1. Introduction

Document production in international arbitration typically involves two distinct phases. First, each party has the obvious duty to produce the documents on which it intends to rely in order to satisfy its burden of proof. Secondly, each party is usually given the opportunity to request the opposite party to produce additional documents that are relevant and material to the outcome of the case but are not available to the requesting party from other sources. Document production may confront arbitrators with difficult issues of forgery and fraud.

In this paper, I will discuss: (i) various categories of fraudulent behaviour by the parties relating to document production encountered in the course of arbitral proceedings; (ii) issues with which arbitrators are confronted in the event of fraudulent document production; and (iii) remedies available to the parties before the national courts against arbitral awards on the grounds of fraud in document production. [Page178:]

2. Categories of fraud related to document production

a. Production of forged or false documents

Firstly, forged documents may be produced by a claimant to evidence the source of the claim, e.g. bearer bonds or promissory notes.

A case in point is the ICSID arbitration brought by the Dutch investment company I&I Beheer in 2005. I&I Beheer argued that Venezuela had breached the Netherlands-Venezuelan bilateral investment treaty by denying payment on two promissory notes, worth USD 10 million, that it had acquired in 2004. The notes were originally issued in 1981 by Venezuela's state-owned agricultural development bank, Bandagro, and guaranteed by the Venezuelan government. Venezuela argued the notes were forged as part of an international criminal conspiracy against Venezuela. The defence was supported by expert forensic evidence indicating that both the notes themselves and documents supporting their authenticity were forgeries. I&I Beheer's claim was ultimately dismissed for procedural reasons when it failed to pursue the arbitration. 1

Secondly, forged or false documents may be produced by a claimant or respondent as written evidence supporting a specific allegation made in support of the claim or a defence, e.g. letters, e-mails, financial statements, contracts, meeting minutes, corporate documents and so forth.

A notorious example is the Qatar v. Bahrain case conducted before the International Court of Justice (ICJ). The case was about a boundary dispute between the State of Qatar and the State of Bahrain. One of the issues in dispute was the territorial sovereignty over the Hawar Islands, which lie between the two states in the southern part of the Arabian/Persian Gulf. Qatar supported its claim to the Hawar Islands with 82 letters allegedly written around 1939 that called into question a decision by the British colonial administration recognizing Bahrain's sovereignty over the islands. Bahrain had the letters examined by 12 of the world's leading forgery experts, who concluded not only that the documents were forged but that the forgery was blatant. Qatar denied that the documents were forged but subsequently agreed to withdraw all of them from the case file. Accordingly, the ICJ noted in a procedural order that the 82 documents whose authenticity had been challenged by Bahrain would be disregarded for the purpose of deciding the dispute. The case then went on, and Qatar's claim to the Hawar Islands was ultimately dismissed pursuant to a ruling of the ICJ that an earlier 1939 decision by the British, which gave the islands to Bahrain, was binding on the two states. 2[Page179:]

Another example is European Gas Turbines S.A. (EGT) v. Westman International Ltd. (Alsthom). In this case, an ICC tribunal rendered an award in favour of Westman. In the arbitral proceedings, Westman had submitted an expense report listing expenses for a total amount of CHF 7.1 million, including personnel's salaries and the rent of an office in Teheran. EGT sought annulment of the award before the Paris Court of Appeal, alleging, inter alia, that the award was based on a fraudulent report of expenses submitted by Westman. An expert report, submitted by EGT in the annulment proceedings, showed that Westman had in fact not paid any rent or salaries. The Court of Appeal found that some parts of the arbitral award were affected by Westman's fraudulent document production. It therefore annulled the award insofar as it was based on Westman's expense report. 3

b. Production of illicitly or fraudulently obtained documents

A claimant or respondent may produce documents that have been obtained by fraud or through other illegal methods, e.g. documents stolen or otherwise obtained against the will of the issuer or the legitimate possessor of the documents.

