treaty ..........csec0e 3:259
case management .................... 2:6 - limited inspection of documents
RAR MeAR MR n tant e Tabet saints 3:260,265
case-management conference see - parties’ agreement.............65 3:260
pre-hearing conference
— protect or pursue a right
centre of gravity test see closest Sor Groner br ret Cacnon ee crncnoh 3:256,261
connection test = PKOteECtiVe ONGEFS ......sscesscsnces 3:264

circumstancial evidence see confidentiality of documents

indirect evidence Raven at cses teenie tevemaee tes nage 9:32,50-53
=F 72|0)91
IK 18 @aqeuacanoocsbpre iecakonntes 9:51
Claimants... eins Definitions
= TCOMGIVIONS cen eareuree
tencinecolenenmae 9:51
Claims Tribunal see adverse - confidentiality advisor ............ 9:51
inference; Iran-United States - confidentiality protection ........ Ql!
Claims Tribunal
- confidentiality undertaking...... 9:51
closest connection test........... 9:29 —- documents available for
attorneys’ eyes Only.........060.6. 9:53
closure of proceedings — independent expert
OR encndeee iererterercacress Preamble: 22 Pica Mebagtaessac 3:190,194-196; 9:52
codes of professional conduct. 4:20 — report to the arbitral tribunal... 9:51
— steps for protective measures
commercial and technical pe erecreSais aieMa apisareas eeclescinn Minin eee eteaisre 9:51
confidentiality................. 9:43-44
= WIPOFMRUGS ers. crit nee iets 9:50
- arrangements to protect
confidential information.......... 9:44 conflict of law issues. .......... 9:28-30
EAC CES CEL CES cana aris sitess seme siepls 9:43 — assistance from state courts...3:214
—- attorney-client relationship ..... 9:29
confidential material
— closest connection test........... 9:29
=! CISCIOSIMG aisacr anmataw soleinire Preamble:16
=F ICONMECHING MACLONS oases an9:28
confidentiality — equality and fairness.............. 9:30
=" OF MAFOPMIAEOMscstieccucessconcsessesee 27 —- Hague Convention on the
Takingioh EVIGCNCC. «ican ananamiaptass 9:30
confidentiality (in document
- legitimate expectations of the
production) .3:37,44,246,254-266
DANUOS catievans-wasiaaideccedue
mura 9:29
- confidentiality order....... 3:254,264
- most favourable privilege rule 9:30
- documents in public domain
- qualification as substantive or
Nn facie Sar sae e neiefle 3:254,256,258
PhOCEOUEAIS Were ternsnanantennirdcar 9:29
- documents submitted by ="OUMfalt ChEACIMIONE ve sensccsesensesens 9:30
GIGI DALY. ders veceancecs a2 55) 257 7209
— witness teStiMONny........cccceeeee 9:29
— documents submitted voluntarily
PEROEDER EAU EE On tte COROT LICE 39255,257 conservation of resources....... 7 Fey)
— documents used only in connection
WIthMvahDIEGALION sece nae mee: 31254,257
288 Index

constitutional order see terms D

of reference
decisive issues ............ Preamble:9
consultation on evidentiary
ACTA snatnotashansapsbocesdchatanndaaneane 2 degree of probability .............. 9:10
contact with the witnesses..... 4:15 deliberations .............. Preamble:22
contradiction see adversarial destruction see loss or destruction
procedure
direct eEVideNCe..............cceeee
ees 9:13
control see documents (control),
documents (possession, custody direct examination ............. 8:21-24
or control)
— GISDENSION\...5.0+cechbaennstense
eens 8:23
Corfu Channel case............. 9:16,64
disclosure see document
production (disclosure)
cost awards
- procedural motions..... Preamble:9 discovery see document production
(discovery)
cost; CONtrOl «cass nace ec re net cele 2713
discretion to appraise
cost sanctions for bad faith the evidence..............ccceeeeee 4:11
Conduct, 27ers eens 9:70-71
=) DONOS MOLES eraser
eeesth eine sete 9:71 document production................... 3
— excessive compensation ......... 9:71 = [Destieffontstsascpcussccstanse 3:227,229
- implementation of the =s Di TUnCAGOliemeesenndsaeeenceee 3:267-272
good faith principle................ 9:70 — burden of proof
- obstruction of proceedings...... 9:71 aor 3:72,128,133,136,138-140,223
=" Unjustiniedidelaysma.-n.es.ace-eene 9:71

costs see document production — coercive sanctions see order of

(costs) document production (coercive
sanctions)
COUFt FEPOFter...ccccccsccsecseceeneees 8:43
—- common law countries....... 3:16,23-
credibility of witnesses........... 4:16 28,31,64-66,fn.165,72,115,117
- confidentiality see confidentiality
cross-examination (in document production)
- confusing questions - contractual rights to production
aoioagcesiten soa tants Preamble:16; 8:25
- guidelines for responding to
cross-examination and tribunal » 3:14,37,53,108,154,244,245,251
QUESTIONS acareameunnenen
ceaneeeneene 4:18
- differences between legal traditions
=v TIGMEtOmeccrscccvcatrearenm ancora 4:63 seas te 3:20-28,29,37,59,64-66,186
custody see documents (possession, -— disclosure..... 3:15-18,fn.101,26-28
custody or control) - discovery.. 3:15-18,fn.101,26-27,37
- efficiency of the arbitration process
3:14,37,52,53,74,120,158,173,175,
186,271
- electronic documents see
electronic documents
Index
ee eee ee 289
tiC(‘(#$C CC

