The ICC Rules of Arbitration2 are intended for use in any part of the world. It is for this reason that they set down only a basic framework for the conduct of proceedings and leave the parties and arbitrators free to organize details as appropriate to the circumstances of the case and the legal traditions and practices with which they are familiar. This is particularly true of document production. The Rules contain no provisions dealing specifically with the production of documentary evidence. Article 15, which relates to the rules governing the proceedings, simply states that the proceedings shall be governed by the Rules and, where they are silent, by any rules decided by the parties or the arbitral tribunal. Reference may thereby be made to the rules of procedure of the applicable national procedural law. Article 20, which refers to the means by which the arbitral tribunal establishes the facts of the case, requires the arbitral tribunal to establish the facts 'within as short a time as possible' and 'by all appropriate means' and allows the arbitral tribunal to summon the parties to provide additional evidence at any point in the proceedings. As to the manner in which this is achieved, much is left to the arbitral tribunal's and the parties' discretion. The purpose of the present article is to provide some illustrations of practices adopted by ICC arbitral tribunals, as reflected in some eighty procedural orders issued during 2003 and 2004,3 mostly in response to document production requests by one or more parties.4

The article is divided into three parts. First, consideration will be given to some formal aspects of the document production process. This will be followed by a section on the criteria used by ICC arbitral tribunals when deciding whether or not to order the production of documents. Lastly, some observations will be made on practices used in ICC cases to ensure the effectiveness of document production orders.

I. Formal aspects of the document production process

a) Timing

Document production can in itself be a complex process and proper space therefore needs to be made for it in the proceedings. A schedule setting out the various steps of the process and the time allowed for each step may help to make sure that the process takes place as efficiently and transparently as possible. Such a [Page64:] schedule may form part of the procedural timetable referred to in Article 18 of the Rules of Arbitration. Below are two examples of document production schedules. The first was drawn up in a case between North American and European claimants and a South American respondent decided by US arbitrators in the USA. The second, spanning a shorter period of time, was used in a case between South American parties decided in the USA by a tribunal composed of arbitrators from North and South America and Europe.

Case 1:

Date X: 'Deadline to serve document requests.'

X + 20 days: 'Deadline to serve written responses/objections to document requests.'

X + 20-24 days: 'Meet and confer regarding any document disputes.'

X + 36 days: 'Deadline for filing any applications to the Arbitral Tribunal concerning document production disputes.'

X + 49 days: 'Deadline for filing oppositions to any applications concerning document production disputes.'

X + 52 days: 'Deadline for producing documents as to which there is no dispute between the parties.'

X + 59 days: 'Deadline for submitting any applications to the Arbitral Tribunal for the production of any additional information from a party or non-party. ...'

X + 111 days: 'Deadline for Claimants to file and serve a memorandum addressing legally and factually each of the issues relating to their claims that are to be determined pursuant to the Terms of Reference, with citation to appropriate law and authority, together with copies of all documents or other evidence relied on in support of their position, and affidavits of all witnesses (fact and expert) whose testimony Claimants intend to offer at the evidentiary hearing. ...'

X + 154 days: 'Deadline for Respondent to file and serve a memorandum responding legally and factually to each of the issues raised by Claimants in their memorandum and addressing legally and factually each of the issues relating to its defenses that are to be determined pursuant to the Terms of Reference, with citation to appropriate law and authority, together with copies of all documents or other evidence relied on in support of its position, and affidavits of all witnesses (fact and expert) whose testimony Respondent intends to offer at the evidentiary hearing. ...'

X + 189 days: 'Deadline for Claimants to file and serve a memorandum replying to Respondent's arguments in Respondent's responding memorandum. Claimants' reply memorandum shall include citation to appropriate law and authority, together with copies of any additional documents or other evidence relied upon and any supplemental affidavits of witnesses (fact and expert). ...'

X + 271-282 days: 'Evidentiary hearing. ...'

[Page65:]

Case 2:

Date X: 'The Claimant shall submit its Memorial, factual Witness Statements, Expert Statements and documentary evidence.'

X + 4 days: 'The Claimant shall complete production of all documents relevant to . . .'

X + 8 days: 'The Parties may submit supplemental requests for the production of documents, including any document requests the Respondent may wish to make with respect to identified third party witnesses, by this date.'

X + 11 days: 'The Parties may submit any objections to the supplemental and third party witness requests they may have to the Tribunal. Any such objections must be stated succinctly and reflect legitimate objections.'

X + 15 days: 'The Parties shall direct any concise responses they may have to the objections to supplemental and third party witness requests to the Tribunal.'

X + 15 days: 'Both parties shall complete production in connection with all pre-[Date X] document production requests. These shall include documents relating to . . .'

X + 18 days: 'The Respondent shall provide its list of third party witnesses to the Claimant by this date.'

X + 22 days: 'The Parties shall complete production of all documents responsive to the supplemental and third party witness requests by this date.'

X + 46 days: 'The Respondent shall submit its Memorial, factual witness statements, any expert statement(s) and documentary evidence.'

X + 49-50 days: 'Reserved dates for possible Hearing in New York to address preliminary issues or any outstanding procedural matters.'

X + 50 days: 'The Claimant may submit document requests directed to third party witnesses of the Respondent by this date.'

X + 55 days: 'The Respondent shall direct any objections to the request for third party documents to the Tribunal by this date. Any such objections must be stated succinctly and reflect legitimate objections.'

X + 60 days: 'The Claimant shall direct its concise response to the Respondent's objections to their request for third party documents to the Tribunal by this date.'

X + 67 days: 'The Claimant shall submit its Reply Memorial ('Reply Memorial') and any appropriate reply witness statements (factual or expert) and any further documentary evidence.'

X + 89 days: 'The Respondent shall submit its Sur-Reply ('Sur-Reply') and any appropriate rebuttal witness statements (factual or expert) and any further documentary evidence.'

When programming document production, it may be appropriate to allow for flexibility. For instance, a tribunal in another case programmed a consecutive exchange of briefs, as in the above examples, but reserved the possibility of authorizing or ordering a second exchange of briefs. The need for flexibility is explained by the fact that as a case develops document requirements may change. [Page66:] In a case involving South American parties decided in Switzerland by a tribunal comprising arbitrators from Europe and South America, the claimant asked for permission to amend its request for production of documents. While allowing it to do so, the tribunal laid down a strict schedule, in which the claimant was given 12 days to submit its amended request, the respondents a further month to answer the request, and the parties were advised that the arbitral tribunal's decision would be issued approximately 15 days after the last brief submitted by the respondent. In any event, an arbitral tribunal has full discretion when setting deadlines for document production, as reflected in the fact that the time allowed for production in the procedural orders examined ranged from a matter of days (in one case even one day) to over a month.

