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The IBA Rules on the Taking of Evidence (the "IBA Rules") define a “document” as “a writing, communication, picture, drawing, program or data of any kind, whether recorded or maintained on paper or by electronic, audio, visual or any other means.”2 Only documents that already exist can be subjected to requests for document production.3 This is consistent with the purpose of document production which is “to enable a party to prove its case but not to build its case.”4
Marghitola, R., Document Production in International Arbitration, International Arbitration Law Library, 2015, p. 1, 6.
Waincymer, J.M., Chapter 11: Documentary Evidence, in Procedure and Evidence in International Arbitration, Kluwer Law International, 2012, p. 865.
Marghitola, R., Chapter 2: Definition of Document Production and Distinction from Other Terms, in Document Production in International Arbitration, International Arbitration Law Library, 2015, p. 5.
Born, G.B., Chapter 16: Disclosure in International Arbitration, in International Commercial Arbitration, Kluwer Law International, 2014, p. 2368.
Tercier, P. and Bersheda, T., Chapter 7: Document Production in Arbitration: A Civil Law Viewpoint, The Search for “Truth” in Arbitration, ASA Special Series No. 35, Juris, 2011, p. 80.
Marghitola, R., Chapter 2: Definition of Document Production and Distinction from Other Terms, in Document Production in International Arbitration, International Arbitration Law Library, 2015, p. 6.
Discovery is a formal process used in the United States by which adverse parties in litigation exchange information and documents in order to identify the evidence by which they will prove their case at trial.7 Discovery occurs at the outset of a case and is much larger than document production because, on top of exchanges of documents, it also includes depositions, interrogatories and requests for admissions.8 Disclosure in English law is a similar procedure by which a party must disclose, first through a list, all documents that have a bearing on the case even if they are harmful to it.9
Although similar, document production in international arbitration differs from discovery and disclosure. Because it combines features from both common and civil law approaches, document production in arbitration is considered as “one of the most remarkable examples of a merger between different national civil procedure approaches.”10
Hanotiau, B., Document Production in International Arbitration: A Tentative Definition of 'Best Practices', ICC Special Supplement, 2006, paras. 4-5.
Park, W.W., Arbitrators and Accuracy, Oxford University Press, 2010, p. 12; Waincymer, J.M., Promoting Fairness and Efficiency of Procedures in International Commercial Arbitration – Identifying Uniform Model Norms, Contemporary Asia Arbitration Journal, Vol. 3, 2010, pp. 25-64 at 57.
Marghitola, R., Chapter 2: Definition of Document Production and Distinction from Other Terms, in Document Production in International Arbitration, International Arbitration Law Library, 2015, p. 9.
Reed, L.F. and Hancock, G., Chapter 7. US-Style Discovery: Good or Evil?, in Giovannini, T. and Mourre, A. (eds.), Written Evidence and Discovery in International Arbitration: New Issues and Tendencies, Dossiers of the ICC Institute of World Business Law, Vol. 6, pp. 340-346.
Tercier, P. and Bersheda, T., Document Production in Arbitration: A Civil Law Viewpoint, The Search for “Truth” in Arbitration – ASA Special Series No. 35, 2011, p. 83.
The ICSID Convention, the UNCITRAL Model Law, the 2006 ICSID Arbitration Rules, the UNCITRAL, LCIA, PCA, and HKIAC Arbitration Rules broadly empower the tribunal to call upon the parties to produce documents.13 More specifically, the new ICSID Arbitration Rules (2022) explicitly mention the circumstances to take into account when considering a document production request, notably (i) timeliness of the request; (ii) relevancy and materiality of the document requested; (iii) burden of production and (iv) basis of the objection.14
Tribunals and/or parties often refer to the IBA rules18 which are a soft law instrument. As such, parties are free to choose to be bound by them or to apply them as mere guidelines.19 Even without an express agreement, they are still relevant20 and are used and followed by arbitral tribunals21 in both the commercial and investment context.22
In 2018, a new soft law instrument was enacted: the Prague Rules. Taking a more inquisitorial approach than the IBA Rules,23 they recommend at the outset that parties should “avoid any form of document production, including e-discovery.”24 However, if parties choose to have a document production phase, the Prague Rules, which seek to promote efficiency, provide inter alia that all requests be made at the first case management conference except “exceptional circumstances.”25
Born, G.B., Chapter 16: Disclosure in International Arbitration, in International Commercial Arbitration, Kluwer Law International, 2014, pp. 2343-2344:
“scope and procedures for disclosure as between the parties in an international arbitration depend on the parties’ agreement to arbitrate and, absent such an agreement, the arbitrators’ exercise of their discretion, largely unconstrained by national law limitations.”
Born, G.B., Chapter 16: Disclosure in International Arbitration, in International Commercial Arbitration, Kluwer Law International, 2014, pp. 2347-2348.
Tercier, P. and Bersheda T., Document Production in Arbitration: A Civil Law Viewpoint, The Search for “Truth” in Arbitration, ASA Special Series No. 35, Juris, 2011, p. 83
Queen Mary Survey, International Arbitration Survey: Current and Preferred Practices in the Arbitral Process Survey Findings, 2012, p. 3; Kaufmann-Kohler, G., Globalization of Arbitral Procedure, Vanderbilt Journal of Transnational Law, Vol. 36, No. 4, 2003, pp. 1325-1326.
Marghitola, R., Chapter 4: Arbitral Tribunals’ Broad Discretion, in Document Production in International Arbitration, International Arbitration Law Library, 2015, p. 26.
ICSID Convention Article 43; UNCITRAL Model Law, Article 19(2); United Nations Commission on International Trade Law, Analytical Commentary on the Draft text of the Model Law, 1985, p. 46; ICSID Arbitration Rules Article 34(2); ICSID Arbitration Rules (2022), Article 36(3);ICSID Additional Facilities Arbitration Rules Article 41(2); ICSID Additional Facilities Arbitration Rules (2022), Article 46(3); UNCITRAL Arbitration Rules, 2013, Article 27(3); SIAC Investment Rules, 2017, Article 24(f); Phoenix Action Ltd v. Czech Republic, ICSID Case No. ARB/06/5, Decision on Provisional Measures, 6 April 2007, para. 45; Theodoros Adamakopoulos, Ilektra Adamantidou, Vasileios Adamopoulos and others v. Republic of Cyprus, ICSID Case No. ARB/15/49, Decision on Jurisdiction, 7 February 2020, para. 252; Apotex Holdings Inc. and Apotex Inc. v. United States of America, ICSID Case No. ARB(AF)/12/1, Procedural Order on Privileged Document Production, 5 July 2013, para. 21; LCIA Arbitration Rules (2020), Article 22; SCC Arbitration Rules (2017), Article 31(3); PCA Arbitration Rules (2012), Article 27(3); HKIAC Arbitration Rules (2018), Article 22.3.