England sack .cuaxecneeans SHS

56, 267212 substantive rights.............. 3:60-63
expert, confidentiality timing for document production
noaocrGep aoc renee 3:190, 192,194,204 Eanes cOanitoseitingiMaicslieusesiueneite 3:91-100
expert, independent, voluntary
WON attlales sas cascumnceamesee 3:190,199 3:19,93,108,159,160,180,209,255
expert, report to arbitral
EEIDUNGE ek stuecasmeriseesccedercscs 3:202 documents
expert, review of the document = (AAVEISE cinaccccesces 3:20,26,53,73,180
and report by independent and - already submitted by
impartial expert............. 3:190-205 ANOLMEM Palty ccveen easnece sense 3:70,78
expert, terms of reference..... s3201 = authenticity ...:. csc. 3:155,234-243
fishing expedition AUUCMOL aes ate SLOW
1S Ast 20e123
ae ani’ 3:36,83,108,fn.234,117; 9:38 available to each party, see
form see submission of submission of documents
documents (form of submission) (documents available to each party)
from a non-party see request to burdensome for the requesting
produce documents (against a DOMLY ccccusceuccnstetucat: 3:107,152-155
third party) burying responsive ....Preamble:16
[ROA
NS Lace eee ese eee eee or 2:8 category of documents......... S05)
GORMAN casts endian waraneuecatctae
oes 3223 107,112-118,fn.249,119-124
helpful to the opponent's case Contentunvest. sta ccecn caste 3:110,113
Pic dniancanhimas Reece hoses Preamble: 14 CONEHOMcsiaccacamedseeta beakastetess 3:147
importance of documentary see also (possession, custody or
CVICCNEO cc ctcenensainecneons 3243,44,25 control)
increase of document production CODICS eewa. santas 3:155,234-243
sae ERR nC RC CRORP REE crv 3:33,58,65 Gaterienscsurscerts S 110-1137 1187123
no automatic 'discovery’..... 3:20,35 definition
no US-style court-litigation Dade arrect Definitions:2; 3:9-12,54
CISCOVENY cnnscscenssc 3°18,52,50,59,83 description
order of document production see .»-» d:102,107,109-111,124,125,173
order of document production electronic see electronic
organisational meeting.......... 3:106 documents
principle of proportionality existing..... 3:102,107,124-128,171
apie steht Oc pee Ee ROE 3:102, 154,186 FAVOUFADI Sine semstek sani 3:20,fn.101,26
principles governing document form see submission of
DROCLUGCUION wesete oven roman av scsr 3:83-84 documents (form of submission)
PrOCedULaMISSUC mr ctesascsceicce. 3:42 Holding!) DAaCK is encase. Preamble:
16
BROCEAUNCweancrsrceatertcvas
sensors cpus 2:8 identified
request for document production eR ae 3:107-111,fn.241,117,118
see request to produce INCE RMallies vnesaces 3:20,26,66,83,105
documents multiple copies........ 3:234,249-251
FEQUIKEMENUS teeth. cov cceneren
ates oie 2:8 narrow and specific category
requirements for document Ree teutae th twurareariVaratiae 3:107,112-123
production see request to produce MOULFAll feetvmvroee
arena 3:20,fn.101
documents (requirements)
state court assistance see order of
document production (state court not in possession, custody or
assistance in taking evidence)
290

control of the requesting party ethical TUleS..... 6: sicccsecccascdenenees 4:14

mnSieeetnas oop ittents utes 3:107,145,152-155
evidence
= eynteliakell ccupeosonecc 3:155,234-243,252
- admissibility of late....Preamble:21
- possession, custody or control
Sweat 3:7,fn.85,fn.101,107,124,125, =sAGIMISSION Ofievescemecews Preamble:20
145-155,156,171,177 — concealment or destruction
- possession, custody or control of a He a A ee Sari at Rat Preamble:16
third party..... 3:7,151,206-219,221 - fraudulently holding back
— possession, custody or control of ROP Oeont sereccnpanscnrentaor Preamble:22
related entities (parent or sister - late submission......... Preamble:20
COMPANVS)hecrectesaesseeseueeesmntigts 3:229 - new evidence..... Preamble:20; 2:6
- possession, custody or control
- refusal/restriction .............. 8:15-16
of the other party
Seis 3:7,20,85,107,145,147,148,150 - relevant and material............. 8:17

- presumption that copy conforms evidence of recalcitrant witnesses

(WO). Ola eti¥ellnconkeucacencodacanee 3:155,238
- assistance of a state court
- prima facie relevant JUAGE Fai ina stvcunecmuidesse
samaneea re 4:83
ayntablanvehteltGliaacnoedanennaeror 3:141-143
— authorisation of the requesting
= DUDIGICOMalM icatsuentoumancnnss 3:70,78 Dal tyrone straxaseuahatsiatincaneemcccnaens 4:82
- relevant and material = double Stepili cin umwareasemmenen 4:80
seat 21373-0357 102- 107 OS meld
117, 123, 129-144,166,177,185, — no means of coercing a witness
206,217,224,230 tor ODEY"a"SUMIMONS year. tenaaneteens 4:81
— relied on by a party ............... 3:73 = REQUEST taltcrerctrenstareloheie«
faite ardebaitens claret 4:80