The timing of the document production process is closely linked to the development of the procedure as a whole. When faced with a request for document production, the arbitral tribunal needs to be apprised of the parties' claims so as to know whether the requested documents are relevant. In cases where this was not the case, the arbitral tribunal dismissed the request as premature. For instance, in a case between European and Asian parties, decided in Switzerland by three Swiss arbitrators, the tribunal rejected a request for the production of accounting documents and sales information made by the claimant with its statement of claim, as the respondent had not yet had an opportunity to submit its answer to the statement of claim and related documents.

In some cases, where the arbitral tribunal mapped out a schedule for document production, it also gave precise details on how the documents were to be handed over or prepared. In a case between Eastern European parties decided by a Western European arbitrator, the parties were asked to liaise with each other to fix a time and place for the handing over of documents. The respondent was ordered to produce an inventory of documents and to give the claimant sufficient opportunity to check that the listed items were packed and handed over to the transporter. The arbitrator also ruled on the allocation of the costs incurred in shipping the documents to the claimant.

b) Form of document requests

It is important that arbitrators be given the information they need to rule on a request for document production. In a case between a North American claimant and a respondent from the Middle East, decided by arbitrators from Europe and North America, the respondent submitted a request for document production that was too succinct. The tribunal therefore invited further submissions on the matter and gave detailed instructions to each party on the form of those submissions. The respondent was invited to:

- attach the full sequence of correspondence exchanged between the parties on this issue of production of documents, unless either party objects to such production for reason of legal privileges based on confidentiality of transactional discussion;

- restate the list of the requested documents and number each item of this list;

- for each item, provide a technical (but simple) explanation of the utility of the document requested, to the extent that the designation of the document is not self-explanatory;

- for each item, clarify whether the document was (i) never received by Respondent, or (ii) received, but lost or destroyed; in this second case, what are the causes of these documents being lost or destroyed;

- for each item, motivate by reference to [the applicable procedural rules], the request for the production of documents, establishing in particular why the requested [Page67:] documents are relevant for the settlement of the present dispute by the Arbitral Tribunal.

The claimant was invited to:

- take position precisely on all of the factual allegations and legal arguments developed by Respondent in its brief;

- provide evidence that the documents were delivered to Respondent, if Claimant so contends;

- indicate what documents requested by Respondent can no longer be found in its on-site offices and whether it has other copies of such documents;

- indicate the approximate cost for Claimant to re-issue the documents, if any, already delivered to Respondent.

The need for supplementary submissions on document production can be avoided if the parties provide at the outset all relevant information to substantiate their requests.5 However, as recalled by a number of tribunals, they should be as concise as possible.

c) Presentation of material produced

A number of the document production orders examined gave specific instructions on how the material to be produced was to be presented. In a case involving two Caribbean companies, decided in Geneva by a tribunal of European arbitrators, a hearing took place early in the proceedings at which a range of supplemental procedural rules were agreed, including the following provisions relating to document production:

(5) Documents submitted as evidence shall be submitted in the original language. Documents in a language other than English must be accompanied by a translation into English. As to lengthy documents, at least the relevant parts shall be translated, subject to the Chairman's discretion to order a full translation.

(6) All documents are deemed to be authentic and complete even if furnished in copies, unless their authenticity is challenged by the other Party. In case of incomplete, illegible or otherwise unclear copies, the Arbitral Tribunal may request the Parties to provide improved copies or originals.

(7) As indicated in the Chairman's communication of [date], any exhibits submitted by the Parties during these proceedings shall be numbered individually and consecutively throughout the proceedings as appearing in the initial pleadings. Claimant's exhibits are to be numbered: Exhibits C-1, C-2, C-3, etc., Respondent's exhibits R-1, R-2, R-3, etc. The Exhibits to the submissions regarding the provisional measures are filed separately. Thus they are not included in the numbering of the Exhibits of the main proceeding.

(8) Each time new exhibits are filed by either Party, such Party shall automatically provide to the Arbitral Tribunal and to the other Party a separate and updated index of all its Exhibits filed until then.

A similar system of numbering exhibits is found in other cases and would appear to be quite widely favoured. For instance, in a case between European parties decided by European arbitrators, the tribunal reminded the parties of the requirements laid down in the Terms of Reference, namely 'that exhibits shall be numbered consecutively throughout these proceedings, that the number of each exhibit submitted by Claimant shall be preceded by the letter "C" and that each binder containing exhibits shall contain a list of these exhibits setting forth for each one the exhibit number, the date and a brief description of the exhibit'. [Page68:]

In a case between North American and European parties, decided in North America by European and North American arbitrators, it was stated that the documents were only to be produced by one party to another and not sent to the arbitral tribunal or the International Court of Arbitration. The tribunal indicated that it would consider the documents disclosed only to the extent that they were subsequently included in a party's statement of evidence.

II. Determination of requests

In the words of one ICC arbitral tribunal, it is 'generally accepted practice in international commercial arbitration' that arbitrators may order document production by parties to the arbitration.6 Arbitrators have considerable freedom when deciding how to exercise this power. The procedural orders examined show that they are guided by a number of recurrent standards and principles, the most frequent of which are described below.7

a) Parties' interests

In a procedural order containing the rules governing the proceedings, this principle was stated as follows:

The Arbitral Tribunal shall, in its discretion, rule on the issue of production having regard to the legitimate interest of the other party and all of the surrounding circumstances.

It may be necessary for the arbitral tribunal to balance the interests of the various parties involved. This is particularly the case when confidentiality is involved.8 For instance, in a case between North American and European claimants and a European respondent, decided in Switzerland by a tribunal composed of European arbitrators from both common law and civil law backgrounds, the respondent's request for the claimant to produce documents relating to a previous mediation with a third party was rejected, as the tribunal considered that confidentiality is so fundamental to mediation that the claimant's interest in the confidentiality of the documents outweighed the respondent's interest in being informed of the contents of those documents. By contrast, in another case between parties from the Middle East and Europe, decided in Switzerland by Continental European lawyers, the tribunal considered that the claimant's right to prove its case or arguments outweighed the respondent's obligation towards a third party to keep a document confidential. A similar position was taken by an arbitral tribunal seated in North America, comprising arbitrators from Europe and the USA: although aware that the information in the requested documents was sensitive for one party, the tribunal decided, in view of the importance and complexity of the case, that the other party would be deprived of the opportunity to fully present its case if this information were not disclosed.

