An essential key in every arbitration is for the tribunal to have the evidence that will enable it to determine the issues before it. There are often different views as to what evidence is relevant, especially from the point of view of the parties, but also from the perspective of the tribunal.

The initial question concerns the source of rules for the collection and admissibility of evidence. There are three obvious sources for the rules that regulate how evidence should be collected: national laws, arbitration rules and what is agreed to in each case by the parties. These options are enhanced in the IBA Rules on the Taking of Evidence in International Commercial Arbitration (IBA Rules). Today, these IBA Rules play an increasingly important role in international arbitration and are used by arbitrators as a resource for the admissibility and determination of relevant evidence in an efficient and economical manner. 1

1. Alternative forms of evidence

International tribunals, regardless of the individual arbitrators' backgrounds, are likely to admit any form of evidence that will help them to resolve the dispute before them, in spite of any limiting rules of evidence. 2 Article 20 of the ICC Rules of Arbitration allows the arbitrators the power to adopt an evidence-taking procedure that establishes the facts of the case and meets the parties' expectations. Similarly, Articles 24 and 25 of the UNCITRAL Arbitration Rules give the tribunal broad powers in evidence-taking, including the ability to "require the parties to produce documents, exhibits or other evidence" under Article 24(3) and the power to "determine the admissibility, [Page12:] relevance, materiality and weight of the evidence offered" under Article 25(6). In contrast, national court rules and procedures are significantly more restrictive, as they are based on what is required under the national procedural code or rules. In some cases, arbitrators may be influenced by national procedural rules because they are the rules of the seat of the arbitration or the rules with which the tribunal is most familiar. Accordingly, despite the generally broad powers granted to tribunals in evidence-taking, lawyers must be cautious of the way a tribunal may receive different kinds of evidence based on its composition.

There are four principal sources of evidence: (a) witnesses; (b) experts; (c) documents; and (d) inspections. Each of these is considered below. Other forms of evidence, which may or may not fall within one of the above categories, include photographs, recordings or pictures, samples of the goods or components, equipment relevant to or used in the performance of the contract and information assimilated by third parties that is relevant to, but not necessarily prepared for, the dispute in question.

a. Witnesses

The general practice in international arbitration, consistent with common law systems, is that anybody may testify before the tribunal. This is not the case in civil law systems, and in some cases may be an issue for arbitrators or counsel with a civil law background. 3 A frequently raised issue is the presence of witnesses within the hearing room while other witnesses are being examined. National systems deal with this issue differently. On the one hand, witnesses will invariably have read or have been informed of the content of the other witnesses statements and are thus aware of the evidence. On the other hand, some feel the presence of a later witness at the examination of an earlier witness gives the former and the party who has presented the witness an advantage because he or she will have heard the questions in contention and will be able to prepare the answers. This is an issue for a tribunal to determine in each specific case.

b. Experts

Expert testimony may be given orally and/or in writing, although generally experts testify before the tribunal. There are three different kinds of experts: they may be party-appointed, independent (appointed jointly by the parties) or tribunal-appointed. Party-appointed experts are generally instructed by the party by which they were appointed, whereas tribunal-appointed experts and independents report their findings directly to the tribunal. [Page13:]

The large majority of experts are honest, regardless of party affiliation. Those in the minority present a problem to tribunals: how to separate partial from impartial testimony? To ameliorate this effect, most arbitration rules give the tribunal the power to appoint its own expert. 4 These powers are also provided for in the Model Law, which provides the parties with an opportunity to agree to exclude or limit this power, whereas the IBA Rules on Evidence and the ICC Arbitration Rules require that the tribunal consult with the parties prior to an expert appointment. There is no similar provision in the UNCITRAL Arbitration Rules.

In large and complicated cases, each party may produce its own expert, with the tribunal to appoint a third. To expedite proceedings, the experts may participate in "expert conferencing", whereby the experts discuss their opinions, assisting the tribunal to narrow its focus on the disputed opinions of fact.

c. Documents

Documents are either received from the parties or sought by the tribunal. They are generally submitted to the tribunal prior to the hearing rather than being presented as evidence during the course of the hearing. Documentary evidence is given great credence in international commercial arbitration, because it generally does not lie as inevitably it is a positive record. However, it also does not necessarily prove the point that the submitting party intended.