= LAMPEMG masters vactetss etsPreamble:

16 - taking into account the non-
appearance when appraising
sr tranSiatlonicsae dusscntues 3:234,252-253
the ‘evidence nei ssacscsieeecrnseend 4:84

evidence-taking procedure see

evidentiary hearing

early consultation of parties .. 2:2-6 evidentiary hearing ..................... 8

— appearance of witnesses..8:1,11-13
CCONOMY ......:..saccnccconvssdeteamenepadt aR i2
- applicable procedural law..... 8:9-10
e-discovery see electronic - assistance of state courts ....... 8:12
documents (e-discovery) - bifurcation of arbitral
PROCEEGINGSia., mca cote sean nee 8:30
efficiency
‘pater Preamble:4; 2:12,13; 9:48-49 - Béckstiegel Method................ 8:44
= JClOsing statementsesccaseenesate 8:32
electronic documents = iCOSUST i cecue seen cmncternenne 8:17,23,43-44
.... Definitions:2; 2:7; 3:12,49-59,
103,106,107,119-123,153,234,244- = COUNt Ne POKtehue ste eanteenscneeenee 8:43
248,250; 9:42 = |GFOSS-examinatiOticcmeesa tenes 8:25
— e-discovery..... 3:50-52,56,59;
9:39 — default order of witness
— electronic form........c-0 3:244-248 DESENLALON acter meenerene 8:19

=Vimetadatayasconse.sccesses: 3:12,123,246 =sidefinition Seeareness

eae cee ae eee 8:6
- direct examination............. 8:21-24
environmental costs............... 740 a2
—"CUiatl ONiancemerneeete
ater Preamble:9
—- equal treatment of parties ..8:22,27
Index 291

ae INE Det has eter iwncoss

cextva naan 8:42 affirmation of telling the truth 8:36
- knowledge of evidence sufficiently evidentiary hearing.. 8:28-29,37-38
vad VANCE<..«: .crdessere Preamble:18
independent expert................ 8:38
= WMEAGING QUEStHON wsicrcrcarerenanssies 8:16 power to request additional
- leading role of arbitral tribunal [aliet danke} atelnleconceneem bonadenchcc: 6:38-39
Pee eh magenta va 8:14-18,33,37-38 pre-hearing conference
=a lOMGENMOT ECOG Hey saccce oan mace oT (CIScUSSIONGAL) i staedaian-
atessec ans PAT
= PUTIN She craantcnconetencny GonCCRaennee 8:35 questioning/examination of
=) negative inference ..i..cc.ccc.ee 8:13 tribunal-appointed experts...... 8:29
— non-appearance of a witness right to have the expert
Re erase efesietmecisicits ra overslatnbejatetsincidtn nisin 8:11-13 summoned for a hearing......... 6:65
=> Oathimecsetternactts
keer hire eace 8:34 sequence of testimony for
party-appointed experts
SEO MECSUMMONM cbiscsnannksccmenppacseine 2:8
at evidentiary hearing............ 8:28
—- organisational hearing........ 8:39-40
terms of reference ..........c.eceeeee PIT f
- practical aspects.............045 8:39-45
unavailablity for examination
- pre-hearing meeting/telephone because of objective reasons... 5:58
COMCKENEC casio see sea scence se cn uce 8:41
— preparation of witnesses......... 8:24 expert meeting
— questioning of tribunal-appointed — expert conferencing............... 5:40
EXP OUTS emesins auttaten van ncina prvi asisicsie 8:29 — full discretion of the arbitral
— re-cross-examination ............. 8:26 CHIBCinall s.ctetnasee
secs sonst: este vutecis 5:39
- re-direct examination............. 8:26 — narrowing down the scope
OfISSUESStrase
ssid: Ae ee owmenscttencs 5:41
- refusal/restriction
OR CVMICENECC Sidon. cdecavescwesnsase 8:15-16 - no binding effect on the
DAitlCS enteme rie cciniarseeja sais sane s aires 5:42
- sequence of testimony for
party-appointed experts ......... 8:28 expert report.... Definitions; 5:9-31
— sequence of witness and affirmation of genuine belief.... 5:29
expert presentation ........... 8:19-29
appearance of the expert for
- sequestration of witnesses...... 8:20 ESCM ON Vecraeertte
cnt. otic neater 5:43
== StANGAFG! PFAaCliCe. ine nvxncsisenree. 8:7-8 attribution to several authors .. 5:31
- summary of oral arguments...... 27 DAGKGOUNGIi sruieancsnmiesneans
scmee 5:14
See SUBDKISCS. re nsoredenet
annda%Preamble: 18 COMLCHE ser cseerasverehsOrrsssepaiences 5:13
- time management............. 8:27,40 OE cen Raa eirenanier inartimacnase anne se 5:16
— (verbatim) transcripts ............ 8:43 description of instructions....... Bil7
- witness conferencing/ description of the methods,
MOC-CUDDING ssccctareaccsscaccidsucave 8:31 evidence and information used 5:26
- witnesses’ affirmation of telling documents the party-appointed
EINEREGUICM aumcetecevenins
stanaet eee 8:34-36 expert is relying ON......ceceeeeee B27
— written witness statement...8:22-23 CRAKE DOFEE. GildecnAadeectinaldarces 6:48
EXPerlemGe ca mencdhansece
needa naan 5:14
examination
- evidentiary hearing............ 8:21-36 expert’s opinions and
CONCIUSIONS ts antnumessanpetonis
cmd 5:24
exclusion of evidence ............. 9:18 identification of the questions.. 5:25
identity of the expert ..........6. 5:14
@XPOMG ce accnccuarcrsoce
sdemeve eoleteanl niatine 5; 6
Waraii(elillnfe logecbassateboonet Goecgciorcmccr 6:48
292 Index