ICC Arbitration Rules, 2017, Appendix IV; ICC Arbitration Commission Report on Managing E-Document Production, 2016; ICC Arbitration Rules, 2021, Appendix IV; International Institute for Conflict Prevention & Resolution (CPR), Protocol on Disclosure of Documents & Presentation of Witnesses in Commercial Arbitration, 2009; The Prague Rules on the Efficient Conduct of Proceedings in International Arbitration (the Prague Rules), 2018.
Tercier, P. and Bersheda, T., Document Production in Arbitration: A Civil Law Viewpoint, The Search for “Truth” in Arbitration, ASA Special Series No. 35, 2011, p. 83.
Park, W.W., Arbitrators and Accuracy, Oxford University Press, 2010, p. 16.
Reisman, W.M., Crawford, J.R. and Bishop, D.R., Chapter 12: Procedure and Proof: Developing the Case, in Foreign Investment Disputes: Cases, Materials and Commentary, 2nd ed., Kluwer Law International, 2014, pp. 1085-1176, p. 1086:
“While these rules were originally developed for commercial arbitration, they have been used, at least as general guidelines, in many investment disputes.”
ICSID, Production of Documents – ICSID Convention Arbitration; ICSID Secretariat, Proposals for the Amendment of the ICSID Rules, Vol. III, 2 August 2018, para. 423.
Churchill Mining PLC and Planet Mining Pty Ltd v. Republic of Indonesia, ICSID Case No. ARB/12/14 and 12/40, Procedural Order No. 5, 19 March 2013, para. 4; Canadian Cattlemen for Fair Trade v. United States of America, Procedural Order No. 1, 20 October 2006, para. 6; Global Telecom Holding S.A.E. v. Canada, ICSID Case No. ARB/16/16, Procedural Order No. 4 Decision on the Claimant Objections to the Respondent Claims of Privilege, 3 November 2018, para. 34; Grand River Enterprises Six Nations, Ltd. and others v. United States of America, Award, 12 January 2011, para. 32; Methanex Corporation v. United States of America, Final Award, 3 August 2005, Part II, Chapter B, para. 10; Sabharwal, D. and Zaman, R., Vive la difference? Convergence and Conformity in the Rules Reforms of Arbitral Institutions: The Case of the LCIA Rules 2014, Journal of International Arbitration, Kluwer Law International, Vol. 31, Issue 6, 2014, pp. 701-718, p. 715; IBA Arbitration Guidelines and Rules Subcommittee, Report on the reception of the IBA arbitration soft law products, September 2016, para. 16; B-Mex, LLC Deana Anthone, Neil Ayervais, Douglas Black and others v. United Mexican States ICSID Case No. ARB(AF)/16/3, Procedural Order No. 10 - Annex I, 26 Feb 2021; Patel Engineering Limited v. The Republic of Mozambique PCA Case No. 2020-21, Procedural Order No. 1 (Procedural Timetable and Conduct of the Arbitration), 14 Oct 2020, para. 28.
Tercier, P. and Bersheda, T., Document Production in Arbitration: A Civil Law Viewpoint, The Search for “Truth” in Arbitration, ASA Special Series No. 35, 2011, p. 85:
“The IBA Rules offer a resource that seeks a balance between common law and civil law practices. The text may be used in both ad hoc and institutional arbitrations. The IBA Rules, by their nature, are not binding as such. They are guidelines, which may or may not be formally adopted by an arbitral tribunal and the parties or which may simply be cited as a reference.”
Schreueur, C., The ICSID Convention: A commentary, Cambridge University Press, 2009, p. 642, para. 8:
“Parties to ICSID proceedings as well as tribunals often make reference on the International Bar Association’s Rules on the Taking of Evidence in International Commercial Arbitration (“the IBA Rules on Evidence”) as an appropriate standard.”
Churchill Mining PLC and Planet Mining Pty Ltd v. Republic of Indonesia, ICSID Case No. ARB/12/14 and 12/40, Procedural Order No. 5, 19 March 2013, para. 7; Noble Ventures, Inc. v. Romania, ICSID Case No. ARB/01/11, Award, 12 October 2005, para. 20.2; Glamis Gold Ltd. v. United States of America, Decision on Objections to Document Production, 20 July 2005, para. 9; Helnan International Hotels A/S v. Arab Republic of Egypt, ICSID Case No. ARB/05/19, Decision on Jurisdiction, 17 October 2006, para. 22; Latam Hydro LLC and CH Mamacocha S.R.L. v. Republic of Peru ICSID Case No. ARB/19/28, Procedural Order No. 4 on the Production of Documents Referred to in the Parties' Privilege Logs, 03 May 2021, para. 12; Amec Foster Wheeler USA Corporation, Process Consultants, Inc., and Joint Venture Foster Wheeler USA Corporation and Process Consultants, Inc. v. Republic of Colombia ICSID Case No. ARB/19/34, Procedural Order No. 1, 18 Mar 2021, para. 15.1; Angel Samuel Seda and others v. Republic of Colombia ICSID Case No. ARB/19/6, Procedural Order No. 2, 18 Feb 2021, para. 3; Gerald International Limited v. Republic of Sierra Leone ICSID Case No. ARB/19/31, Procedural Order No. 1, 29 May 2020, para. 15.2; ACP Axos Capital GmbH v. Republic of Kosovo, ICSID Case No. ARB/15/22, Procedural Order No. 2, 6 March 2017, para. 3.
Tevendale, C. and Franc-Menget, L., The Prague Rules: Arbitral Efficiency under the Lens, ICC Dispute Resolution Bulletin, Issue 2, 2019, p. 15:
“Whilst this inquisitorial approach will be familiar and welcome to users of arbitration from civil law jurisdictions, it may come as somewhat of a culture shock to some common law practitioners who have trained and practiced in jurisdictions where courts rely on the parties to investigate the facts and present their positions.”
