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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
47. Subject to the provisions of the Terms of Reference, the applicable procedural rules shall be the ICC Rules of Arbitration (1998 ICC Arbitration Rules), and the arbitration shall be conducted in accordance with chapter 12 of the Swiss Private International Law Act ("PIL Act").
48. Where the ICC Rules or the present Terms of Reference are silent, the proceedings shall be governed by the procedural rules agreed upon from time to time by the parties, or, failing such an agreement, by the procedural rules which the Sole Arbitrator may issue from time to time.
49. The Sole Arbitrator shall refer to the 2010 IBA Rules on the Taking of Evidence International Commercial [sic] Arbitration (the "IBA Rules") for guidance as to matters therein but shall not be bound by the IBA Rules.
50. If necessary, the Sole Arbitrator may communicate informally with counsel for the Parties about organizational matters relating to the procedure.
51. The Sole Arbitrator shall have the authority to determine any conclusion(s), claim(s) or counterclaim(s) taken or raised by the parties in a partial or interim award, or to join them in a single award.
52. All documentary evidence shall be produced together with the Parties' written briefs and submissions in accordance with the sequence of exchange of briefs detailed in the Provisional Procedural Timetable established under a separate document. In accordance with paragraph 11 of these Terms of Reference, briefs and written submissions shall be made simultaneously in electronic copy and hard copy, the latter to be sent by ordinary post or international express courier. Digital copies can be sent by e-mail or in any other electronic form and should allow the Arbitrator to apply the search function.
53. The Parties shall number the exhibits submitted with their briefs and submissions in consecutive order, and mark them C-1, C-2, C-3 etc. for the Claimant, and R-1, R-2, R-3 etc. for the Respondent. The list of all exhibits lodged by either Party shall be updated whenever additional evidence or completeness is disputed by the other party.
54. The Sole Arbitrator may, upon specific and precise request by either Party and after consultation with the Party against which the order is sought, or on his own initiative, order the production of a document in this Party's possession or under its sphere of control. Any such request by a Party shall identify the document(s) with a reasonable degree of specificity and establish the relevance of the document sought to the requesting Party's claims or defences. The Sole Arbitrator shall, at his discretion, decide on the issue, taking into particular account the Parties' legitimate interests.
55. If it is decided that written witness statements shall be lodged with the brief to which they relate, or exchanged thereafter, such statements shall contain the full name and address of the witness, past and present relations of the witness with the parties, a description of the witness' position and qualifications if relevant to the dispute or to the contents of the statement, a detailed description of the facts for which the witness is offered, together with the indication of the source of the witness' knowledge, and the signature of the witness affirming the truth of the statement. These requirements apply whether the witness is a fact witness or an expert-witness.
56. Any person, including Parties and their representatives, may be witness.
57. A witness shall in principle not be allowed to be present at the examination of another witness prior to his/her own testimony. Consequently, a representative of a Party who wishes to attend the witness hearing shall be examined before all other witnesses. This is without prejudice to the Arbitrator's right to confront, at any time, two or more witnesses.
58. The organization of oral testimony hearing(s) shall be discussed and agreed by separate procedural agreement after discussion with the parties whereupon it is understood that the Sole Arbitrator shall always be in control.
59. Witnesses and expert-witnesses shall be summoned to appear by the nominating Party. The costs of a witness appearance at a hearing shall provisionally be borne by the Party calling the witness, subject to the eventual overall determination and allocation of such costs and expenses within the final award.
60. Unless the Parties agree otherwise, written statements, if any, by a witness or an expert witness shall be disregarded by the Sole Arbitrator if such witness or expert witness was requested, offered or called to attend a hearing for oral examination, but failed to so appear at the hearing fixed to this effect without any valid excuse. If, however, the Party offering the witness expresses its wish not to call such witness to the hearing and the other Party or the Sole Arbitrator does not request his or her presence at the hearing, his or her written statement shall be admitted.
61. The validity of the excuse raised, if any, shall be freely assessed by the Arbitrator. In case of non-appearance as a result of a valid or justified excuse, the Sole Arbitrator shall decide whether the examination of the witness or expert-witness should be re-scheduled. Depending on the circumstances which prevent the witness or expert-witness from attending the hearing, the Sole Arbitrator shall, in his own assessment, consider and evaluate the value of the witness' written statement, in the light of all relevant circumstances. The Arbitrator may decide to have the witness testify through videoconferencing.