=~ lANQUAGe ree tereeamec amecttenttoven men 5:28 |G

- opportunity to discuss............ 6:63
- opportunity to respond........... 6:62 | general principles
- pre-hearing conference = COMPIANGeIWithiecnaasteenmeeeantet D2
i eYal 21)! eoansndeehab vconotionante 2:8 aes
eae sere ve General Rules. ............... Definitions
a UalifiGatlOmSreemacds
ste seaetacane tt 5:14
- reasoning of the expert.......... 5:26 | good faith principle
- reduction of .........::06 Preamble:9 | verre Preamble: 14-17; 9:32,70
- relationship with any - application to counsel Preamble:17
Ofsth SrpahtiGSwemrsdseteinad tate 5:14 | = fact patterns s. 7.0... Preamble:16
= FSI MALU saveametnne sechindemiencenan 5:30 J
SUES ; guidelines for responding to
- statement of facts ...........:.008 S25 cross-examination and tribunal
- statement of independence..... 5:19 questions s).7-e canoes 4:18
=) SSUDMISSION <s.0casceceecscess 5:10; 6:48
= (training eriiawessetsccrnsdenene
meena 5:14 H
- treated in a similar fashion
i Sais'ects
jelcBia ar 5:9 2
a eas sine Hague Convention on the
- tribunal-appointed expert see Taking of Evidence.............. 9:30
tribunal-appointed expert report
harmonisation ....... Preamble:6;1:2

F hearing see evidentiary hearing

facts
=" GeCCISIVE sninvaseccaesancsers Preamble: 22 I

failure to appear IBA Rules

— disregarding expert report...... 5:5 — as current on the date of an
- disregarding witness AGKESINENE: Ma caccrcccattecnenees
wees 1:4
Statementiccias-wwecscuvascmemereces 4:68 - relation to General Rules .......... 1:3
— SEXCEPLIONSS.ssaseveruteeessae 4:68; 5:51
IBA Rules of Evidence... Definitions
failure to comply with expert’s
FEQUCSER iii. dctettnciaeaacreneess
acs 6:47 ICC NetCase ree etcntantoetee 2:12

fairness. .......... Preamble:3; 9:48-49 ICC Techniques for Controlling

Time and Costs in Arbitration
= Pana’ equalitVercnwaee
eee emateteces 9:34 Socuacahiihuerenmeekinaee Preamble:4; 2:6
fast-track procedures .. Preamble:5 identification of witnesses
fishing expedition see document Salad (8)
ga Wee tecerereenenntinntrccecncccchaccy 4:7
production (fishing expedition) au 419) San REAR Seoarider rs ticobicanmnnnEaecoacsr 4:7

flexibility ................. Preamble: 7,12 identity of the witness............ 4:37

form see submission of documents indirect evidence................ 9:13,16

(form)
in-house counsel ................ 9:24-27
— “Akzo Nobelitestirasseunseaseeereeen 9:25
Index

—MALLOTMEY SECRECY cerereesansees-de00k 9:24 leading role of arbitral tribunal

- attorney-client privilege.. 2:11; 9:24 evidentiary hearing............ 8:14-18
eae WME WY teieaderes ssicaranast
wae eacar eeike 9:25 provisions in different
- unequal treatment................. 9:27 arbitration rules.......... 8:14, fn. 655