Churchill Mining PLC and Planet Mining Pty Ltd v. Republic of Indonesia, ICSID Case No. ARB/12/14 and 12/40, Procedural Order No 14, 22 December 2014, para. 1; UNCITRAL Rules, Article 27(3); Sinclair, A.C. and Repousis, O.G., An Overview of Provisional Measures in ICSID Proceedings, ICSID Review, Vol. 32, Issue. 2, 2017, pp. 431–446, p. 440; BSG Resources Limited, BSG Resources (Guinea) Limited and BSG Resources (Guinea) SÀRL v. Republic of Guinea (I) ICSID Case No. ARB/14/22, Procedural Order No. 16, 15 Feb 2018, para. 31; ICSID Arbitration Rules, Article 34; ICSID Arbitration Rules (2022), Article 36-37; Gabriel Resources Ltd. and Gabriel Resources (Jersey) v. Romania ICSID Case No. ARB/15/31, Procedural Order No. 17, 11 Oct 2018, para. 25; Tidewater Investment SRL and Tidewater Caribe, C.A. v. Bolivarian Republic of Venezuela ICSID Case No. ARB/10/5, Procedural Order No. 1 on Production of Documents, 29 Mar 2011, para. 11; Quadrant Pacific Growth Fund L.P. and Canasco Holdings Inc. v. Republic of Costa Rica, ICSID Case No. ARB(AF)/08/1, Order of the Tribunal Taking Note of the Discontinuance of the Proceedings and Allocation of Costs, 27 October 2010, para. 35; Phoenix Action Ltd v. Czech Republic, ICSID Case No. ARB/06/5, Decision on Provisional Measures, 6 April 2007, para. 45.
Hanotiau, B., Document Production in International Arbitration: A Tentative Definition of 'Best Practices', ICC Special Supplement, 2006, para. 11:
“Failure to do so will inevitably cause slippage in the calendar and may make it necessary to postpone the hearing.”
Tercier, P. and Bersheda, T, Document Production in Arbitration: A Civil Law Viewpoint, The Search for “Truth” in Arbitration, ASA Special Series No. 35, 2011, p. 93:
“The procedure of document production is usually described in these rules either issued as a separate document entitled “Procedural Rules” or contained in the Procedural Order No. 1 issued by the arbitrators.”
Born, G.B., Chapter 15: Procedures in International Arbitration, in International Commercial Arbitration, 2nd ed., Kluwer Law International, 2014, pp. 2120-2318, p. 2249:
“Ordinarily, orders regarding disclosure should be sought (and issued) in conjunction with establishing the initial procedural timetable for the case; (712) that is because of the potential impact of disclosure applications and decisions on other aspects of the procedural timetable, which requires providing for a disclosure phase in the overall procedural timetable.”
Tercier, P. and Bersheda, T., Document Production in Arbitration: A Civil Law Viewpoint, The Search for “Truth” in Arbitration, ASA Special Series No. 35, 2011, p. 98:
“In investment arbitration, where the investor has been expelled from the country and does not have any documents to defend itself, it would be appropriate to allow document production requests to be filed early in the proceedings.”
Glamis Gold Ltd. v. United States of America, Decision on Objections to Document Production, 20 July 2005, paras. 1-6; The Prague Rules, 2018, Article 4.3-4.4.
Tercier, P. and Bersheda, T., Document Production in Arbitration: A Civil Law Viewpoint, The Search for “Truth” in Arbitration, ASA Special Series No. 35, 2011, p. 98:
“As a matter of principle, a request for document production should be submitted no earlier than and no later than after the first exchange of the parties’ submissions on the merits. This principle corresponds to the “best practice” in international arbitration. It is explained by the fact that in order for a party to ascertain whether certain documents are necessary to successfully argue its case or meet the burden of proof lying upon it, it is first necessary to present its own case and know the position of the other party. Conversely, for the arbitral tribunal to rule on a document production request, the arbitrators must be in a position to assess, at least prima facie, the relevance of the documents sought and to form a preliminary view on the case.”
Born, G.B., Chapter 15: Procedures in International Arbitration, in International Commercial Arbitration, 2nd edition, Kluwer Law International, 2014, pp. 2120- 2318, p. 2250:
“A tribunal must also decide when during the course of arbitral proceedings the parties may seek disclosure from one another. This requires considering whether the parties have sufficiently defined the issues (so that the tribunal can assess the relevance and materiality of requested documents), as well as whether the parties will have sufficient time to digest materials which are disclosed and incorporate them into their submissions or hearing preparations. Frequently, tribunals will provide for disclosure requests and objections to be made immediately following the parties’ submission of reasonably detailed statements of their claims and defenses. This permits requests for disclosure to focus on relevant claims and legal issues, while allowing the parties to obtain and review materials produced in disclosure before submitting their full evidentiary case and participating in the oral evidentiary hearing.”
Born, G.B., Chapter 16: Disclosure in International Arbitration, in International Commercial Arbitration, 2014, pp. 2366-2368.
Hanotiau, B., Document Production in International Arbitration: A Tentative Definition of 'Best Practices', ICC Special Supplement, 2006, para. 10.
Elliott Associates L.P. v. Republic of Korea PCA Case No. 2018-51, Procedural Order No. 17, 04 September 2020, para. 20; Tennant Energy, LLC v. Government of Canada, PCA Case No. 2018-54, Procedural Order No. 6, 6 May 2020, paras. 22, 26.
Document production can be sought in a request for provisional measures.30 The requesting party must prove that such documents could be lost or jeopardized without the provisional measure31 as well as prove that the usual criteria for provisional measures are met.32 However, ordering document production pursuant to Article 47 of the ICSID Convention remains exceptional.33 Tribunals considered that preserving relevant documents for the proceedings is part of parties’ “general duty of good faith”.34
Biwater Gauff (Tanzania) Limited v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Procedural Order No. 1 (Provisional Measures), 31 March 2006, para. 71; Grenada Private Power Limited and WRB Enterprises, Inc. v. Grenada, ICSID Case No. ARB/17/13, Decision on Provisional Measures, 26 September 2018, para. 11.
Grenada Private Power Limited and WRB Enterprises, Inc. v. Grenada, ICSID Case No. ARB/17/13, Decision on Provisional Measures, 26 September 2018, paras. 11-16; Tennant Energy, LLC v. Government of Canada, PCA Case No. 2018-54, Procedural Order No. 4 (Interim Measures), 27 February 2020, paras. 59-64.
Document production was considered in assessing if a bifurcation request provides procedure efficiency and economy.35
Parties often use a Redfern Schedule to exchange document requests.36 This schedule usually has five columns.37
Nigel, B., Partasides, C. et al., Chapter 6. Conduct of the Proceedings, in Redfern and Hunter on International Arbitration, 6th ed., Oxford University Press, 2015, pp. 353-414, pp. 383-384:
“An increasingly common formatting tool for organising and presenting this process of document request, objection and decision is to use a so-called Redfern schedule, devised by one of the authors. […] The purpose of the Redfern schedule is to crystallise the precise issues in dispute, so that the arbitral tribunal knows the position that the parties have reached following the exchanges between them. This makes it possible for the arbitral tribunal to make an informed decision as to whether or not a particular document, or class of documents, should be produced, without having to be involved in the details of the exchanges between the parties' lawyers and, usually, without the need for a meeting.”
