1. Introduction

The IBA Rules are a misnomer. First announced as a small friendly spaniel in 1983 as the "IBA Supplementary Rules of Evidence in International Commercial Arbitration", the Rules were relaunched as a large St Bernard in 1999 as the "IBA Rules on the Taking of Evidence in International Commercial Arbitration". The IBA Rules are both more and less than their title suggests.

After ten years, the second edition of IBA Rules remains an undoubted success, a successful pragmatic compromise of different procedural traditions combining the best of many without the worst of some and heralding supranational procedures for transnational arbitrations. They are now widely used in many different types of arbitration, including investor-state and even state-state arbitrations. Yet their success derives for the most part from the fact that they are usually not agreed contractually or imposed as legal rules by arbitrators but applied only as an additional and general guide to the exercise of an arbitration tribunal's existing discretion in deciding issues of document production and evidence.

In other words, the IBA Rules do not currently operate as a comprehensive legal code of civil procedure with a "one size fits all" approach to every arbitration; they are therefore not part of the modern fureur réglementaire; and they work as one of several important tools in every arbitrator's locker to solve practical problems, as guidelines to good practice, in consultation with the parties' legal representatives. After all, as one distinguished commentator [Page322:] has recently concluded, every international arbitration remains a fresh exercise in comparative procedure. The flexibility of international arbitration, to adapt to different and changing conditions and individual cases, has long been a reason for its success as compared generally to national civil procedures.

Current attempts to reform the IBA Rules into a new third version can be welcomed-within the confines of this practical approach. Much has been learnt since 1999. The second edition has several inherent defects capable of catching out the unwary practitioner. The IBA's current consultation process is also to be applauded: rarely can a working document have been subjected to so much discussion and consultation among international practitioners, arbitrators and users. Only good can come from this exercise, provided we continue to concentrate on the good and avoid the bad.

As regards the good, three issues are addressed here: one that is partly resolved in the current IBA Rules and two that remain unresolved. All three are subject to possible reform in the new IBA Rules, along with many other matters. These three are cited only as contrasting examples to illustrate what the third edition of the IBA Rules might be and, perhaps more importantly, to suggest what it might not be: i.e. the good without the bad (or as a distinguished New York practitioner has put it) without "the evil". The religious overtone is not entirely misplaced. The spirit of the IBA Rules is now in play, and if the new version includes evil things, the IBA Rules may become a dead letter.

2. Good faith in document production

The first possible amendment is a new general rule imposing on each of the parties to an arbitration an express obligation to produce any document that, to that party's actual knowledge, is manifestly relevant to the substantive issues to be decided by the arbitrators in their award. This obligation would derive from a party's general duty to conduct its case in good faith, without improper means, in all consensual arbitrations. As such, of course, the obligation would include an obligation to produce not only a document manifestly helpful to the producing party's own case (not an unduly onerous burden) but also documents manifestly helpful to its opponent's case or even harmful to its own case. It can hardly be doubted that no party can lawfully procure an award in its favour by its own dishonesty or criminal fraud, knowing (for example) that its material documentation is forged, that its principal witness is committing perjury or that it possesses an internal [Page323:] document that would exculpate its opponent completely from all liability. This new general rule would merely turn that old negative concept into a positive one. It is not without practical importance. In certain types of commercial dispute, one party's discharge of its legal burden of proof may depend entirely on the other's contemporary internal documentation, such as an insurer seeking to prove an exception under a liability policy with its insured claiming an indemnity against legal liability to third parties.

And yet, such a new general rule in the IBA Rules would probably be unwise at this particular time. There remains an unfortunate lack of consensus concerning the scope of a party's duty to arbitrate in good faith around the world, even between countries sharing common legal roots. There are also difficulties in drafting such a general rule without inadvertently expanding the already heavy burden of document production for parties and arbitrators and thereby increasing costs and delays. There could also be problems in ensuring that such a rule was properly policed by arbitration tribunals, including the professional awkwardness that would result from effectively obliging legal practitioners to police their own clients. If such a general rule were not properly respected, it would risk bringing the entire process of international arbitration into disrepute.