INSDECUONG cca cre etree eect ee cence 7 legal impediment

- assistance of state courts ....... 7 gonlss MoE SZINGZOnGEhS, acncncsnonereaseie 9:37
- broad discretion of arbitral SEIZULE Of aSSCUSinnaeeuntveneceeadeles 9:37
RUD EM Neer casa eaep emus cnewte 233,5-7
legal privilege....3:102,192; 9:19-35
Em COMCIUICE S. ce teteas x Racktachs
teens a 7:16-18
AKZONNODelteStiscrnecce tonnttert 9:25
SIR COSUS i aero ean ene dense teeae 7:4,7,10,18
SLCORNEY SCChECY) socssusteecs
cesta sn 9:24
— equal treatment of parties ....7:8,13
attorney-client privilege
Malina LIONS ateaeee
tee teee caeanes 7:11-12 RUN eR Enea cenaed ena Genes 9:19,22,24,32
—SOGISEIGAl GIMiCUILICSts.ascccs. «cakes ns 7:4 attorney-client relationship ..... 9:29
= IMMUNOOS 2, ccocikceearaas
aa ctetneaaien 7
AN basic policy considerations...... 9:20
- negative inference ...............0. TELS best practice standards .......... 9:21
— ona party’s request............ 7:8-10 ENECKIIStH ene src aecce citer nveaane 9:31
= iOM= Stee IISPECCION saeretteacessei
rect ees 7 civil law jurisdictions .............. 9:22
— provisions in different closest connection test........... 9:29
arbitration rules................ F124 «
common law jurisdictions........ 9:22
= fight of attendance....:....... 7:13-14
conceptual difference ............. 9:23
institutional rules....... Preamble: 11 confidentiality of documents.... 9:32
conflict-of-law rules ............05. 9:35
INECE DOT ois cmncscseses
ances nasi csicicrs 8:42
GONNEGUING! FACLONS v.ncenssuseassess 9:28
interviewing witnesses........... 4:12 equality and fairness.......... 9:30,34
EUW AWE covaviausie
vaveccneemee nner 9:25
investment arbitration Preamble:1
flexibility and discretion.......... 9:35
Iran-United States Claims Hague Convention on the
TALE | macho BeR aapeee eoaacreecoe 9:57 TaKingvof EVIGENCE fr.ccn.oemaces: 9:30
in-house counsel ...........0666 9:24-27
legitimate expectations
J Of UME PAltleS cesrescaevsrs
sere viesss 9:29
list of elements ..........ss:ee0e 9:31-35
judicial assistance .................. 9:54
most favourable privilege rule
HUNISCICEION ccer ccscrsncesdecroonor
rss 2:20 FCC RE atSed PS CRPR CDSE CE Cenc cae 9:30,34
no established conflict
OfMAWyrUleS; sasp cn paraieaes
welt 9:19
L parties’ expectations.......... 9:20,32
qualification as substantive
language OF Procedural |AW.....ccecceeeseeees 9:29
— of the proceedingS........ccsceceeer ih reasons for complexity ........... 9:19
leading question secrecy obligation of attorneys 9:22
SPVCEHMUOM csetesestescetesstsenssccesees 8:16 settlement negotiations.......... 9:32
SI POOICCUONM ss gtstimcsreaesnetuchaeaaee 8:16 settlement privilege .......:cee 9:32
294 Index

- specific directions deliberately

OMMItte Giteenseradtaecneaneraneaclnci 9:35
—- unequal treatment..........:.e 9:27
- unfair treatMent........cceseeeeees 9:30
objection to document production
= WAIVEISRtedssteacrsec
seo aananenens nest 9:33 request.... Preamble:16; 3:83,88,
- without prejudice privilege...... 9:32 108,156-172,177,180,185,190-197,
-— witness testiMONny..........scceeeee 9:29 202-205,218,220,224
- dismissal of objection............ 3:204
level of proof see standard of proof
- principle of proportionality see
lex evidentia................ Preamble:8 document production (principle of
proportionality)
WADITIEY oaecccc acs sus cess Seman gene ate 22k - procedural objections
ee ctirrereerccino cae 3:167,168,181
list ‘Of ISSUES) 3 HA i ets PIT
- review of document by independent
and impartial expert see document
loss or destruction.............. 9:41-42
production (expert, review
-— electronic evidence.............66: 9:42 of document and report by
— requirements for drawing independent and impartial expert)
adverse inference ..........eeeeeees 9:41 - substantive objections
- retention and destruction AerbsePinurauean nboctic 3:167,169-171,181
DOIGIOS <arsheete teas tee ce tee 9:42 — that the document does not exis
- routine destruction of
Gocuments: .suieansteees
dee enone 9:42
U.S. e-discovery Federal Rules 9:42 Oral testiMOny ................cceene
eee 2:8

order of document production

scuinateemenes 3:5,156-162,177-189,193
M
— adverse inference.......... 3:225,243
mandatory law ............... P51, 255955 - against a third party ...... 3:209,221
see also request to produce
meet and consult method ......... 7
Af documents (against a third party)
— appeal against a procedural order
metadata see electronic documents before a state court?..........00 3:188
(metadata)
—ASthelNtGnceassene aaa 3:189, fn. 328
most favourable privilege rule =" COCICIVE’SANCllONSia.ateeeetnee 3:189
SOLD Oe ene Preamble: 10; 9:30,34 - failure to comply ....... Preamble:
16
— judicial enforcement in national
COURTS) civascanacmsmect detector 3:189
- obligation to produce
BERS SSSE SSRBSE RRC EMO Ap Sop 3:156-162,204
negative inference see adverse
inference - power of the arbitral tribunal
COROT GET a cetocuscanee
ee 3:32,40-48
NetCase see ICC NetCase - principle of proportionality see
document production (principle
of proportionality)
- procedural order
SOOREneeEebcr pacing 3:183,187,224,242
- state court assistance in taking
evidence .......... 3:206,210-219,226
Index 295