Tercier, P. and Bersheda, T., Document Production in Arbitration: A Civil Law Viewpoint, The Search for “Truth” in Arbitration, ASA Special Series No. 35, 2011, p. 93:
“the document requests are very often exchanged following a schematic presentation. It has become a widespread practice in international arbitration to use the so-called Redfern Schedule for this purpose.”
Hanotiau, B., Document Production in International Arbitration: A Tentative Definition of 'Best Practices, ICC Special Supplement, 2006, para. 12.
Lotfi, C., Documentary Evidence and Document, Production in International Arbitration, TDM, Vol. 11, Issue 4, August 2014, pp. 9-11.
ICSID, Production of Documents - ICSID Convention Arbitration; Queen Mary Survey, International Arbitration Survey: Current and Preferred Practices in the Arbitral Process Survey Findings, 2012, p. 22.
The requesting party’s38 document requests are contained in the first column which identifies precisely the documents/categories of documents requested,39 providing a short description of each document's relevance to the case and materiality to its outcome.40 It must also demonstrate that the document sought are “more than likely” not in “possession, custody or control” of the requesting party and that it would not be "unreasonably burdensome” for the requesting party to produce them.41
Both parties (claimant and respondent) are free to request the production of documents.
Derains, Y., Towards Greater Efficiency in Document Production before Arbitral Tribunals - A Continental Viewpoint, ICC Bulletin, Special Supplement 83, 2006, para. 25.
Marghitola, R., Document Production in International Arbitration, International Arbitration Law Library, 2015, pp. 6-7.
International Bar Association Rules on the Taking of Evidence in International Arbitration with commentaries, 2020, Art. 3(3)(c); Churchill Mining PLC and Planet Mining Pty Ltd v. Republic of Indonesia, ICSID Case No. ARB/12/14 and 12/40, Procedural Order No. 5, 19 March 2013, para. 8; South American Silver Limited v. Bolivia, PCA Case No. 2013-15, Procedural Order No. 7 on Document Production, 21 July 2015, para. 6; UNCITRAL Model Law, Article 27; ADF Group Inc. v. United States of America, ICSID Case No. ARB(AF)/00/1, Procedural Order No. 3, 4 October 2001, para. 4; Biwater Gauff (Tanzania) Limited v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Procedural Order No. 1 (Provisional Measures), 31 March 2006, para. 98.
The requested party fills out the next column indicating whether it agrees to produce non-contested documents42 or whether it objects to the other party's request.43 It can object to each request on the following grounds: (a) lack of sufficient relevance to the case or materiality of its outcome; (b) legal impediment or privilege; (c) unreasonable burden to produce; (d) loss or destruction, commercial or technical confidentiality and considerations of procedural economy; (e) proportionality, fairness or equality of the Parties that the Tribunal determines to be compelling.44
The requesting party can also advance objections in return. See the new 2020 IBA Rules:
The IBA Rules, 29 May 2010, Arts. 5, 9.2; International Bar Association Rules on the Taking of Evidence in International Arbitration with commentaries, 2020, Arts. 5, 9.2.
The IBA Rules, 29 May 2010, Article 9.2; Waincymer, J.M., Promoting Fairness and Efficiency of Procedures in International Commercial Arbitration – Identifying Uniform Model Norms, Contemporary Asia Arbitration Journal, Vol. 3, 2010, pp. 25-64 at 59; International Bar Association Rules on the Taking of Evidence in International Arbitration with commentaries, 2020, Art. 9.2.
Tercier, P. and Bersheda, T., Document Production in Arbitration: A Civil Law Viewpoint, The Search for “Truth” in Arbitration, ASA Special Series No. 35, 2011, p. 94:
“The procedural rules or special instructions of the arbitral tribunal, issued upon a request of the parties, define whether there will be a second round of exchange of submissions between the parties on document production requests. The parties and the arbitrators may agree that the requesting party be authorized to reply to the requested party’s objections, possibly in the form of the Redfern Schedule to which an additional column is added to this effect. Similarly, the requested party may then wish to submit its rejoinder in the form of comments on reply to objections.”
Non-contested documents are usually exchanged between the parties without submitting the documents to the arbitral tribunal. Documents produced are not automatically part of the proceedings. Parties should therefore produce them as evidence if they want to subsequently use them in the arbitration.46
Hanotiau, B., Document Production in International Arbitration: A Tentative Definition of 'Best Practices', ICC Special Supplement, 2006, para. 13:
“It is also suggested that the parties should be encouraged not to submit to the arbitral tribunal the documents they exchange in the course of the document production process, for those documents that are subsequently used in the arbitration will be included at a later stage in the trial bundle."
Churchill Mining PLC and Planet Mining Pty Ltd v. Republic of Indonesia, ICSID Case No. ARB/12/14 and 12/40, Procedural Order No. 5, 19 March 2013; Resolute Forest Products Inc. v. the Government of Canada, PCA Case No. 2016-13, Procedural Order No. 11 on Further Document Production, 9 July 2019; Italba Corporation v. Oriental Republic of Uruguay, ICSID Case No. ARB/16/9, Procedural Order No. 4 (Decision on Respondent’s Document Production Request), 31 May 2017; Caratube International Oil Company LLP v. The Republic of Kazakhstan, ICSID Case No. ARB/08/12, Procedural Order No. 2 Regarding Document Production, 14 April 2010; South American Silver Limited v. Bolivia, PCA Case No. 2013-15, Procedural Order No. 7 on Document Production, 21 July 2015; FREIF Eurowind Holdings Ltd v. Kingdom of Spain, SCC Case No. 2017/060, Final Award, 8 March 2021, para. 62; Latam Hydro LLC and CH Mamacocha S.R.L. v. Republic of Peru, ICSID Case No. ARB/19/28, Procedural Order No. 5 on the Production of Documents, 24 May 2021; BSG Resources Limited, BSG Resources (Guinea) Limited and BSG Resources (Guinea) SÀRL v. Republic of Guinea (I) ICSID Case No. ARB/14/22, Procedural Order No. 7, 05 Sep 2016.
Although the tribunal has ample discretion in ruling on evidence,51 the tribunal’s decision is generally based on two factors:52 the specificity of the request for a document or a category of documents53 and its relevance and materiality to the outcome of the case.54 (See further Admissibility of Evidence)
Schreueur, C., The ICSID Convention: A commentary, Cambridge University Press, 2009, p. 643, para. 11.
