'16. As per the Parties agreement in the Terms of Reference (§ 12), the arbitration remained governed by the procedural provisions of the ICC Rules, the rules contained in the Terms of Reference and the Procedural Order No. 1 as agreed by the Parties … and the procedural directions that were issued by the Arbitral Tribunal, subject to internationally mandatory procedural rules and principles of German law that remained applicable as a matter of international public policy. The Parties also empowered the Arbitral Tribunal to take into consideration the relevant provisions of the IBA Rules on the Taking of Evidence in International Arbitration, as guidelines.

………

12.6.1. Order for disclosure of contracts concluded directly or indirectly through [Y] with designated customers

12.6.1.1. Background of the request and order for disclosure

258. In Prayer No. 3 of the Request for Arbitration … Claimant had requested disclosure by Respondent of "the information about the contracting, the execution and the value of assignments the Respondent has engaged in since the year 2006 with [designated customers]".

259. Claimant's request for disclosure was included as part of the "Subject Matter of the Dispute" at page 6, last paragraph of the Terms of Reference ...

260. At the 1st Hearing … the Arbitral Tribunal invited the Parties to discuss and, to the extent possible agree, over the issue of disclosure in accordance with the procedure provided by clause 3.2 of Procedural Order No. 1 (Procedural Rules agreed between the Parties).

261. After the Parties failed to reach an agreement on the issue of disclosure … Claimant was given leave to introduce a specific request for disclosure and was invited to explain in detail the information/documents sought and whether its request is of a substantive or procedural nature.

262. Claimant filed its Request for Disclosure of Documents/Information … requesting "the production of contract documents and all contract relevant information by Respondent, especially date, topics, chargeable amounts, payments received and future payments, duration, concerning all contracts - may they have been concluded directly or non-directly - with [designated customers].

263. Claimant furthermore specified that its request for disclosure is of a procedural nature … and has relied on the relevant provisions of Procedural Order No.1.

264. In its reply … Respondent opposed the request for disclosure for the reasons, inter alia, that the request is premature and should be examined once the validity and merit of the underlying claims is established, that Claimant has no right to commissions over the contracts requested to be disclosed, that documents requested do not fall under the scope of the agreement since concluded after [the agreement], that the scope of the request is too broad and goes beyond the intended limited number of contracts covered by the Agreement, and that the disclosure as requested by Claimant would violate confidentiality of Respondent's contracts with third Parties and the legitimate interest of Respondent for "non-disclosure and secrecy" of its commercial and contractual practices.

265. Thereafter, the Arbitral Tribunal reviewed the Parties' arguments as presented in Claimant's SC … and Respondent's SD … and, after having heard the Parties' witnesses at the second Hearing …, arrived at the following decision.

266. The request for disclosure is governed by Article 20.5 of the ICC Rules1 which provides that: "At any time during the proceedings, the Arbitral Tribunal may summon any party to provide additional evidence."

267. Furthermore, under clause 3 of the procedural rules adopted by the Parties, a Party may be requested to disclose specific documents. According to clause 3.2 of the Procedural Order No. 2, a request for disclosure of documents should identify an individual document or aim at a narrow and specific category of documents, and demonstrate that the said documents are "relevant and material to the outcome of the case". According to clause 3.3, the "Arbitral Tribunal shall, in its discretion, rule on the issue of production, taking into account the legitimate interest of the Parties".

268. Moreover, the Parties had authorized the Arbitral Tribunal to take into consideration the relevant provisions of the IBA Rules on the Taking of Evidence in International Arbitration, as guidelines (see Terms of Reference …). The above referenced IBA Rules, in particular Articles 3.3, 3.6 and 9.2, basically provide for the same requirements and sufficiently protect the legitimate interests of the Party requesting to produce the documents for reasons of compelling commercial confidentiality or fairness.

