Comparing document production in court litigation and arbitral proceedings is no easy task. The complexity and intricacy of the subject stems not only from the diversity of rules and practices in both sectors across the globe and the possible influence litigation-oriented rules relating to evidence and document production may have on arbitral proceedings, but also from the inherent difficulty of applying in an international context rules and practices peculiar to a particular legal system.

Before venturing into this perilous territory, it will be helpful to look briefly at the Egyptian legal system and the profound impact it has had on the majority of Arab legal systems.

Categorized as a civil law system, Egyptian law is based upon a well-established body of codified laws. Egypt's supreme law is its written constitution. The most important legislation for transactions between natural persons and legal entities is the Egyptian Civil Code of 1948, which remains the main source of legal rules applicable to contracts. Much of the Egyptian Civil Code is based on the French Civil Code and, to a lesser extent, on various other European codes and Islamic (Sharia ) law. Other important legislation relevant to our topic is found in the 1968 Code of Civil and Commercial Procedures,1 the 1968 Code of Evidence2 and the 1994 Arbitration Law. 3

Although in Egypt, as in other civil law systems, there is no body of legally binding precedents, previous judicial decisions can and do have persuasive authority. Courts are morally and practically bound by the principles and precedents of the Court of Cassation (for civil, commercial and criminal matters) and the Supreme Administrative Court (for administrative and other public law matters). 4

Documents are regarded as a relatively reliable form of evidence in any form of legal proceedings, be it litigation or arbitration. Thus, document production is a major feature of both court litigation and international commercial arbitration. However, it begs a number of important questions. For example, what constitutes a document? What is its evidentiary weight? What rules govern document production? What differences and/or similarities exist between court proceedings and arbitral proceedings (both ad hoc and institutional) with regard to the production of documents? Do common and civil law countries differ in this respect? And what are the limits to party autonomy?

This article aims to shed light on various aspects of document production and the issues it raises in Arab legal traditions, with special emphasis on Egypt, and to compare prevailing trends in court litigation and commercial arbitration. After some preliminary remarks (section I), we shall address the production of documents in court litigation (section II), and then analyze the production of [Page8:] documents in national and international commercial arbitration, both ad hoc and institutional (section III).

I. Preliminary considerations

The presentation of evidence is an indispensable part of all court and arbitral proceedings. It is common practice to submit memoranda accompanied by supporting documents. 5 In this respect, documents constitute a sub-species of evidence, and are instrumental to questions of proof.

Evidence may be generally defined as:

the means by which facts are proved in any proceedings. Each party will tender evidence which supports his version of the facts which are in issue in those proceedings, and the tribunal will make a finding of fact after weighing the evidence of each party. The finding of fact is usually the preference of one party's version over the other's, but it need not necessarily be the case. 6

The International Bar Association's 1999 Rules on the Taking of Evidence in International Commercial Arbitration provide a succinct, yet comprehensive, definition of what constitutes a document:

Document means a writing of any kind, whether recorded on paper, electronic means, audio or visual recordings or any other mechanical or electronic means of storing or recording information. 7

Accordingly, documentary evidence shall include contractual documents, letters, faxes, emails, minutes of meetings, financial and accounting records, bills, certificates, licences, reports, acknowledgements, signed memos, audio and visual recordings.

Given the importance of documents as evidence in any kind of proceedings, a number of general observations should first be made before considering the question from the viewpoint of an Egyptian practitioner.

1. Documentary evidence and document production raise serious issues in cross-border litigation and transnational arbitral proceedings, where disputants come from different backgrounds, cultures and systems. There is a need for harmonization and certainty to allay the parties' fear that peculiar norms and practices, with which they are unfamiliar, will be applied.

2. Party autonomy is an essential feature of arbitration as a method of private justice. It has a profound impact on all aspects of arbitral proceedings, including document production, to the extent that document production is characterized as a procedural rather than a substantive matter. 8 In this respect, arbitration differs from litigation, where proceedings are governed by the lex fori and the court assumes responsibility over the proceedings in accordance with the rules in force at the place where it is located. In international arbitration, on the other hand, the parties and the arbitrators have the freedom to choose the applicable procedural rules, subject to any mandatory rules at the place of the arbitration.