In these circumstances, it would be best to stay the IBA pen for the present. It can be left to ad hoc solutions by parties and arbitrators in particular cases, without promulgating a general rule for all cases. In the meantime, the sanction of an award's annulment or non-enforcement against a party's dishonesty remains at the seat of the arbitration and abroad, 1 and, in particular, national courts are determining the scope of a party's duty in regard to false testimony and incomplete document production. 2

3. Legal privilege

The second possible amendment relates to issues of legal privilege and professional confidence, on which the IBA Rules are not silent. Article 9(2)(b) of the current IBA Rules requires the tribunal, at the request of a party or on its own motion, to exclude from evidence or production any document, statement, testimony or inspection on the grounds of "legal impediment or privilege under the legal or ethical rules" determined by the tribunal to be applicable. [Page324:]

This has been a useful provision over the last ten years. At one stroke, this voie directe in Article 9 cut through the Gordian knot of legal privilege in conflict rules and comparative laws, procedures and professional codes of conduct. It is a simple and attractive solution compared to the alternatives. But is this now enough? Apart from substantive issues, there are increasing practical problems arising from the use of privilege logs (recording the fact of communications whose existence and timing may also be privileged), special referees (to decide issues of document production under legal principles delegated by the tribunal) and the de bene esse receipt of materials by fact-finding tribunals to decide whether or not those same materials are privileged - an arbitral form of Cretan logic.

Under English law, legal professional privilege combines both legal advice privilege (i.e. communications between a lawyer and the client for the purpose of legal advice) and litigation privilege (i.e. communications between a lawyer or the client and a third person for the purpose of litigation). 3 It is settled English law that litigation includes arbitration, both in England and abroad, 4 and that the lawyer need not be an English lawyer, a lawyer in England, a lawyer advising on English law or a lawyer in professional practice.

The English courts have decided that the lex fori decides the question what law governs issues of legal privilege. Thus, in English court proceedings, it is English law (as the lex fori) that decides whether or not the communication is privileged and whether or not it can be produced as part of document production or adduced in evidence. 5 Accordingly, the distinguished editors of Dicey and Morris conclude: "In the context of English [court] proceedings, whether or not a document is privileged is to be determined by English law; the fact that under a foreign law the document is not privileged or that the privilege that existed is deemed to have been waived is irrelevant." 6

There is, however, a dearth of any English authority as to whether this same approach should apply in an arbitration taking place in England. While the logic of the lex fori can be defended under English conflict rules in regard to English court proceedings, it is not so easy to defend the lex fori (i.e. here the lex loci arbitri) in relation to an international commercial arbitration.

When privilege was regarded as a rule of evidence and evidence was classified as a procedural matter, it arguably made sense for an English court to resort to English law as part of its own procedural law, even if the case involved a foreign lawyer advising a foreign client abroad. It may make less [Page325:] sense now. Increasingly, legal privilege is seen as a substantive right, if not an important human right under Article 6 of the ECHR. As recently expressed by Lord Hoffman in the House of Lords: it "is a fundamental human right long established in the common law [and] a necessary corollary of the right of any person to obtain skilled advice about the law. Such advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice." 7

In the recent judgment of the ECJ in Ordre des barreaux francophones et germanophones and Others v. Council of Ministers, 8 the Court declined to extend to professional lawyers the obligation of reporting a client for suspected money-laundering under the Anti-Money Laundering Directive, 9 on the grounds that "fundamental rights" formed an integral part of the general principles of law whose observance the Court ensures. It referred, by reference to Article 6 of the ECHR, to the rights of the defence, the principle of equality of arms, the right of access to a court and the right of access to a lawyer in both civil and criminal proceedings, and concluded: "Lawyers would be unable to carry out satisfactorily their task of advising, defending and representing their clients, who would in consequence be deprived of the rights conferred on them by Article 6 of the ECHR, if lawyers were obliged, in the context of judicial proceedings or the preparation for such proceedings, to cooperate with the authorities by passing them information obtained in the course of related legal consultations."