269. With regard to a procedural request for disclosure in international arbitration, the materiality and relevancy of the documents/information to the outcome of the dispute are assessed on a prima facie basis (see Virginia Hamilton, "Document Production in ICC Arbitration", in ICC International Court of Arbitration Bulletin, 2006 Special Supplement, Document Production in International Arbitration, at pp. 63; Bernard Hanotiau, "Document Production in International Arbitration: A Tentative Definition of 'Best Practices'", ibid, at p. 113). In other words, the requirements for ordering the disclosure are deemed as fulfilled if there is a sufficient probability of materiality and relevancy of the documents/information for the outcome of the case, without prejudice to the final decision on the admissibility, validity and merits of the underlying claims.

270. Claimant's request for disclosure concerned contracts that have been concluded by Respondent with clients expressly named in the Framework Agreement … and those same contracts are the basis of Claimant's disputed claim for commission.

271. Having been satisfied that the requested documents/information are prima facie relevant and material to the outcome of the dispute, and without prejudice to Respondent's objections regarding the admissibility (on jurisdictional or other basis), existence, validity or the merits of Claimant's underlying claims, the Arbitral Tribunal ruled in favour of Claimant's request and ordered the disclosure of specific information.

272. As regarded Respondent's objections to the effect that the request for production is premature, the Arbitral Tribunal had noted that the Parties had agreed not to bifurcate the arbitration proceedings on issues of jurisdiction, applicable law, liability and quantum, and had authorized the Arbitral Tribunal to gather the evidence and examine, in its discretion, all of Respondent's objections, exceptions and defences in a single evidentiary proceeding. Furthermore, the disclosure was ordered after the Parties exchanged SC and SD and the witness hearings were held.

273. Finally, and in order to protect Respondent's concerns over confidentiality of its commercial interests and practices, the Arbitral Tribunal decided not to compel Respondent to produce a copy of the contracts subject to disclosure but only a list containing the relevant information regarding those contracts as specified herein below.

274. On the basis of the above, the Arbitral Tribunal issued the following order for disclosure:

1) Order Respondent to produce a list (or a "Statement of Account") with indication of the date of the contract, the subject matter of contract, the original contract price and any subsequent variation to that price, the payments already received and the payments still pending or anticipated, of the following contracts:

………

2) Order Respondent to submit the above list or "Statement of Account" [within eleven days].

3) In the event of objection or a dispute over the accuracy and/or completeness of the information that shall be provided by Respondent, the Arbitral Tribunal may order the production of the disputed contract(s) or contractual document(s) for examination and verification by the Arbitral Tribunal without further communication of such document(s) to Claimant.

275. Given lack of specificity and clarity in Claimant's request, the order of disclosure had to limit the duty of disclosure for [certain] contracts to [certain years].

276. In its disclosure … Respondent indicated the existence of only three contracts concluded by [Respondent] with customers listed in the New Framework Contract … No other contracts, particularly those concluded indirectly through [Y] with designated clients, were disclosed.

12.6.1.2. Respondent's refusal to disclose contracts concluded "indirectly" through [Y] with designated customers was unjustified

277. In its letter … Respondent sought clarification on the scope of disclosure. In reply, the Arbitral Tribunal confirmed that the order for disclosure … also covers any contract concluded by Respondent's wholly-owned subsidiary [Y] with the customers listed - and for the period identified - in the order for disclosure.

278. The Arbitral Tribunal explained that the order for disclosure gave effect to Claimant's request as summarized at page 2 of Procedural Order No. 3, which request had specifically included contracts concluded between the listed customers and [Y].

279. Furthermore, Respondent and its witnesses had confirmed that [Y] was incorporated by Respondent as its 100% owned and controlled subsidiary for the purposes of conducting business as Respondent's representative office with Respondent's customers in the Middle East ... There was no doubt that Respondent had direct access to the information subject of the order for disclosure.

280. Respondent was therefore ordered to complete, in compliance with Procedural Order No. 3, the list of disclosure submitted [in response to the order] with further information concerning the contracts concluded between its wholly-owned subsidiary [Y] with the customers listed - and for the period identified - in the order for disclosure, and to file the completed list.