In an ICC arbitration concerning a construction dispute, the respondent submitted a memorandum by an in-house technical expert of the claimant. It was addressed to the claimant's management and analyzed the status and the history of the construction project. The memorandum had been stored on a memory stick that one of the claimant's employees had given to an employee of the respondent for the purpose of checking and commenting on the draft minutes of a meeting that were on the memory stick. The claimant did not only comment on the draft minutes but also downloaded the memorandum before it returned the memory stick. The claimant argued that the downloading of the memorandum from the memory stick was unlawful and that it should not be admissible as evidence in the arbitral proceedings because it was "obtained through illegal methods". The respondent vigorously objected. The arbitral tribunal decided that under the law of the place of arbitration, on which both parties relied in their pleadings on the issue, the memorandum had not been illegally obtained and thus should be admitted as evidence. [Page180:]

c. Fraudulent withholding or concealing of documents

A party that is ordered to produce documents that are in its possession and deemed material to the case may deliberately withhold or conceal documents.

In the highly publicized LCIA arbitration between Elektrim and Vivendi, the arbitral tribunal ordered Vivendi to produce documents that were circulated to Vivendi's board and were relevant to Vivendi's position in a specific company. At some point in time, Vivendi confirmed that there were no further documents falling within the scope of the order. Later on, Elektrim got hold of a memorandum that had been copied by a senior Vivendi employee to the board and had not been produced in the course of the arbitration. Elektrim applied to the High Court in London to set aside a previous partial award rendered by the tribunal on the grounds of serious irregularity (Section 68(2)(g) of the UK Arbitration Act 1996). Elektrim argued that the memorandum had been deliberately withheld by Vivendi or at least that there had been a reckless failure to disclose it. Had it been disclosed, it would have been possible for Elektrim to adduce evidence of Vivendi's exact position in another company and to show that the author of the memorandum had given false evidence. That would in Elektrim's view have led the arbitrators to reach different conclusions in the partial award. Justice Aikens concluded that it had not been demonstrated by Elektrim that anyone in Vivendi or the law firm representing it had deliberately concealed the memorandum. 4

3. Issues before the arbitrators

a. Action ex officio or only upon the request of a party?

If, in the course of the proceedings, the arbitrators come to suspect that documents produced by a party are forged or that a specific relevant document exists but is deliberately concealed, should they address the issue ex officio or only upon the request of a party?

Generally, the parties will be in a better position to recognize forgery, and the party against which the fraud is directed will typically challenge it. However, how should arbitrators react if they suspect "consensual fraud", i.e. where none of the parties raise the issue of fraud but the arbitrators suspect that the arbitration is jointly arranged by the parties based on a fake contract, e.g. for the purpose of money laundering? Under what circumstances may the arbitrators, on their own initiative, conclude that there is no real dispute [Page181:] and therefore refuse to hear the case? How far must they go in testing the parties' real intentions? A serious investigation is required. However, if serious doubts remain after such an investigation, the arbitrators must be free to refuse to hear the case.

A recent example of an intended fake arbitration is the "dispute resolution" agreed between the parties in the highly publicized sexual harassment lawsuit brought by Mary Nelson, a former sales manager for American Apparel, against American Apparel, Inc. and its chief executive officer, Mr Charney. The parties to the lawsuit entered into an out-of-court settlement under which the defendants agreed to pay Ms Nelson USD 1.3 million in return for Ms Nelson's agreement to a fake arbitration. The agreement provided that an arbitrator selected and paid for by American Apparel would conduct an arbitration between the parties and enter a predetermined award in the defendants' favour based on an agreed set of "facts". The settlement also provided that American Apparel, Inc. would be allowed to subsequently issue a press release stating that an arbitrator had ruled in the defendants' favour. 5

b. Authority of the arbitrators to rule on objections of fraud

If a party raises allegations that documents produced by the other party are false or forged, do the arbitrators have the authority to decide the issue or must they refer the matter to the state courts for decision?

The answer depends on the law of the place of arbitration (lex arbitri). Some national laws appear to indicate that the arbitrators must refer the matter to the state courts. For example, Article 1696(5) of the Belgian Judicial Code provides: "The Arbitral Tribunal may not order

the verification of signatures nor rule on an objection relating to the production of documents or upon the alleged falseness of documents. In this case, it will leave it to the parties to bring the matter to the Court of First Instance within a determined period."

c. Standard of proof

Where a party raises allegations that documents relevant to the outcome of the case are forged and the arbitrators have the authority to decide the issue, which standard of proof shall they apply in deciding whether the party alleging forgery has satisfied its burden of proof? [Page182:]

Is the nature of the allegation of forgery such that it requires the application of a standard of proof greater than the customary standard of "preponderance of the evidence"? Should the applicable standard be "clear and convincing evidence"? In Dadras v. Iran, 6 before the Iran-US Claims Tribunal the Arbitral Tribunal held:

"123. The Tribunal has considered whether the nature of the allegation of forgery is such that it requires the application of a standard of proof greater than the customary civil standard of 'preponderance of the evidence'. Support for the view that a higher standard is required may be found in American law and English law, both of which apply heightened proof requirements to allegations of fraudulent behavior …

"124. The allegations of forgery in these cases seem to the Tribunal to be of a character that requires an enhanced standard of proof… The minimum quantum of evidence that will be required to satisfy the Tribunal may be described as 'clear and convincing evidence', although the Tribunal deems that precise terminology less important than the enhanced proof requirement that it expresses." 7

A similarly high standard of proof was proposed where allegations were made by a party that documents were fraudulently withheld or concealed by the opposite party. In the above-mentioned Elektrim S.A. v. Vivendi Universal S.A. case, 8 Justice Aikens of the Commercial Court held:

"VIII. Applications under Sections 68(2)(g): Issue Two: is it demonstrated that Vivendi, or someone for whom it is answerable, deliberately concealed the Gibert Memorandum?

"95. … In my view of the correct construction of section 68(2)(g), Mr. Milletts's argument cannot begin to succeed unless he demonstrates two things, to the necessary high standard of proof required for an allegation of fraud or similar reprehensible or unconscionable misconduct… [Page183:]

"107. Therefore I have concluded that it is not demonstrated that anyone in Vivendi, or Salans, deliberately concealed the Gibert Memorandum. Nor, if it be relevant, it is demonstrated that the discovery exercise conducted by Vivendi and Salans following the Tribunal's [procedural orders] was deliberately narrow or perverse. There is no evidence from which to infer that any of the actions (or inactions) by relevant people were done with the intent to conceal either the Gibert Memorandum specifically, or with an intent to ensure that possibly damaging memoranda would not come to light." 9

The enhanced standard of proof referred to in the above two decisions appears to be borrowed from criminal law. The question may be raised if it is appropriate to apply criminal law standards in a commercial arbitration case. An arbitral tribunal will not lightly assume fraud. On the other hand, if there is a preponderance of evidence indicating fraudulent document production, why should the arbitral tribunal not assume that there is one and respond with the appropriate procedural measures?

d. Actions in response to proven fraud

If fraud is established in the arbitrators' view, what should be the consequences?

i. Dismissing the claim or "merely" disregarding the forged documents?

In the event of the production of forged documents by a claimant, should the claim be thrown out altogether (fraus omnia corrumpit) 10 or should the arbitral tribunal's reaction be limited to striking the forged documents from the record?

If forged documents are produced as direct evidence for the existence of the claim, the claim must obviously be dismissed. This applies, for example, to claims based on forged bonds or promissory notes.

What if other forged documents are produced to support a party's claim or defence? In particular, shall a claimant that submitted documents that are later proven to be forged be allowed to subsequently present alternative grounds for its claim? In Qatar v. Bahrain, 11 Qatar's claim to the Hawar [Page184:] Islands was initially based on historic documents. When they were challenged as forgeries, Qatar subsequently based its sovereignty claim on original title and maritime delimitation rules. The arbitral tribunal accepted Qatar's withdrawal of the challenged documents and eventually decided the case on other grounds-against Qatar. 12

ii. How to react to illegally obtained documents?

Which law is applicable when deciding whether documents were obtained "through illegal methods"? Is it the lex arbitri, the law of the party accused of illegal acts or the law at the place where the acts occurred?

Under the widely accepted principle of ubiquity, the governing criminal law is that of the place where a fraud was committed or where the result of the fraud materialized. Accordingly, the arbitral tribunal may look at the law of the place where the allegedly illegal methods for obtaining a document were applied or the law of the seat of the arbitration where the allegedly illegally obtained documents were produced as evidence.