3. In most jurisdictions-and especially in Arab countries-statutory rules governing evidence (including document production) in litigation have some impact on arbitral proceedings, particularly domestic arbitrations. The extent of this influence varies, depending on a number of factors, but it can generally be [Page9:] said that the efficient operation of arbitration requires limited application of such rules.

4. Although there are similarities between Arab States due to their common language, religion, a regional identity and socio-cultural interaction, differences can be observed in their legal and cultural traditions and practices. 9 Legal rules do not exist in a vacuum: their application is influenced by various factors including the beliefs, education, cultural background, legal skills, ethical principles and conscience of the person applying them.

5. The traditional divide between the common law and civil law systems has shaped the procedural and substantive framework of both litigation and arbitration. The differences between the two systems extend to the administration of evidence, the production of documents, and factual and legal analysis. In the common law system, (i) proceedings are typically adversarial, with experts and witnesses being summoned, examined and cross-examined chiefly by the parties; (ii) the courts remain relatively passive and lawyers generally develop their cases independently, which results in greater emphasis on factual evidence and, consequently, on the disclosure and exchange of documents, resulting in what one writer has termed a 'paper avalanche'; 10 and (iii) discovery constitutes an integral part of the proceedings and an instrument of justice, being designed to inform the parties to the maximum extent possible and to create a level playing field. 11 In the civil law system, (i) the proceedings are typically inquisitorial, with witnesses and experts being summoned and questioned by the courts and subject to additional questioning by the parties' counsel; (ii) the courts assume a proactive role in administering the proceedings and seeking evidence; and (iii) the production of documents by way of discovery is viewed as excessive, burdensome and costly, and the possibility of compelling the production of evidence or documents not in a party's possession is limited. 12 Although these differences between the civil and common law systems do exist, they should not be exaggerated, however, for two reasons. (i) Under the effect of globalization, the two systems are tending to overlap and the differences in their methods, sources, conceptions and practices are becoming less clear-cut. Mixed legal systems have merged and aspects of one system have been transplanted to the other. For example, in civil law countries rules have been developed through legislation and case law allowing courts to order the production of certain documents that might be supportive of the other party's claim(s). Conversely, in common law countries the discovery process has been limited in certain cases where the procedures would be excessive and unreasonably costly. 13(ii) Although the differences between the two systems persist in litigation and, to some extent, in domestic arbitration, in international commercial arbitration hybrid methods for the production of evidence have been developed to allow lawyers and arbitrators from both systems to conduct the proceedings in a way they find comfortable.

6. Courts in Arab countries generally, and in Egypt in particular, have shown scepticism over the admissibility and evidentiary weight of electronic documents. However, electronic documents are progressively being accepted as evidence, although sometimes they are required to be accompanied by paper-based documents or other means of proof. Many Arab countries have enacted laws on electronic commerce and digital signatures. 14 If appropriate methods exist to identify the producer or author of an electronic document, if it can be stored and retrieved in a readable format, and if appropriate measures have been taken to protect the security of the document, then there is no reason why it should not be functionally equivalent to a traditional paper document. This is crucial for [Page10:] contemporary business and of paramount importance for document production, as many contracts are increasingly concluded and/or performed online. Although full recognition of electronic documents has not yet been achieved in Egypt and the Arab world, progress is being made in that direction under the impetus of legislative developments that have yet to be fully implemented.

II. Document production before the courts

As previously mentioned, court procedure is governed by the lex fori. Accordingly, documents and evidence will be requested and presented in accordance with the procedural and evidentiary rules that are part of that law. In this section we look briefly at document production before courts in the Arab world, as illustrated by Egypt as the leading legal system in the region.

It should be noted at the outset that authenticated documents are considered to be a reliable form of evidence in court proceedings, and it is a well-established principle in Arab and Islamic legal traditions that a party making a legal or factual claim should adequately prove that claim to the satisfaction of the court. 15 In other words, the burden of proof lies initially on the claimant.