62. Witnesses and expert-witnesses shall be subject to reasonable oral direct examination, and to cross-examination, re-direct and re-cross-examination pursuant to specific procedural directives to be issued by the Sole Arbitrator after consultation with the Parties, prior to the hearing at which they shall be heard. The witness examinations shall, as a matter of principle, be in English, with the exception of examinations in another language if the Arbitrator is satisfied that the witness cannot give evidence in the language of the arbitration. If testimonies are given in a language other than the language of the arbitration, they shall be simultaneously translated. The fees and expenses of the translator/interpreter shall be considered as expenses of the arbitration.
63. After consultation with the Parties, the Arbitrator may appoint an expert on its own initiative, pursuant to Article 20(4) of the ICC Rules of Arbitration, or appoint such expert at the request of either Party.
64. The expert's terms of reference shall be established in consultation with the Parties.
65. The expert shall submit a written report, and may be called by the Sole Arbitrator or the Parties to attend a hearing to be heard in person.
66. The appointment of the expert shall be in accordance with the requirements of Article 1(1) of Appendix III to the ICC Rules of Arbitration regarding advance on fees and expenses.
At the discretion of the Sole Arbitrator, a verbatim transcript of hearings shall be prepared, the cost of which shall initially be borne by equally by the Parties, and paid by the Parties in two equal shares to the reporter preparing the transcript. The Sole Arbitrator shall decide which Party shall ultimately bear these costs in the award.'
16. Claimant's Request for the Production of Documents pursuant to Section 54 of the Terms of Reference and Article 3.3 of the IBA Rules on the Taking of Evidence in International Arbitration (the "IBA Rules").
17. Section 49 of Terms of Reference provides that the Arbitrator shall refer to the 2010 IBA Rules for guidance as to matters therein but shall not be bound by the IBA Rules.
18. Paragraph 47 of the Terms of Reference indicates that "subject to the provisions of the Terms of Reference, the applicable procedural rules shall be the ICC Rules of Arbitration ('ICC Rules'), and the Arbitration shall be conducted in accordance with Chapter 12 of the Swiss Private International Law Act ('PILA')".
19. Under the 1998 ICC Rules, arbitrators may order production of documents which are in the hands of a party or under its control. This authority was already implicit in the Arbitrator's mandate under Article 20(1) ICC Rules to establish the facts "by all appropriate means", and has been confirmed with the introduction of Article 20(5) in the 1998 ICC Rules, which provides that "at any time during the proceedings, the Arbitral Tribunal may summon any party to provide additional evidence".
20. With this provision the ICC joins the majority of international arbitral institutions which give arbitral tribunals the power to call on the parties to produce documents and witnesses, supply explanations, and provide experts. Article 20(5) also responds to the increasing number of demands for discovery by ICC arbitration users and the more frequent use and normalization of the discovery process by ICC arbitral tribunals. The power of ICC arbitral tribunals to order discovery is thus confirmed. This does not mean that a party has a right to document discovery or other discovery measures. The arbitral tribunal has discretion whether to require discovery and to what degree.1
21. Switzerland's domestic and international arbitration laws provide virtually no guidance on the standards to be applied to document production. The only indication given in the Concordat (applicable to domestic arbitration) - subject to the limitations of due process listed in its Article 25 - is that it is up to the parties to agree on the procedure and that it is generally up to the arbitral tribunal to decide on the taking of evidence.2 Likewise, under the PILA, party autonomy prevails in international arbitrations provided the parties are given equal treatment and a fair hearing.3 Here, too, the arbitral tribunal normally administers the production of evidence directly.4
22. There is no question that a party can demand the production of certain documents from another party. This may therefore be regarded as a general procedural rule in international arbitrations in Switzerland deriving from the parties' obligation to cooperate in good faith.5
23. However, as in proceedings before Swiss state courts,6 it is uniformly held that the purpose of producing documents in arbitral proceedings is to prove allegations of fact and not to gather information. US style discovery and fishing expeditions are therefore unacceptable.