(For the time being, however, it may be assumed that the ECJ does not extend legal advice privilege unless the lawyer is a professional practitioner, as decided by the ECJ in the AM&S case and by the Court of First Instance in the Akzo Nobel case, which (at the time of writing) remains on appeal to the ECJ. 10)

As regards litigation privilege within the European Union, there seems to be a growing consensus as to the significant nature of this legal right, whether it be called privilege, a fundamental human right or a professional confidence. It is clearly more than a procedural right, as it can be asserted outside a court room against a policeman or a regulator, and it is thus no mere procedural rule limiting the admissibility of evidence in court proceedings.

The position is clearer in regard to arbitration proceedings, where court rules of evidence are rarely applicable, as such. There is another argument against recourse to the lex loci arbitri, because the choice of the arbitral seat [Page326:] is not usually determinative of the applicable conflict rule, still less of the parties' substantive rights in an international arbitration. This is so under many institutional rules of arbitration and modern arbitration laws, even where the local rules on privilege or professional confidence can be very different.

Thus, an issue of privilege between a US party and an English party, both represented by and receiving advice from US and English lawyers should not be answered differently only because the arbitral seat is London, Paris or Stockholm. Conversely, Italian and French parties with Italian and French lawyers in a London arbitration should not receive a different answer from that obtaining in a Brussels arbitration. Manifestly, the lex loci arbitri cannot be the answer or at least not the sole answer to the question arising in an international arbitration.

What then can be the answer in an international arbitration? Given the principle of equality of arms between all parties, the answer should not depend only on the nationality of the legal adviser to a particular party. This would mean that, in the same arbitration, a French client advised by an English lawyer could claim privilege, but an English client advised by a French in-house counsel in France could not. This result would be capricious and absurd. Equally, the substantive law applicable to the transaction should not be the answer. The law that the parties chose for their contract or other relationship may have nothing to do with their relations with their respective lawyers. This would likewise introduce an element of pure chance. Maybe the answer cannot depend on any single factor and should depend on an aggregation of different factors. Under the Arbitration Act 1996 in cases where the arbitral seat is in England (in the absence of special agreement), it is generally considered that all parties are equally protected as a minimum by legal privilege under English law but that, in addition, one or more parties may be in a position to invoke a greater privilege, thereby elevating that same privilege for all parties.

There is, however, no universal standard for international arbitration as regards the extent of legal privilege. In addition, there is still no emerging consensus as a matter of comparative law, depending on the relative importance attributed to the "most favoured rule", the "least favoured rule", the "closest connection rule", a combination of all these "rules" or no rules at all because in fact there are no rules. 11 Any convincing practical solution thus remains missing for the time, being a grey area with no dawn on the horizon. [Page327:]

In contrast, as already noted, the tribunal's general power under the IBA Rules to order document production and admit evidence is expressly limited by Article 9(2)(b) of the IBA Rules so as to exclude any document or evidence for "legal impediment or privilege under the legal or ethical rules determined by the Arbitral Tribunal to be applicable". This broad, simple language covers legal privilege and professional confidentiality as understood in many different laws and legal professions, by-passing almost all the difficulties so far discussed, including the extension of privilege to a party's in-house counsel.

Nonetheless, the language of Article 9 omits any treatment of detailed issues of legal privilege, such as: waiver of privilege; common interest privilege; community-of-interest privilege; the adverse litigation exception to privilege; whether and (if so) to what extent an adverse inference can be drawn against a party successfully invoking privilege; whether certain types of privilege operate only as a defence to document requests by an adverse party but not to evidence adduced by that adverse party; "without prejudice" or other private settlement negotiations; confidential mediation/conciliation proceedings; and sealed offers between the parties as to costs. This list of issues expressly missing from Article 9 could doubtless continue.

Yet, Article 9 is probably enough for the time being. Its language is succinct but it works at a general level. It should be kept simple for now, lest adding more language to address less important issues destroys its most important function where there is still not sufficient consensus between international practitioners. It would also be unwise to address certain detailed issues in a piecemeal manner without addressing all issues similarly: an unbalanced text would risk distorting the general rule.