Besides confidentiality, other factors that have been taken into consideration by arbitral tribunals when balancing the interests of those involved in the document production process are the propriety and efficiency of the proceedings. For instance, a tribunal composed of Continental European arbitrators stated in the preamble to its procedural order that 'the Arbitral Tribunal is mindful of its duty to regulate the production of documents and avoid abuses in the submission of evidence but is also conscious of its duty to allow the Parties to fully present their case'. The respondent had sought leave to submit additional documents relating to [Page69:] financial statements and sales. Following objections from the claimant, the tribunal authorized the respondent to introduce the documents, giving it four days to submit them to the tribunal and one day to hand them over to the claimant.

b) Relevance and materiality

In just over half of the procedural orders examined for this article, the arbitral tribunal referred to the relevance and materiality of the documents when deciding whether or not to order their production. These two criteria are frequently cited together to stress that the document sought must not only relate to the fact in question but, in the words of one arbitral tribunal, be 'necessary in the sense that the applicant would otherwise be unable to discharge the burden of proof in relation to such fact'.

Inevitably, a tribunal's assessment of the relevance of a document is made on the basis of the knowledge it has of the case and the parties' claims at the time the document production order is made. This means that it will rule on what one arbitral tribunal referred to as the 'prima facie relevance' of the requested documents:

In ruling on the request for production of documents, the Arbitral Tribunal will rule on the prima facie relevance of the requested documents, having regard to the factual allegations made by the Parties in the submissions filed to date. At this stage of the proceedings, the Arbitral Tribunal will not be in a position to make any ruling on the ultimate relevance of the requested documents to the final determination of the Parties' claims and defenses in this arbitration.

In some cases, the tribunal decided to postpone its decision on document production precisely because the information necessary to determining the relevance of the documents was not available at that stage or had not been submitted.

For the above reason, several tribunals considered the relevance requirement met when there was a likelihood of relevance:

The documents sought may be probative, inter alia, of the [facts], and of Claimants' knowledge thereof, as well as [facts]. Such facts may be relevant to several defenses (other than fraud) pleaded by Respondent, and on the issue of damages as also addressed in Respondent's Answer. Therefore, we reject Claimants' contention that the . . . documents are not discoverable because irrelevant to this arbitration.9

The foregoing statement was made by a tribunal composed entirely of US arbitrators. However, it is a position shared by many arbitrators irrespective of their origins. In a case between European parties decided in Europe by a tribunal composed of European arbitrators, the tribunal granted the claimant's request for the respondent to produce a full list of equipment and billing information in connection with a maintenance contract, as these documents were likely to allow the harm suffered by the claimant to be assessed more accurately:

The arbitral tribunal considers that this request may be relevant, if it is held that [Claimant] suffered harm from a breach of contract. In this case, if said documents are on record, it will be possible to calculate the harm suffered by [Claimant] with greater precision.10

One tribunal took the precaution of stating that if it were to order the production of a document on the grounds that it appeared reasonably to be relevant, this would be without prejudice to its determination that the document is relevant to the outcome of the case. [Page70:]

In cases where the relevance of the documents requested was not apparent, the request was denied. In the following example, whilst rejecting the document production request for lack of relevance, the tribunal left open the possibility of reconsidering the question at a later stage when it might be seen in a different light:

The Arbitral Tribunal, at the present stage, is not convinced of the relevance of the requested documents for the decisions to be made in the framework of this Arbitration. It notes in particular that the alleged failure to notify a material event under applicable [rules] was not mentioned in Respondent's Termination Letter . . . as part of the circumstances allegedly leading to a distraction of trust.

The request is therefore denied for the time being. However, the Arbitral Tribunal will feel free to reconsider this issue in the further course of the present proceedings, should it reach a conclusion that these documents could indeed be or become materially relevant for any determination to be made by this Tribunal.

It is of course for the parties to demonstrate the relevance of the documents when requesting production. One arbitral tribunal explained this requirement in the following terms:

The request for production must establish the relevance of each document or each specific category of documents sought 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. Obviously, this shall not prevent a party from referring to upcoming factual allegations (subsequent memorials) provided such factual allegations are made or at least summarized in the request for the production of documents. In other words, the requesting party must make it clear with reasonable particularity what facts/allegations each sought document (or category of documents) will establish.

The arbitrators will need to check whether the requesting party's assertions of relevance are correct, and in doing so may need to give close consideration to substance. In a case where the question at issue was whether an engineer had been appointed in accordance with the terms of the contract, correspondence concerning the engineer's lack of impartiality or the discharge of the engineer's duties was regarded as irrelevant:

The crucial question is whether the replacement of the Engineer was agreed by the Parties and whether [Engineer 2] has been appointed in accordance with the terms of the Contract after the end of May 2000. This question has to be examined considering the terms of the Contract, the correspondence between and the conduct of the Parties . . . the Arbitrator considers the request for disclosure of documents as presented by [Claimant] to be limited to facts relating to the contractual relationship between the Parties . . . documents of relevance between [Respondent] and [Engineer 1] or [Engineer 2] relating to the terms of termination or engagement are relevant to the contractual relationship between [Respondent] and [Engineer 1] and/or [Engineer 2], however, not to the issue of replacing and appointing of an Engineer according to the terms of Contract signed by the Parties and according to additional arrangements between the Parties concluded during the term of the Contract.

However, this opinion refers not to the question whether the documents requested are relevant and material to other issues of relevance in this arbitration. Therefore, it may be that these documents may be requested to be produced with regard to other issues at a later stage in this arbitration.

In another case, the respondent sought the disclosure of documents which it alleged would have shown that it had been misinformed on the financial performance of businesses contributed to a joint venture into which it had entered. The arbitral tribunal rejected the request on account of the respondent's [Page71:] failure 'to set out with any degree of precision the relationship between the losses complained of and the remedy or counterclaim contemplated'.