Where a party produces illegally or fraudulently obtained documents, must the documents be completely disregarded and struck from the record (in accordance with the "fruits of the poisonous tree" doctrine) or can the arbitrators still consider them and, if so, under what circumstances? In some jurisdictions, unlawfully obtained evidence is admissible as evidence before state courts in civil proceedings under certain limited conditions. In such jurisdictions, the state court must weigh the extent of the party's unlawful conduct in obtaining the evidence against that party's interest in producing the evidence and thereby assisting the judge's search for the truth. Such an analysis is conceivable in the case of a document obtained against the will of the possessor or evidence obtained, for example, by a hacker intrusion. Evidence obtained under duress or through the use of force, however, is inadmissible. As a general rule, evidence obtained by intruding on a party's privacy or personal integrity will also not be admitted. 13 Depending on the cultural background of the arbitrators, a tribunal may under specific circumstances be willing to apply the same balancing of legally protected interests.

iii. Measures to stop fraudulent behaviour

What measures are available to the arbitrators to prevent the continuation of fraudulent behaviour? [Page185:]

Where a party refuses to produce a specific document that is relevant to the outcome of the dispute to the other party or to the arbitral tribunal, may the arbitrators order the production of the document under a penalty? Some national laws grant that power to arbitrators. 14 In Switzerland, the question has arisen as to whether an arbitral tribunal may have the power to combine a procedural order for specific performance with the threat of criminal sanction under Article 292 of the Swiss Criminal Code. This article provides for a jail sentence or fine in case of non-compliance with a court order. The prevailing view in Swiss legal doctrine is that an arbitral tribunal does not have the power to impose criminal sanctions for non-compliance with an order. 15 What appears possible, on the other hand, is to seek enforcement of the order by the competent state court, which in turn may then combine the order with the threat of criminal sanction. 16

Another measure to be distinguished from criminal sanctions is the so-called "astreinte", which is a fine of a private law character that a judge may impose in the case of non-compliance with his or her order. It has been argued that, based on the wide powers given to arbitrators in Articles 183 and 184 of the Swiss Private International Law Act, arbitrators in arbitrations with a seat in Switzerland may have the authority to order an astreinte. 17

Another issue is whether, in the event that a party refuses to produce a document, the arbitrators can draw adverse influences from such failure with a direct impact on the decision of the case. This issue is dealt with in Vera Van Houtte's contribution to this dossier.

iv. Reconsideration of a prior award?

If an arbitral tribunal renders a partial award (e.g. on liability) and then discovers during the next phase of the arbitral proceedings that there was fraud in document production, can it reconsider the prior award?

In Dames & Moore v. Iran18 and Biloune/Marine Drive Complex Ltd v. Ghana, 19 the parties claimed that a prior partial award relied, inter alia, on forged documents. Both arbitral tribunals confirmed their "inherent power" to reconsider a prior partial award but refused reconsideration in casu for lack of credible evidence of fraud. [Page186:]

In Dames & Moore v. Iran, before the Iran-US Claims Tribunal the Arbitral Tribunal held:

"In the absence of an express grant of authority to the Tribunal to reopen and reconsider cases on the merits after issuance of an award, the question has been posed as to whether an 'inherent power' to do so may exist 'under exceptional circumstances', at least were an award 'was based on forged documents or perjury' [citations]. The implied or inherent power of an international claims tribunal in this area is an issue which has been subject to learned analysis and limited judicial scrutiny, with wholly inconsistent results [citations]. The instant request for reopening and reconsideration, however, falls well short of justifying any such effort to ascertain the precise balance struck between finality of Tribunal dispositions, on the one hand, and the integrity of its processes on the other." 20

In the UNCITRAL arbitration Biloune/Marine Drive Complex Ltd v. Ghana, the arbitral tribunal held:

"[32] As provided in Art. 32 (2) of the UNCITRAL Rules, the award on jurisdiction and liability which this tribunal issued on 27 October 1989 was and is 'final and binding on the parties'. …

"[33] Nevertheless, a court or Tribunal, including this international arbitral Tribunal, has an inherent power to take cognizance of credible evidence, timely placed before it, that its previous determinations were the product of false testimony, forged documents or other egregious 'fraud on the Tribunal' [citations]. Certainly if such corruption or fraud in the evidence would justify an international or a national court in voiding or refusing to enforce the award, this Tribunal also, as long as it still has jurisdiction over the dispute, can take necessary corrective action…

"[34] The present Tribunal would not hesitate to reconsider and modify its earlier award were it shown by credible evidence that it had been the victim of fraud and that its determinations in the previous award were the product of false testimony. However, no such evidence has been adduced." 21[Page187:]

In Brasoil v. The Management and Implementation Authority of the Great Man-Made River Project, Libya (GMRA), Brasoil complained that GMRA submitted certain documents during the quantum phase of an ICC arbitration that it had fraudulently withheld during the first phase, and requested the arbitral tribunal to review its partial award on liability. The tribunal refused to reconsider the partial award. Brasoil appealed the refusal to the Paris Court of Appeal. The Court reversed the tribunal's refusal to reconsider, among other reasons for having deprived Brasoil of its right to present its case on the issue of alleged fraud. 22

v. Duty to report fraud to professional or criminal authorities?