In Egypt, the Code of Civil and Commercial Procedure16 and the Code of Evidence for Civil and Commercial Matters17 contain detailed rules on procedures for document production and the value of documentary evidence. Pursuant to Article 65 of the Code of Civil and Commercial Procedure, the claimant should submit to the court, when filing a case, all relevant documents in support of the claims made, together with an explanatory memorandum. A party is entitled to present further evidence throughout the proceedings until such time as they are closed, provided the other party is given due time to review and respond to the material submitted. The submission of material should be done in a timely fashion, and the court may set specific deadlines for such submissions and exclude any evidence submitted after those deadlines have passed.

In Egypt, it is not unusual for courts to judge civil and commercial disputes on the basis of documents only. As the official language under the Egyptian constitution, Arabic is used for the conduct of the proceedings. If any party submits documents or presents evidence in a foreign language, a certified translation into Arabic must also be provided.

The production of documents raises two important questions: (i) Can a court order a party, or third parties, to present certain documents? (ii) What are the consequences of non-compliance with court orders for document production?

As far as the first question is concerned, it was mentioned above that pre-trial discovery is foreign to civil law and Arab legal systems. Courts usually rely on documents and other forms of evidence submitted by the parties on their own initiative, and have long been loath to order a party or a third party to submit documents that might not be in their interest. However, the extensive and coercive powers of courts have led to a more interventionist approach, with the production of certain documents being ordered when necessary.

Articles 20-27 of the Egyptian Code of Civil and Commercial Procedure lay down detailed regulations for ordering document production. According to Article 20, a party may request a court order compelling the other party to submit a relevant [Page11:] document in any of the following cases: (i) if the law permits the production of such document; (ii) if it is a joint document, drawn up in the interests of both parties or recording their reciprocal rights and obligations; or (iii) if the opposite party has invoked, cited or relied on such document at any stage of the proceedings. It is only in these cases that such an order can be requested. In any event, the court has full discretion to order production or not, after assessing the value of the documents and their relevance to the case.

The wording of Article 20 is very similar to that of Article 220 of the Japanese Code of Civil Procedure, 18 and similar powers for ordering the production of documents have been granted to the courts in Belgium, 19 France, 20 Germany, 21 Italy, 22 the Netherlands23 and Switzerland. 24

According to Article 21 of the Egyptian Code of Civil and Commercial Procedure, the document production request should indicate the contents and features of the requested document or documents, give proof that they exist and are in the possession of the other party, and explain why that party should be ordered to produce them.

Article 23 of the Code of Civil and Commercial Procedure states that if the other party acknowledges that the requested document or documents exist and are in its possession, or remains silent over the question of their existence, the court shall order the production of such document(s). If, however, the other party denies that the documents exist or are in its possession, the court shall order that party to declare under oath that the documents are inexistent or their whereabouts unknown to it, that it has not hidden or concealed the documents, and that it has not refrained from exercising due care in searching for the document.

Pursuant to Articles 26 and 27 of the Code of Civil and Commercial Procedure, the court may, in the course of the proceedings, order a third party to produce a relevant document in its possession, provided that the conditions required for ordering the production of documents are met.

On the question of non-compliance with a court's order for document production, Article 24 of the Code of Civil and Commercial Procedure states that if the party that is ordered to produce a document fails to comply with the order or does not make the required declaration under oath in accordance with Article 23, the court may uphold those claims made by the requesting party that are based on the document in question. The court may also impose on the defaulting party a penalty fine (astreinte) for each day of delay in complying with the order. Similar consequences for non-compliance can be found in French, Swiss and Dutch law. 25

Finally, courts in Egypt and other Arab States set much store by the principles of equal treatment of the parties and due process. These fundamental principles govern the proceedings as a whole, including the production of documents.

III. Document production in commercial arbitration

As mentioned earlier, party autonomy and flexibility are the hallmarks of arbitral proceedings. The parties and the arbitral tribunal are thus free to determine the rules applicable to the proceedings, including those dealing with evidence and the production of documents. 26 Although this means that international commercial [Page12:] arbitration - ad hoc and institutional - is freed from the procedural constraints of national laws, 27 national procedural rules do have an influence, especially on domestic ad hoc arbitration proceedings.

