a) The ICSID Convention
b) The ICSID Rules of Procedure for Arbitration Proceedings (The "Rules")
c) The Procedural rules issued by the Arbitral Tribunal in its Minutes of the First Session.
d) The IBA Rules on the Taking of Evidence in International Arbitration (29 May 2010), as a nonbinding guide to be used by the Arbitral Tribunal, according to the parties’ agreement as recorded in section 14 of the Minutes of the First Session.
“Except as the parties otherwise agree, the Tribunal may, if it deems it necessary at any stage of the proceedings,
a) call upon the parties to produce documents or other evidence”
“Evidence: General Principles
(1) The Tribunal shall be the judge of the admissibility of any evidence adduced and of its probative value.
(2) The Tribunal may, if it deems it necessary at any stage of the proceeding:
(a) call upon the parties to produce documents, witnesses and experts; and
(b) visit any place connected with the dispute or conduct inquiries there.
(3) The parties shall cooperate with the Tribunal in the production of the evidence and in the other measures provided for in paragraph(2). The Tribunal shall take formal note of the failure of a party to comply with its obligations under this paragraph and of any reasons given for such failure.
(4) Expenses incurred in producing evidence and in taking other measures in accordance with paragraph (2) shall be deemed to constitute part of the expenses incurred by the parties within the meaning of Article 61(2) of the Convention.”
“Document Production (ICSID Convention Article 43(a); Arbitration Rule 34)
• The parties agree to consecutive requests for production.
• The parties anticipate one round of document discovery in the merits phase. If documents are requested by any party during any jurisdictional phase, requests will be limited to issues raised during that phase. The parties agree to apply the timetable set forth below to any document discovery during any jurisdictional phase, except that Respondent would make its requests prior to filing its Memorial on Jurisdiction and Claimant would make its requests prior to filing its Counter-Memorial on Jurisdiction.
• The parties agree that where circumstances warrant, a party may request additional opportunities for document discovery and the Tribunal may grant such a request when it considers the request to be justified.
• The parties agree to use Redfern Schedules.
• All submissions concerning production of documents shall be filed simultaneously with its corresponding courtesy translations.
• The parties agree that the IBA Rules on the Taking of Evidence in International Arbitration may be referenced as a guide by the Tribunal in assessing requests for and objections to document discovery, but such Rules are not binding.”
(a) Every request for production must identify each document or a narrow and specific category of documents sought with precision;
(b) Every request for production must establish the relevance of each document or of each narrow and specific category of documents sought in such a way that the other party and the Arbitral Tribunal are able to refer to factual allegations in the submissions filed by the parties to date. The requesting party must therefore make it clear with reasonable particularity what facts/allegations each document (or category of documents) sought is intended to establish;
(c) The Arbitral Tribunal will only order the production of documents or category of documents which exist and are within the possession, custody or control of the other party. In case of dispute as to such condition, it is up to the requesting party to establish with sufficient probability that the condition is met;
(d) The Arbitral Tribunal shall also balance the request for production against the legitimate interests of the other party, including any applicable privileges, unreasonable burden and the need to safeguard confidentiality, taking into account all the surrounding circumstances. Any claim that a document is privileged should identify with sufficient specificity the reason for such claim and identify sufficient relevant details to pennit the Arbitral Tribunal to determine the claims; including the author, the addressee, the general subject matter and the date of the document in question.
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