Similarly, parties will need to be able to demonstrate the materiality of any documents they ask to be produced. In one case, the requesting party sought the production of notes of witness interviews referred to in a report, for the purpose of checking the accuracy and veracity of the statements made in that report. The arbitral tribunal pointed out that the requesting party would have the opportunity to question the witnesses at the hearing and that there was other material already on record that could be used to prove the truth or otherwise of the statements made in the report. It therefore concluded that the production of the interview notes was unnecessary.

c) Specificity

This is another criterion that was frequently mentioned in the procedural orders examined. In a case decided in Switzerland by Continental European arbitrators, the arbitral tribunal made the following remarks on specificity when deciding on the claimant's request for the production of documents:

The request must identify the document(s) sought with a high degree of specificity. The request must identify the particular document sought 'in sufficient detail'. Or else, if only a category of documents can be identified, that category must be a 'narrow and specific' category of documents described 'in sufficient detail'. For example, the request must describe the kind of document, identify the authors and the addressees, cover a narrow time period, describe the contents and the other characteristics of the document sought and in general allow one to foresee precisely what documents are responsive to the request.

The tribunal went on to explain the reason behind this requirement as follows:

The document requests contemplated by . . . the Terms of Reference are not intended as tools for US-style discovery, that is, to be used by party to seek documents which may or may not exist, and also may or may not ultimately prove relevant, all in order to weave a claim. The purpose of such document requests, rather, is to obtain documents to prove specific factual allegations previously made by a party in its pleadings. Consistent with this purpose, per the purpose of the Procedural Timetable . . ., document requests were to be made by the parties after the submission of their second written briefs, at which point the parties' pleadings were to have contained all factual allegations. . . .

Accordingly, at the point at which a party makes a document production request, it must essentially know which document, or category of documents, it needs. It is only by virtue of knowing with particularity which documents it seeks, that it can articulate its document request with the requisite specificity and, likewise, demonstrate a reasonable belief that the specific document, or the narrow and specific category of documents sought, actually exist.

To illustrate, a party may have specifically alleged in its pleadings that a board meeting took place on a particular date, its participants, and a specific decision made by the participants at this board meeting. Pursuant to . . . the Terms of Reference, the party could then request production of the minutes of the board meeting by specifying in its request that it seeks the written minutes of the meeting of XYZ Company's board, which took place on XYZ date, was attended by Messrs. X, Y and Z, at which meeting the board made decision XYZ.

In its request, the claimant referred, amongst other things, to 'documents assessing or relating to the assessment of [Company X]'s equity, created between [Page72:] [date A] and [date B], excluding [Company X]'s and [Respondent]'s financial statements and documents (such as documents produced by . . .) generated for the purpose of preparing [Company X]'s and [Respondent]'s financial statements in the normal course of business'. The arbitral tribunal found this wording to be insufficiently specific:

The description 'assessing or relating to the assessment of [Company] X's equity' does not elicit the type of automatic understanding of the nature of the responsive document, or category of documents, sought, which a sufficiently detailed document request - indicating narrow parameters such as the authors, recipients, specific contents, and specific characteristics of the documents - would. Virtually any [Company X] document could be interpreted as 'relating' in some way to the assessment of its equity and, therefore, be covered by this document request.

The tribunal pointed out that by failing to identify the documents with the necessary specificity, the claimants were engaging in a 'fishing expedition' without knowing for sure whether the documents existed.

Another arbitral tribunal (composed solely of Swiss arbitrators) mentioned in its general remarks on document production that '[s]hould a request for the production of document not identify the documents "in sufficient detail", the Arbitral Tribunal may, instead of rejecting the request, specify the documents on its own initiative'.

In the case discussed above, the arbitral tribunal requested the parties to indicate with a 'high degree of specificity' the documents they wished to be produced. Another tribunal, composed of European and North American arbitrators, set a slightly lower requirement by asking for the documents to be indicated with a 'reasonable degree of specificity'.

Below are some examples of documentation requests held to be insufficiently specific and consequently denied:

- correspondence, reports, meeting minutes, notes, internal memoranda and emails relating to twelve specified topics and a period exceeding six years;

- reference to 'documents and correspondence in relation to the commencement of the arbitration and any minutes, memoranda or notes of meetings at which arbitral proceedings against [Respondent 1] were discussed';

- 'copies of any correspondence or other written communications to or from potential buyers or their representatives regarding or referring to their receipt of the internal audit reports and/or the internal audit reports themselves';

- 'copies of documents setting out [Company X]'s policies with respect to (a) the [Y] business, and/or (b) the receipt of cash deposits in [country Z]';

- 'since the [A] sale, if [Respondent] or any [Respondent] representative discarded or destroyed any documents that refer or relate to the reasons for the [A] sale, the audit reports, the matters discussed in the audit reports, or the criminal investigations of [A], [B] and/or [Respondent], please describe the documents that were discarded or destroyed, and identify the individuals responsible for the decision to discard or destroy them';

- 'all Field Site Instruction for Areas [A], [B], [C] and [D]'; [Page73:]

- 'all documents not yet produced, namely those in connection with the contract for the revamp of the [installations] in [place] between [companies], including the contract sum revised, contract sums and all payments made to [Company X] in this respect, as well as similar documentation related to [Company X]'s relationship with [Company Y] and the [Company Z]'.

In the last example, the arbitral tribunal considered the request to be not only broad but also to imply any kind of document, whether recorded on paper or in electronic, audio, visual or any other form. It rejected the request, remarking that to do otherwise would be to order a discovery exercise 'alien to the rules of procedure which apply in these arbitration proceedings'.

d) Burdensomeness

Production of the documents sought should not impose an undue burden on the party required to produce them. A tribunal seated in Switzerland, made up of European arbitrators from both civil law and common law backgrounds, noted that 'in and of itself, the burden on the requested Party does not represent a sufficient reason to disallow a request for production of documents. The burden imposed on the producing Party should be weighted against the potential use of the documents.' The efforts required of the producing party in assembling the necessary documents should therefore be proportionate to the evidentiary value of the documents. In the case referred to, the documents requested by the claimant had already been sorted and analysed by the respondent when preparing its own evidence, so the arbitral tribunal was not convinced by the respondent's argument that the burden of producing them was too great. In another case, the arbitral tribunal considered as unduly burdensome a request for documents which should already have been in the requesting party's possession if they indeed existed. There was therefore no reason to compel the other party to engage in a broad search of its files for those documents.

