1. It has been observed that the number of requests for the production of documents in international arbitration cases has increased significantly during recent years, regardless of whether or not the parties are from a common law background.1 As rightly pointed out by Gabrielle Kaufmann-Kohler in an article on the globalization of arbitration procedure, '[d]ocument production in arbitration is one of the most remarkable examples of a merger between different civil procedure approaches'. 2 Yet arbitrators and counsel often bring the 'bag and baggage'3 of their respective legal cultures, as well as their own timetables, into the process of bridging gaps between practices rooted in national procedural traditions. In Continental law systems4 the emphasis is traditionally on substantive rights. Common law systems, on the other hand, remain under the influence of the old 'remedies precede rights' principle-now largely abandoned-whereby the emphasis is placed on the proceedings through which the rights will be established and protected. 5

2. For the Continental lawyer, it is essential that the legal problem in dispute be clearly defined so that the judge can solve it. Facts are relevant and have to be proved beyond any doubt only insofar as they help to define the legal problem. The common lawyer generally takes the opposite approach, the chief concern being that all parties have equal and full knowledge of the facts. It is on this basis that they will then be able to express precise legal claims, often presented as alternatives.

3. Continental lawyers and common lawyers likewise have differing views of a judge's role in the conduct of proceedings. A Continental judge is expected to conduct the proceedings with a view to solving the legal problem submitted by the parties. Consequently, discussions may be limited to the points considered as relevant to the solution of the legal problem. The judge may refuse to admit evidence that is not directly necessary for this purpose, may question witnesses or rule on matters that counsel are entitled to raise, or may order the production of documents whose disclosure has not been requested by any of the parties. By the same token, a Continental judge will not hesitate to invite discussion on legal issues that have not been raised by any of the parties or to appoint one or more experts if he or she feels that it is the best way of establishing relevant facts.

4. In common law systems, the judge's powers are even greater but are mainly focussed on organizing fair proceedings where the parties are placed on an equal footing, in particular as far as the knowledge of the case is concerned. A party or a third party may be ordered to disclose to the other party all the documents relating [Page84:] to the case and numerous witnesses may be ordered to appear for questioning by counsel. Failure to comply with such orders may constitute contempt of court and lead to criminal sanctions. Here, however, the orders are issued not on the judge's initiative, but at the request of the parties, whose applications will be readily granted on the grounds that full knowledge of the facts will allow a party to present its legal claims with the necessary degree of precision.

5. Whilst the resemblance between the role of an arbitrator and that of a judge should not be exaggerated, 6 the two fundamentally different approaches described above explain why Continental and common lawyers involved in international arbitration continue to see the problem of the production of documents from divergent viewpoints, even though they often arrive at similar solutions in practice. While Continental arbitrators and counsel now accept-albeit sometimes reluctantly-that some level of discovery may be allowed in international arbitration, their common law colleagues, without questioning the principle of discovery, are somewhat inclined to limit the scope of the exercise. Thus, it is unlikely that a Continental arbitrator would approach the question of improving the efficiency of document production in the same way as an arbitrator from the common law tradition. It is from a Continental standpoint that the following suggestions are made.

6. The efficiency of document production will be considered in three respects. First, some reflections will be made on the relationship between document production and the submission of necessary documentary evidence (I). This will be followed by suggestions regarding case management in relation to document production (II). Lastly, some brief thoughts will be tendered on the support that State courts and national laws might offer the arbitration process in this respect (III).

I. Document production and the submission of necessary evidence

7. The efficiency of document production cannot be discussed without considering its purpose. This applies to both documents produced spontaneously by a party with its memorial and those which the arbitral tribunal orders a party or a third party to produce, often at the request of one of the parties. Views differ, however, over what that purpose is in international arbitration. These differences do not exactly coincide with the traditional distinction between Continental lawyers and common lawyers. The basic question is whether the arbitral tribunal and the parties should be aware of all factual elements relevant to the dispute or whether only those factual elements intended to be used as evidence should be introduced into the proceedings. In the first case, maximum document production is advisable and its efficiency will be proved by its thoroughness. In the second case, only documents capable of proving allegations should be produced and efficiency will depend on production being limited to such documents.