24. Based on the aforementioned rules applicable to this arbitration, the Arbitrator may at any time during the arbitral proceedings require the parties to produce documents within such a period of time that he determines. As said before this provision does not confer upon the parties a right to document discovery but it is within the Arbitrator's discretion whether to order the production of documents and to what degree. Based on his competence to conduct the arbitration in such manner as he considers appropriate, the Arbitrator also may order the production of documents upon his own initiative and discretion.7
25. Section 54 of the Terms of Reference further states that "the Sole Arbitrator may, upon specific and precise request by either Party and after consultation with the Party against which the order is sought, or on his own initiative, order the production of a document in this Party's possession or under its sphere of control. Any such request by a Party shall8 establish the relevance of the documents sought to the requesting Party's claims or defences. The Sole Arbitrator shall, at his discretion, decide on the issue, taking into particular account the Parties' legitimate interests."
26. This provision of the Terms of Reference provides for the criteria specifying the requirements for an order for the production of documents. These criteria reflect the common practice in international arbitrations in most of civil law jurisdictions which requires that:
(i) the documents or category of documents can be identified with a reasonable degree of specificity;
(ii) the arbitral tribunal is convinced that the party is in possession of the documents, or can easily obtain them; and
(iii) the documents relate to facts relevant and material to the outcome of the dispute.9
27. Therefore, the Arbitrator will address below each category of the documents requested by Claimant and the ratio for their production in view of the above-mentioned standards and Respondent's objections, in order to determine whether the request for production should be granted in respect of each category.
(a) Memorandum of Understanding (MoU) between [X Luxembourg] and [company Y] related to the [Respondent] executed on [date].
(b) Shareholders Agreement related to [Respondent] between [X Luxembourg] and [company Y] executed on [date].
28. This category of documents relates to corporate documents that should be in the possession of any company and its founding shareholders/partners. Respondent does not suggest that these documents do not exist. Furthermore, Respondent suggests in its letter … that it "would be at disposal to take possible measures for compliance according to the circumstance and the law", which may be interpreted as an implicit acknowledgement by Respondent that these documents exist and that the Respondent is ready to produce them if directed to do so by the Arbitrator.
29. In addition, these two categories of requested documents are clearly identified with a reasonable degree of specificity, since the Claimant's request mentions with precision the presumed parties to these documents as well as the dates of their creation. Also these two documents are referred to in other exhibits lodged by both Parties in these proceedings …
30. On another hand, and despite the fact that MoUs and Shareholders Agreements are believed to be "internal documents" (i.e. documents that are not usually published with other incorporation documents like Articles of Association, Statutes, etc., by their deposit with the competent commercial register or any equivalent authority), their production is not excluded as such. However, this production is ordered with restraint as they do not usually fall under the obligation to produce documents. In any event, the decision about whether a party should be ordered to produce such documents is at the entire discretion of the Arbitrator, who only will order their production if he is convinced that they are relevant to the outcome of the proceedings.
31. In this respect, the Arbitrator notes that the production of the MoU and the Shareholders Agreement might be relevant in order to verify the legal and contractual relationship between [X Luxembourg] and [company Y] which might be essential to resolve the jurisdictional issues.
32. The Arbitrator cannot accept Respondent's objection according to which these two documents (the MoU and Shareholders Agreement) are in the possession of the Claimant, since these are internal documents and the Claimant was not a party to any of them. Furthermore, the fact that Claimant has established an organizational chart of the [X] Group in his Brief in response does not mean that these documents are necessarily in Claimant's possession, or that the latter has the possibility to receive them.
33. The Arbitrator cannot neither accept Respondent's production of the two letters from Mr [B] of [company Y] … as evidence that the requested documents do not exist. Mr [B] does not contest such existence, but merely claims that they "have not seen or looked up these files" since the change of control of the parent company and that they believe that these documents are in the possession of [X Luxembourg] which proves that the documents exist. In addition Mr [B]'s above-mentioned letters do not prove that these two documents are not in Respondent's custody or control, since they deal directly with its creation.
34. Therefore, the Arbitrator considers that the request is to be granted to the extent the requested category of documents is likely to exist and may be relevant and is described in sufficient detail. Such decision is made without prejudice to the Arbitrator's determination that such documents are relevant and material to the outcome of this phase of the arbitration.
(d) Copy of [Respondent]'s financial statements for 2008, 2009, 2010 and 2011, including P&L statements.