organisational hearing see pre- =. AWard resets

hte eit I) P17)
hearing conference
=e fACEONS Serer tnec sr eractatt sett ter seerce 227
organisations ............ Definitions: 2 EP IUUCO MOU arnettiticsenr
antic nc ira. 2:19
=P TUNISGICUOMeremcnnetarnestennie
seatecae 2:20
SPllabllityerwavancat
crue crammteacancncvasye 221
Pp
- longer and more complex
PROCEEDING Sicncncacearcesecete
senate a 2:18
parallel proceedings................ 9:17
= QUANUUM iresctasevettarartectsersneents Pdi 7dil
Partially Pais tertacts cee acsststexcasees 2:14 SeVerSe! DIfUhCatlONnccnercatecneesct D2
S=SECONG DNASE wicacccenedasssen tenses 2ZA8
party-appointed expert................ 5
= APPCALAMCC destessaahevnecsevecrsecces 5:44 preparatory conference see pre-
- financial interest in the outcome hearing conference
Baa ene ciara aiatacclestnisiheint usicasiens die 5 22
preparing witnesses. ............... 4:16
= IGeMunCatiOnscs ss cssersehscsscoveare 5:7
— means of evidence. .............0000 5:4 preponderance of evidence..... 9:10
— not a party representative ...... 5:20 pricing
=e MOMARWICMESS a vcsartiesancdctisndnes 4:10 — procedural motions..... Preamble:9
SHOPUMONS a ntcorwcoveesseunas
vescammutetes 05:6
- report see expert report......... Be7 primary evidence see direct
evidence
= Ont EO \EXaMING: .anenscrsesre.
ners 5:43
pt EN NC escieisrecxmiataiuateude
ninoini islesiesxi toin.c miesoeaose5:7 principle of equal treatment

penalties see order of document

production (coercive sanctions) procedural economy see efficiency

political or institutional procedural framework

sensitivity................::0006 9:45-47 PRPs nce teks aces Preamble:
11
— national SECUFity.............ceeeee 9:47
procedural order
- national security privileges...... 9:46
- evidentiary hearing.............06+ 8:18
possession see documents
procedural rules .............::::eeeee ZL
(possession, custody or control)
production of documentary
predictability ............... Preamble:7
evidence see document
production
pre-hearing conference
Rao ere Pee centesccx 2H pEOL Oo 4
production of documents see
SAG
CM Canes esr tsuecgot oy core neers ciasea 2:4 document production
— disputed matters .....cccscccsssseree 25
production request see request to
SME MCWIEVICENICS cisdecsunceinenaadecssneeus 2:6
produce documents
- procedural documents...........+4 2:4
proportionality ................... 9:48-49
pre-hearing contacts with — (principle of) in document
WITNESSES ..........
sceeeee eee ees 4:12 production see document
production (principle of
preliminary determination ..2:16-22
proportionality)
=) APPliCAbleWaWirccwscas
cerscalsinatestnicies 2:20
296 Index

public interest immunity see — on own motion of the arbitral

political or institutional tribunal ...3:44,45,207,221,222,224
sensivity (national security - pre-hearing conference
privileges) (GISCUSSIONI Of) emeacrcnsenescenencrce. 2:2
— premature request.............0+. 3:100

Q -
—
Redfern Schedule ............0000 3:102
requirements
(TET tsreeeisencuodcenignnidoodesmagocsce 2720 Ber danas sucess 3:20,43,83,85,103-108
— supplement previous request .3:101
mae dlanline}ecneancbandensadduosreanasee 3:91-100
R - to the arbitral tribunal and to the
other parties.............. 3:86-88,159
rebuttal expert reports
- addtional expert reports ......... 52538 Respondent .................. Definitions
- revised expert reports............ 5.55 reverse bifurcation ................. 2:21
=F ‘SCOPE wacninnebidnavte -tay-omagarearteenaace 5:34
right to be heard ........... 6:46,62,71
rebuttal witness statements
- additional witness statements . 4:51
- revised witness statements..... 4:51 S
sanctions
- astreinte see order of document
production (astreinte) .................
Redfern Schedule see request to
- coercive sanctions in document
produce documents (Redfern
production see order of document
Schedule)
production (coercive sanctions) ....
re-direct examination............. 8:26
scope of application..................... 1
relevant and material see
secondary evidence see indirect
documents (relevant and material)
evidence
reopening of the proceedings
separate issues or phases
ceaatverceitsdvaswedbesae tere Preamble:22
see document production
(bifurcation)
Request to Produce ...... Definitions

request to produce documents sequestration of witnesses..... 8:20

g aislasatelois aida aiataoie was ee slaueeenronaa 3:86-102
settlement............ Preamble:9; 2:2
against a third party
Jeesee syanaten tenet te 3:151,206-219,221 settlement negotiations
= COMULEM Eset sexass cosets 3:103-108,131 EOHOERTE Rett Hint acancacencasaanies 2:7; 9:32
=" CXCeSSIVE!..ceee eee ene Preamble:
16
settlement privilege ............... 9:32
- in the request for arbitration?.. 3:94
— no ex parte production request 3:88 site inspections ....................0.8. 27
- objection to a request to produce standard of proof................ 9:10-11
see objection to document
production request - balance of probability............. 9:10
- bribery or other criminal actions.....
9:11
Index 297

- degree of probability.............. 9:10 - document production ......... 3:69,98