8. In an article published in 2003, 7 a prominent Swiss arbitrator suggests that the principal objective of procedural rules in civil law countries is the efficient settlement of disputes, while in common law countries the focus is on the determination of the truth. He goes on to state that arbitrators must not only settle disputes efficiently but also by taking into account the actual facts and not just those spontaneously submitted by the parties. Although these observations are probably too optimistic for some civil law countries, there is no question that [Page85:] efficiency must not be preferred to the search for the truth and that arbitrators must decide on the basis of actual facts. However, these facts must be only those necessary for making a decision: the truth that the arbitrator must endeavour to uncover is not an abstract truth, but the truth related to the disputed facts on which the success of a particular claim depends. International arbitrators will not find in any of the existing legal traditions a satisfactory solution that manages to combine efficiency and the search for truth, since such traditions were neither created for nor have they been adapted to the needs of international arbitration.

9. One of the present pitfalls of international arbitration is the extent to which arbitrators are swamped with documents. In complex cases parties have a tendency to attach to their memorials hundreds, if not thousands, of documents that few arbitrators are able to read, let alone store. At the end of the proceedings only a small proportion of them will have actually been used and an even smaller proportion will constitute decisive evidence. Such an avalanche of documents is particularly inefficient and should be resisted. There is no reason why the production of documents by the parties in a specific case should exceed the core bundle that they eventually use as evidence at the hearing or as a basis for their post-hearing briefs.

10. However, when it comes to improving document production, the true challenge for Continental lawyers is the production of documents under a party's control at the request of the other party. Most players in international arbitration refer to this as 'discovery'. This is particularly the case of Continental lawyers, who are either frightened or fascinated by the term, especially when they do not know its precise meaning. As suggested by Alan Redfern and Martin Hunter, the term 'discovery' should be avoided in international arbitration because it is ambiguous:

To a civil lawyer it means nothing; to a U.S. lawyer it encompasses production of documents and depositions of potential witnesses; to an English lawyer it refers only to production of documents. 8

More significantly, too little attention is paid by Continental lawyers to the fact that in common law systems discovery, disclosure9 or document production is not really part of the law of evidence, but rather a procedural step prior to the hearing, which may require a court order, but not necessarily so. 10 Its purpose is to give the parties equal access to the facts of the case, not to help them discharge the burden of proof. Even when its scope is limited, as is now the case in England, such limitation depends not on the burden proof but on the amount at stake and the complexity of the case. 11 Under common law, many documents obtained through a process of discovery or disclosure will never be submitted as documentary evidence.

11. As a result, many Continental arbitrators misunderstand the relation between document production and the production of documentary evidence. Some of them order the production of documents when requested by one or both parties just because it is now largely acknowledged that arbitral tribunals may grant some level of discovery without pondering whether it will really help the requesting party to prove its case. Others take the opposite view and refuse discovery, as did a Swiss arbitrator who stated as follows in a procedural order issued in 1991

In Civil law countries, the principle Onus probanti incumbit alleganti is construed as leaving to each party the full burden of collecting whatever evidence it wishes to bring to the attention of the Court. There is, in the Civil law tradition, no duty of discovery from the other side, except to the extent that each party has to indicate in advance the evidence on which it intends to rely. 12[Page86:]

While the final point made in the above quotation is historically correct, one must take objection to the first proposition, which reflects a frequent misconception of the relationship between the burden of proof and the production of documents. It is said that, unlike the common law tradition, the civil law tradition requires each party to prove the facts upon which it relies and thus to produce supporting evidence itself, with the result that a party that is unable to produce such evidence will lose its case. 13 This however overlooks the fact that the principle actori incumbit probatio is accepted in both the common law and civil law traditions. The two traditions do not differ as far as allocation of the burden of the proof is concerned: in each tradition a party must prove the facts upon which it relies and submit to the judge or the arbitrator the evidence supporting its allegations. The question is rather about access to the factual elements on the basis of which a party will build its case. In the common law tradition a party is entitled to have access to such elements-at least to a certain extent-even if they are in the possession of the other party or a third party. Factual elements only become evidence when a party decides to summit them as such in the proceedings. In the Continental law tradition, on the other hand, a party is not entitled to access factual elements under the control of the other party, let alone a third party, in order to build its case. Some modern Continental procedural laws, however, allow limited access to factual elements at a late stage, provided they are shown to be necessary for proving allegations in a case that has already been built and presented to the judge or the arbitrator.