In commercial arbitration documents are usually the principal means by which evidence is produced. The disclosure and presentation of documents takes place under the arbitral tribunal's direction. 28 International commercial arbitration has brought to light the advantages of the common law and the civil law systems. 29 It has also led to hybrid practices that put pay to any form of legal imperialism or chauvinism, reflecting the emergence of global standards spanning diverse cultures and traditions. As far as document production and the presentation of evidence in arbitral proceedings are concerned, the IBA Rules on the Taking of Evidence in International Commercial Arbitration are an example of such global standards of practice. However, these Rules are as yet relatively little known in the Arab world and therefore not widely used. For the moment, the principles and practices that apply in the Arab world can be summarized as follows.

1. As in court proceedings, any party invoking a legal or factual claim should adequately prove that claim to the satisfaction of the arbitral tribunal. This global principle of justice is found in both institutional and ad hoc arbitration proceedings in the Arab world. 30 In such proceedings, the arbitration request is usually a relatively short document containing information on the parties, a brief description of the dispute, a reference to the arbitration clause or agreement and, possibly, a provisional indication of the relief sought. In this respect it differs from an opening statement in court proceedings. The arbitration request is not usually accompanied by a full set of supporting documents31 unless it includes a statement of claim, in which case relevant documentary evidence will usually be attached.

2. Arbitration laws in the Arab world, as elsewhere, acknowledge and recognize the parties' right to adopt institutional or ad hoc rules to govern their proceedings, which gives them the possibility of agreeing on rules of evidence. 32

3. It is customary in the Arab world for ad hoc proceedings to be governed by the procedural law at the seat of arbitration (lex loci arbitri) or by the UNCITRAL Arbitration Rules. Increasingly, however, institutional arbitration is being used, not only in international but also in domestic cases. 33 Arabic arbitration laws and institutional rules do not usually contain detailed provisions on an arbitral tribunal's right to order the production of documents. In the Egyptian Arbitration Law, for example, the arbitral tribunal's right to order the production of documents is implied in Article 34, which states:

If either party fails to attend one of the hearings or fails to present any of the requested documents, the Arbitral Tribunal may continue with the arbitral proceedings and issue an award on the merits on the basis of the available evidentiary materials. 34

As regards institutional rules, Article 24(3) of the Arbitration Rules of the Cairo Regional Centre for International Arbitration mirrors Article 24(3) of the UNCITRAL Arbitration Rules, which states:

At any time during the arbitral proceedings the arbitral tribunal may require the parties to produce documents, exhibits or other evidence within such a period of time as the tribunal shall determine.

Article 24 of the Arbitration Rules of the Gulf Countries Cooperation Council Arbitration Centre and Article 36 of the Commercial Conciliation and Arbitration Rules of the Dubai International Arbitration Centre give arbitral tribunals similar [Page13:] rights to order the production of documents. Article 209(2)(b) of the Code of Civil Procedure of the United Arab Emirates empowers courts to order the production of documents, and provides for the suspension of arbitral proceedings until the required documents are produced. 35 At an institutional level, the Rules of the Abu Dhabi Commercial Conciliation and Arbitration Centre do not explicitly refer to an arbitral tribunal's right to order the production of documents, but Article 36(5) of those Rules states that the arbitral tribunal may, if it deems it appropriate, continue with the proceedings in order to carry out further investigations, whether requested by the parties or on its own motion. This could implicitly entail the arbitral tribunal's right to request the production of certain documents that are indispensable to its investigations. The Commercial Conciliation and Arbitration Rules of the Dubai International Arbitration Centre contain a provision similar to Article 209(2)(b) of the Code of Civil Procedure of the United Arab Emirates, but limited to document production by third parties. 36 In Tunisia, there is no provision for compulsory document production by a party or third parties. However, Article 70 of the Tunisian Arbitration Code contains a provision similar to Article 34 of the Egyptian Arbitration Law referred to above. At an institutional level, Article 11 of the Arbitration Rules of the Tunis Centre for Conciliation and Arbitration37 on establishing the facts of the case contains a provision similar to Article 20(1) of the ICC Rules of Arbitration. This is also the case of Article 14(1) of the Arbitration Rules of the Lebanese Arbitration Centre. 38