- higher standard for important
or delicate questions.............. 9:11 testimony
- preponderance of evidence..... 9:10 em UENCING. geicanerccse Preamble:16
Se CISG nea vhaie vatirranecr
ackPreamble:16
state court
-— state court assistance in taking time schedule ..................c:0c0000 PAT?)
evidence see order of document
production (state court assistance trade secrets ..............cc:ccseeeees 9:43
in taking evidence)
transcripts aise come ee 8:43
stay of proceedings
translation of a document see
- parallel proceedings.............5 9:17 documents (translation of
SON ISIOMG Se cxgnsioad ane cote tome oe ee 9:17 documents)

submission of documents translations

- additional documents.......... 3:4,82, —IMiSLeadinG russe cwscncce Preamble:16
230-232
tribunal-appointed experts.......... 6
- along with the written submissions
GE EMCRDOREY cece sedan. secs Bis> - at discretion of arbitral tribunal.. 6:4
Er DUMIGICS ne sect ee teresa
Sones 3:70 - basis for any objection ........... 6:30
— documents available to each party - choosing the expert............... 6:15
Borie igtaooeras mee teare eedet eases 3:7,70-82 — confidential documents......... 3:190,
-— documents in public domain, see 194-196
documents (documents in the Sm CONMGASALIALILEY siaccaieaseess
dootss nate 6:26
public domain) — contractual relationsship of the
- form of submission OXD SME cratic nds tomer dn thet aie Ses eet 6:17
A he 3:234-235,244-248, 249-253 =" GOSE ANOCALION x ase asiensitasetaiae 6:72
eA SLIDIMNSSION ascoserverssmpavecssove 27, DGC ::vase entseiasiiaetnaatasnetocanelebacses 6:6
- public documents see documents - derogation of the arbitral tribunal’s
(public documents) DOW lean eee eetya ee narsn suser aceite 6:10
- second round of submission eae CISCOSUNG: «sarfaunas
dean sinetanamnsini 6:32
3b ie ae cee ae Eis 3:4,82,230,232
- disregarding the parties’
- separate issues or phases GEROG at OtNiecavamerecaepaneiiswrcecene 6:12
see document production
— duty to act to the best
(bifurcation)
KHOWIEUG Gr sy rene ds ncncnemenasuae 6:26
substantive rules....... Definitions: 1 —- duty to appoint on the tribunal’s
OWhMOMO Mi wersennetaceustvine aeons 6:8
supplemental procedural rules - duty to approve a party’s
S eto O ORDER DIIGOTC TICT Gr Denne EEE EEULEL 4:20 HIG EES Bie: GRASP HER TEROCH Om PICuOEH One 6:7
- duty to consult with the
T DATUGS aides capableserra cdeaneree 6:13
- greater use Of .........05 Preamble:9
telephone conference SS WiMMIMENtiCOGES as eaineanndahemeenants 6:6
Scape EER ETOPCRCE CTE Definitions:2; 2:3 — [(NAUEPENdENCE........:ccsecceccsreees 6:31
- individuals, institutions or
telephone conferencing .......... aie. COMMONLES ste dean daradanaviecseet
tens 6:16
terms of reference..................5: 7159) - necessary expertiSe ...........00e 6:29
298 Index

- no delegation of the assessment V

Of relevant ISSUES .......cseeeeee
eens 6:5
= Oo}{=Xeld
(0) fScnunposnoesbooeansscndonssoe 6:33 video conference
- power of the arbitral tribunal..... 6:3 SAREE cook Definitions:2; 2:3,12
=» WEI TONE condanenontosanronarinacc 6:29
- releasing the expert............... 6:19
W
=F FEMUMebaclOMcstemsacteeeseeseeiiaenes 6:24
- report see tribunal-appointed waiver of appearance
expert report of experts ):.rriiscersssctonsene: 5:47
— request Of a Party.....ccccsccseeeeees 6:4 = ‘UNIlateals cceswemeettoeeensnecurtee 5:49
=m SCHEAUGureneentcroerae arancccenensct 6:25
waiver of appearance
- scope of the expert’s task....... 6:20 of witnesses. ................055 4:61-67
- statement of independence..... 6:31 - by the arbitral tribunal ........... 4:70
- terms of reference..............+++ 6:22
=e Dy thelpahtl@Ssamcceosesee ecclesia 4:69
tribunal-appointed expert - requesting the appearance
FEPOrt eas tidetceenenes 6:48-64 Of OWN! WITNESSES oy nce cnn cacnces 4:65
- affirmation of genuine belief.... 6:59
web-based platforms.............. D2)
- attribution to several authors .. 6:61
- documents the tribunal-appointed weight of evidence ............. 9:12-16
expert is relying ON............006 6:57 - contemporary documents ....... 9:12
— expert's opinions and - Corfu Channel case................ 9:16
CONCIUSIONS 2. s.ccswstunne
teeemasty ees 6:54 = Cross-examMination ...cc.c.sccceens. 9:12
— identify the questions............. 6:55 = direct CVIGENCE renteccsecxeausncrnee 9:13
— identity of the expert ............. 6:50 - indirect evidence ...........000. 9:13,16
=* LANGUAGE hajiniaanveeceteeeeeeeeaeee 6:58 - physical evidence lost or destroyed
- parties’ right to respond..... 6:62-64 Cae TUR Se ohana eenmoeen cemeection 9:14
— reasoning of the expert.......... 6:56 — reasons for non-production
= SIQMALUNE vias. ueterent
neeeeencer ese 6:60 of direct evidence ...........c000008 9:14
= Statement OfsfactS enmaoceceneenere 6:53 - shifting burden of proof.......... 9:15
- uncorroborated witness testimony
Lads St cetdeble cuties diac te eeateea ten Setaran 9:12
U
without prejudice privilege..... 9:32
U.S. e-discovery Federal
WITNESS Ti oe
eee eee 4
Rules. yescisccsaccac atime ae 9:42
- affirmation of telling the truth
UNCITRAL Notes on Organizing Hai hasiclesis de naicics Ehud eMer ae SES 8:34-36
Arbitral Proceedings............. 2:7 — appearance at evidentiary
NeaninGiencse 4:86-89; 8:1,11-13
unexcused non-appearance.... 5:60
= examination............. 4:57; 8:21-38
= Sliberalfapproachwamestaseeenemeete: 4:77
- familiarisation with the examination
= SSUriClipOSItlONacesenerse
vent sreeeanene 4:75 techniques...kvterarsteee ee 4:18
guidelines for responding to
cross-examination and tribunal
QUESTIONS =..mecccceceemenna
ce eee 4:18
holding), backe..seeeres Preamble: 16
Index
Nn a ae ee +)