Below are two further illustrations of document production requests that were regarded as placing an unreasonable burden on the producing party:

Any communication between [Respondents] and [X, not a party to the arbitration] and any document created by or held by [Respondents] or [X] relating to the sale of [Y, not a party to the arbitration]. This would include but is not limited to:

- any document or communication between [Respondents] and [X] recording or relating to meetings or discussions between [Respondents] and [X] during the sales process;

- any document (including, but not limited to, notes) created or retained by [X] relating to the process of evaluating and selling [Y];

- any notes taken by Mr [A] and/or any other [Respondents] or [X] representative at any meeting between [Respondents] management and/or [Y] management and any potential purchasers of [Y];

- any document or communication created or received by Mr [A] concerning [Y] or the sale of [Y].

Any and all documents relating to valuations (whether conducted by [Z], [Y], or any third party on behalf of [Z] or [Y]) or [sic] [Y] carried out in the period since the Sale, excluding documents already disclosed relating to the . . . valuation done for the purposes of the arbitration. The term 'valuation' should be interpreted broadly to include any valuation of [Y] as a company or as a business, any valuation of the shares in the [Y], any valuation of future business, and valuations of parts of any of these (such as [Y]'s goodwill). [Page74:]

Another tribunal, on the other hand, justified its decision to order the production of the original of an exhibit by the fact that the producing party was already aware of the request and had already been requested by its counsel to search for it, so the production of the document would place 'no unreasonable burden' on it.

The criterion of burdensomeness could be interpreted in a financial sense to mean causing great expense to the producing party. This question was raised by a tribunal of European and North American arbitrators seated in France, when faced with a respondent that refused to comply with a production order and sought all possible means to render the order ineffective. In an attempt to overcome the impasse, the arbitral tribunal pointed out that the costs incurred by a party in complying with a request for the production of documents would normally be regarded as reimbursable arbitration costs and that it is up to the parties to claim such costs with supporting evidence at the end of the proceedings.

In a case in which the material sought was to be made available in electronic format, the tribunal indicated that the claimant was not required to provide the entire databases nor undertake 'extraordinary efforts' to provide the information in electronic format, but should ensure that relevant information, to the extent available, was provided 'in a useful format on commercially available software'. The tribunal went on to say that the respondent was responsible for reimbursing the claimant for any additional cost or expenditure reasonably incurred in producing information in electronic format, and that this would be treated as part of the arbitration costs. Reimbursement was to be made within five days of the information being delivered.

e) Possession, custody, control

If parties are to be able to answer document production requests without undue effort, the documents need to be in their possession or custody or under their control. A tribunal composed of European and North American arbitrators expounded upon this requirement as follows:

For the purposes hereof, 'possession, custody or control' shall include documents to the extent Claimant or Respondent has actual knowledge, without an obligation to do any research or inquiry, that a document responsive to a request for production is in the possession, custody or control of a person or an entity (i) within the same group as Claimant or Respondent, as the case may be, or (ii) from which Claimant or Respondent, as the case may be, has a contractual or other right to obtain such document. In such case, Claimant or Respondent shall use its best efforts to produce such document and, failing this, shall describe the document in as much detail as possible and state the reason why it has not been possible to produce the document. An entity shall be deemed to belong to the same group as Claimant or Respondent if such entity directly or indirectly owns or controls Claimant or Respondent, or is directly or indirectly owned or controlled by Claimant or Respondent, or is directly or indirectly owned or controlled by the same entity as Claimant or Respondent.

Another tribunal added that if the producing party objects that the documents are not within its possession, custody or control, then it is up to the requesting party to establish the likelihood of such possession, custody or control.

If it cannot be demonstrated that the documents are in the sole possession of the person from whom the documents are sought, then the request is likely to be rejected. A fortiori, the request will also be rejected if there is no reason to believe that the documents exist at all: [Page75:]

Claimants have not even made a basic representation that they have undertaken a search for the requested documents, but failed to locate them. But, even more importantly, in addition to not having demonstrated any reason to believe that the documents they request exist. Claimants also have failed to provide a convincing (or, indeed, any) reason to believe that, were they to exist, they would be exclusively in [Respondent]'s possession. For example, Claimants have not alleged any circumstances indicating that the documents sought were submitted directly, and solely, to [Respondent].

f) Redundancy

Another requirement to which reference was made in the procedural orders examined is that the documents should not have been previously produced. It would indeed be wasteful of time and money to require them to be produced again, as it would be to revisit requests already submitted and dealt with.

g) Confidentiality and privilege

It is generally understood that the production of documents may be limited if they contain confidential information or are subject to privilege. Some of the procedural orders examined contained explicit provisions relating to confidentiality. Below is an example of a particularly comprehensive confidentiality clause found in a procedural order issued in a case between European and North American parties decided by arbitrators from the same regions:

All documents produced pursuant to this order shall be subject to the following stipulation of confidentiality:

1. This stipulation shall govern the treatment of all documents produced by the parties in this proceeding, including documents designated as containing 'Confidential Material'.

2. The term 'Confidential Material', as used herein, shall mean any and all commercial or proprietary information in the possession, custody or control of a producing party. A party producing documents containing such material shall cause each page it deems to contain such material to be stamped with the legend 'CONFIDENTIAL' prior to the transmission of a physical copy thereof to the other party.

3. All documents and testimony produced in this arbitration may be used solely for the purposes of this arbitration and shall not be used for any other purpose whatsoever, including, but not limited to, the litigation between the parties currently pending before the Commercial Court of . . . or any appellate court thereof.

4. Absent prior written consent of the producing party or its counsel, and subject to paragraph 6, Confidential Material may be disclosed only to those subject to confidentiality obligations as follows:

a. parties;

b. counsel employed by a party, or any employee of such counsel to whom it is necessary that disclosure be made for the purposes of this arbitration;

c. any person not employed by a party who is expressly retained or subpoenaed by a party for the purposes of testifying or rendering assistance or providing expert opinions in this arbitration who has signed an acknowledgement substantially in the form attached as Schedule A that he or she has read this stipulation and agrees to be bound by its terms, and only to the extent necessary for such person to perform his or her assigned task;

d. any of the Arbitrators, the ICC Court of Arbitration or other personnel involved in the arbitral process; and[Page76:]

e. any potential witness of whom testimony may be taken and who has signed an acknowledgement substantially in the form attached as Schedule A that he or she has read this stipulation and agrees to be bound by its terms, except that such a person may only see copies of Confidential Material relating to that person during his or her testimony, in preparation therefor, or in discussions of possible testimony, and may not thereafter retain any Confidential Material.