Pan American Energy LLC and BP Argentina Exploration Company v. Argentine Republic, ICSID Case No. ARB/03/13, Decision on Preliminary Objections, 27 July 2006, paras. 223–226; M.C.I. Power Group, L.C. and New Turbine, Inc. v. Republic of Ecuador, ICSID Case No. ARB/03/6, Award, 31 July 2007, para. 20.
Hanotiau, B., Document Production in International Arbitration: A Tentative Definition of 'Best Practices', ICC Special Supplement, 2006, para. 14.
Waincymer, J.M., Promoting Fairness and Efficiency of Procedures in International Commercial Arbitration – Identifying Uniform Model Norms, Contemporary Asia Arbitration Journal, Vol. 3, 2010, pp. 25-64 at 58.
Aguas del Tunari S.A. v. Republic of Bolivia, ICSID Case No. ARB/02/3, Decision on Respondent’s Objections to Jurisdiction, 21 October 2005, para. 25; Infrastructure Services Luxembourg S.à.r.l. and Energia Termosolar B.V. (formerly Antin Infrastructure Services Luxembourg S.à.r.l. and Antin Energia Termosolar B.V.) v. Kingdom of Spain, ICSID Case No. ARB/13/31, Decision on Annulment, 30 July 2021, para. 199.
Tercier, P. and Bersheda, T., Document Production in Arbitration: A Civil Law Viewpoint, The Search for “Truth” in Arbitration, ASA Special Series No. 35, 2011, p. 96:
“The requesting party must make it clear with reasonable particularity what facts/ allegations each document (or category of documents) is intended to establish”
Born, G.B., Chapter 16: Disclosure in International Arbitration, in International Commercial Arbitration, 2014, pp. 2362-2363.
Hanotiau, B., Document Production in International Arbitration: A Tentative Definition of 'Best Practices', ICC Special Supplement, 2006, para. 15:
“The importance of the burden of proof in determining whether or not a request should be granted is often underestimated.”
Glamis Gold Ltd. v. United States of America, Decision on Objections to Document Production, 20 July 2005, para. 10; Helnan International Hotels A/S v. Arab Republic of Egypt, ICSID Case No. ARB/05/19, Decision on Jurisdiction, 17 October 2006, para. 22; South American Silver Limited (Bermuda) v. The Plurinational State of Bolivia, PCA Case No. 2013-15, Procedural Order No. 7 on Document Production, 21 July 2015, para. 6; IBA Rules, Article 3(3)(a); 1999 IBA Working Party & 2010 IBA Rules of Evidence Review Subcommittee, Commentary on the revised text of the 2010 IBA Rules on the Taking of Evidence in International Arbitration, pp. 8-9.
Tercier, P. and Bersheda, T., Document Production in Arbitration: A Civil Law Viewpoint, The Search for “Truth” in Arbitration, ASA Special Series No. 35, 2011, p. 96:
“The requesting party must make it clear with reasonable particularity what facts/ allegations each document (or category of documents) is intended to establish”
Born, G.B., Chapter 16: Disclosure in International Arbitration, in International Commercial Arbitration, 2014, pp. 2362-2363.
Hanotiau, B., Document Production in International Arbitration: A Tentative Definition of 'Best Practices', ICC Special Supplement, 2006, para. 15:
“The importance of the burden of proof in determining whether or not a request should be granted is often underestimated.”
Glamis Gold Ltd. v. United States of America, Decision on Objections to Document Production, 20 July 2005, para. 10; Caratube International Oil Company LLP v. The Republic of Kazakhstan, ICSID Case No. ARB/08/12, Procedural Order No. 2 Regarding Document Production, 14 April 2010, para. 3.2; South American Silver Limited v. Bolivia, PCA Case No. 2013-15, Procedural Order No. 7 on Document Production, 21 July 2015, para. 6; IBA Rules, Article 3(3)(b); 1999 IBA Working Party & 2010 IBA Rules of Evidence Review Subcommittee, Commentary on the revised text of the 2010 IBA Rules on the Taking of Evidence in International Arbitration, pp. 9-10.
In principle, arbitral tribunals do not have any authority to order production from non-parties if the documents sought are in the possession of third parties. However, some arbitral institutions or national law provide for the possibility to seek judicial assistance.55 Nevertheless, it is avoided in practice as it is “often time-consuming in an international context.”56
Under the UNCITRAL Model Law, arbitral tribunals can request that a third party disclose documents in their possession and in case of refusal, the tribunal can seek judicial enforcement of the order.
Derains, Y., Towards Greater Efficiency in Document Production before Arbitral Tribunals - A Continental Viewpoint, ICC Bulletin, Special Supplement 83, 2006, para. 25.
See Marghitola, R., Document Production in International Arbitration, International Arbitration Law Library, 2015, pp. 6-7.
Investment tribunals have great discretion in dealing with objections to document production requests.57 Their decision on document production might however give rise to annulment on the grounds of serious departure from a fundamental rule of procedure58 or manifest excess of power.59
Canfor Corporation and others v. United States of America, Procedural Order No. 5, 28 May 2004, paras. 16-21; Apotex Holdings Inc. and Apotex Inc. v. United States of America, ICSID Case No. ARB(AF)/12/1, Procedural Order on Privileged Document Production, 5 July 2013, para. 21; Philip Morris Asia Limited v. Commonwealth of Australia, PCA Case No. 2012-12, Procedural Order No. 12 regarding the Parties' Privilege Claims, 14 November 2014, paras. 4.4-4.6; Carlos Rios and Francisco Rios v. Republic of Chile, ICSID Case No. ARB/17/16, Procedural Order No. 7, 4 October 2018, para. 11; International Bar Association Rules on the Taking of Evidence in International Arbitration with commentaries, 2010, Article 9; International Bar Association Rules on the Taking of Evidence in International Arbitration with commentaries, 2020, Article 9; The Estate of Julio Miguel Orlandini-Agreda and Compañía Minera Orlandini Ltda. v. The Plurinational State of Bolivia PCA Case No. 2018-39, Procedural Order No. 8 (Decision on the Parties’ Requests for Document Production), 27 July 2020, para. 6; Infrastructure Services Luxembourg S.à.r.l. and Energia Termosolar B.V. (formerly Antin Infrastructure Services Luxembourg S.à.r.l. and Antin Energia Termosolar B.V.) v. Kingdom of Spain, ICSID Case No. ARB/13/31, Decision on Annulment, 30 July 2021, para. 198.