4. Common bundling

Bundling is an old phrase in the North of England meaning a form of delicate courtship between a lady and a gentleman, and common bundling speaks for itself. In London litigation and arbitration, common bundling bears a different meaning: it signifies the collection together of legible copies of original documents in conveniently sized bundles, usually in chronological order, clearly paginated for ease of reference at the hearing in common. In other jurisdictions, there is talk of exhibits, folders or books, but these are usually unilateral acts by one party. Common bundling is different: it is the parties' acting together, collectively, to assist each other and the tribunal in the preparation before the hearing of chronological bundles and core bundles with common referencing. [Page328:]

After many years of practical difficulties among English practitioners, the English Commercial Court promulgated a detailed practice for common bundling for commercial litigants. It is now Appendix 10 to the Admiralty and Commercial Courts Guide, applying as mandatory procedural rules under Paragraphs J3 of the Guide-some 30 paragraphs in all (7th edition, 2006; see the appendix below). The subsequent Report and Recommendations of the Commercial Court Long Trials Working Party (2007) has also advised on the use of 'paperless' electronic common bundles, noting sadly that the "advent of a 'paperless trial' will never occur whilst there are practitioners and judges who insist that they can only work with hard copy documents" (paragraph 109) 12.

Of course, this Guide to the Commercial Court does not apply to arbitration in London (or elsewhere). Yet, for years, no greater problem has been overlooked in comparative approaches to international commercial arbitration than common bundling. The ICC Rules, the LCIA Rules, the Stockholm Rules and so forth are not unique in failing to apply any solution to the problems of bundling-in common with UNCITRAL and ICSID. It is, of course, unthinkable that in the field of international arbitration there could be any practitioners or arbitrators "who insist that they can only work with hard copy documents", but, assuming there were, what could now be done to facilitate a modern system of common bundling? Could the new IBA Rules include a guide on common bundling?

It may therefore be interesting to describe briefly the current art of common bundling as practised in England. The instructions reproduced below were almost certainly drafted by an experienced managing clerk employed by an eminent firm of English solicitors in the City of London engaged in international commercial arbitration, leaving his standards to a young replacement on his retirement. 13

"It is best not to keep the documents loose-leaf because the arbitrators will start to lose them as fast as they can add to them; most arbitrators are like children, particularly the older ones; and for this reason you will almost certainly have to put the documents in large, heavy bundles which they cannot lose. Try to ensure that the bundles are complete when the hearing starts, but this can only be a counsel of perfection. Avoid perfection: it invites false hopes. On the other hand, do complete the bundles before the award. [Page329:]

It is best to have these bundles spirally bound so that nobody but you can add documents without laboriously perforating and fiddling with each new page to be inserted into the bundle. A well-known arbitrator still tries laboriously to wind the spiral around each new document by hand; but the sight of his frustrations at the hearing makes one feel very sad. If you must use a bundle requiring a hole puncher, at least choose both carefully. Ensure that either the number of holes or the spacing between them (preferably both) is unique to your hole puncher and bundles. You can also bind the documents in a bundle so tightly that nobody can read the bundle without using both hands to keep the bundle open. This means that the arbitrators cannot easily make notes, which (depending on your case) is sometimes helpful.

If you use a bundle with rings (i.e. a lever-arch bundle), feel confident that after a few days' transportation, the rings will never again meet in the middle of the bundle; and that each turning of the page at the hearing will produce that old familiar sound of ripping paper and arbitral mutterings. You can build up a large credit of goodwill by dispensing self-adhesive ring reinforcements for urgent repairs, but dispense them only in small quantities on the basis of proven need.

Above all else, avoid the American practice of 'exhibits' or worse 'witness bundles' requiring the same documents to be reproduced for each witness and forcing the arbitrators to annotate the same documents as many times as there are witnesses, increasing their sense of déjà vu (particularly as regards the contractual documentation at issue). The arbitrators will not like this; and they may even try to blame you instead of your American opponents.

Photocopying and pagination will always remain imperfect. Accept the inevitable: illegible copying, blank but muddy sheets of paper, incomplete copying of telex messages with the identity of the sender or recipient cut-off at the top or bottom of the page, copy documents with the first or last words of each line left; alternate copying of pages 1, 3 and 5 only (or worse 2, 4 and 6) etc are unavoidable in practice. It is surprising how arbitrators and counsel can work from incomplete documentation, often without realizing it. [Page330:]

Beware especially the upcoming junior partner and his highlighting pen. When first meeting the client, this over-eager whippersnapper will have highlighted the important passages in the original contract and contemporary documentation with the result that all subsequent photocopies contain large black boxes obscuring the most important parts essential for the case.