4. Unlike court proceedings, arbitration proceedings can be conducted in any language chosen by the parties, which does not have to be that of the seat or the enforcing State. 39 Thus, documents can be produced and evidence presented in any language, with translations where required. In Arab States the power of assessing the admissibility of documentary evidence and the weight and reliability of the evidence submitted lies solely with the arbitral tribunal. 40

IV. Conclusion: the way forward

Above, we have endeavoured to provide some insight into documentary evidence and the production of documents in court and arbitral proceedings in the Arab world and, particularly, in Egypt.

Although largely unfamiliar with the process of discovery, 41 courts and arbitral tribunals in the Arab world are able to compel parties to produce documents in their possession if such documents are relevant and material to the outcome of the dispute. Also, arbitral tribunals have equivalent powers to courts when it comes to assessing the admissibility, materiality, relevance and weight of submitted documents. Courts, however, have greater powers over third parties and are able to compel compliance with the orders they issue.

Whilst there is a growing market in the Arab world for institutional arbitration, little use has so far been made of the IBA Rules on the Taking of Evidence in International Commercial Arbitration to complement applicable procedural rules, despite the fact that the IBA Rules are neutral, help to ensure predictability and certainty in the taking of evidence, are generally consistent with prevailing international and regional arbitration practices in the Arab world, and accommodate party autonomy, prevailing mandatory norms and public policy considerations. [Page14:]

There may be various explanations for the infrequency with which the IBA Rules on the Taking of Evidence in International Commercial Arbitration have been applied in the Arab world. These include (i) the relatively small number of arbitrations in the Arab world compared to other developed regions of the world; (ii) statutory restrictions on foreign lawyers appearing before arbitral tribunals; 42 (iii) the dearth of precedents affirming the feasibility and appropriateness of the IBA Rules for Arab arbitrations; and (iv) the greater frequency of domestic and regional arbitrations as opposed to international proceedings in the Arab world.

However, there is reason to be optimistic about the future. Economic and legal incentives have led to a growth in foreign direct investment. When dealing with local entities, foreign investors tend to insist on the importance of neutral procedural rules and forums, which is likely to lead to greater use of global and international institutional rules such as those of ICC. Furthermore, the Arab world is becoming an increasingly attractive market for foreign arbitrators, which is leading to greater cultural and legal interaction and the application of international rules that accommodate the contrasting needs of legally and culturally different parties and arbitrators.

Finally, courts in the Arab world are increasingly accepting arbitration as the market's first choice for the settlement of business and investment disputes. This is resulting in greater cooperation between courts and arbitral tribunals. Far from existing in a legal vacuum, arbitral tribunals need the assistance of courts during the various phases of the arbitral proceedings (as well as afterwards at the time of enforcing and/or recognizing awards), including for the production of documents. Arbitral tribunals and courts should therefore not be seen as in competition with each other but as in a state of optimal equilibrium43 conducive to ultimate justice and fairness.

1
Law No. 13 of 1968.

2
Law No. 25 of 1968.

3
Law No. 27 of 1994.

4
The classical division between public and private law led to a separate set of legal rules for transactions involving the State (or any of its institutions, subsidiaries, or State-owned enterprises) acting as a sovereign power, and to the establishment of administrative courts vested with the power to decide on administrative disputes pertaining to administrative contracts and administrative decrees issued by government officials. These courts apply rules that are not entirely codified, so there is wide scope for judicial discretion.

5
J.D.M. Lew, L.A. Mistelis & S.M. Kröll, Comparative International Commercial Arbitration (The Hague: Kluwer Law International, 2003) at 561, 564.

6
R. Navaratnam, 'Practical Guidelines on the Reception of Evidence in Arbitration'; available at <http://www.ciarbmal.org.my/pracGuideEvid.htm>.