281. Respondent's objection regarding the relevance of contracts concluded by [Y] to Claimant's right to commissions under the New Framework Agreement was dismissed since such contracts were already deemed to be, prima facie, relevant to the resolution of the dispute.

282. [Subsequently], Respondent requested the Tribunal "to deny Claimant a disclosure regarding [Y] and/or contracts "indirectly" closed with certain customers by [Respondent] and to confirm that Respondent is not requested anymore to comply with modified Order No. 3 so that the time limit … is obsolete". Respondent's request was based on three sets of arguments.

283. First, Respondent objected that the order of disclosure went beyond Claimant's original prayers for relief 3 and 4 as stated in the Terms of Reference. However, and as clearly stated in Procedural Order No. 3 … Claimant's … request for disclosure was of a procedural and not a substantive nature. Therefore, Claimant's …procedural request for disclosure was not part of Claimant's substantive "claims" in the sense of Article 18 of the ICC Rules and, in any event, could not be construed as a "new claim" in the sense of Article 19 of the ICC Rules ...

284. Furthermore, Claimant's request for disclosure was manifestly independent from Claimant's claims no. 3 and no. 4 … and contained no reference to Claimant's original claims nos. 3 and 4. On the contrary, at page 11 of its Request for Disclosure, Claimant clearly states that its procedural request for disclosure shall render its substantive request for disclosure under nos. 3 and 4 obsolete, and shall purport to amend its original claim no. 5 in terms of quantification. Claimant's position was further confirmed by Claimant's Statement of Claim …, where the revised claim no. 3 comes to replace claims nos. 3, 4 and 5 of the Terms of Reference. As decided earlier …, the revised claim no. 3 is not a new claim in the sense of clause 19 of the ICC Rules.

285. After re-examination, the Arbitral Tribunal arrived at the conclusion that the scope of Claimant's … procedural request for disclosure, extending to contracts concluded by [Y] with designated clients, remains within the ambit of the Terms of Reference and, more specifically, Claimant's original claim no. 5 … later replaced by the revised claim no. 3.

286. Second, Respondent argued that the disclosure cannot be extended to contracts concluded by [Y] with designated clients, given that the latter has an independent legal personality and is not a party to the arbitration proceedings.

287. Respondent's above argument was fully dismissed.

288. To begin with, Claimant had not raised any claims against [Y] in the present arbitration proceedings. Hence, the Arbitral Tribunal was perfectly empowered to order the disclosure by Respondent of documents and/or information that relate to a third party insofar as the requested documents and/or information remain within the reach, control or possession of Respondent. Article 3.2 of Procedural Rules adopted by the Parties, as well as the IBA Rules applicable by reference in the present arbitration proceedings by virtue of Article 6 of Procedural Order No. 1, provide that an order for disclosure may extend to documents that are within a Party's "possession, custody or control". Article 9 § 4 IBA Rules upheld the same principle: "Within the time ordered by the Arbitral Tribunal, the Party to whom the Request to Produce is addressed shall produce to the Arbitral Tribunal and to the other Parties all the documents requested in its possession, custody or control as to which no objection is made."2 Arbitral awards and legal commentators have confirmed that the duty of disclosure may extend to documents and/or information related to a third party so long as it remains in the possession, custody or control of the party requested to disclose.3 As regards documents or information held by a parent company or an affiliate, it is sufficient for an international arbitral tribunal that the documents or information are "accessible" to the party that is to be ordered to disclose them.4

289. Moreover, it has been established as a matter of fact that [Y] was a mere instrumentality of Respondent ... As testified by Respondent's own witnesses, [Y] is a 100% subsidiary of Respondent that had been incorporated for the purpose of conducting Respondent's business in Middle East, and is fully controlled by Respondent:

"When [X] did not perform any sales activities, [Respondent] started to engage itself in sales activities directed at conclusion of contracts with Middle East-based customers, including the entities named in the New Framework Agreement, on our own costs. Therefore, [Respondent] founded the company [Y] ... [Y] performs sales and production activities." (… witness statement …)

"[Respondent] founded the company [Y]. For all I know, the company has a size of round about 10 employees and performs sales, distribution and production activities until today. Its main purpose is to perform sales activities for [Respondent], aimed at the conclusion of contracts with Middle East-based clients."(… witness statement …).