12. Bernard Hanotiau, a Continental international arbitrator with considerable practical experience of devising solutions to problems of document production, has provided an accurate description of the excesses that result when its purpose is lost:

before the first memorials are filed, the parties exchange documents and have the opportunity to request from one another additional documents, eventually without limitation in time. When the parties disagree on the production of a document or category of documents, the issue is submitted to the Arbitral Tribunal. The process may continue after the first submissions have been exchanged, with the consequence that in many large cases, the arbitrators are inundated, overwhelmed, during the whole arbitration, by substantial requests for production of documents and in the process, by requests for confidentiality orders and eventually interim measures. 14

There is no doubt as to the inefficiency of such document production. It considerably delays the proceedings and is costly to the parties. One may ask whether it helps to discover the truth about the disputed facts on which the success of a particular claim depends. If it does, this will be purely by chance. To use Stephen Bond's words, it may produce a 'smoking gun', 15 but the gun will be a very costly one and, more importantly, simply a collector's item if the party could prove its case by other means. In actual fact, an accumulation of documents often buries the truth, rather than revealing it.

13. It has been suggested that the 1999 IBA Rules on the Taking of Evidence in International Commercial Arbitration contribute to inefficient document production. 16 This is due not so much to the Rules themselves, which international arbitrators use more often as a guide and rarely directly, but to the loose interpretation given to them. Apart from the fact that the Rules leave it to the arbitrators to decide at what stage of the proceedings document production should take place-a point that will be considered later on-they require that the party requesting production provide 'a description of how the documents [Page87:] requested are relevant and material to the outcome of the case'. 17 Unfortunately, too many arbitrators do not see this requirement in the context of the burden of proof, despite the fact that the IBA Rules point out the need to do so. If a document production request is challenged, the arbitral tribunal is invited to determine that 'the issues that the requesting Party wishes to prove are relevant and material to the outcome of the case'. 18 Arbitrators all too often grant requests for document production as soon as they appear to relate to facts that are relevant and material to the outcome of the dispute, and disregard the additional requirement that the party making the request actually has the burden and the need to prove these facts in order to succeed. The result is an avalanche of needless documents. In the arbitrators' defence it should be said that it is not always possible for them to broach the question of the burden of proof, either because the request is not challenged or because it occurs at a time when they are not in a position to assess the evidence already existing in the file (for more on which see below).

14. To be efficient, document 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 discharge the burden of proof lying upon it. This applies both to the documents submitted by a party with its memorials and to those provided by a party at the request of the other, spontaneously or pursuant to an order from the arbitral tribunal. In the first case, the role of the arbitrators is rather limited, although they can give useful directions to the parties in this respect (see below). The same can be said of documents spontaneously produced by a party at the request of the other party. On the other hand, when a document production request is disputed, the arbitrators have the responsibility of determining whether the requesting party actually needs the documents to discharge its burden of proof. If not, the request should be denied. Hence, a document production request that fails to clearly indicate the allegations the documents are supposed to prove and to explain that proof cannot be otherwise discharged should not be granted. When assessing requests arbitrators must carefully check that the burden of proof actually lies on the requesting party. In too many cases parties request the production of documents to prove the inaccuracy of statements made by the other party, whereas it is in fact for the latter party to prove that they are accurate even though that party may not have made any move to do so.