The tribunal generally has power to determine the procedure for submission of documents. Absent agreement of the parties, the tribunal is responsible for setting this procedure. This procedure includes rules to determine how the documents are filed, alone or together with witness statements to formally introduce the documents. While the latter is a cumbersome system, witnesses are often examined with direct reference to specific documents with which they were or should have been involved or even with respect to the absence of a particularly pertinent document.

d. Inspection

Another form of evidence is that collected by a tribunal when visiting or inspecting a site. Such inspections are common mostly in large construction, engineering or technical disputes. [Page14:]

The power of inspection is granted to the tribunal either expressly or through implication in prominent arbitration rules and law. Tribunals are given the power of site inspection, either at their own volition or the request of a party. Although not expressly included within the ICC Rules of Arbitration, Article 20 can be construed to include site inspection by the tribunal, as such evidence may help to establish the facts of the case and would reasonably be within the parties' expectations in a construction or engineering case or in other situations where the venue of performance is important. Such an interpretation is also consistent with Article 35 of the ICC Rules. Article 16(3) of the UNCITRAL Arbitration Rules implies the power of site inspection, expressly allowing the tribunal to "meet at any place it deems appropriate for the inspection of goods, other property or documents". Site visits are arguably "other evidence" in the terms of Article 24 of the UNCITRAL Arbitration Rules.

2. Weight of evidence

A major feature in every arbitration is for the tribunal to determine what weight and relevance to give to different elements of the evidence presented to them, which may influence its conclusions.

a. Oral evidence

Oral testimony is the subjective viewpoint of an individual witness. The tribunal will determine the weight to be given to such witness evidence in the light of other evidence in the record. It is not surprising that legal systems are not in agreement on the appropriate contact between lawyers and witnesses prior to the proceedings. No clear rules in this regard exist in international arbitration, but most lawyers prepare witnesses prior to their testimony. 5 These differences may affect the different weights given to oral testimony by differently composed tribunals.

Some argue that the preparation of a witness creates a risk that their testimony may be tainted or improperly influenced. However, this is where the examination of the witness, and cross-examination in particular, may prove beneficial, as it allows additional information to be drawn out of witnesses. This will often help the tribunal to consider the reliability of documentary evidence and place it in context. In some countries, lawyers may not prepare witnesses. However, where such preparation is not against applicable mandatory law, the determination of how witnesses may be [Page15:] prepared or questioned is ultimately left to the parties. Where there are differences in approach, it may be advisable for the parties to raise the issue with the tribunal to at least ensure transparency and perceived equality.

b. Documentary evidence

In civil law countries, documentary evidence is given more weight than witness testimony. The opposite is true in common law countries, where witness testimony is considered superior. International arbitration tribunals rely first and foremost on documentary evidence. 6

A very small number of documents can and often do determine an arbitration. On occasion, especially in document-heavy cases, arbitrators may ask parties to submit to the tribunal a relatively small number of documents (e.g. 20-30 documents), which they jointly or separately consider the most relevant to the case. Such relevant documents include correspondence between parties that may provide context for the parties' expectations and agreements at the time of the contract or immediately after.

In some cases, the authenticity of the documents may be challenged. This should be done with great care. Still, such challenges are rarely successful. A key factor is whether or not a document was created by the individual(s) named and in the circumstances and for the purpose stated. On the other hand, a tribunal is normally able to determine in what context the document arose by examining its contents.

3. Forms of documents

Opinions as to what constitutes a "document" vary between the civil and common law systems. Literally and legally speaking, in some jurisdictions, a document is interpreted to mean a piece of paper or other tangible item that is relevant to the dispute. In other jurisdictions, e-mail messages, computer databases or voicemail messages are also construed as documents.