5. With respect to documents obtained through discovery in any related court action or in other litigation or arbitration, to the extent that the parties are not otherwise restricted from using such documents or information, there will be no restriction imposed by the Tribunal with respect to the use of such documents as evidence in this arbitration; provided, however, that if any such documents so used are stamped or designated as 'Confidential' or 'Highly Confidential' they shall be accorded the treatment provided for documents so designated under the terms of this stipulation.

6. The producing party may seek to restrict disclosure of Confidential Material to the opposing party by designating such material HIGHLY CONFIDENTIAL and notifying counsel for the opposing party of its request that such material should not be disclosed to the opposing party, but should otherwise be subject to the other provisions of this stipulation related to Confidential Material. Counsel for the other party may undertake to carry out a preliminary review of such material (without disclosure of the material to such other party) in order to determine whether it shall agree to such heightened level of confidentiality. If the parties do not agree, the matter shall be presented to the Tribunal for decision.

7. The parties and their counsel shall maintain the confidentiality of all Confidential Material and shall make no commercial use thereof.

8. By making Confidential Material available for use in this arbitration, the parties have not waived or compromised, nor shall any other party contend that the party producing such material has waived or compromised, the confidentiality or protectability of the same, or the activities of which they are a part, or any processes, methods, techniques, operation, equipment, conclusions, insights, or results.

9. The inadvertent production of any documents in this proceeding that are otherwise subject to the attorney-client privilege shall not result in the waiver or impairment of the privileged status of such documents. Such inadvertently produced documents and any copies thereof shall be promptly returned to the producing party upon a written request, subject to determination by the Tribunal in the event of any dispute as to the claim of privilege.

10 Within sixty (60) days of the final conclusion of this arbitration, all Confidential Material will be destroyed or returned to counsel for the producing party; provided, however, that each of the Arbitrators and the ICC Court of Arbitration may retain a copy of all Confidential Material submitted as evidence in this arbitration.

11. Nothing is this stipulation shall be construed in any way to control the use, dissemination, publication, or disposition by any party of documents or information received at any time by that party outside the discovery process in this arbitration.

Other tribunals have preferred shorter provisions, such as the following, which was used in a case between British and French parties decided in Switzerland by a tribunal of European and North American arbitrators:

It is not the intention of the Arbitral Tribunal to require the release of any information which may be subject to existing confidentiality obligations on one Party or the other (such as price information in third party contracts) or to require the release of information of either Party which is genuinely proprietary or business confidential without a suitable means to have such information protected. Thus, if and to the extent the information and documents which either Party is ordered to produce in this Procedural Order would fall into such a category, that Party is authorized to inform the other Party and the Arbitral Tribunal of that fact, identifying the affected information and documents (which may be identified as a set or individually). In such case, the [Page77:] Parties' counsel shall seek diligently to arrange between them a suitable and mutually agreed means by which such information and documents can be produced in a manner to protect the information, and shall so inform the Arbitral Tribunal. Only if the Parties' counsel are unable to come to a mutually-acceptable arrangement on protection of such information, which is strongly desired by the Arbitral Tribunal, shall the Parties inform the Arbitral Tribunal in writing of that fact and of their respective positions, so that a suitable further order may be made on the subject.

Documents subject to privilege may be withheld from production. However, more than one arbitral tribunal warned against the abuse of privilege. In a dispute between South American parties, a tribunal seated in the USA comprising arbitrators from North and South America and Europe stated as a matter of principle that 'privilege should not be extended beyond the scope necessary to achieve its purpose'. As a general observation, it can be said that ICC arbitral tribunals adopt a strict approach when considering whether documents may be withheld from production under attorney-client privilege or attorney work-product privilege. For instance, the mere copying of a document to a party's attorney without demonstrating that it was confidential and intended for the predominant purpose of obtaining legal advice from that attorney was regarded as not giving that document privileged status. Similarly, documents not created solely or primarily for litigation purposes, as required by US law, were considered not to be privileged: in the words of one arbitral tribunal, '[t]he burden is on the party opposing disclosure to establish the factual support for the work product exemption'.

In four of the cases examined, a privilege log was used to identify the documents for which privilege was claimed. As described by one arbitral tribunal, such logs shall contain '(i) the date of the document; (ii) identification of the individuals (or category of individuals) to whom it has been sent or by whom it has been reviewed; (iii) a brief description of its subject matter, without disclosing any possibly privileged content; and (iv) a brief description of why the party believes that the document is privileged'. If necessary, the arbitral tribunal will examine in camera the documents listed in each party's privilege log. On the basis of the cases examined, the use of privilege logs in ICC arbitrations is occasional and would appear to have been favoured above all in cases involving US elements-be they the parties, the counsel or the seat of arbitration. One tribunal decided not to order either party to produce a privilege log until such time as one or other of them requested it to do so.

Rather than excluding documents containing confidential material, arbitral tribunals may decide that the confidential information should or may be redacted. Usually, redaction is restricted to information that has no relation to the case at hand. Hence, the tribunal sometimes asked that the nature of the information that had been redacted be indicated. The following guidance was given by one tribunal:

Each Party is entitled to redact truly irrelevant information of a sensitive or confidential nature as well as privileged information. If a document is redacted, it should, to the extent possible, not redact the information which permits a reader to identify the author, recipient, document type and date of the document. In the event such information is redacted, the Party making the redactions must provide the information in question to the other Party so that the basis for the redaction can be appropriately tested.

In a case decided in France by Continental European arbitrators, the tribunal ruled that a document whose production was sought was not privileged and should thus be communicated by the claimant to the respondent, but gave the claimant a week in which to propose to the tribunal redactions of paragraphs containing business [Page78:] secrets and/or proprietary information. The tribunal also attached to its procedural order a list of documents to be produced indicating those for which it accepted redactions and those in which no redactions were allowed. In another case, the arbitral tribunal ordered the disclosure of information that had been blanked out or removed from documents previously disclosed, reminding the parties that 'the redaction of documents may only take place on the basis of privilege and that privilege should be identified'. The tribunal at the same time invited the parties to agree on an appropriate confidentiality undertaking.