15. Restricting the scope of document production to documentary evidence needed for discharging the burden of proof does not necessarily lead to the denial of document production requests. It can on the contrary counter the all too readily accepted proposition that in international arbitration there is no entitlement to document production. As has been rightly pointed out, the refusal to order document production 'may, in certain circumstances, constitute a breach of a party's opportunity or right to be heard. Such right includes the right to present evidence in support of one's case. If a party lacks documents necessary to establish relevant facts for which it bears the burden of proof and such documents are demonstrably within the control of its opponent, one could reasonably argue that a refusal to grant a production request may deprive the party seeking discovery from its opportunity to be heard.' 19 If a party demonstrates that it will not be able to discharge its burden of proof unless certain documents are produced, the arbitrators have a duty to order the production of those documents. If they do not, justice will not be done and the finality of their award may be at stake. This has been confirmed, at least implicitly, by the Paris Court of Appeal. 20[Page88:]

II. Document production and case management

16. Arbitration users often express disappointment over the cost and duration of arbitral proceedings. Whilst international arbitration proceedings have the potential to be faster and less expensive than the tiered proceedings of State courts, the process can also be time-consuming and excessively expensive. It does not take long to demonstrate that document production has a significant part to play in accounting for excessive cost and duration. Restricting production to documentary evidence that is necessary for a party to discharge its burden of proof is likely to reduce the duration and cost of international arbitration proceedings. However, this cannot be achieved without efficient case management, which is the direct responsibility of the arbitrators.

17. The organization of arbitral proceedings is in theory a matter of party choice. If the parties have not expressed any choice, it will be left to the arbitrators, whose only obligations are to respect the equality of the parties and their right to be heard. 21 In practice, precise rules for the conduct of the procedure are seldom laid down by the parties, whether in their arbitration clause or later on. It is therefore almost always up to the arbitrators to organize the proceedings, i.e. to take care of case management. Under the ICC Rules of Arbitration, the arbitrators have a particularly wide responsibility when it comes to gathering evidence, for the Rules require them to establish the facts 'by all appropriate means'. 22 The discretion enjoyed by the arbitral tribunal under Article 20(1) is subject only to (i) the other provisions of the Rules, (ii) where the Rules are silent, any relevant agreements between the parties pursuant to Article 15 and (iii) mandatory legal requirements. The matters left to be settled 'by all appropriate means' include the production of evidence. 23

18. It is generally held that the parties should submit the documents on which they rely at the same time as they file their memorials, and that requests for document production should not be allowed until the parties have exchanged their first memorials fully presenting their respective cases. Only then will the arbitrators be able to determine whether the requested documents are relevant and material to the issue in dispute. 24 This is practically impossible beforehand, as the arbitrators will not have received sufficient information on the dispute. Moreover, it discourages so-called 'fishing expeditions', by means of which a party endeavours to construct its case on the basis of the documents that it hopes to find in the other party's files, without previously setting down its claims on the sole basis of the factual elements in its possession. However, even when the first memorials have been exchanged, arbitrators may not be in a position to know whether the requested documents are necessary to allow the requesting party to discharge its burden of proof. For this, the arbitrators need to be at least reasonably well informed of the substance of the case and should not hesitate to engage in discussions with the parties on the evidence already submitted and the need for further evidence.

19. Experience shows that there are still too many arbitrators who go into the substance of the case too late in the proceedings, i.e. when they are preparing for the hearing. This therefore is the first opportunity for those arbitrators to fully understand the parties' respective positions, to separate the disputed from the undisputed facts, and to assess the relative importance of the legal issues. Inevitably, this adds to the duration, complexity and cost of the proceedings and leads to erratic decisions over document production requests. If arbitrators have [Page89:] insufficient knowledge of the substance of the case when a request for document production is made, they will rarely make a sound decision. A few of them-for the most part Continental lawyers-will be inclined to deny a request for which they have little favour, being unable to grasp its significance with respect to the burden of proof. Most will grant the request, not wanting to deprive a party of what could turn out to be a fundamental right. Yet in so doing, they will deprive both parties of their rights to efficient document production and speedy arbitral proceedings at a reasonable cost.

20. To be able to make efficient decisions on document production, arbitrators must prepare themselves from the outset and not confine themselves to the story told by each party. While reading each party's memorial, they must make a preliminary assessment of the evidence on which the party relies at that stage. This means considering the content of the documents attached to the memorials and of any witness statements. To make that exercise easier, they would be well advised to specify in the procedural order organizing the proceedings that the parties must indicate precisely in their memorials what evidence supports each allegation they make, so as to discourage the submission of documents that do not serve that purpose.