Modern technologies and their significance for arbitration agreements were recognized on an international level in 2006, when it was recommended that the form requirements outlined in Article II of the New York Convention not be interpreted as exhaustive. In doing so, the recommendations referenced the "wide use of e-commerce", the need for uniformity in interpretation of form requirements and several international treaties regarding e-commerce. 7[Page16:]

One such treaty is the 2005 United Nations Convention on the Use of Electronic Communications in International Contracts. Article 8 legally recognizes electronic communication and Article 9(1) provides that there is no particular requirement as to the form of any communication or contract. (Article 9(1)) ICC endorsed the Convention in 2006, 8 which at present has only 18 signatories and has not yet entered into force. Regardless, the Convention demonstrates the different forms a document may take in Article 4. 9 It is also likely that this wide interpretation of documents will be accepted in international arbitration practice ahead of national laws.

Additionally, Option I for Article 7 of the UNCITRAL Model Law, as amended in 2006, implies that a document can take many different forms "including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy" which can be "generated, sent, received or stored by electronic, magnetic, optical or similar means" by acknowledging that an arbitration agreement can be "written" in these forms. Option II for Article 7 does not address these issues. Only a few countries have adopted the UNCITRAL Model Law with the above-mentioned amendment in the terms of Article 7.

What constitutes an admissible document is a separate and distinct issue governed by the applicable procedural rules, if any (e.g. the mandatory rules at the place of arbitration or the IBA Rules). Different opinions exist with respect to the admissibility of precontractual correspondence versus contractual documents representing the final agreement, disclosure of correspondence between attorney and client and relevance of information available in the public domain, such as newspaper articles or other reports. These examples are discussed further below.

As already noted, an arbitral tribunal has broad powers in evidence-taking. It will generally accept any piece of evidence that it finds relevant to the resolution of the dispute, taking note of the parties' choice of law, applicable mandatory law and considerations of due process.

As regards the types of document that may be relevant in an arbitration, the following sections discuss five specific characteristics: (a) original documents contemporaneous with the contract; (b) documents prepared during the performance of the contract; (c) documents prepared with the dispute in mind; (d) documents prepared during the course of the dispute; and (e) to whom do the documents belong? [Page17:]

a. Original contract documents

The original contractual documents record the parties' agreements and relationship. In common law systems, the document created and formally signed or adopted at the time of contracting is the only contractual document that should be considered, as it is representative of the final negotiation and agreed terms of the parties. This legal concept is memorialized in the parol evidence rule, which is strictly applied. However, in civil law countries, precontractual documents are also considered in any determination of a contractual relationship.

In practice, it would appear that, in the absence of strict rules as to admissibility, arbitral tribunals increasingly look back beyond contractual documents when considering disputes. Precontractual documents provide the context in which the final agreement arose, information which may provide interpretive value to the tribunal. Looking at the earlier contractual negotiations does not necessarily mean a different conclusion to the final written contract per se; however, it may help the tribunal to reach a better understanding of the parties' relationship, intentions and agreement.

b. Documents prepared in course of contract performance

Throughout contract performance, different types of documents are prepared as a part of daily business, including: minutes of meetings between key figures, such as project leaders and engineers; business, marketing and financial plans; financial projections; strategic analyses and targets or courses of action; correspondence between the parties during contract performance; and incidental reports. These documents may provide valuable insight into a dispute. Incidental reports, documenting those "things that always happen" are common in construction cases, in particular.

c. Documents prepared for dispute

Especially in situations where things are going wrong during contract performance, parties may become conscious of possible future disputes. Accordingly, they begin documenting all problems, preparing a record "just in case", perhaps in an attempt to present their business partner in a bad light. These documents are intended to provide a trail within the dispute on which a party can rely in the arbitration. They often record the history and development of the dispute and the claimed or actual intentions of the parties. The tribunal has to distinguish self-serving allegations as to what the document reflects from factual allegations and records. [Page18:]

d. Documents prepared during dispute

Documents prepared during the parties' dispute include internal reports, inter-party correspondence and legal reports/correspondence. Internal reports are internal communications, for example an engineer notifying the project manager of a problem with the subject matter in dispute. Inter-party correspondence exists as a result of each party notifying the other of the existing problems and disputing responsibility. Legal reports and correspondence include any communication between internal figures and in-house counsel, in-house counsel and outside counsel and opposing counsels. Legal reports and correspondence are often self-serving and therefore may not be entirely representative of the party's role in the dispute. Here, too, if such documents come before a tribunal, it must separate the relevant facts which the document records from the subjective facts created by a party.