7
Article 1, IBA Rules on the Taking of Evidence in International Commercial Arbitration; available at <www.ibanet.org/images/downloads/IBA%20rules%20on%20the%20taking%20of%20Evidence.pdf>.

8
There is no preordained dividing line between the two. In Boys v. Chaplin ([1971] A.C. 356 at 395), Lord Pearson stated: 'I do not think there is any exact and authoritative definition of the boundary between substantive and procedural (or adjectival or non-substantive) law.' In Stevens v. Head ([1993] 176 C.L.R. 433), Mason C.J. stated that procedural rules are 'those rules which are directed to governing or regulating the mode or conduct of court proceedings'. More recently, in John Pfeiffer Pty Limited v. Rogerson ([2000] 203 C.L.R. 503 para. 100), Callinan J. stated: 'What should be regarded as procedural are the laws and regulations which are reasonable and necessary, in the lex fori for the conduct of the action only; that is to say the laws and rules relating to procedures such as the initiation, preparation, and the prosecution of the case, the recovery processes following any judgment and the rules of evidence.'

9
Despite shared conceptions and rules, legal systems in Arab States do not belong to the same legal family. For example, whilst Egypt, Iraq, Kuwait, Lebanon, Libya, Algeria, Morocco, Syria, and Mauritania belong to a mixed system of civil law and Islamic law (Sharia), Oman, Qatar, Sudan, United Arab Emirates and Bahrain belong to a mixed system of common law and Islamic law (Sharia).

10
See M. Pope, 'Rule 34: Controlling the Paper Avalanche' (1981) 7 Litigation 28.

11
M. de Boisséson, 'Comparative Introduction to the Systems of Producing Evidence in Common Law Countries and Countries of Roman Law Tradition' in Taking of Evidence in International Arbitral Proceedings, Dossier of the ICC Institute of International Business Law and Practice No. 8/1989 (Paris: ICC Publishing, 1990) 99 at 101-102; D. Knottenbelt, 'Fact-Finding in Continental European Civil Litigation and Arbitration', Paper presented at the ABA Annual Meeting, Section of Litigation, 4-7 August 2005, <www.abanet.org/litigation/abaannual/papers/15c.pdf> at 6.

12
J.D.M. Lew, L.A. Mistelis & S.M. Kröll, supra note 5 at 567; D. Knottenbelt, supra note 11.

13
M de Boisséson, supra note 11 at 109; see also J.D.M. Lew, L.A. Mistelis & S.M. Kröll, supra note 5 at 567.

14
See e.g. the Egyptian law on electronic signatures (Law No. 15 of 2004).

15
This principle is found in other legal systems regardless of their affiliation or origin and as such could be considered a global principle of justice.

16
Law No. 13 of 1968.

17
Law No. 25 of 1968.

18
See Y. Furuta, 'The IBA Rules of Evidence Five Years Later - Japan: Retrospective and Prospective' (Paper presented to the Prague 2005 Conference of the International Bar Association), available at <www.andersonmoritomotsune.com/whatsnew/pdf/050930_1.pdf#search=%22 The%20IBA%20Rules%20of%20Evidence%20Five%20Years%20Later%20%E2%80%93%20Japan%3A%20Retrospective%20and%20Prospective%20%22>.

19
See Article 877 of the Belgian Code of Civil Procedure.

20
See Articles 138-142 of the French New Code of Civil Procedure and Article 10 of the French Civil Code.

21
See § 272(2) of the German Code of Civil of Procedures (ZPO).

22
See Article 210 of the Italian Code of Civil Procedure.

23
See D. Knottenbelt, supra note 11 at 2.

24
See Article 186 of the Swiss Federal Code of Civil Procedure.

25
See M. de Boisséson, supra note 11 at 104; D. Knottenbelt, supra note 11 at 3-4.

26
See e.g. Article 19 of the UNCITRAL Model Law on International Commercial Arbitration, which has been a source of inspiration and a model adopted by more than 50 countries and territories across the globe.

27
This freedom is not absolute but is subject to public policy considerations and mandatory norms (lois de police) prevailing at the seat of arbitration.