Venezuela Holdings B.V. and others (formerly Mobil Corporation and others) v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/27, Decision on Annulment, 9 March 2017, para. 132; Azurix Corp. v. the Argentine Republic, ICSID Case No. ARB/01/12, Decision on the Application for Annulment of the Argentine Republic, 1 September 2009, paras. 207-210; Víctor Pey Casado and President Allende Foundation v. Republic of Chile I, ICSID Case No. ARB/98/2, Decision on the Application for Annulment of the Republic of Chile, 18 December 2012, para. 324; Infrastructure Services Luxembourg S.à.r.l. and Energia Termosolar B.V. (formerly Antin Infrastructure Services Luxembourg S.à.r.l. and Antin Energia Termosolar B.V.) v. Kingdom of Spain, ICSID Case No. ARB/13/31, Decision on Annulment, 30 July 2021, para. 198.
Global Telecom Holding S.A.E. v. Canada, ICSID Case No. ARB/16/16, Procedural Order No. 4 Decision on the Claimant Objections to the Respondent Claims of Privilege, 3 November 2018, para. 39; Niko Resources (Bangladesh) Ltd. v. Bangladesh Petroleum Exploration and Production Company Limited and Bangladesh Oil Gas and Mineral Corporation, ICSID Case Nos. ARB/10/11 and ARB/10/18, Decision on the Corruption Claim, 25 February 2019, para. 296.
Apotex Holdings Inc. and Apotex Inc. v. United States of America, ICSID Case No. ARB(AF)/12/1, Procedural Order on Privileged Document Production, 5 July 2013, para. 21; Windstream Energy LLC v. Government of Canada, PCA Case No. 2013-22, Procedural Order No. 4, 23 February 2015, para. 3.5; Philip Morris Asia Limited v. Commonwealth of Australia, PCA Case No. 2012-12, Procedural Order No. 12 regarding the Parties' Privilege Claims, 14 November 2014, para. 4.6; Latam Hydro LLC and CH Mamacocha S.R.L. v. Republic of Peru ICSID Case No. ARB/19/28, Procedural Order No. 4 on the Production of Documents Referred to in the Parties' Privilege Logs, 03 May 2021, paras. 33, 46.
In international arbitration, including in investment arbitration, one of the main issues and most common objections to document production revolves around privilege.63 The applicability of privilege can be set out by an agreement between the parties; however, the applicable law to the agreement is not binding.64
Born, G.B., Chapter 16: Disclosure in International Arbitration, in International Commercial Arbitration, Kluwer Law International, 2014, p. 2375:
“Issues of privilege and related matters often arise in international arbitrations when disclosure is ordered. These can include generally-applicable testimonial privileges or rules of confidentiality (such as attorney-client privileges, doctor patient privileges, or state secrets), as well as the admissibility of settlement communications and communications between counsel.”
Both parties often object to document production requests on the ground of:
ADF Group Inc. v. United States of America, ICSID Case No. ARB (AF)/00/1, Procedural Order No. 3 Concerning the Production of Documents, 4 October 2001, para. 18; ACP Axos Capital GmbH v. Republic of Kosovo, ICSID Case No. ARB/15/22, Procedural Order No. 2, 6 March 2017, para. 7; ACP Axos Capital GmbH v. Republic of Kosovo, ICSID Case No. ARB/15/22, Procedural Order No. 3, 5 July 2017, para. 11; Standard Chartered Bank (Hong Kong) Limited v. United Republic of Tanzania II, ICSID Case No. ARB/15/41, Procedural Order No. 6b on the Claimant Disclosure Obligations, 15 January 2018, para. 23; Latam Hydro LLC and CH Mamacocha S.R.L. v. Republic of Peru ICSID Case No. ARB/19/28, Procedural Order No. 4 on the Production of Documents Referred to in the Parties' Privilege Logs, 03 May 2021, paras. 43, 52-53.
Apotex Holdings Inc. and Apotex Inc. v. United States of America, ICSID Case No. ARB(AF)/12/1, Procedural Order on Privileged Document Production, 5 July 2013, para. 33; William Ralph Clayton and others v. Government of Canada, PCA Case No. 2009-04, Procedural Order No. 13, 11 July 2012, para. 25; David R. Aven and others v. Republic of Costa Rica, ICSID Case No. UNCT/15/3, Procedural Order No. 3, 5 April 2016, para. 14.
Burlington Resources Inc. v. Republic of Ecuador, ICSID Case No. ARB/08/5, Decision on Reconsideration and Award, 7 February 2017, para. 121; Apotex Holdings Inc. and Apotex Inc. v. United States of America, ICSID Case No. ARB(AF)/12/1, Procedural Order on Privileged Document Production, 5 July 2013, paras. 42-46; Niko Resources (Bangladesh) Ltd. v. Bangladesh Petroleum Exploration and Production Company Limited and Bangladesh Oil Gas and Mineral Corporation, ICSID Case Nos. ARB/10/11 and ARB/10/18, Decision on the Corruption Claim, 25 February 2019, paras. 290-296.
Standard Chartered Bank (Hong Kong) Limited v. United Republic of Tanzania II, ICSID Case No. ARB/15/41, Procedural Order No. 6b on the Claimant Disclosure Obligations, 15 January 2018, para. 41; The IBA Rules, 29 May 2010, Article 9(2)(e); International Bar Association Rules on the Taking of Evidence in International Arbitration with commentaries, 2020, Art. 9(2)(e).
Pope & Talbot v. Government of Canada, Decision on Official Secrecy and Professional Privilege, 6 September 2000, paras. 1.1-1.2; Global Telecom Holding S.A.E. v. Canada, ICSID Case No. ARB/16/16, Procedural Order No. 4 Decision on the Claimant Objections to the Respondent Claims of Privilege, 3 November 2018, para. 41.
S.D. Myers, Inc. v. Canada, Procedural Order No. 10, 16 November 1999, paras. 1-4; Merrill & Ring Forestry L.P. v. The Government of Canada, ICSID Case No. UNCT/07/1, Decision of the Tribunal on Production of Documents, paras. 14-15; United Parcel Services of America Inc. (UPS) v. Canada (UNCITRAL), Decision of the Tribunal relating to Canada's Claim of Cabinet Privilege, October 8, 2004, para. 11.
Glamis Gold Ltd. v. United States of America, Decision on Parties' Requests for Production of Documents Withheld on Grounds of Privilege, 17 November 2005, paras. 34-38; ADF Group Inc. v. United States of America, ICSID Case No. ARB (AF)/00/1, Procedural Order No. 3 Concerning the Production of Documents, 4 October 2001, para. 18; Latam Hydro LLC and CH Mamacocha S.R.L. v. Republic of Peru ICSID Case No. ARB/19/28, Procedural Order No. 4 on the Production of Documents Referred to in the Parties' Privilege Logs, 03 May 2021, paras. 29, 31.