35. With regard to request (d), Claimant argues that the providing of [Respondent]'s financial statements and balance sheets were part of the requirements, at least indirectly, to incorporate [X Saudi Arabia] … and that these financials will also help to determine the jurisdictional issue, as they will show the financial movements between [X Luxembourg], [X UK] and [company Y] since the creation of [Respondent] to date.
36. The Arbitrator notes in relation to the first reason invoked by Claimant for the production of the requested financials, that it lacks relevancy with the present phase of the arbitration as it more likely pertains to the merits of the case. Nevertheless, the financial cash flow between the three companies may be of some relevance in order to determine the involvement of these companies in the financing of [Respondent] and as such, may help in resolving the jurisdictional matters object of this stage of the proceedings.
37. On another hand, the requested financials are mandatory documents that should be kept by any company according to the laws of its jurisdiction of incorporation. In addition, these laws usually require the concerned company to publish its financial documents with the competent authority. In [Respondent]'s case, the Kuwaiti Companies' Law No. 15/1960 provides for similar obligations.10
38. Finally these financials have been reasonably identified in their years, which makes their production acceptable. Such decision is also made without prejudice to the Arbitrator's determination that such documents are relevant and material to the outcome of this phase of the arbitration.
(c) Copy of any instruction given to Mr [A] withdrawing his signature powers for [Respondent] prior to the MoU dated [date].
(d) Any budgets, financial forecasts and/or financial data issued by [Respondent] in relation with [X Saudi Arabia].
39. In relation to requests nos. (c) and (d), the Arbitrator notes firstly that the requested documents fall under the category of internal documents of which production is not excluded as explained before.11 However, such production is at the entire discretion of the Arbitrator and only if the requested documents exist and are within the possession, power, custody or control of the other party. If contested the requesting party will have to show this is likely.12
40. Secondly, and in relation to the likely existence of the requested instruction to Mr [A] concerning the withdrawal of his signature, as well as the budgets and financial forecasts in relation to [Respondent] drafted between July 2009 and May 2010, Claimant has provided virtually no evidence that the various internal documents requested exist. Furthermore, there is no concrete indication why Claimant believes that the requested documents exist; Claimant seems to rely on the general presumption that [Respondent] "would" have established and "obviously" kept such documents. The lack of concrete indications as to the presumed existence of these documents leads, in the Arbitrator's view, to reject the requests nos. (c) and (e).
41. In addition, the reasons invoked by Claimant in support of request no. (e) related to [Respondent]'s budget and financial forecast, does [sic] not seem to be relevant to the jurisdictional matter at hand, but rather goes to the issue of liabilities for breach of contract pertaining to the merits of the case …
42. Therefore, the Arbitrator is not satisfied that requests nos. (c) and (e) meet the requirements of the likeliness of existence of the requested documents, their relevance and materiality at the present stage of the proceedings; and their production should not be ordered. Conversely, to the extent the Sole Arbitrator does not order the production of these documents, such decision is without prejudice to the merits of the issue and provisional in nature: the Arbitrator may revisit his decision at a later stage of the proceedings if and when new light is shed on the possible existence, and the relevance and materiality of such documents.
43. For the reasons discussed above, it is hereby ordered that:
1. Claimant's requests for production of documents nos. (a), (b) and (d) are granted.
2. Consequently, Respondent shall produce [within 21 days] copies of the following documents:
• The Memorandum of Understanding (MoU) between [X Luxembourg] and [company Y] related to [Respondent] executed on [date].
•The Shareholders Agreement related to [Respondent] between [X Luxembourg] and [company Y] executed on [date].
• [Respondent]'s financial statements for 2008, 2009, 2010 and 2011, including P&L statements.
3. Claimant's requests for production of documents nos. (c) and (e) are rejected.
4. The costs of this Request for Production of Documents and other expenses incurred in connection therewith are reserved.'
'Respondent's requests for inspection
7. Article 7 of the IBA Rules provides as follows:
Article 7: Inspection
Subject to the provisions of Article 9.2, the Arbitral Tribunal may, at the request of a Party or on its motion, inspect or require the inspection by a Tribunal-Appointed Expert or a Party-Appointed Expert of any site, property, machinery or any other goods, samples systems, processes or Documents, as it deems appropriate. The Arbitral Tribunal shall, in consultation with the Parties, determine the timing and arrangement for the inspection. The Parties and their representatives shall have the right to attend any such inspection.