Legal correspondence raises special issues of privilege. Generally, such material is exempt from consideration by third parties, including the tribunal. Privilege constitutes a grey area in international commercial arbitration. While the principle of legal privilege is universally accepted, its extent and how it applies is far more complicated. There is little general practice for arbitrators in regard to the resolution of privilege issues, including the lack of conflict of laws rules for determining the law applicable to privilege. 10

Generally, common law systems construe privilege broadly, whereas civil law systems have a more limited view as to what constitutes privileged communication. For example, under US and English law, communications with in-house counsel are protected by attorney-client privilege, whereas under some civil law systems such communications are not protected by this privilege. Moreover, the privilege is invoked differently in various legal systems: under US and English law, the privilege is that of the party and may be waived by that party; under civil law systems, the privilege may also belong to the attorney, making the issue one of professional integrity.

These divergent approaches create differing expectations among the parties, which must be considered carefully by a tribunal. According to Berger, "a consensus is beginning to emerge which provides arbitral tribunals with concrete and workable guidelines in dealing with privilege issues." 11 In brief, these guidelines suggest that privilege issues should be classified as substantive, that a 'closest connection' conflict of laws rule should be applied, as parties usually do not chose a law applicable to privilege, and that the tribunal should apply the most favourable applicable privilege law equally to both parties. [Page19:]

Regardless of what method is used by the tribunal to consider issues of privilege, and despite the tribunals' broad powers in regard to taking evidence in general, the tribunal must consider any applicable mandatory laws regarding privilege. The laws of privilege must be applied equally to the parties to avoid problems with enforcement of the arbitral award.

Ultimately, the good faith expectations of parties in regard to privilege-related issues, including aspects of privilege involved in public policy, must be balanced with the parties' expectations of predictability and efficiency in arbitration.

Beyond issues of privilege, parties may disagree as to whether they are required to submit documents construed as unfavourable to their respective positions, with some expecting to submit only those documents that are self-serving. English and, to a greater extent, US lawyers expect to submit all information relevant to the case, except those documents that are considered privileged, regardless of their effect on the legal case. Lawyers from civil law systems do not expect to submit unfavourable documents or information and would naturally decline to do so. These differing expectations create conflict between the parties and represent another challenge to arbitral tribunals.

e. Whose documents?

Documents that can be considered by the tribunal include those prepared by the parties, those prepared by third (interested) parties, such as engineers or architects on a construction project, and those documents that are incidentally prepared by unconnected parties and available in the public domain, such as newspaper articles or PhD dissertations. Examples of such documents include a newspaper article discussing how the environment has affected the quality of potatoes, a study finding that certain vegetables grown using a particular fertilizer are unsafe for the public, or even the outcome of a widely publicized case based on similar facts. Such information may help the tribunal to understand the context in which a particular dispute arose and aid in its resolution. Of course, the applicability of information in the public domain depends on the nature and facts of the case.

Common law lawyers will consider this sort of information crucial where it is applicable. On the other hand, civil law lawyers will ask why third parties are getting involved in a dispute between the parties and will question the applicability of outside events or other information available in the public domain. [Page20:]

Finally, where documents are illegally obtained or otherwise stolen, arbitrators must determine, in accordance with mandatory applicable law, the general rules applying in the particular case and the parties' expectations, whether the documents should be admitted for consideration.