21. In the same procedural order it should also be stated that requests for document production should be made at the latest after the first round of written submissions and that the burden of proof will have an important part to play in the arbitrators' determination of the request. Wording such as the following has proved useful in practice:

The Arbitral Tribunal may, at any time on its own initiative, or upon a specific and precise application made by one party no later than immediately after the first exchange of written submissions, direct the parties to produce and, if appropriate, file any documentary evidence in their possession or under their control which the Tribunal may deem relevant taking into consideration the parties' burden of proof. Any such application shall identify the document(s) with a reasonable degree of specificity, shall establish the relevance and materiality of the document(s) for the outcome of the dispute in such a way that the other party and the Arbitral Tribunal are able to refer to factual allegations in the submissions filed by the parties to date. This shall not prevent a party from referring to upcoming factual allegations (in subsequent memorials) provided such factual allegations are made or at least summarized in the request for production of documents. In other words, the requesting party must make it clear with reasonable particularity what facts/allegations each document (or category of documents) sought is intended to prove.

22. For complex cases in which the parties are likely to request many documents from each other, the arbitrators may wish to prevent such requests having an unnecessary impact on the conduct of the proceedings by stating in their procedural order that the parties may request documents from each other but that correspondence and documents exchanged as part of this process should not be sent to the arbitral tribunal. Only if the parties' respective requests remain unsatisfied after the first round of written submissions will the arbitral tribunal intervene. To increase the efficiency of the process, it may be suggested that the parties make a joint application in the form of a table (known in England as the 'Redfern Schedule') containing each party's request for the production of documents. The table should be presented in four columns, as follows:

? first column: identification of the document(s) or categories of documents that have been requested;[Page90:]

? second column: short presentation of the reasons for each request;

? third column: summary of the objections made by the other party to the production of the document(s) requested;

? fourth column: left blank for the arbitral tribunal's decision.

On this basis, the arbitral tribunal will be able to make its decision promptly and efficiently.

22. Again in complex cases where huge amounts of money are at stake, a considerable amount of time, energy and possibly money can be saved if-irrespective of the directions given to the parties by the arbitrators in their first procedural order-the first exchange of briefs, in which the parties present their factual and legal positions and supporting documentary evidence available at that stage, is followed by a meeting of the arbitrators, the parties and their counsel. Such a meeting will allow an initial discussion to take place on the substance of the case, before discussing the organization of the subsequent stages of the proceedings. The arbitrators will be able to inform the parties-without prejudice-of the issues they consider particularly important and for which they think that further evidence is necessary. The need for further document production can then be assessed in the light of the other types of evidence proposed (e.g. witness statements) and, if appropriate, restricted to those issues for which the arbitrators indicate that the documentary evidence is or will be insufficient. In this way the efficiency of the document production process can be increased, as the parties will be better equipped to make informed decisions on the evidence required of them.

III. Increased support by State courts and national laws in the process of document production

23. Nothing is more detrimental to the efficiency of document production in international arbitration-to say nothing of the administration of justice-than a party's refusal to produce documents under its control that the arbitral tribunal has ordered it to produce. To avoid this difficulty, it is customary and highly advisable25 to allow arbitrators to draw negative inferences from such refusal. For instance, it may be stated as follows in a procedural order or, even better, in the Terms of Reference to which the parties have consented: 'In the event a party fails to file the documents as ordered, the Arbitral Tribunal shall be authorized to draw the inferences it deems appropriate, taking into consideration all prevailing circumstances.'