8. This article clearly provides guidance on site inspections that frequently occur in construction arbitrations,13 which is obviously not the case in the present arbitration.
9. In any case, and for the benefit of discussion, the Arbitrator notes that Respondent's request concerns Exhibits R-1 and R-37 (that have been produced by the Respondent itself) without clarifying the purpose of such inspection and which it appears that the Respondent wants to be conducted by an expert as it infers from Respondent's reference to a certain "report". Thus, such inspection by an expert is supposed to prove either a forgery in these two documents, which the Respondent does not seem to claim; or (and more probably) that the stamps on both documents are those of [X UK], which in the present circumstances does not need such an inspection or expertise and could be established by the Arbitrators and the Parties by a simple naked eye review of these documents.
10. The same may be said about the domain name and email addresses used by [X UK], which usually are public and might be easily obtained from the internet and through Domain Names Registration websites/directories.
11. The Arbitrator concludes that the Respondent's requests for inspection are therefore unacceptable.
12. The legal framework for document production under the rules governing this arbitration have been discussed in Procedural Order No. 3 … which has dealt with Claimant's request for production of documents. The same standards apply to the present requests.
13. This request concerns the stamp or a specimen of it, used by [X UK] at the time of executing the Memorandum of Agreement (R-1) and Exhibit R-37.
14. It should be noted that this request relates to a document (or an object) which is in the possession of a third party, which is not at this stage a party to these proceedings.
15. In addition, Respondent does not clearly establish how this evidence can be relevant or material to the outcome of this phase of the arbitration.
16. It is further noted that, despite the fact that the IBA Rules of Evidence allow the Arbitral Tribunal to order the production of documents from a third party under certain circumstances (Article 3.8 et seq.), the requirements of Article 3.3 of the IBA Rules (applicable to requests for production addressed to third parties) are not satisfied in the present request.
17. Indeed, it infers from Respondent's request, that it aims to establish that the stamp used in Exhibits R-1 and R-37 belongs to [X UK] (although this does not seem to be clearly explained in Respondent's request but may be inferred from the circumstances) … However, and as explained before concerning the request for inspection, the contemplated result may be reached by other and simpler means, which makes the production of the stamp and/or its specimen by [X UK] not material enough to the issue in dispute at this stage and constitutes an unreasonable burden in the sense of Article 9.2(c) of the IBA Rules especially that they are in the possession of a third party.
18. Under this request, Respondent asks the Arbitrator to order [X UK] to produce the Letter of Credit which should have been issued at its request in favour of the Claimant, pursuant to the Memorandum of Agreement.
19. Claimant has answered in his letter … stating that there is no correspondence on the record for this request.
20. The Arbitrator notes in this respect that Respondent does not state that this Letter of Credit has been issued in reality. Therefore, the mere fact that it was mentioned in the Memorandum of Agreement does not mean that it has been issued or that it is likely to have existed. The legal effects pertaining to the non-issuance of this Letter of Credit relate to the merits of the case and are irrelevant to the outcome of this phase of the arbitration.
21. These requests concern the payments made by the Claimant to the Respondent under the Memorandum of Agreement.
22. The Claimant has replied stating that Exhibit No. C-2 answers Respondent's request.
23. Going back to Exhibit C-2, it appears that it includes several documents:
(i) Two bank cheques in the Arabic language … representing respectively the annual rent fee and maintenance fees ...
(ii) A copy of an Electronic Transfer … from the Claimant to [X UK] … representing 50% of the Licence Fee.
(iii) A series of emails from [Respondent's general manager] to the Claimant including one … acknowledging receipt of the balance of the Licence Fee ...
24. The Arbitrator observes first, that the two aforementioned cheques do not seem to be of any relevancy to any payment made to Respondent …
25. Second, and while the Electronic Transfer and the email of [Respondent's general manager] answer Respondent's request for production no. 4 in part (as far as the execution of the payment of the first 50% and the receipt of the balance of the Licence Fees are concerned); the request remains unanswered in respect of the receipt of the first payment …
26. The Arbitrator finds that the production by the Claimant of the document showing how and by whom the first payment … was acknowledged to be received might be relevant and material to the outcome of the present phase of this arbitration.