4. E-documents

Electronic documents or "e-documents" are becoming increasingly prevalent in international arbitration. All business today is conducted almost entirely in electronic form. 12 E-documents exist in many forms, 13 and it is difficult to establish what form is the most appropriate for e-document submission because different aspects of e-documents may be relevant. Some aspects of e-documents are not printable in a tangible form but may prove very useful to a tribunal, such as who an e-mail was sent to and whether or not they read the e-mail.

An important consideration is the sheer volume of e-documents and their production as evidence in international arbitration. As an example, imagine an e-mail chain, where the originator sends an e-mail regarding a problem; to which another replies, copying others who may be interested; one of those to whom the e-mail was copied replies, again copying others who may have an interest in the particular matter.

What is the extent of search required to produce these documents: how far, and at what cost, should a party have to go in locating an e-document and when may a party refuse to produce these documents? Unreasonable burden in production of electronic documents must be considered, along with the convergence of e-documents and international arbitration. The attributes, benefits and downfalls of electronic evidence and e-discovery, as well as the need to create flexible rules for their use in international arbitration, is one of the most challenging issues with which we are faced at present time.

5. Time for production of documents

When should documents be submitted in an international arbitration: (a) with written submissions; (b) separately after filing the written submissions; or (c) at the request or order of the other party or the tribunal. [Page21:]

a. Pleadings/written submissions

Different views exist as to the appropriate timeline for production of documents in international arbitration.

One view is to put the "whole story on the table" via the pleading, including all arguments as to the issues of law and fact and all of the supporting evidence. This style is often used where there is not to be a hearing or only a short hearing intended for clarification questions asked by the tribunal. Even where there will be a full hearing, the written submissions must demonstrate a prima facie complaint. Furthermore, offering all of the relevant testimony in the pleadings, including witness statements and expert reports, provides a party with an opportunity to convince the tribunal of the merits of its claim before the hearing even begins and could also expedite the proceeding by narrowing the claim through concessions made by the respondent in its answer.

b. Separately after pleadings/written submissions

Another view is to present only the claim and the essential agreements relied on in the claim in the initial pleading, treating it as "a mere prelude to a substantial hearing," which effectively creates another stage in the proceedings. 14

c. At request or order

Finally, a third view, which is the US approach, is to present the claim and the documents relied on in the claim but then ask for production of all relevant documents, i.e. discovery. Described as "a powerful instrument of justice, if it is employed with discretion", discovery is "an integral part of common law procedure". 15 US-style discovery extends far beyond that employed under English law. In contrast, "[i]n civil law proceedings, parties' lawyers generally produce those documents upon which they seek to rely". 16 Where discovery style disclosure is implemented under a civil law system, it is done only to a comparatively limited extent. [Page22:]

Whether US-style discovery is good or evil and whether elements of US-style discovery can be used to meet the goal of due process in international arbitration without infringing on the twin goal of efficiency is the subject of a continuing debate with polarized views. Generally speaking, and in accordance with most arbitration rules, tribunals will order specific and relevant documents or categories of documents if persuaded that they are relevant to the issues in the arbitration. This is the practice generally subscribed to by the IBA Rules. In practice, the parties submit to the tribunal those documents on which they rely and then fight about what is missing.

6. Burden of production

On whom does the burden of proof in international commercial arbitration lie? Moreover, how is the burden of proof imposed by the tribunal?

Generally, the party that makes the allegation must prove it; one should only have to defend what can be proven. Practically speaking, if sufficient evidence to satisfy the tribunal is not offered to shift the burden to the respondent, the tribunal will find in favour of the respondent.

However, as there is no possibility of summary judgment in international arbitration, there is no overarching prima facie burden of production on the claimant. As a corollary, the respondent will invariably have to present a defence and provide its evidence of non-liability or otherwise refute the claims and allegations against it. In practice, the standard of proof in arbitration requires a level that persuades the tribunal in one's favour. This will inevitably be a balance of probabilities. In practice, this will be whether the tribunal is satisfied, or believes, on the basis of the evidence, that the claims or defences are substantiated.