28
J.D.M. Lew, L.A. Mistelis & S.M. Kröll, supra note 5 at 556-57.

29
M. de Boisséson, supra note 11 at 111; C. Reymond, 'Conclusions' in Taking of Evidence in International Arbitral Proceedings, Dossier of the ICC Institute of International Business Law and Practice No. 8/1989 (Paris: ICC Publishing, 1990) 165 at 166

30
See e.g. Article 24(1) of the Arbitration Rules of the Cairo Regional Centre for International Commercial Arbitration and Article 64 of the Tunisian Arbitration Code. See also Article 24(1) of the UNCITRAL Arbitration Rules, which are used in ad hoc arbitral proceedings in the Arab world and on which the current version of the Arbitration Rules of the Cairo Regional Centre for International Commercial Arbitration are based.

31
The purpose of filing such a request is twofold: (i) to notify the other party of the commencement of arbitral proceedings in order to proceed with the appointment of the arbitral tribunal, and (ii) a tactic to pressurize the other party into seeking a settlement.

32
See e.g. Article 25 of the Egyptian Arbitration Law (Law No. 27 of 1994), which states: 'The parties to the arbitration have the right to agree on the procedures to be followed by the arbitral tribunal, including the right to subject such procedures to the provisions in force in any arbitral organization or centre in Egypt or aboard. In the absence of such agreement, the arbitral tribunal may, without prejudice to the provisions of the present law, adopt the arbitration procedures it deems suitable.' A similar provision may be found in Article 8 of the Arbitration Rules of the Tunis Centre for Conciliation and Arbitration, Article 29 of the Arbitration Rules of the Gulf Countries Cooperation Council Arbitration Centre and Article 212(1) of the Code of Civil Procedure of the United Arab Emirates.

33
This is consistent with the rules of major international arbitration institutions. See ICC Rules of Arbitration (Article 20(1) and (5)), LCIA Arbitration Rules (Article 22(1)(e)), AAA International Dispute Resolution Procedures (Article 19(3)), ICSID Arbitration Rules (Article 34(2)).

34
Emphasis added.

35
Article 209(2)(b) states: 'In addition, the arbitrator shall suspend the proceedings to refer to the president of the competent court the following: . . . (b) to order a party to submit any documents in its possession which are necessary for the issue of the arbitration award.' This provision bears some similarity to Article 43(1) of the English Arbitration Act, which states that '[a] party to arbitral proceedings may use the same court procedures as are available in relation to legal proceedings to secure the attendance before the tribunal of a witness in order to give oral testimony or to produce documents or other material evidence'.

36
Article 39(e) states: 'The arbitration proceedings shall be suspended specifically in the following instances: . . . (e) A request to a competent court to order presentation of a document in the possession of a third party.'

37
Article 11 states: 'The arbitral tribunal shall have the power to conduct investigations of the case and authorize all means of investigation, as it deems appropriate. . . . The tribunal may meet in any place it deems appropriate to inspect goods or documents or any other material.'

38
Article 14(1) states: 'The arbitrator shall proceed within as short a time as possible to establish the facts of the case by all appropriate means.'

39
It should be noted that an official or certified translation of the arbitral award may be required for the purposes of enforcement and/or recognition by the State where it is to be performed or, as the case may be, for setting aside or appeal proceedings at the seat of the arbitration.

40
See e.g. Article 25(6) of the Arbitration Rules of the Cairo Regional Centre for International Commercial Arbitration and Article 25(6) of the UNCITRAL Arbitration Rules.

41
For an overview of discovery in the context of arbitral proceedings, see G. Hanessian, 'Discovery in International Arbitration' GPSolo Magazine (September 2005), available at <www.abanet.org/genpractice/ magazine/sept2005/discoveryintl.html>; R. Navaratnam, 'Practical Guidelines on the Reception of Evidence in Arbitration', available at <www.ciarbmal.org.my/CIArticles.htm>.

42
n Egypt, for example, the Code of Advocacy states that legal counsel in litigation and arbitration should be members of the Egyptian Bar.

43
As distinct from the 'non-optimal equilibrium' resulting from non-cooperation, to which the Nobel Prize winning economist John Nash drew attention in the 1950s.