27. As said before, this evidence is usually public and may be easily obtained from the internet or through domain name registration websites/directories, which makes the request irrelevant.
28. Respondent is requesting copies of contracts it claims it was a party to, and which should therefore [be] in its possession.
29. In addition, the request is very broad and does not identify precisely what are the requested documents and what is their relevance or materiality to the outcome of the issues in dispute, and therefore amounts to a "fishing expedition" which is not acceptable under Swiss law.14
30. For the reasons discussed above, it is hereby ordered that:
1. Respondent's request for inspection is rejected.
2. Respondent's requests for production of documents nos. 1, 2, 3, 5 and 6 are rejected.
3. Request for production of documents no. 4 is partially granted; and Claimant shall produce [within 15 days], the document/correspondence that shows how and by whom the Electronic Transfer … representing the first 50 % of the Licence Fee, was acknowledged to be received.
4. The costs of the Respondent's Request for Inspection and Production of Documents and any other expenses incurred in connection therewith are reserved.'
10. Respondent clearly mischaracterizes the procedure related to testimonial evidence set forth in the Terms of Reference and in the provisional procedural agenda contained in Procedural Order No. 2.
11. Firstly, it seems that some confusion has occurred in Respondent's interpretation of section 59 of the Terms of Reference between the "summoning" of the witness which should be made by the nominating party and the "calling" of this witness by the opposing party. The wording of section 59 is very clear though, it distinguishes between the party which has to "summon" the witness i.e. to notify and make him available to appear at the hearing for examination and which should be the party that has nominated that witness, and the party that "calls" this witness to testify and which is obviously the opposing party who has to bear the costs of the witnesses' appearance.
12. Based on this clarification, the witnesses nominated by Respondent who has to produce their written statements, if called by the Claimant, shall be "summoned" (i.e. notified and made available to appear at the hearing) by the Respondent itself, while the Claimant shall bear the costs of such appearance and vice versa.
13. Secondly, and concerning the deadline for submitting witness statement, the Respondent also mischaracterizes the deadlines set forth in Procedural Order No. 2, by saying that the date [mentioned therein for communicating names of witnesses to be heard] is set for each party's nomination of its own witnesses. In fact, Claimant and Respondent should have nominated their witnesses and filed their written statements in their respective briefs exchanged in accordance with the procedural agenda. Therefore, the [later] deadline is set to each party's "calling" of the other's own witnesses.
14. Thirdly, the fact that section 58 of the Terms of Reference provides that the organisation of oral testimony hearing(s) shall be discussed and agreed by separate procedural agreement after discussion with the parties, does not mean that the way is still open for parties to nominate new witnesses and submit their written statements after the exchange of briefs, in which such nomination should have occurred, has now been completed. This provision merely means that the arbitrator will issue specific rules to organize the hearing after consultations with the parties. In this respect I will submit to parties' comments in the coming days a draft detailed Procedural Order to this purpose.
15. Finally, the Arbitrator fails to see the relevancy of the Respondent's several citations from the IBA Rules of Evidence with the subject of Respondent's present request, which is not submitted in accordance with the procedural rules governing this arbitration, and should consequently be dismissed.
16. In response to Respondent's call of [Mr A] to be heard as witness at the hearing, Claimant, in his letter ... states that he has no control over [Mr A], from which it infers that the Claimant is not bound or obligated to summon [Mr A] to the hearing as a result of his calling by Respondent.
17. Claimant's position was further clarified in his letter ... where it is stated that "neither party has submitted a witness statement" for [Mr A]. This means that the Claimant does not consider its Exhibit C-13 as a witness statement but a mere "letter".
18. However, [Mr A]'s "letter" meets all of the standards of definition of a witness statement in international arbitration.