Due to this background, there are cases where the tactics of the parties aim to require the other party to produce documents at an early stage. This can occur, for example, where after a very general request or notice of arbitration, a claimant seeks extensive production of documents following the respondents answer or reply. [Page23:]

a. Obligation to produce

The first question is on whom the obligation to produce documents lies? Parties in possession of documents that may adversely affect them are not always obligated to produce them. 17 In common law systems, the obligation to produce extends to all relevant documents, including documents on which the party relies and adverse documents. In civil law systems, the obligation may not extend to documents that adversely affect a party's position or documents that would have a positive impact on their opponents' case. One practice to ameliorate these differences is for the tribunal to examine bundles of evidence chronologically and issue orders for any piece of evidence that appears to be a "missing piece of the puzzle" but not necessarily to order production of a given document that does not appear to be relevant to resolution of the dispute.

The effect of a failure to produce evidence differs among different national legal systems. In many cases, and in accordance with many international arbitration rules including the IBA Rules, the tribunal may make 'adverse inferences' from a party's silence or failure to produce documents that were reasonably requested if necessary. The effect of adverse inferences, including where they can be made and the extent to which they are made by a tribunal, is a continuing issue. Exactly how a tribunal concludes an issue where there is a probable missing document, which one party says it cannot or will not produce, is unclear. The absence of the document may leave an issue unclear and will rarely provide a tribunal with a firm factual situation.

b. Purpose of production

However, it is up to each party to prove the essential facts of its case. The many purposes of production of documentary evidence are to explain the parties' contract and illustrate the dispute, to show the motivation of the parties, to examine witnesses, to discredit a party or a witness (through cross-examination) and to show the intentions of parties and witnesses (if done at an early stage).

c. At the request of the other party/tribunal

The time for document production applications varies across systems. The IBA Rules provide that a request for production of evidence should be made within the time set by the tribunal. What if the documents are not produced [Page24:] within this time because, in the parties' view, they are privileged or simply not available because the party does not have them? A problem arises in these cases because a tribunal is not a court: it does not have the legal jurisdiction to order and compel production and legally penalize non-production.

When a tribunal's order for production is ignored, the tribunal or the requesting party may seek the assistance of national courts and law both in the country of the place of arbitration and in the country where the party or the documents are situated. 18 However, in almost all cases, parties must first ask the tribunal "to order the production of documents and turn to the courts only as a last resort". 19 Whether the court is able and willing to provide the assistance depends on local law and in some cases requires the prior permission of the arbitral tribunal.

In the United States, a tribunal would generally be more successful than a party in seeking court assistance for a subpoena or order of discovery after the tribunal has been formed. 20 This is in contrast to England, where court intervention in support of arbitration is specifically provided for in the Arbitration Act 1996, but pre-hearing discovery is more limited in scope.

d. Third-party documents

Increasingly, parties seek documents that are in the hands of third parties. This gives rise to several issues, including what authority the tribunal has over third parties.

As a general rule, both in practice and legally, a tribunal cannot order a non-party to the arbitration to produce evidence in its possession or to appear as a witness. To gain access to these documents, tribunals must seek the assistance of the courts. One exception to this general rule is that under US law a tribunal can order discovery and document production from a third party.

e. Interim and conservatory measures

The ability of an arbitration tribunal to order interim measures to preserve evidence depends, first, on whether it has been constituted. After it has been constituted, the tribunal is often in a better position to evaluate the facts with regard to the need for such measures than a court. [Page25:]

Arbitration laws and the majority of international arbitration rules contain provisions for such powers, but vary in terms of their extent. 21

f. Enforcement issues

A final consideration is the effect that an arbitration tribunal's application of evidentiary procedure could potentially have on the enforcement of an arbitral award. Even where the parties have agreed on the procedure to be followed, the essential rules for enforcement of the final award should be borne in mind at all times. This means that the tribunal must take care to treat the parties equally, including with regard to the opportunity to be heard. Thus, while the admissibility of documents comes within the discretion of the tribunal, this discretion ought to be applied on an equal basis.