Another means of protecting confidentiality obligations used by arbitral tribunals is restricting disclosure to specific persons, as occurred in a case decided in England by a British arbitrator:

In this instance the issue raised by [Claimant] cannot be resolved on the correspondence between the parties. [Respondent] should produce the documents called for, but in light of the confidentiality concerns, only upon the basis that they are made available to designated members of the lawyers' team representing [Claimant] and to designated experts (if any are appropriate) and to those individuals only who shall each sign an undertaking to [Respondent] whereby they undertake not to make available any of the aforesaid documentation to any other person and to return the same, together with any copies made to [Respondent] immediately upon conclusion of this arbitration. If in the course of the arbitration hearing any reference is to be made to the documentation either orally or by way of written submission effective steps shall be taken whether by exclusion of all other persons from the hearing room at the relevant time, or by submission of any written material in a separate confidential form, to ensure that such material is not released further than the permitted persons. The said documentation is to be kept in the custody of a designated member of the legal team and only to be released by that individual to the other persons designated above. In the event that either party decides it to be appropriate that these documents or any of them be deployed in the arbitration hearing, a set of these documents marked 'strictly confidential' shall be provided to me by the party desiring to use them under separate cover from any other documents to be produced. [Respondent] shall be under no obligation to hand over the documentation in question to [Claimant] until it has received a written undertaking by the respective member of the [Claimant] legal team that he will carry out the above undertakings and produce the signature of any other designated person to an undertaking in the terms outlined above.

Another tribunal allowed the party producing documents to designate any material genuinely requiring protection as 'confidential' or 'attorneys' eyes only' and to withhold material so designated until all issues relating to such designations had been resolved by agreement between the parties' counsel or by an order from the tribunal.

As with other aspects of document production, the arbitral tribunal has full discretion to take the stance it considers most appropriate over the confidentiality of documents. In a case decided in Switzerland by Continental European arbitrators, the tribunal overruled the objections raised by the respondent against the claimant's production request, on the grounds that the claimant had a legitimate interest in reviewing the documents in question in order to defend itself against the respondent's allegations, and that the respondent's objections to production were explained not so much by the confidential nature of the information contained in the documents but by the fear that it might be sued for breach of a confidentiality undertaking it had made with the company to which the documents related. The tribunal recalled that the general confidentiality clause in the respondent's contract with the said company should not limit the collection of relevant and material evidence as foreseen by paragraphs 1 and 7 of Article 20 of [Page79:] the ICC Rules of Arbitration, which require the arbitral tribunal to establish the facts of the case while taking measures to protect trade secrets and confidential information. The arbitral tribunal further noted that the some of the information in the documents had already been disclosed by the respondent by other means and that the risk of a legal action by the third company was not an unreasonable burden upon the respondent as the latter had not substantiated the damages it feared and could in any case invoke the arbitral tribunal's order as a defence in any action brought against it.

h) Combination of standards and principles

It is not sufficient for just one of the criteria discussed above to be met in order for the production of a document to be ordered: the order must be able to stand up against any and all objections that could be raised by the party to which it is directed. Hence, for instance, the documents must not only be identified precisely, they must also be relevant, material, not unreasonably burdensome to produce, etc. As one arbitral tribunal put it, '[t]his is clearly-and purposely so-a high standard that needs to be met by the requesting party. And it is applying this exacting standard that the Arbitral Tribunal makes its determination concerning the document production requests . . .'

In addition, arbitral tribunals are sensitive to other factors, such as 'the goals of efficiency and economy' and, above all, the circumstances of the case at hand. For instance, an arbitral tribunal that had been requested to issue a supplemental order extending production previously ordered decided that a new order was not warranted 'from the point of view both of the timeliness of the application and the issues concerning legal privilege by which the documents requested to be produced may be covered and sufficient specificity of the request, which arise in connection with the application in question'. The tribunal recalled that it 'retains full discretion with respect to any applications for orders of production of documents, and is not subject to the strict rules governing discovery and fact finding procedures in US law'.

The combination of these various criteria and standards often leads to more restricted document disclosure than is customary in State court proceedings in certain countries.

i) IBA Rules on the Taking of Evidence in International Commercial Arbitration

The IBA Rules on the Taking of Evidence in International Commercial Arbitration, as a reflection of practices used by arbitrators in different parts of the world, offer document production mechanisms based on similar principles to those discussed above. It is therefore not surprising that reference was made to the IBA Rules in several of the procedural orders examined. These references took various forms. In two cases, the reference appeared in the Terms of Reference, which, for instance, allowed parties to present objections to document production requests 'for any reason set forth in Art. 9(2)(a) to (g) of the IBA Rules on the Taking of Evidence in International Commercial Arbitration'. In another case, the claimant submitted in its document production request that the IBA Rules 'would apply mutatis mutandis even if the Sole Arbitrator had not declared them to be applicable and the IBA Rules had not been agreed upon between the Parties'. One [Page80:] tribunal issued its order 'pursuant' to the IBA Rules, and another referred to the IBA Rules as 'governing' the proceedings. In another case the arbitral tribunal decided that it would apply the main requirements of the IBA Rules when making its decision on document production, subject to any other rules the tribunal might in its discretion apply, as neither party had objected to their use and 'the IBA Rules are generally considered as efficient and sufficiently detailed to deal with a request for production of documents'. In yet another case, the reference to the IBA Rules was to justify making a negative inference in the event of non-compliance with the tribunal's order. In some cases, the IBA Rules were referred to rather as a source of inspiration or for guidance (e.g. 'The commentaries on these IBA Rules could be a source of inspiration for the parties to address the issue of the disclosure of documents' or the IBA Rules 'reflect a generally accepted standard in international arbitration and can be considered as guidance even if they have not been specifically agreed upon by the parties to an arbitration').