290. Respondent's own words explicitly refer to the "indirectly closed contracts, most prominently those of [Y]", when addressing the contracts that were subject of the disclosure order (see … Respondent's … letter).

291. Another of Respondent's witnesses explicitly summarizes [Y]'s achievements in the following terms: "We promoted new clients, issued offers to clients, performed presentations at client facilities and contracted [Respondent]" (… witness statement …

292. Respondent further explains that [Y] was incorporated in order to replace [X] precisely when the latter failed to perform its "agency" obligations under clause 4 of the New Framework Contract:

• "Even if [X] brought Respondent and potential customers in touch prior to the signing of the New Framework Agreement, this initial contact was not sufficient to finally establish contractual relationships. … As a result of [X]'s failure to perform these services as described in the Partnership Contract [re. New Framework Contract], this is exactly what Respondent and [Y] started to do …: serve and build up business partners, inform potential partners about new or fitting products for them …"; (Respondent's FSB [Final Summations Brief] …)

• "Due to the fact that [X] did not perform any services, Respondent started to engage in sales activities aimed at conclusion of the contracts with the Middle East-based clients, including the entities indicated in the New Framework Agreement, on its own expenses. Beside its own activities, Respondent founded the company [Y] …. [Y] is active until today" (Respondent's FSB …)

• "There were two people in [Y] responsible for sale within the region … The cost of their remuneration and other costs of their activity amount for years … to ... Within the sales activity, [Y] has covered the expenses of promotion services rendered within the region of Middle East by Mr …" (Respondent's FSB …)

293. [Y] was thus incorporated in order to assist [Respondent] in closing contracts with its own customers, in particular those designated in the New Framework Contract. Furthermore, Respondent clearly holds [Y]'s operational budget as a direct business cost for Respondent: at page 19 of Respondent's FSB, under the heading "Costs to provide agency services" in replacement of [X], Respondent has included all the costs associated with the incorporation and operations of [Y]. It is clear that [Y], with its limited resources and personnel, was not the party performing and implementing the contracts closed with customers in the Middle East, and the performance and implementation must have been done primarily by Respondent.

294. There was, therefore, absolutely no doubt that the documents and/or the information requested to be disclosed is within the reach and control - if not in direct possession - of Respondent.

295. Third and finally, in further support to its objections to the order for disclosure, Respondent had referred to a set of unresolved issues, in particular that of applicable substantive law, the scope of the Arbitral Tribunal's jurisdiction over [one of the projects], and Claimant's standing to sue under the New Framework Contract. This objection was also dismissed on the basis of the Parties' procedural agreement that the issue of applicable law and the scope of Tribunal's jurisdiction be determined with the merits of the dispute in a final award, as evidenced by the Summary Minutes of the first Hearing … and Procedural Order No. 1 …

296. In any event, the disputed issues of applicable law, jurisdiction and standing are wholly unrelated to - and had no incidence on - the order for disclosure and Respondent's duties thereunder.

297. On the above basis, Respondent's objections were entirely dismissed and the order of disclosure confirmed. Respondent, however, persisted in its refusal to comply fully with the order of disclosure.