Beware also the photo-copying department's aversion to copying the reverse of many documents: for example, standard terms and conditions on the back of a purchase order or invoice, endorsements on the reverse of a bill of exchange or bill of lading etc do tend to complicate things later at the hearing of the arbitration: a curious arbitrator may spot an exclusive jurisdiction clause or an unpleaded exemption clause. As a general principle, both sides of document should always be copied before the hearing. It is again surprising how often this rule is honoured in the breach.

(Generally, however, it is best to photocopy both sides of a page as a single page, thereby reducing the volume of the bundles by half-it is well known that some barristers' clerks in the Temple assess the level of barrister's arbitral fees with a 'golden ruler' marked in pounds sterling, not inches.)

For copying small documents, i.e. cheque stubs or receipts, it is obviously more convenient to produce photocopies the same size as other copies in the common bundle rather than cut the copies down to the size of the original. So learn to accept the inevitable: the copies will always be cut down to the size of the smallest original. For the same reason, resist all pressure to reduce larger documents: it can lead only to recriminations from the arbitrators. Moreover, the bigger the plans and drawings, the less often they will be referred to at the hearing. When the arbitrators unfold a drawing you have folded, be certain they can never refold it in the same way.

The more relevant documents are almost always at the end of each common bundle, usually out of chronological order and often stapled amongst a wodge of irrelevant documents. These last few pages soon fall out of the bundle within a few days' transportation, unread. It is known that, on occasion, such missing pages have significantly altered the conduct of the hearing and the content of the award. [Page331:]

Stapling generally is undesirable as it impedes the turning of the page in the bundle - so be ready for them. Staples usually bind the most relevant reports or minutes of meeting - almost always in the top right-hand corner (not left) so that the pages cannot be turned over and require great industry and strong nails to be read at all. There should be a general rule banning staples: at the hearing it has become an arbitral blood-sport.

If you want to test an arbitrator's industry in reading the common bundles before the hearing, pin a £5 note in the middle of Common Bundle Volume 32 (or better still, in Appendix 5.3.1.4 of Volume M of the Bills of Quantities). Almost certainly, your money will be safe at the end of the arbitration: you will receive back your £5 note intact in the same place, unread. If not, make sure you have indicated it comes from the other side. (There can be disadvantages in being thought to have sent cash to an arbitrator, even in jest.)

Do not believe those who say pagination must always be consecutive, or that the page numbers should be in the same place on each page. It is not really necessary to delete previous numbering systems used in discovery or earlier filing by the parties and their legal advisers: the arbitrators can surely work out which of the four or five numbering systems is the right one for the arbitration, with time and practice. Almost always, it is the pagination which is the least legible.

If anybody seems to be getting on top of the case too soon for you before the hearing, start again with new common bundles with different pagination: you will be unpopular at first but thereafter everybody will be too busy changing their page-references to your new system. You can do this more than once, but not too often. If so, blame the other side. It is also a curious fact that arbitrators like re-numbering documents: it takes a surprisingly long time for them to decide whether a new page should be numbered '130A' or '103/1'; time is of course money at a hearing; but it is generally supposed that these little exercises can give arbitrators a sense of accomplishment otherwise missing from their sad professional lives. [Page332:]

Ideally, pages should all be inserted the same way into the bundle: i.e. the arbitral reader should not have to turn the bundle through 180 degrees to read alternative pages. Yet, this always seems to happen at the hearing. And why not? Why did God give arbitrators arms if they were not meant to use them? Such exercises for sedentary creatures are probably good for them.

Contemporary handwriting on the documents left untranslated can make both sides nervous at the hearing, particularly if it is copied illegibly or in part only. It can be quite exciting when, on Day 42, the case turns on such illegible, untranslated handwriting raised by a polyglot arbitrator with a magnifying glass.