Arbitral tribunals have to balance two opposing considerations. On one hand, States define what information are privileged under their national law thereby potentially compromising the system.76 On the other, revealing privileged information may endanger State’s interests, sovereign rights, politics, law-making process and sometimes even national security.77
Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Procedural Order No. 2, 24 May 2006, p. 7; Latam Hydro LLC and CH Mamacocha S.R.L. v. Republic of Peru ICSID Case No. ARB/19/28, Procedural Order No. 4 on the Production of Documents Referred to in the Parties' Privilege Logs, 03 May 2021, para. 37.
In case of political or institutional sensitivity, tribunals have requested very specific requests from States78 and a showing that States performed a balancing test between the sensitivity of the requested information and its value for the requesting party’s case.79 Requests of document production were also rejected where they were important to ongoing criminal proceedings.80
William Ralph Clayton and others v. Government of Canada, PCA Case No. 2009-04, Procedural Order No. 13, 11 July 2012, para. 28; Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Procedural Order No. 2, 24 May 2006, p. 7; Global Telecom Holding S.A.E. v. Canada, ICSID Case No. ARB/16/16, Procedural Order No. 4 Decision on the Claimant Objections to the Respondent Claims of Privilege, 3 November 2018, para. 45; ACP Axos Capital GmbH v. Republic of Kosovo, ICSID Case No. ARB/15/22, Procedural Order No. 2, 6 March 2017, p. 2.
The production of documents in investment arbitration is also hindered by complex corporate’s structures because relevant documents would be out of reach for the tribunal81 or if States have control over the investor’s documents in the context of criminal investigations or bankruptcy proceedings.82
Finally, destruction of relevant documents is another important issue in investment arbitration, particularly in the context of wars or revolutions. This was the case in Iran where revolutionary turmoil resulted in either the destruction of relevant evidence on which parties could no longer rely or, since the claims were against States, it was impossible for parties to compel them to produce evidence through the court system.83
Benjamin R. Isaiah v. Bank Mellat (as a successor to the International Bank of Iran), IUSCT Case No. 219, Award (Award No. 35–219-2), 30 March 1983, para. 29.
Hammond, S.A., Spoliation in international arbitration: Is it time to reconsider the dirty wars of the international arbitral process?, Dispute Resolution International, Vol. 3, Issue 1, pp. 5-30 at 16.
Document production was requested in the context of an arbitrator’s challenge as well. However, the arbitral tribunal rejected it.84
Document production in proceedings including mass claims can be lengthy. However, arbitrators refused to consider that it would infringe due process rights and can have an impact on the schedule set out for the document production.85
See Note on Adverse Inference.
Arbitral tribunals do not have the same powers as domestic courts in the context of document production.86 However, tribunals can draw adverse inferences against parties who fail to comply with a document production order. It consists of inferring from a party’s failure to produce the requested evidence that such evidence was detrimental to that party’s case and that such refusal may confirm the requesting party’s position on a particular factual issue.87
Born, G.B., Chapter 16: Disclosure in International Arbitration, in International Commercial Arbitration, 2014, p. 2389.
Lotfi, C., Documentary Evidence and Document, Production in International Arbitration, TDM, Vol. 11, Issue 4, 2014, p. 9.
Derains, Y., Evidence and Confidentiality, in Confidentiality in Arbitration, ICC Bulletin 2009, Special Supplement, paras. 15.
Sharpe, J.K., Drawing Adverse Inferences from the Non-production of Evidence, Arbitration International, Vol. 22, Issue 4, 2006 pp. 549-572.
Amaral, G.R., Burden of Proof and Adverse Inferences in International Arbitration: Proposal for an Inference Chart, in Scherer, M. (ed), Journal of International Arbitration, Kluwer Law International, 2018, Vol. 35, Issue 1, pp. 1-30, pp. 12-26.
Van Houtte, V., Adverse Inferences in International Arbitration, Dossier of the ICC Institute of World Business Law: Written Evidence and Discovery in International Arbitration: New Issues and Tendencies, 2009, pp. 3-6.
Glamis Gold Ltd. v. United States of America, Award, 8 June 2009, paras. 750, 752-754; Methanex Corporation v. United States of America, UNCITRAL, Part III, Chapter B, para. 5; Fraport AG Frankfurt Airport Services Worldwide v. The Republic of the Philippines, ICSID Case No. ARB/03/25, Award, 16 August 2007, paras. 400-401; Gujarat State Petroleum Corporation Limited, Alkor Petroo Limited, and Western Drilling Constructors Private Limited v. the Republic of Yemen and the Yemen Ministry of Oil and Minerals, ICC Case No. 19299/MCP, Award, 10 July 2015, para. 102; Caratube International Oil Company LLP and Devincci Salah Hourani v. Republic of Kazakhstan (II), ICSID Case No. ARB/13/13, Award, 27 September 2017, para. 319; Flemingo DutyFree Shop Private Limited v. Republic of Poland, Award, 12 August 2016, para. 448; OPIC Karimum Corporation v. The Bolivarian Republic of Venezuela, ICSID Case No. ARB/10/14, Award, 28 May 2013, para. 145; Phillips Petroleum Company Venezuela Limited, Conocophillips Petrozuata B.V. v. Petroleos De Venezuela, S.A., Corpoguanipa, S.A., PDVSA Petroleo, S.A., ICC Case No. 20549/ASM/JPA (C-20550/ASM), Final Award, 24 April 2018, para 978; Commentary on the IBA Rules on the Taking of Evidence in International Arbitration, 2010, p. 13; Wälde, T.W., "Equality of Arms" in Investment Arbitration: Procedural Challenges, in Arbitration Under International Investment Agreements: A Guide to the Key Issues, May 2010, Oxford University Press USA, pp. 26-27; Elliott Associates L.P. v. Republic of Korea PCA Case No. 2018-51, Procedural Order No. 17, 04 September 2020, para. 20.
It has even been described as a “general principle of law.”
See: Swerdloff, N., Elul, H.M. et al., Arbitrators’ Power to Sanction Non-Compliance in Discovery in International Commercial Arbitration, in Van den Berg, A. J. (ed), Legitimacy: Myths, Realities, Challenges, ICCA Congress Series, Vol. 18, p. 230:
“[t]his indirect evidence is admitted in all systems of law, and its use is recognized by international decisions.”
Waste Management, Inc. v. United Mexican States (II), ICSID Case No. ARB(AF)/00/3, Award, 30 April 2004, para. 30; Europe Cement Investment & Trade S.A. v. Republic of Turkey, ICSID Case No. ARB(AF)/07/2, Award, 13 August 2009, para. 152; Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Procedural Order No. 2, 24 May 2006, p. 6; United Parcel Service of America Inc. v. Government of Canada, ICSID Case No. UNCT/02/1, Tribunal Decision Relating to Canada’s Claim of Cabinet Privilege, 8 October 2004, para. 15.