24. Such a provision is necessary as an arbitral tribunal lacks the imperium that would allow it to compel a resisting party to produce a document. 26 Needless to say, prudence must be observed and the resisting party must be warned of the risks of refusing to comply with the order. In the award rendered in ICC case 8694 in1996, for instance, the arbitral tribunal formally cautioned the parties that 'the conscious failure of a party to produce documents relevant to the issues in the arbitration might result in the tribunal drawing an inference adverse to that party'. 27 Arbitrators must also take into account a party's particular cultural environment before drawing inferences from its behaviour, for practices vary when it comes to [Page91:] drawing up and conserving documents. In common law countries companies anticipate discovery procedures and go to great lengths to keep all kinds of documents, official or otherwise, and at the same time are very cautious in their drafting. As there is a strong tradition of litigation, businessmen expect at some point to be called as witnesses in proceedings and, with this in mind, take detailed notes of meetings and telephone conversations, which they keep carefully. This is not necessarily the case in civil law countries, where there is no discovery and the risk of being called as a witness in court proceedings is very remote. For these reasons there are limits to the practice of drawing negative inferences when a party resists a document production order.

25. State support is therefore necessary and inevitable. In a limited number of countries28 the judicial authorities will intervene at the request of an arbitral tribunal and compel a party, including even a third party, to produce documents in the arbitral proceedings. More support by State courts at international level would be welcome, although it should be said that measures taken by State courts are truly effective only when the resisting party resides at the place of the arbitration. Otherwise, letters rogatory must be used and this may lead to considerable delay. For this reason, it is suggested that arbitrators should be authorized to impose daily penalties (astreintes) upon parties that refuse to comply with an order for the production of documents. This is accepted in France29 and found in the laws of Belgium (Article 1709bis of the Judicial Code) and the Netherlands (Article 1056 of the Code of Civil Procedure). It seems not to be the case in Switzerland. 30 This remedy certainly deserves more consideration.

26. On the basis of the above brief discussion on improving the efficiency of document production, two conclusions may be drawn. On the one hand, document production should be far more focussed on the documentary evidence that is necessary for a party to discharge its burden of proof and thus should be limited. On the other hand, arbitrators should take all necessary steps at case management level to ensure that they efficiently assess the parties' actual need for documents and, if this need is confirmed, they should not hesitate to oblige a resisting party to produce documentary evidence, if necessary by using all available legal means. In this way, abuse will be avoided and documents given the role that should rightly be theirs:

It should not be forgotten that documents are of primary importance in commercial matters. They are relied on heavily even in court litigation. Whatever may be the arguments in favor of oral proceedings in criminal litigation or in tort cases, they are far less relevant to an efficient system for the settlement of international commercial disputes by arbitration. 31

1
K. Sachs, 'Use of documents and document discovery: "Fishing expeditions" versus transparency and burden of proof' SchiedsVZ 2003, 193 at 197.

2
G. Kaufmann-Kohler, 'Globalization of the Arbitral Procedure' (2003) 36 Vand. J. Transnat'l L. 1313 at 1325.

3
See G. Aguilar Alvarez, 'To What Extent Do Arbitrators in International Cases Disregard the Bag and Baggage of National Systems?', ICCA Seoul Conference, 10-12 October 1996, ICCA Congress Series No. 8 (The Hague: Kluwer Law International, 1998) 139

4
The use of the adjective 'Continental' to refer to those legal systems that are based on Roman law as codified by Justinian and which are the result of the codification movement that took hold of Continental Europe during the 19th century is not fully satisfactory because of its Eurocentric connotation: it disregards the fact that many African, Asian and Latin-American legal systems also belong to that tradition. The same can be said of the expression 'famille romano-germanique', often used in France. As for the expression 'civil law', which common lawyers appear to favour, it puts too much emphasis on the role of the civil codes in the legal systems it covers and ignores the fact that the various procedural codes in so-called 'civil law' countries do not share a common origin. Given the lack of a fully satisfactory expression, the three aforementioned expressions will be used interchangeably.

5
cf. R. David, L'arbitrage dans le commerce international (Economica, 1982) at 149.

6
See S. Lazareff, 'L'arbitre singe ou comment assassiner l'arbitrage' in G. Aksen, K.-H. Böckstiegel, M.J. Mustill, P.M. Patocchi & A.M. Whitesell (eds.), Global Reflections on International Law, Commerce and Dispute Resolution, Liber Amicorum in honour of Robert Briner (Paris: ICC Publishing, 2005) 477.

7
M. Wirth, 'Ihr Zeuge Herr Rechtsanwalt! Weshalb Civil-Law-Schiedsrichter Common-Law-Verfahrensrecht anwenden' ShiedsVZ 2003, 9.