Avoid this new invention of the "Core Bundle", ostensibly intended to contain in a single small bundle only the few relevant documents which invariably determine the result of the case. First, no-one can know what these documents are, not even the arbitrators, before the award is issued. Second, your opponent will have very different ideas from you as to what these documents might be. Perversely, just because you want to put the best documents for your side in the core bundle, he will want to add the worst for you; and just because you then want to add the worst for his side, he will want to add the best for him. Within days, this leap-frogging exercise will result in an extensive 'core bundle' in multiple bundles almost duplicating all the other common bundles put together.

Lastly, be ready always to deny all responsibility for any defective common bundling; keep power over everything but responsibility for nothing. The standard answer to any arbitrator is always: 'I gave it to you and you must have lost it' or 'it must be the other side who took it' or 'I agree but my Counsel told me to do it'. Arbitrators and lawyers may be clever, but when it comes to common bundling, as already indicated, treat them all like little children."

In the light of all this practice and malpractice from London alone, should the IBA Rules include a 'Comprehensive Code on Common Bundling for All Arbitrations Everywhere'? I suggest probably not. It is not immediately necessary; and there is no current consensus, even between Anglo-Saxon practitioners. It is also far too important to be subsumed into another document. What could happen is that the IBA should convene, as an entirely new and free-standing exercise, another committee to deliberate and consult widely, in the intermediate future, on an IBA Guide to Bundling. [Page333:]

5. Conclusion

The IBA Committee revising the second edition of the IBA Rules faces a difficult and unenviable task. The 1999 Rules do need amendment. If amended too little, there will be critics who will moan at the committee's timidity. If amended too much, particularly if the new edition is perceived by users as a new code of civil procedure for international arbitration, it will fail. There must be a middle way, such that the IBA Rules are more "perfectible", an appropriately un-English word comprehensible to all. Sometimes, discretion is the better part of valour for drafting committees, and there is no present need to be unduly brave, radical or adventurous. It would therefore not be bad or evil to limit the more innovative ideas being pressed on the committee to what is necessary, practical and safe; and it might even be good. The new IBA Rules should remain a friendly St Bernard, albeit now with a larger liquor barrel around its neck, rather than mutate into an angry Bulldog.

Appendix 10 to the Commercial Court Guide

Preparation of Bundles

1. The preparation of bundles requires a high level of co-operation between legal representatives for all parties. It is the duty of all legal representatives to co-operate to this high level.

2. Bundles should be prepared as follows:

(i) No more than one copy of any one document should be included, unless there is good reason for doing otherwise;

(ii) Contemporaneous documents, and correspondence, should be included in chronological order;

(iii) Where a contract or similar document is central to the case it may be included in a separate place provided that a page is inserted in the chronological run of documents to indicate

A. the place the contract or similar document would have appeared had it appeared chronologically and

B. where it may be found instead;

(iv) Documents in manuscript, or not fully legible, should be transcribed; the transcription should be marked and placed adjacent to the document transcribed;

(v) Documents in a foreign language should be translated; the translation should be marked and placed adjacent to the document transcribed; the translation should be agreed, or, if it cannot be agreed, each party's proposed translation should be included;

(vi) If a document has to be read across rather than down the page, it should be so placed in the bundle as to ensure that the top of the text is nearest the spine;

(vii) No bundle should contain more than 300 pages;

(viii) Bundles should not be overfilled, and should allow sufficient room for later insertions. Subject to this, the size of file used should not be a size that is larger than necessary for the present and anticipated contents;

(ix) Bundles should be paginated, in the bottom right hand corner and in a form that can clearly be distinguished from any existing pagination on the document;

(x) Bundles should be indexed, save that a chronological bundle of contemporaneous documents need not be indexed if an index is unlikely to be useful;

(xi) Bundles should be numbered and named on the outside and on the inside front cover, the label to include the short title of the case, and a description of the bundle (including its number, where relevant).

3. Documents within bundles should be marked as follows:

(i) When copy documents from exhibits have been included in the bundle(s), then unless clearly unnecessary, the copy of the affidavit or witness statement to which the documents were exhibited should be marked in the right hand margin (in manuscript if need be) to show where the document referred to may be found in the bundle(s).