19. Indeed, section 55 of the Terms of Reference provides that a witness statement "shall contain the full name and address of the witness, past and present relations of the witness with the parties, a description of the witness' position and qualifications if relevant to the dispute or to the contents of the statement, a detailed description of the facts for which the witness is offered, together with the indication of the source of the witness' knowledge, and the signature of the witness affirming the truth of the statement". This provision is in line with the international standards requested in respect of the form of witness statements by the IBA Rules of Evidence (Article 4.5).15
20. These standards also apply to witness statements filed in international arbitrations in Switzerland.16
21. Turning now to [Mr A]'s letter of [date] (after the start of this arbitration), it appears that it contains [Mr A]'s address and a description of his role and positions as well as answers to precise questions of facts prepared by Claimant's counsel directly related to this phase of the proceedings. Finally, it ends with a statement by [Mr A] that his "statement" is a full and accurate account of the issues Claimant's counsel asked him to address and his signature.
22. Therefore, this letter constitutes a proper witness statement by [Mr A] on which the Claimant relies in this case, which entitles Respondent to call [Mr A] to testify at the hearing and [be] examined in accordance with the procedural rules governing this arbitration. Consequently, the rules contained in sections 57 to 62 of the Terms of Reference shall apply to his testimony.
23. The Claimant in person has submitted two witness statements in this case (Exhibits C-12 and C-32).
24. According to the Terms of Reference (section 56), the parties' representatives in person may be witnesses in this arbitration.
25. Respondent has chosen not to call the Claimant to testify at the hearing; however, under both the ICC Rules (Article 20.3) and the IBA Rules of Evidence (Article 4.10), the Tribunal may decide to hear witnesses on his own initiative.
26. Based on the above, the Arbitrator wishes to hear the testimony of the Claimant in person at the hearing about issues contained in his two witness statements. The timing and other details of this testimony will be dealt with in the Procedural Order to be issued by the Arbitrator to organise the hearing.
Therefore, it is hereby ordered that:
(i) Respondent's request to submit additional witness statements from and hear [Respondent's former general manager and current general manager] is rejected.
(ii) [Mr A] will be heard as a Claimant-nominated witness and should be summoned as such to the hearing by the Claimant.
(iii) The Claimant in person will be heard as an Arbitrator-nominated witness.
(iv) The organisation of the hearing will be dealt with in a specific Procedural Order to be issued by the Arbitrator in consultation with the parties.'
During the oral evidence of [Mr A] at the ... hearing ..., [Mr A] declared that he is in possession of the Memorandum of Understanding (MoU) ... between [X] and [Y] as well as the Shareholders Agreement related to [Respondent] and he is ready to provide Claimant's counsel with these documents if so ordered by the Arbitrator .... [Mr A] also stated that he is possession of the corporate documents of [X US] and can easily find them ... and that he assumes that he has a copy of [Respondent]'s Articles of Association drafted in Arabic ...
It should be noted that the ... MoU and [Respondent]'s Shareholders Agreement were already the object of an Order for Production in Procedural Order No. 3 addressed to Respondent which has not produced them. The Arbitrator had explained in that Order that these two documents may be material and relevant for the outcome of this phase of the dispute.
In addition, the Arbitrator finds that the incorporation documents of [X US] and the Articles of Association of [Respondent] may shed some additional light on the organisation of the [X] group of companies and the relations between these legal entities and may therefore be relevant and material to this phase of the dispute where the joinder of a third party, which is a member of that group, to these proceedings is requested by the Respondent.
The IBA Rules of Evidence (Article 3.10) permit the arbitral tribunal to seek certain documents that it considers to be relevant and material to the outcome of the case. First, since the arbitral tribunal is required to establish the facts of the case by all appropriate means (see Article 20.1 ICC Rules), it is entitled until the conclusion of the proceedings to order a party to produce documents which had so far not been introduced as evidence into the proceedings (see Art. 3.10[i] IBA Rules)
In addition, the Arbitrator may request a production of documents from a person or organisation which is not a party to the arbitration at the request of one party (Article 3.9 IBA Rules). Article 3.10[ii] permits an arbitral tribunal to request any party to use its best efforts to take "whatever steps are legally available to obtain the requested documents"; as long as the arbitral tribunal determines that such documents would be "relevant and material to the outcome of the case".
Therefore, I find it relevant and material to the outcome of this phase of the arbitration that the above-mentioned documents be produced in these proceedings as follows:
1. The Claimant to take whatever steps are legally available to obtain from [Mr A] and produce the Memorandum of Understanding (MoU) ... between [X] and [Y] as well as the Shareholders Agreement related to [Respondent] and the incorporation documents of [X US];
2. The Respondent to produce copies of [Respondent]'s Articles of Incorporation and any amendments thereto.
Both productions should be made [within 12 days].