Are the arbitrators under a duty to report fraud in document production to the professional or criminal authorities? Or should it be left to the parties to report a case of unethical conduct of counsel or an expert to the bar or other appropriate professional authorities or, if the behaviour in question qualifies as a criminal offence, to the criminal authorities? Moreover, if it is considered that the parties are primarily responsible to report fraudulent behaviour of the opposite party, are the arbitrators under an obligation to draw the parties' attention to their respective responsibilities?

From the arbitrators' perspective, the answers to these questions depend on the lex arbitri and, secondarily perhaps, on the law of each arbitrator's own jurisdiction. In some jurisdictions, there are statutory provisions that oblige "judges" to report criminal activities discovered in the course of their professional activities to the competent authorities. 23 The question then arises as to whether the obligation also applies, directly or by analogy, to arbitrators. Other jurisdictions provide for a general obligation for any individual that becomes aware of a serious crime to report the relevant observations to the criminal authorities-under reservation, however, of the provisions on professional secrecy. 24 Hence, the question arises whether arbitrators can invoke professional secrecy rules and, if so, which ones. At least where an arbitrator is an attorney admitted to the bar, he or she should be able to rely on the professional privilege rules applicable to attorneys at the place of arbitration as well as in the jurisdiction where he or she is admitted. [Page188:]

4. Remedies available before the national courts

If a party believes a final award was obtained by fraud in document production, what remedies are available from the national courts?

a. Setting aside of the arbitral award

Under the UNCITRAL Model Law and most national legislations, arbitral awards obtained by fraudulent document production may be annulled.

In some jurisdictions, fraud is explicitly listed as a ground for annulment of an arbitral award. This applies, for example, in Belgium, Luxembourg, the United Kingdom and Scotland and the United States. 25

In the jurisdictions where fraud is not explicitly referred to as a ground for annulment, the fraudulent procurement of an award is generally deemed to be a violation of public policy. This is the position of the state courts, for example, under French, German and Canadian law and under the UNCITRAL Model Law. 26

In European Gas Turbines S.A. (EGT) v. Westman International Ltd. (Alsthom), 27 where it had turned out that Westman had submitted a fraudulent expense report in the arbitral proceedings, the Paris Court of Appeal held that the award rendered by the arbitral tribunal was "contrary to international public policy as its enforcement would lead to sanctioning a fraud committed by Westman during the arbitral proceeding". The Court further found that the arbitral tribunal "took the voluntarily erroneous report of expenses in consideration, in order to determine the commission which it held was due to Westman" and that the dispositions of the arbitral award were therefore affected by the fraudulent document production committed by Westman in the arbitration. The Court's conclusion was that "in application of the general principle of law according to which fraud is an exception to all rules (fraus omnia corrumpit) these dispositions are contrary to French international public policy and must therefore be annulled". 28

In Dongwoo Mann+Hummel v. Mann+Hummel GmbH, 29 Dongwoo attempted to set aside the award of an arbitral tribunal with a seat in Singapore on the grounds, inter alia, that it was contrary to public policy under Article 34(2)(b)(ii) of the Model Law. It argued that M+H had refused to comply with a ruling of the arbitral tribunal to make specific discovery of [Page189:] design drawings and that the deliberate disregard of the tribunal's directions must be held to violate the forum's most basic notion of morality and justice. The Singapore High Court held that if mala fides had been involved and the motive for the deliberate non-disclosure had been to prevent damning evidence from surfacing, in order to mislead the tribunal into reaching a wrong conclusion in one party's favour, the Court would not have hesitated to set aside the award. However, after considering the whole conduct of M+H in the arbitration, the Court held that there was no behaviour or conduct that would justify setting aside the award based on public policy. Interestingly, the High Court added a note that a deliberate refusal to comply with a discovery order was not a contravention of public policy per se, because the adversarial procedure in arbitration admitted the possible sanction of drawing an adverse inference against the party that failed to produce a document in breach of a disclosure order. 30