(ii) Unless clearly unnecessary, where copy documents in a bundle are taken from the disclosure of more than one party the documents should be marked in the top right hand corner (in manuscript if need be) to show from which party's disclosure the copy document has been taken;

(iii) Where there is a reference in a statement of case or witness statement to a document which is contained in the trial bundles a note should be made in the margin (if necessary in manuscript) identifying the place where that document is to be found. Unless otherwise agreed this is the responsibility of the party tendering the statement of case or witness statement.

4. For the trial a handy-sized core bundle should normally be provided containing the really important documents in the case. The documents in this bundle should be paginated, but each page should also bear its bundle and page number reference in the main bundles. It is particularly important to allow sufficient room for later insertions (see paragraph 2 (viii) above).

5. Large documents, such as plans, should be placed in an easily accessible file.

6. (a) When agreeing bundles for trial, legal representatives should bear in mind the effect of the Civil Evidence Act 1995 and of rules 33.2(3) (notice requiring proof of authenticity) and 32.19 (hearsay notices).

(b) Pursuant to those provisions, documents which have not been the subject of a notice served in accordance with rule 32.19(2) (requiring proof of authenticity) will be admissible as evidence of the truth of their contents even if there has been non-compliance with the notice requirements of s. 2(1) of the 1995 Act and rule 33.2 (see s. 2(4) of the Act). Accordingly, save for documents in respect of which there has been a timely notice to prove authenticity, all documents in the trial bundle will be admissible in evidence without more.

(c) The fact that documents in the trial bundle are admissible in evidence does not mean that all such documents form part of the evidence in the trial. It is the trial advocate's responsibility to indicate clearly to the court before closing his or her case the written evidence which forms part of that case. This should be done in the written opening statement or in the oral opening statement if the document is then available. Documents which have not previously been put in evidence before the closure of the parties' cases should not normally be referred to as evidence in the course of final speeches.

1
For example, Section 68(2)(g) of the Arbitration Act 1996 permits the English Court to set aside an award made in London for serious irregularity "the award being obtained by fraud or the award or the way in which it was procured being contrary to public policy". The public policy exceptions to enforcement under the 1958 New York Convention and the UNCITRAL Model Law are both, it is suggested, to similar effect.

2
Brasoil c/ GMRA (Cour d'appel de Paris) 1999 Rev. arb 834 (ann Jarrosson); Elektrim v Vivendi [2007] EWHC 11, [2007] 1 Lloyd's Rep 693 (English Commercial Court: Aikens J); and Dongwoo v Mann + Hummel [2008] SGHC 11 (Singapore).

3
Three Rivers 6 [2005] 1 AC 610. For a recent exposition of the English law on privilege, see Thanki (ed.), The Law of Privilege (OUP 2006).

4
See Thanki, supra note 3, at p. 136.

5
See Thanki, supra note 3, at p. 204; see also Passmore, Privilege (2006), paras 1.1'301.141.

6
Dicey and Morris on the Conflict of Laws, 14th edn., Vol. 1 (2006) para 7-016, citing Aldous LJ in Bourns v. Raychem [1999] All ER 154 (CA).

7
R v. Special Comm for Income Tax, ex p. Morgan Grenfell [2001] 1 AC 563, para 7 (HL).

8
ECJ, Case C-305/05 [2007] ECR I-5305.

9
Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering.

10
ECJ, Case 155/79 AM&S Europe Ltd v. Commission [1982] ECR 1575; CFI, Joined Cases T-125/03 and T-253/03 Akzo Nobel Chemicals Limited & Akcros Chemical Limited v. Commission [2007] ECR II-3523.

11
For example, see the principal analyses in Mosk et al., 50 ICLQ (2001) p. 3345; Rubinstein et al., 18 Journal of Int. Arb. (2001) p. 587; von Schlabrendorff and Sheppard, Briner Liber Amicorum (2005) p. 743; and Burn and Skelton, 72 Arbitration (2006) p. 124.

12
The 2009 Guide is now available on the Commercial Court's web-site (with the Long Trials Report): http://www.hmcourts-service.gov.uk/docs/admiralcomm/Commercial%20Court%20Guide%20final%20180509.pdf

13
The provenance of this document (hitherto unpublished) is largely unknown, and its authenticity is questionable given its source. In any event, it describes a factual situation familiar to every practitioner and arbitrator with experience of London arbitration, i.e. bad experience.