12.6.1.3. The alleged violation of German and UAE public policy

298. In its FSB …, Respondent persisted in its refusal to comply with the disclosure order, contending such compliance would be in violation of public policy principles of both German and UAE laws and in addition, would also violate Polish public policy and the ICC Rules. Respondent basically contended that, as a matter of German and UAE public policies, the disclosure is inadmissible given that: 1) it cannot be ordered against the Respondent's 100% owned and controlled subsidiary since the latter is not a party to the arbitration proceedings and unless the principle of good faith compels the piercing of the corporate veil; 2) the disclosure order is at variance with Section 142 of the German Civil Code of Procedure (ZPO) since the documents to be disclosed are not in the "possession" of Respondent as restrictively defined by this provision of German law; the same would be true under Article 336 of Polish Code of Civil Procedure which allegedly forms part of Polish public policy 3) [a relevant] UAE Regulation … only allows [Respondent] to request the balance sheets of [Y] and no further details on contracts concluded by [Y] with third-party customers; 4) Article 18 of the UAE Federal Law No. 10 of 1992 does not allow a request for disclosure of contracts concluded by the Parties to the proceedings unless such contracts are specified by name, date and subject matter; 5) the disclosure order violates ICC Rules as the disclosure is directed against [Respondent] group of companies which is neither a legal entity nor party to the arbitration proceedings. Therefore, Respondent concludes, the Arbitral Tribunal should not draw any adverse inference from Respondent's refusal to comply with the disclosure order.

299. Respondent's legal arguments, summarized above, are beside the point. First and as already explained, the disclosure had been ordered against [Respondent] and not [Y].

300. Second, the order seeks disclosure of information and not documents, with a sufficient degree of specificity given the nature and the circumstances of the dispute.

301. Third, the requested information was certainly available to [Respondent] since [Y] had been incorporated, in Respondent's own words, as a representative office in the Middle East in order to conclude, amongst others, contracts with Respondent's customers already designated as such in the New Framework Contract, and that these contracts were being essentially performed by [Respondent] who disposed of the required software, know-how, skill and qualified personnel for their performance.

302. Fourth, the duty of disclosure in the present arbitration proceedings is governed by the ICC Rules and the procedural rules that were agreed upon by the Parties in Procedural Order No. 2 as well as IBA rules whose application was also specifically agreed by the Parties (see Article 6 of Procedural Order No. 2). These rules allow disclosure of documents that are "in possession, custody or control" of a party, to the exclusion of German ZPO Articles 412 and 422 or German BGB Articles 854 and 868, the UAE Regulation and Federal Law No. 10, or Article 336 of the Polish Code of Civil Procedure, all of which may - or may not - have a more restrictive legal definition of "indirect possession" of documents or information to be disclosed.

303. Sixth, and in any event, the Tribunal remains convinced that Respondent is in full possession of the requested information in the sense of German, UAE and Polish laws (see above … 12.6.2.2).

304. Seventh, the Tribunal is not convinced by the suggestion that the provisions of German, UAE and Polish laws relied upon by Respondent are - or could be - the expression of international public policy of those respective countries and, thus, mandatorily applicable to international arbitration proceedings held in Frankfurt under the auspices of the International Chamber of Commerce. Even if Respondent's presentations were accurate and one could accept the doubtful assumption that the principles underlying German ZPO Articles 412 and 422 or German BGB Articles 854 and 868 are the expression of "fundamental principles of German law" (see Respondent's answer to AT questions …), Respondent still fails to explain how the disclosure order in the present proceedings would be "manifestly incompatible with" those principles or "incompatible with civil rights" in the sense of Article 6 EGBGB. Respondent essentially calls the disclosure with regard to [Y] a "fishing expedition" and states that "Claimant is not demonstrating in a substantial way that [Y] had concluded any contracts with customers mentioned in the New Framework Agreement" (Respondent's answer to AT questions …). The latter fact, however, has never been denied by Respondent's witnesses … and the order was, in the circumstances of the present case, sufficiently specific as regards the targeted customers and contracts.

305. Therefore, the Arbitral Tribunal concludes that no public policy concern could justify or excuse Respondent's failure to fully comply with the disclosure order.

12.6.1.4. Contracts concluded by [Y] with designated customers fall under the scope of the New Framework Contract

306. Respondent submits that its refusal to comply with the order for disclosure should have no impact on the resolution of the dispute given that Respondent's refusal was limited to contracts concluded by [Y] with designated customers - and not those concluded directly by Respondent - which did not fall under the scope of the New Framework Contract.