In Elektrim v. Vivendi, 31 Justice Aikens dealt with the question when an arbitral award should be regarded as having been "obtained by fraud". In this case, Elektrim alleged that Vivendi had deliberately concealed a document in violation of an arbitral tribunal's disclosure order. Justice Aikens held that for an arbitral award to be set aside on the grounds of fraud:

(i) the award must have been obtained "by the fraud of a party to the arbitration or by the fraud of another to which a party to the arbitration was privy", as opposed to anyone else connected with the arbitration process, such as a witness;

(ii) because an allegation of fraud is asserted, "the accuser will have to demonstrate its case to a high standard of proof"; and

(iii) a causative link must be proved "between the deliberate concealment of the document and the decision in the award in favor of the other, successful party". 32

Some jurisdictions provide for different remedies, depending on whether the fraud was discovered only after the award was rendered or already during the arbitral proceedings (but a party's complaints in this regard were dismissed by the arbitral tribunal). In Switzerland, in the first situation, an action to set aside the award is available (Art. 190 (2)(e) of the Swiss Private International Law Act), which must be filed within 30 days after receipt of the award. If the deadline is missed, the action is time-barred. In the second situation, an extra-statutory action for revision of the award is available. 33 Such an action must be filed within 90 days after discovery of the grounds for revision. [Page190:]

What if a party files a criminal complaint against the party that it accuses of fraud either before or simultaneously with the action to set aside the arbitral award for fraud? In Société Ivoir-Café v. Banque Africaine de Développement, 34 the Paris Court of Appeal stayed the set-aside proceedings until the final decision on the criminal complaint. 35

b. Refusal of enforcement of the arbitral award

In proceedings for the enforcement of an arbitral award under the New York Convention, a party may raise a plea for refusal of enforcement under Article V, para. 2(b) on the grounds that the award was obtained by fraud and hence was contrary to public policy. What needs to be shown in order for the courts to refuse enforcement?

In Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (Indonesia), 36 the US Court of Appeals for the Fifth Circuit applied a three-prong test to determine whether enforcement of an arbitral award was to be refused on the grounds of fraud:

(i) the applicant must establish the fraud by clear and convincing evidence;

(ii) the fraud must not have been discoverable upon the exercise of due diligence before or during the arbitration; and

(iii) the party challenging the award must show that the fraud materially related to an issue in the arbitration. 37

1
ICSID Case No. ARB/05/4, I&I Beheer B.V. v. Bolivarian Republic of Venezuela, proceedings discontinued (order taking note of the discontinuance issued by the tribunal on 28 December 2007 in accordance with Article 44 of the ICSID Convention).

2
International Court of Justice, Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Judgment of 16 March 2001, ICJ Reports 2001.

3
Paris Court of Appeal, European Gas Turbines S.A. (EGT) v. Westman International Ltd. (Alsthom), 30 September 1993, Revue de l'Arbitrage (1994) pp. 359-379.

4
Judgment of Mr Justice Aikens, Elektrim S.A. v. Vivendi Universal S.A., Commercial Court, 19 January 2007, Rev. 1 [2007] APP.L.R.01/19, EWHC 11 (Comm).

5
Decision of 28 October 2008, CA2/5, Mary Nelson v. American Apparel, Inc. et al., Court of Appeal of the State of California, Second Appellate District, Division Five (not published in the official reports).

6
Cases Nos. 213 and 215, Dadras v. Iran, Award of 7 November 1995, Yearbook Commercial Arbitration (hereinafter, Yearbook), Vol. XXII (1997) pp. 504-540.

7
Ibid., at para. 123 et seq.

8
Supra note 4.

9
Supra note 4, at paras. 95 and 107.

10
Supra note 3, at para. 30.

11
Supra note 2.

12
Supra note 2, at para 23.

13
Oscar Vogel and Karl Spühler, Grundriss des Zivilprozessrechts, 8th edn. (Bern 2006) ch. 10, N 101; Report by the Swiss Federal Council of 28 June 2006 on the Draft of the Federal Code of Civil Procedure, p. 7312.

14
See Art. 1709bis of the Belgian Judicial Code: "The arbitrators may order a party to pay a penalty sum. The provisions of Articles 1385 bis to octies are applicable mutatis mutandis". Art. 1056 of the Dutch Code of Civil Procedure: "The arbitral tribunal has the power to impose a penalty for non-compliance in cases where the court has such power. The provisions of Articles 611a to 611i inclusive shall apply accordingly, although in the cases mentioned in article 611d, an application for the revocation, suspension or reduction of the penalty shall be made to the President of the District Court with whose Registry the original of the award shall be deposited in accordance with article 1058(1)."