Accordingly, if parties agree to a particular set of rules for evidence-taking, for instance the IBA Rules, the application of these rules by the tribunal is an imperative subject to few exceptions, such as mandatory law and international public policy.

7. Conclusion

It is an essential that arbitrators render a final and effective award. To this end, they require the evidence that is necessary to enable them to determine the issues between the parties and motivate their decision. In most cases, the principal form of this evidence is in writing, i.e. documents, witness statements and expert reports. There are no hard rules on the production of evidence in international arbitration. However, there is an increasing international practice influenced by the UNCITRAL Model Law, the UNCITRAL Arbitration Rules, the rules of major arbitration institutions and the IBA Rules. To avoid confusion and avoid later disputes concerning due process and transparency in the evidence collection stage, the arrangements for the submission and filing of evidence should be set out and understood between the parties and the tribunal at an early stage in the arbitration process.

1
The IBA Rules provide mechanisms for the presentation of documents, witnesses of fact, expert witnesses and inspections, as well as for the conduct of evidentiary hearings. They are designed to be used in conjunction with institutional or ad hoc rules or procedures governing international commercial arbitrations.

2
See Redfern and Hunter (with Blackaby and Partasides), Law and Practice of International Commercial Arbitration 4th edn. (2004) at para. 6-65. See also Art. 9(2) of the IBA Rules.

3
See Lew, Mistelis and Kroll, Comparative International Commercial Arbitration (1993) p. 571, para. 22-65; Art. 4(2) of the IBA Rules.

4
Art. 6 of the IBA Rules; Art. 20(4) of the ICC Rules, Art. 26 of the UNCITRAL Model Law and Art. 27 of the UNCITRAL Arbitration Rules.

5
For further discussion, see Craig, Park and Paulsson. International Chamber of Commerce, 3rd edn. (1998) p. 441-442; see also Lew, Mistelis and Kroll, supra note 3, at p. 573, para. 22-73.

6
See, e.g., Craig, Park and Paulsson, supra note 5, at pp. 428-429; Redfern and Hunter, supra note 2, at pp. 354-355, para. 6-69.

7
Recommendation regarding the interpretation of Art. II, para. 2 and Art. VII, para. 1 of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done in New York, 10 June 1958, adopted by the United Nations Commission on International Trade Law on 7 July 2006 at its 39th session.

8
Paris, 19 June 2006, Business endorses UN convention on electronic contracting, available at: http://www.iccwbo.org/policy/ebitt/icchgdi/index.html.

9
Art. 4 of the UN Convention on the Use of Electronic Communications in International Contracts (2005). The Convention defines such terms as communication, electronic communication, data message, information system and automated message system. Ibid.

10
For further discussion, see Berger, Evidentiary Privileges Best Practice Standards vs./and Arbitral Discretion, ASA Special Series No. 26 (July 2006) pp. 19-20.

11
Ibid., at p. 38.

12
For further discussion see Newman (moderator), 'Disclosure in International Arbitration: The Issues', panel discussion, in David J. Howell (ed.), Electronic Disclosure in International Arbitration (2008) pp. 127-151 at p. 127.

13
For further discussion, see 'Appendix 7: Managing Disclosure of Electronic Information: A Pocket Guide for Judges', in Howell, supra note 12, at p. 353.

14
See discussion of the above two positions in Redfern and Hunter, supra note 2, at p. 334.

15
See Lew, Mistelis and Kroll, supra note 3, at pp. 566-567, para. 22-49.

16
Ibid.

17
For further discussion, see Craig, Park, and Paulsson, supra note 5, at p. 453; Redfern and Hunter, supra note 2, at p. 355, para. 6-70.

18
Lew, Mistelis, and Kroll, supra note 3, at p. 580, para. 22-96.

19
Caron, Caplan and Pellonpaa. Oxford Commentaries on International Law: The UNCITRAL Arbitration Rules: A Commentary (2006) p. 579.

20
See Craig, Park and Paulsson, supra note 5, at p. 488.

21
See Lew, Mistelis and Kroll, supra note 3, at pp. 589-591, paras. 23-15 - 23-23.