IG@MtificatiOniycccarersstecanececesercss 4:7 alternatives to the presentation

IG OMUEY uP toys k sace ties wuseay oes 4:37 OfEWitMESSESicennacivenscdenreue
nent: 4:26
influencing the testimony appearance for testimony ....... 4:57
vince Wamssiguinoe sateen emacs avers Preamble:
16 by €ach WItNESS.......cececeeeeseees 4:29
non-appearance at evidentiary GOSIVEMIGIEMEcecemencn renee este 4:23
Sarin tn)weeasveeereevccuacke: 8:11-13
CISHIMUELONecctent
eect seecacerean esch 4:22
obligation to tell the truth....... 4:17 due consideration .............c008 4:25
of the opposing party ............. 4:21 s\el
tellofe [itsaaunneeeeacocensitedansaodsns 4:42
party’s representative ............ 8:20 full and detailed description
pre-hearing contacts with Ofetne Tact. nec ceueeeoen
te 4:38-40
WIEMESSES-crc wenrcntvatuctatesasayscan 4:12 in the witness’ own words....... 4:42
preparation for evidentiary faANGUAGE.cacsatac
onere seagiees thuseees 4:48
MEANING eee iseceed nh ksvancaccecccecuen 8:24
means of evidence ..i...........00 4:45
preparing witnesses............... 4:16
NEGESSay EXCePtlOnSiacnesrcenes 4:29
right to cross-examination ...... 4:63
no deemed agreement on the
questions as to credibility ....... 8:33 COGRECUMNESS see cnccoreeenncesnatesazee 4:67
sequence of witness presentation not to replace or complete the
Bie Sex Ses cra nies Aan deste Abus 8:19-27 allegations and substantiation
unavailable for examination of the relevant facts............... 4:45
because of objective reasons... 4:73 pre-hearing conference
who can be a witness............ 4:8,9 (GISCUSSION At) eencesee senate 2/18
witness conferencing/ problem of low credibility........ 4:44
HOESELIDOMNIG. spanret
yee sraesitenconece 8:31 replace in full the direct
written witness statement...8:22-23 examination of witnesses........ 4:38
SIQMACUGC sas -ccraeveresnaseevse
eetnens 4:49
witness appearance ordered by the
arbitral tribunal simultaneous submission........ 4:31
—sINSEFUCE the Parties .......nseavencs 4:86 source of the witness’ information
£} HOBOR Re roan OAR SD UCR DCT CDCR ATC ESC chee 4:47
ODT CE ROL seem neerinete
viewoisltcin sie ciauie 4:89
standard practice...........cscc00es 4:24
— persons whose testimony has
not yet been offered .............. 4:87 statement of facts ..............64. 4:38

- to be applied cautiously.......... 4:87 submission separately for

separate issues or phases....... 4:35
TV GlIG) CXCEPLON c-ncarsensrucenaessens 4:88
submission to the other parties 4:30
witness conferencing/ submission together with the
hot-tubbing .........:..::ceeeeeees 8:31 corresponding brief............068 4:31
submission within a specified
witness depositions.................. PLT fii wetenctessecasasue
rotenone mancand shat 4:34
witness hearing see evidentiary El fihCnciacensuestenane
anatie qnobiancheomeare 4:31
hearing to the arbitral tribunal............ 4:30
valid means of evidence ......... 4:69
witness statement........ Definitions
—MACMISSIDING sere nastisnravinssstansene 4:24
affirmation of the truth........... 4:49
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 The IBA Rules on the Taking of Evidence in International Com-
mercial Arbitration were adopted by the IBA Councilon 1 June
1999. A revised version entered into effect on 29 May 2010. Both
the original Rules and the revision were prepared by working
-groups representing the major Anglo-American and Continental
legal systems and reflect a harmonization of the evidence taking
procedures commonly used in international arbitration.

After 12 yearsof being in force, the IBA Rules have found

widespread acceptance in the arbitration community. With this
first comprehensive commentary on the IBA Rules, the authors
provide an overview on the case law and doctrine, with a special
focus on Swiss arbitration law and current hot topics such as
legal privilege and the efficiency of proceedings.