III. Compliance with document production orders

The effectiveness of document production orders depends on the cooperation, diligence and integrity of the persons at whom they are directed. On rare occasions the requested party may adopt particularly obstructive behaviour. The least a tribunal can do is to issue a stern reminder of the party's obligation to effect a good faith and diligent search for documents responsive to the tribunal's order. If necessary, as happened in one of the cases examined, the tribunal may ask for a sworn statement from a director of the party affirming that the searches have been made and giving details of the steps taken and the individuals questioned in the course of such searches. Should the party claim that it no longer possesses the documents, it could, as happened in one case, be asked to provide a copy of the agreement that caused the documents to be transferred elsewhere and a sworn statement explaining why it is no longer possible to obtain the documents, and if it is claimed that the documents no longer exist, to explain how and when their loss occurred. If the requested party persists in obstructing document production, the requesting party may have no choice but to seek a subpoena from a State court.

In only one of the procedural orders examined was reference made to the imposition of a fine for each day of delay in complying with a document production order. Both parties-from North America and Europe-submitted document production requests in which they asked the tribunal to order production under penalty of a fine of a thousand euros per day of delay in complying with the order as from one month following notification of the order. While ordering the production of documents that were or could be relevant to the claims and counterclaims, the tribunal-comprising North American and European arbitrators-refrained from imposing any penalties for non-compliance, stating that it did not have the authority to do so.

Another way of inciting compliance with document production orders is for the arbitral tribunal to state that it will draw appropriate or negative inferences in the event that the documents are not produced by the party requested to produce them. In eight of the procedural orders examined reference was made to such practice. In five cases the arbitral tribunal warned that it would or could draw appropriate conclusions from a party's refusal to produce the documents [Page81:] requested. One tribunal, when ordering production, asked the requesting party to indicate whether, in the event that the other party failed to comply with the order, it wished the tribunal to turn to the relevant State court for assistance or to draw its own conclusions from such non-compliance. In another case, the tribunal refused to make adverse inferences prior to the evidentiary hearing and noted that the drawing of adverse inferences was 'not tantamount to a shifting of the burden of proof'. In yet another case, the arbitral tribunal decided that, given the relatively late stage the proceedings had reached, it would draw the appropriate inference from a party's incomplete disclosure under an existing order rather than order further production.

Conclusion

The procedural orders examined for the purpose of this article show that ICC arbitral tribunals handle document production with care and sensitivity to the interests and issues at stake. Rather than following a strict, preordained procedure, they are guided by a number of essential principles and standards. These principles and standards overarch national and regional legal systems and traditions and can therefore be-and are-applied irrespective of the origins of the parties and the arbitrators and the place of arbitration. Whilst providing a basic blueprint, they leave arbitrators free to decide on document production matters in the way best suited to the case, taking into account the parties' will, their own knowledge and experience, and the efficiency of the proceedings. By anticipating and making adequate provision for document disclosure, both the parties and the arbitrators will help to ensure that the document production process is as effective as possible.11

1
Neither the ICC International Court of Arbitration nor its Secretariat should be considered bound by any opinions expressed in this article.

2
Hereinafter also referred to as 'the Rules' or 'the Rules of Arbitration'.

3
The procedural orders referred to in this article have not otherwise been published. For published procedural orders relating to document production, see D. Hascher, Collection of Procedural Decisions in ICC Arbitration 1993-1996 (The Hague: Kluwer Law International/Paris: ICC Publishing, 1997).

4
Most of the requests were made by parties seeking documents from other parties. However, one was made by a party that sought to be exempt from disclosure, and three were from parties seeking leave to submit documents. In a number of other cases, the document production order was made on the tribunal's own initiative, not at the parties' request.

5
See part II below on the substantive criteria applied to document production.

6
As far as third parties are concerned, there is less consensus. In one case, a request by the respondent for the arbitral tribunal to invite a third party to submit a copy of an agreement between that third party and the claimant was denied, as the arbitral tribunal 'has no power or authority to order or invite third parties to submit documents in this arbitration'. This, however, is but one view and cannot be regarded as typical.

7
For further discussion of the requirements applied to document production in international arbitration, see G. Kaufmann-Kohler & P. Bärtsch, Discovery in international arbitration: How much is too much?' SchiedsVZ 2004, 13.

8
For more on confidentiality, see part III below

9
Emphasis added.

10
Translated from the French original: 'Le tribunal arbitral estime que cette demande peut être pertinente, dans l'hypothèse où il serait jugé que [la demanderesse] a bien été victime d'une violation contractuelle qui lui a causé un dommage : dans ce cas en effet, la présence de ces pièces au dossier rendrait plus précis le calcul du préjudice de [la demanderesse].' Emphasis added.

11
Below are three examples of document production provisions found in the procedural orders studied for this article. They recapitulate most of the principles and standards discussed above (1) 'If any of the Parties refuses to produce a specific document upon a simple request by the other Party, the Arbitral Tribunal shall be entitled, upon specific and precise request by one of the Parties showing the relevance of the document(s), to order the respective Party to produce the document(s) in its possession or under its control. Any such request shall identify the document(s) with a reasonable degree of specificity and shall establish the relevance of the document(s). The Arbitral Tribunal shall, at its discretion, decide on the issue taking into account in particular the legitimate interests of the other Party.' (2) 'On or before a date or dates to be determined by the Arbitral Tribunal after consultation with the Parties, each Party may make a reasonable request to the Arbitral Tribunal to order production of copies of documents or other information in hardcopy or electronic form (hereinafter 'documents') in the other party's possession, custody or control. Such request shall identify the documents, or a narrow and specific requested category of documents, in sufficient detail, state why such documents are relevant and material to the outcome of the case and confirm that the documents are not in the possession, custody or control of the requesting party.On or before a date or dates to be determined by the Arbitral Tribunal after consultation with the Parties, each Party may file with the Arbitral Tribunal, with a copy to the other Party, any objection to the request for an order of production made by the other Party for any reason set forth in Art. 9(2)(a) to (g) of the IBA Rules on the Taking of Evidence in International Commercial Arbitration.'(3) 'Documents which are not at the party's disposal: a) Any party may make a reasonable request to the Arbitral Tribunal to order production of copies of documents by the other party. Such request shall identify the documents in sufficient detail and state why such documents are relevant and material to the outcome of the case and why the requesting party assumes the documents requested to be in the possession or control of the other party. b) The Arbitral Tribunal shall consider such request and any objections raised thereto by the other party. If the other party, despite an order to produce made by the Arbitral Tribunal, fails to produce the documents without showing sufficient cause for such failure, the Arbitral Tribunal may draw from such failure any conclusion which it deems reasonable, in particular with respect to the content of such document.'