European American Investment Bank AG (Austria) v. Slovak Republic, PCA Case No. 2010-17, Award on Costs, 20 August 2014, para. 43; Mesa Power Group LLC v. Government of Canada, PCA Case No. 2012-17, Award, 24 March 2016, para. 701; Commission Report: Decision on Costs in International Arbitration, ICC Dispute Resolution Bulletin 2015, Issue 2, 2015, para. 82.
Born, G.B., Chapter 15: Procedures in International Arbitration, in International Commercial Arbitration, 2nd ed., Kluwer Law International, 2014, p. 2316.
Swerdloff, N., Elul, H.M. et al., Arbitrators’ Power to Sanction Non-Compliance in Discovery in International Commercial Arbitration, in Van den Berg, A.J. (ed), Legitimacy: Myths, Realities, Challenges, ICCA Congress Series, Vol. 18.
Reisman, W.M., Crawford, J.R. and Bishop, D.R., Chapter 12: Procedure and Proof: Developing the Case, in Foreign Investment Disputes: Cases, Materials and Commentary, 2nd ed., Kluwer Law International, 2014, pp. 1085-1176 at 1088.
See for the effectiveness as costs as a sanction:
Marghitola, R., Document Production in International Arbitration, 2015, p. 180:
“However, the costs of the document production procedure are typically limited compared to the value in dispute. (45) Hence, it is questionable whether the fear of cost sanctions can influence the party’s conduct in many cases. (46) Compared with adverse inferences, costs sanctions are therefore most likely less effective.”
Waincymer, J.M., Chapter 11: Documentary Evidence, Procedure and Evidence, in International Arbitration, 2012, p. 880.
Plama Consortium Limited v. Republic of Bulgaria, ICSID Case No. ARB/03/24, Award, 27 August 2008, para. 318; Desert Line Projects LLC v. The Republic of Yemen, ICSID Case No. ARB/05/17, Award, 6 February 2008; The IBA Rules, 2010, Article 9.7; The Prague Rules, 2018, Article 11; Commission Report: Decision on Costs in International Arbitration, ICC Dispute Resolution Bulletin 2015, Issue 2, paras. 81-82; Wälde, T.W., "Equality of Arms" in Investment Arbitration: Procedural Challenges, in Arbitration Under International Investment Agreements: A Guide to the Key Issues, May 2010, Oxford University Press USA, pp. 27-28.
AGIP S.p.A. v. People's Republic of the Congo, ICSID Case No. ARB/77/1, Excerpts of Award, 30 November 1979, para. 42; Wälde, T.W., "Equality of Arms" in Investment Arbitration: Procedural Challenges, in Arbitration Under International Investment Agreements: A Guide to the Key Issues, May 2010, Oxford University Press USA, pp. 27-28.
Swerdloff, N., Elul, H.M. et al., Arbitrators’ Power to Sanction Non-Compliance in Discovery in International Commercial Arbitration, in Van den Berg, A. J. (ed), Legitimacy: Myths, Realities, Challenges, ICCA Congress Series, Volume 18, p. 233-237.
For an example of a case in which a party representative was excluded, see:
Born, G., International Commercial Arbitration, 2nd ed., Kluwer Law International, 2014.
Marghitola, R., Document Production in International Arbitration, International Arbitration Law Library, 2015.
Nigel, B., Partasides, Redfern, A. and Hunter, M., Chapter 6. Conduct of the Proceedings, in Redfern and Hunter on International Arbitration, 6th ed., Oxford University Press, 2015.
Park, W.W., Arbitrators and Accuracy, Oxford University Press, 2010.
Reed, L.F. and Hancock, G., Chapter 7. US-Style Discovery: Good or Evil?, in Giovannini, T. and Mourre, A. (eds.), Written Evidence and Discovery in International Arbitration: New Issues and Tendencies, Dossiers of the ICC Institute of World Business Law, Vol. 6.
Reisman, W.M., Crawford, J.R. and Bishop, D.R., Chapter 12: Procedure and Proof: Developing the Case, in Foreign Investment Disputes: Cases, Materials and Commentary, 2nd ed., Kluwer Law International, 2014.
Wälde, T.W., "Equality of Arms" in Investment Arbitration: Procedural Challenges, in Arbitration Under International Investment Agreements: A Guide to the Key Issues, May 2010, Oxford University Press.
Waincymer, J.M., Chapter 11: Documentary Evidence, in Procedure and Evidence in International Arbitration, Kluwer Law International, 2012.
Amaral, G.R., Burden of Proof and Adverse Inferences in International Arbitration: Proposal for an Inference Chart, in Scherer, M. (ed), Journal of International Arbitration, Kluwer Law International, 2018, Vol. 35, Issue 1.
Bryant, J., E-Discovery in International Arbitration - Still a Hot Topic?, Vol. 11, Issue 4, 2014.
Derains, Y., Towards Greater Efficiency in Document Production before Arbitral Tribunals - A Continental Viewpoint, ICC Bulletin, Special Supplement 83, 2006.
Derains, Y., Evidence and Confidentiality, in Confidentiality in Arbitration, ICC Bulletin, 2009.
Hanotiau, B., Document Production in International Arbitration: A Tentative Definition of 'Best Practices', ICC Special Supplement, 2006.
Lotfi, C., Documentary Evidence and Document, Production in International Arbitration, TDM, Vol. 11, Issue 4, August 2014.
Sharpe, J.K., Drawing Adverse Inferences from the Non-production of Evidence, Arbitration International, Vol. 22, Issue 4, 2006.
Swerdloff, N., Elul, H.M. et al., Arbitrators’ Power to Sanction Non-Compliance in Discovery in International Commercial Arbitration, in Van den Berg, A. J. (ed.), Legitimacy: Myths, Realities, Challenges, ICCA Congress Series, Vol. 18.
Tercier, P. and Bersheda, T., Chapter 7: Document Production in Arbitration: A Civil Law Viewpoint, The Search for “Truth” in Arbitration, ASA Special Series No. 35, Juris, 2011.
Tercier, P. and Bersheda, T., Document Production in Arbitration: A Civil Law Viewpoint, The Search for “Truth” in Arbitration – ASA Special Series No. 35, 2011.
Tevendale, C. and Franc-Menget, L., The Prague Rules: Arbitral Efficiency under the Lens, ICC Dispute Resolution Bulletin, Issue 2, 2019.
Schreueur, C., The ICSID Convention: A commentary, Cambridge University Press, 2009.
Commentary on the IBA Rules on the Taking of Evidence in International Arbitration, 2010.
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