15
Stephen V. Berti, 'Commentary on Art. 183 PILA', in Honsell, Vogt, Schnyder and Berti (eds.), Basler Kommentar Internationales Privatrecht, 2nd edn. (Basel 2007) N 11; Frank Vischer, 'Commentary on Art. 183 PILA', in Girsberger, Heini, Keller, Kostkiewicz, Siehr, Vischer and Volken (eds.), Zürcher Kommentar zum IPRG, 2nd edn. (Zurich 2004) para. 7.

16
Sébastien Besson, Arbitrage international et mesures provisoires: Etudes de droit comparé, Diss. Lausanne, Zürich 1998, N 540; Frank Gerhard, L'exécution forcée transfrontière des injonctions extraterritoriales non pécuniaires en droit privé, Diss. Neuchâtel, Zürich 2000, N 550.

17
Laurent Lévy, 'Les astreintes et l'arbitrage international en Suisse', 19(1) ASA Bull. (2001) pp. 21-36.

18
Case No. 54, Dames & Moore v. Iran, Decision of 23 April 1985, Yearbook, Vol. XI (1986) pp. 281-283.

19
Awards of 27 October 1989 and 30 June 1990, Biloune/Marine Drive Complex Ltd. v. Ghana, UNCITRAL arbitration, Yearbook, Vol. XIX (1994) pp. 11-32.

20
Supra note 18, at p. 283.

21
Supra note 19, at paras. 32-34.

22
Paris Court of Appeal, 1 July 1999, Brasoil v. The Management and Implementation Authority of the Great Man-Made River Project, Libya, 14(8) Mealey's International Arbitration Report (1999) pp. G-1-G-7.

23
See, e.g., Art. 21 of the Code of Criminal Procedure, Canton of Zurich, Switzerland.

24
Art. 10 of the Code of Criminal Procedure, Canton of Geneva, Switzerland.

25
See, e.g., Art. 1704(3a) of the Belgian Code Judiciaire; Art. 1023(1) and (10) of the Code of Civil Procedure of Luxembourg; Section 68(2)(b) of the UK Arbitration Act 1996; Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40), Section 66, Art. 34(2); and Section 10(1) of the US Federal Arbitration Act.

26
Art. 1502 of the French Code of Civil Procedure, see Société Eiffage v. Société Butec and European Gas Turbines S.A. (EGT) v. Westman International Ltd. (Alsthom); § 1059 of the German Code of Civil Procedure, see Federal Court of Justice, Decision of 2 November 2000, BGHZ 145, 376; Art. 34(2)(b) of the Canadian Commercial Arbitration Act, see Corporacion Transnacional de Inversiones, S.A. de C.V. et al. v. STET International, S.p.A. et al.; Art. 34(2)(b)(ii) of the UNCITRAL Model Law.

27
Supra note 3.

28
Supra note 3, at paras. 22, 27 and 30.

29
Singapore High Court, Dongwoo Mann+Hummel v. Mann+Hummel GmbH, 8 May 2008, [2008] SGHC 67.

30
Ibid., at paras. 130-147.

31
Supra note 4.

32
Supra note 4, at paras. 79-83.

33
DFT 118 II 203 c.3; upheld under the new Federal Law on the Swiss Federal Court in: DFT 134 III 287 c.2.1; Decision of the Swiss Federal Court 4A.528/2007 of 4 April 2008 c.2.2; Jean-François Poudret, 'Les recours au Tribunal fédéral suisse en matière d'arbitrage international (Commentaire de l'art. 77 LTF)', 25(4) ASA Bull. (2007) p. 700.

34
Paris Court of Appeal, Société Ivoir-Café v. Banque Africaine de Développement, 20 April 2000, Revue de l'Arbitrage (2001) pp. 559-596.

35
Ibid., at p. 583.

36
United States Court of Appeals, Fifth Circuit, 23 March 2004, Nos. 02-20042 and 03-20602, 2004 U.S. App. LEXIS 5445, Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (Indonesia), Yearbook, Vol. XXIX (2004) pp. 1262-1297.

37
Ibid., at p. 1293.