307. Respondent's argument is entirely misguided for several reasons.

308. Under UAE law, Respondent remains fully liable for the payment of commissions to Claimant with regard to contracts concluded with designated customers "indirectly" or through [Y].

309. First, it has been established above that as a matter of both fact and law, [Y] was created as an instrumentality of Respondent for the purpose of - amongst other - concluding contracts with customers recruited by [X] and designated in Clause 1 of the New Framework Contract.

310. Second, Clause 1 of the New Framework Contract provides for a right to commission fees for [X] - later validly assigned to Claimant - on "chargeable sums for [Respondent] for all resulting contracts with" the designated customers. According to clause 3, commission fees become due on all payment "[Respondent] has received". There is no requirement that the contract with the designated customer be necessarily concluded by [Respondent]: it is sufficient that the payments by the customer accrue to or benefit [Respondent].

311. Third, the second alternative of Article 199 of the UAE Commercial Transactions Law, quoted earlier, provides that the agent "shall also be entitled to the commission if it is proved that the non-conclusion of the deal is due to the principal". In the instant case, Respondent has repeatedly admitted that the conclusion of contacts with designated customers by [Y] rather than by Respondent was the result of a deliberate policy decision by Respondent who had incorporated [Y] - amongst others - for that purpose. Accordingly, Respondent remains entirely responsible for the non-conclusion of direct contracts with the customers and should assume, towards Claimant, the consequences of their indirect conclusion through [Y] (in Respondent's words, the "indirectly closed contracts, most prominently those of [Y]": see page 2, last paragraph of Respondent's … letter). Therefore, and in accordance with Article 199 quoted above, the commissions have become due regardless of the fact that the contracts have not been concluded by Respondent but rather concluded by [Y].

312. Fourth, and in accordance with Article 247 of the UAE Civil Transactions Law, Respondent should perform its obligations in good faith. Respondent's attempt to rely on indirect sales through [Y] in order to defeat or avoid its payment obligations under clause 1 of the New Framework Contract is manifestly incompatible with the good faith and, henceforth, not protected by UAE law. The fact that [Y] was created before or after the conclusion of the New Framework Contract or served other purposes than dealing with the designated customers (see Respondent's reply to questions of the AT …) is entirely irrelevant to the instrumental use of [Y] by Respondent for escaping liability for its obligations under clause 1 of the New Framework Contract.

313. Therefore, all payments received - or revenues generated - from contracts concluded with designated customers to the benefit of Respondent fall under the commission payment obligation irrespective of the fact that those contracts were concluded by Respondent directly or indirectly (i.e. through [Y]).

314. Finally, Respondent has relied on the decision of the European Court of Justice dated March 26th 2009 in Case C-348/07, holding that, under Article 17(2)(a) of Directive 86/653, "where the principal belongs to a group of companies, benefits accruing to that group are not, in principle, deemed to be benefits accruing to the principal and, consequently, do not necessarily have to be taken into account for the purposes of calculating the amount of indemnity to which a commercial agent is entitled" (Exhibit …).

315. That decision, however, is not applicable since the merits of the present dispute are governed by UAE laws and not EU laws and regulations. Furthermore, that decision's rationale is limited to the peculiar interpretation that the European Court of Justice has given to Article 17(2)(a) of Directive 86/653/EEC with the precise aim of coordinating the laws of Member States and implementing specific policies of the European Union on agency agreements. In any event, Article 17(2)(a) of the directive as well as the ECJ decision relate to agent's right to indemnity for reasons of termination and not, as in the instant case, to agent's commission fee for services already rendered and customers already procured. Finally, the Arbitral Tribunal has determined that the benefits of Claimant's services had not accrued to [Y] (or other members of [Respondent] group) but had accrued to Respondent which used [Y] as an instrumentality. All these circumstances fundamentally distinguish the present case from that decided by the ECJ.

