'1. At the beginning of the hearing, on Day 1, 15 December 2003, Counsel for the Respondent objected that Mr [X] could not be cross-examined by Counsel for the Claimant on the ground that no Rebuttal Witness Statement was filed by the Claimant as set forth in the Provisional Timetable No. 3 of 21st October 2003.

The present Order contains the ruling made by the Arbitral Tribunal on this day to deal with that objection.

The dispositive part of this Order was read out by the Chairman at the beginning of Day 2, 16 December 2003.

2. Due process (le droit d'être entendu, rechtliches Gehör) both under Art. 182(3) of the Swiss Federal Private International Law Act, 1987 ("the 1987 Act") and Art. 15(2) ICC Rules includes the right of each Party to present its case by filing submissions and evidence.

When evidence is filed by a Party, the other is entitled under the same principle to challenge such evidence and, affirmatively, to file evidence in rebuttal.

Under these rules each Party is therefore entitled to challenge witness evidence submitted by the other and a breach of such principle may result in an arbitral award to be set aside under Art. 190(2)(d) of the 1987 Act.

In the Arbitral Tribunal's opinion this would suffice per se to establish the Claimant's right to cross-examine Mr [X], and to dismiss the Respondent's objection.

However, the Arbitral Tribunal will add a few considerations on the function of written Witness Statements, as the Respondent rested part of its exception on the arrangement agreed upon between the Arbitral Tribunal and the Parties whereby written Witness Statements and Rebuttal Witness Statements would be filed in accordance with Timetable No. 3.

3. The arrangements made in this arbitration as to the filing of Witness Statements and Rebuttal Witness Statements do not, and were not intended to, limit the fundamental principle set out above.

Each Party has a right to file such Statements; the sole limitation of the right of each Party to adduce evidence lies in the fact that the failure to file a written Witness Statement signed by a given witness will prevent a Party from calling such witness to give evidence at the hearing. Similarly, each Party has in principle a right to file Rebuttal Witness Statements.

It is true that Procedural Order No. 1 of 21st October 2003 contains no provisions to deal with the case in which a Party fails to file a Rebuttal Witness Statement and those not set out whether such failure has any adverse consequences on such party's right to cross-examine the witnesses of the other.

In any event, however, the filing of a Rebuttal Witness Statement is no more than a particular means to file evidence in rebuttal and the failure by a Party to do so cannot affect such party's right to challenge the evidence filed by the other.

4. Under the influence of procedural practices having their origin in common law jurisdictions, the filing of Affidavits or written Witness Statements have come to be increasingly common in international commercial arbitration.

Such written statements may be regarded either as mere documents or as part and parcel of the witness or testamentary evidence on the record, at least as to witnesses under the control of either Party,

If they are to be regarded as part of the witness evidence, the witness who signed such a document must (i) appear at the hearing, (ii) confirm his or her witness statement and (iii) be examined in accordance with the arbitral tribunal's directions.

Short of this, a written witness statement is to be considered as a mere document, and, moreover, one which was drafted for the purpose of the arbitration.

5. If Mr [X] were to appear and to be examined only by the Respondent which called him, such part of the taking of the evidence would be tainted as being in breach of the fundamental principle of due process, which includes equal treatment of the parties under the law.

It follows that the right waived by the Claimant in relation to Mr [X]'s Witness Statement can only be the right to file evidence in rebuttal.

Mr [X] may therefore be cross-examined as to the points dealt with in his Witness Statements and all other points of fact in dispute directly related thereto as to which he has direct personal knowledge.

Therefore, the Arbitral Tribunal decides as follows:

1. The Respondent's objection whereby Mr [X] should not be cross-examined by Counsel for the Claimant is dismissed.

2. The Claimant is therefore granted the opportunity to cross-examine Mr [X] as to the Witness Statement filed by the Respondent on behalf of Mr [X] on 24 November 2003.'