Such decision is without prejudice to the merits of the issue and provisional in nature.
For the reasons discussed above, it is hereby ordered that:
.........
2. [Within 12 days], the Claimant to take whatever steps are legally available to obtain from [Mr A] and produce the Memorandum of Understanding (MoU) … between [X] and [Y] as well as the Shareholders Agreement related to [Respondent] and the incorporation documents of [X US].
3. [Within 12 days], the Respondent to produce copies of [Respondent]'s Articles of Incorporation and any amendments thereto.
Both productions should be made [within 12 days].'
1 See Craig/Park/Paulsson, International Chamber of Commerce Arbitration, 3rd ed. (Oceana, 2000), p. 450.
2 Art. 24 (1) Concordat provides that the arbitral tribunal will determine the procedure in the absence of an agreement between the parties and Art. 27 provides that the arbitral tribunal, or one of the parties with the consent of the arbitral tribunal, may seek assistance, if required, from the cantonal court at the seat of the arbitration.
3 Art. 182 PILA, see also Philipp Habegger, "Document Production - An Overview of Swiss Court and Arbitration Practice", in Document Production in International Arbitration, ICC Court Bulletin, Special Supplement No. 676, 2006, at 30, p. 27.
4 See Art. 184 PILA (also providing that the arbitral tribunal, or one of the parties with the consent of the arbitral tribunal, may seek assistance, if required, from the cantonal court at the seat of the arbitration); Habegger, ibid.
5 M.E. Schneider, Article 184, in S.V. Berti (ed.), International Arbitration in Switzerland: An lntroduction to and a Commentary on Articles 176-194 of the Swiss Private International Law Statute (The Hague: Kluwer Law International, 2000, at para. 18; see also, Pierre Tercier and Tetiana Bersheda, "Document Production in Arbitration: A Civil Law Viewpoint", in TheSearch for "Truth" in Arbitration, ASA Special Series No. 35, p. 81.
6 Zurich Commercial Court, 12 October 1992, Blätter für Zürcherische Rechtsprechung (ZR) 91/92 (1992/93) No. 65; Zurich Court of Appeal, 24 November 1975, ZR 75 (1976) No. 77, cited in Habegger, ibid., fn. 21.
7 Craig/Park/Paulsson, ibid., p. 450; Poudret/Besson, Droit comparé de l'arbitrage international (Zurich/Basel/Geneva: Schulthess, 2002) at. para. 650; M. E. Schneider, ibid. at paras. 18, 20.
8 Editor's note: The Terms of Reference include here the words: 'identify the document(s) with a reasonable degree of specificity and', cf. p. 166 above.
9 D.P. Roney & A.K. Müller in G. Kaufmann-Kohler & B. Stucki (eds.), International Arbitration in Switzerland: A Handbook for Practitioners (The Hague: Kluwer Law International, 2004) 49 at 61; M. Blessing, Introduction to Arbitration - Swiss and International Perspectives (Helbing & Lichtenhahn, 1999), at para. 902; M.E. Schneider, ibid. at para. 19.
10 Article 211 provides that the Limited Company's financials including the balance sheet and P&L statements should be deposited with the relevant governmental administrations and that they become public once they are deposited.
11 See section 30 above.
12 Habegger, ibid at para. 36, p. 29.
13 See the Commentary on this article in: IBA Working Party, Commentary on the New IBA Rules of Evidence, Article 7 - On-site Inspection; Amy F. Cohen, "Options for Approaching Evidentiary Privilege in International Arbitration", in Theresa Giovanni and Alexis Mourre. (eds.), Written Evidence and Discovery in International Arbitrations, ICC Dossiers No. VI, 2009, p. 426.
14 See Procedural Order No. 3, at 23.
15 See Commentary on the revised text of the 2010 IBA Rules on the Taking of Evidence in International Arbitration by the IBA Working Party, page 16.
16 See, Pierre-Yves Tschanz, "Advocacy in International Arbitration: Switzerland", in R. Doak Bishop (ed.), The Art of Advocacy in International Arbitration, Juris Publishing, NY 2004, p. 226.