12.6.1.5. Consequences of Respondent's failure to disclose contracts concluded with designated customers

316. Claimant has submitted that as a result of Respondent's failure to comply with the disclosure order, the Arbitral Tribunal should "take Claimant's opinion [sic] an presentation as the given facts by the rules of procedures" (Claimant's answer to AT questions …). Regarding rules of procedure, Claimant has referred to Articles 142 and 427 ZPO (Ibid. …).

317. Claimant's above submission is dismissed for the following reasons.

318. First, the ZPO and German domestic procedural rules are not applicable to the present arbitration except for the 10th book of the ZPO, Articles 1025-1066, which incorporates the German Arbitration Act, as well as those fundamental principles of German procedural law that are a clear expression of German international public policy. That is, in the Tribunal's view, obviously not the case for the ZPO rules that deal with consequences of a party's failure to fully abide by a disclosure order.

319. Second, and as rightly pointed out by Respondent, Article 142 ZPO refers to Article 286 ZPO which, rather than holding the Tribunal bound by Claimant's factual allegations in the event of non-disclosure by Respondent, allows the Tribunal a large discretion for deciding the disputed facts in light of the evidence on file and the surrounding circumstances (see Respondent's reply to AT questions … with reference to Article 141 ZPO). The same principle is applicable in international arbitration procedure: the "adverse inference" that needs to be deduced from Respondent's failure to disclose some facts does not oblige the Arbitral Tribunal to hold Claimant's allegations over those facts as "established" or deemed "proven"; it simply means that the Tribunal should take into account Respondent's failure to disclose when appreciating the weight of existing evidence and deciding on the allocation of the burden of proof in cases where the key evidence or information are under the exclusive control of the party refusing to cooperate (on consequences of non-disclosure on the allocation of the burden of proof, see "Drawing Adverse Inference from the Non-production of Evidence", by Jeremy K. Sharp, in Arbitration International, Vol. 22, No. 4, at p. 550: "arbitrators do employ adverse inference to enable Parties to discharge their burden of proof").

320. This is precisely the solution prescribed by the procedural rules adopted by the Parties in Procedural Order No. 1, Article 3.5, stating: "If a party, contrary to an order by the Arbitral Tribunal, fails to produce the documents without showing sufficient cause for such failure, the Arbitral Tribunal may draw from such failure any conclusion which it deems reasonable, in particular with respect to the content of such document."

321. Given Respondent's failure to disclose contracts indirectly concluded (i.e. through [Y]) with the designated customers and, more generally, Respondent's failure to cooperate in good faith for the establishment of key facts related to such contracts, the Tribunal has no other choice but to decide on Claimant's claims for commission fees under UAE law, and in particular Articles 949 of the UAE Civil Transactions Law and 199 of the UAE Commercial Transactions Law, as well as Articles 243 and 246 UAE Civil Code (see above section 12.6.1), on the basis of the available evidence by taking due account of Respondent's failure to fully disclose relevant information that remained in the exclusive field of control or possession of Respondent.'

1
Editor's note: References are to the 1998 ICC Rules of Arbitration.

2
Editor's note: This provision is found in Article 3.4 of the 1999 IBA Rules.

3
"If parties are to be able to answer document production requests without undue effort, the documents need to be in their possession or custody or under their control. A tribunal composed of European and North American arbitrators expounded upon this requirement as follows: 'For the purposes hereof, "possession, custody or control" shall include documents to the extent Claimant or Respondent has actual knowledge, without an obligation to do any research or inquiry, that a document responsive to a request for production is in the possession, custody or control of a person or an entity (i) within the same group as Claimant or Respondent, as the case may be, or … An entity shall be deemed to belong to the same group as Claimant or Respondent if such entity … is directly or indirectly owned or controlled by Claimant or Respondent …'" (Virginia Hamilton, "Document production in ICC Arbitration", in ICC International Court of Arbitration Bulletin, 2006 Special Supplement, Document Production in International Arbitration, at p. 74) (emphasis added).

4
See "Drawing Adverse Inference from the Non-production of Evidence", by Jeremy K. Sharp, in Arbitration International, Vol. 22, No. 4, at p. 558.