8
A. Redfern & M. Hunter, Law and Practice of International Commercial Arbitration, 3d ed. (London: Sweet & Maxwell, 1999) at 316, footnote 47.

9
This is the term now used in England, following the Woolf Reform of Civil Procedure which took effect in 1999.

10
A.E. Visson, Droit à la production de pièces et discovery : Droit fédéral, droits cantonaux de Vaud, Genève, Zurich et droit anglais (Zurich: Schulthess, 1997) at 265.

11
A. Redfern & M. Hunter, supra note 8 at 316, footnote 48.

12
Quoted by S.R. Bond in 'The 1999 IBA Rules on evidence in international commercial arbitration' in Arbitral Procedure at the Dawn of the New Millennium (Brussels: Bruylant, 2005) 99 at 101.

13
J. Thorens, 'L'arbitre international au point de rencontre des traditions du droit civil et de la common law. Deux problèmes liés, l'un à la communication des pièces et l'autre à l'audition des témoins' in Etudes de droit international en l'honneur de Pierre Lalive (Basel: Helbing & Lichtenhahn, 1993) 693 at 694.

14
B. Hanotiau, 'Civil law and common law procedural traditions in international arbitration: who has crossed the bridge?' in Arbitral Procedure at the Dawn of the New Millennium (Brussels: Bruylant, 2005) 83 at 89.

15
S.R. Bond, supra note 12 at 104.

16
B. Hanotiau, supra note 14 at 90.

17
Article 3.3(b).

18
Article 3.6(i).

19
G. Kaufmann-Kohler, supra note 2 at 1327, footnote 66.

20
Paris, 21 January 1997, Rev. arb., 1997.429 (Annot. Y. Derains).

21
See e.g. Article 15 of the ICC Rules of Arbitration: '(1)The proceedings before the Arbitral Tribunal shall be governed by these Rules and, where these Rules are silent, by any rules which the parties or, failing them, the Arbitral Tribunal may settle on, whether or not reference is thereby made to the rules of procedure of a national law to be applied to the arbitration. (2) In all cases, the Arbitral Tribunal shall act fairly and impartially and ensure that each party has a reasonable opportunity to present its case.'

22
Article 20(1).

23
Y. Derains & E.A. Schwartz, A Guide to the ICC Rules of Arbitration, 2d ed. (The Hague: Kluwer Law International, 2005) at 271f.

24
B. Hanotiau, supra note 14 at 90; S.R. Bond, supra note 12 at 104; K. Sachs, supra note 1.

25
See e.g. E. Gaillard & J. Savage (eds.), Fouchard, Gaillard, Goldman on International Commercial Arbitration (The Hague: Kluwer Law International, 1999) at 698, para. 1275; J.F. Poudret & S. Besson, Droit comparé de l'arbitrage international (Zurich/Basel/Geneva: Schulthess, 2002) at 586, para. 650; Y. Derains & E.A. Schwartz, supra note 23 at 283.

26
Some State courts are authorized to draw negative inferences: see e.g. Article 186 of the Geneva Code of Civil Procedure.

27
J.D.I. 1997.1056 at 1058 (Annot. Y. Derains).

28
e.g. England (Section 43 of the 1996 Arbitration Act), Germany (Article 1050 of the Code of Civil Procedure), Sweden (Article 26 of the 1999 Arbitration Act), Switzerland (Article 184(2) of the Private International Law Act ), USA (Section 7 of the Federal Arbitration Act).

29
cf. Ch. Jarrosson, 'Réflexions sur l'impérium' in Etudes offertes à Pierre Bellet (Paris: Litec, 1991) 245 at 273, para. 69; Fouchard, Gaillard, Goldman on International Commercial Arbitration, supra note 25 at 697, para. 1274.

30
J.-F. Poudret & S. Besson, supra note 25 at 494, para. 540.

31
W.L. Craig, W.W. Park & J. Paulsson, International Chamber of Commerce Arbitration, 3d ed. (Dobbs Ferry, NY: Oceana, 2000) at 428-29, s. 24.01.