IBA Rules on the Taking of Evidence in International Arbitration[ii]

Article 3 Documents

Within the time-limit set by the Arbitral Tribunal, each Party shall produce to the Arbitral Tribunal and the other Parties all documents that are available to it and upon which it relies, including publicly available documents and documents in the public domain, except for documents already produced by another Party.

Within the time-limit set by the Arbitral Tribunal, any Party may submit a Request for Production to the Arbitral Tribunal and the other Parties.

A Request for Production shall include the following:

(a) (i) a description sufficient to identify each document requested for production; or

(ii) if it is reasonably believed that a category of documents exists, a detailed and specific description (including subject matter) of the category of documents requested for production; if the documents are stored electronically, the requesting Party may specify, or the Arbitral Tribunal may require the requesting Party to specify, particular files, search terms, names, and any other means by which the documents can be efficiently and economically searched.

(b) a statement of the relevance and materiality of the documents requested for production to the outcome of the case;

(c) (i) a statement by the requesting Party that the documents requested for production are not in its possession, custody, or control, or a reason why it would be unreasonable for it to produce the documents, and

(ii) the reasons why the requesting Party believes that the documents requested for production are in the possession, custody, or control of another Party.

Article 4 Fact Witnesses

Within the time - limit set by the Arbitral Tribunal, each Party shall identify the witnesses on whose testimony it relies and the issues to which that testimony relates.

Any person, including a Party or a Party's officer, employee or other agent, may serve as a witness.

It shall not be improper for a Party, its officer, employee, legal advisor or other agent to interview its witnesses or potential witnesses.

The Arbitral Tribunal may require any Party to submit to the Arbitral Tribunal and the other Parties a written statement ("Witness Statement") of each witness on whose testimony the Party relies, other than a witness who will testify pursuant to Article 4, paragraph 10. If the Evidentiary Hearing is to be held on different issues (such as liability and damages), the Arbitral Tribunal or the Parties may, by agreement, schedule the submission of Witness Statements in relation to each Evidentiary Hearing.

Each Witness Statement shall include:

(a) the full name and address of the witness, his or her present and past relationship (if any) with any Party and, if relevant and material to the dispute or the subject matter of the Witness Statement, his or her background, qualifications, training and experience;

(b) a complete and detailed description of the facts and the source of the witness's information concerning those facts, sufficient to serve as evidence of the matters in dispute;

(c) a confirmation of the truth of the matters stated; and

(d) the signature of the witness and the date and place of signature.

If a witness is unable to attend the Evidentiary Hearing to give oral testimony, the Party seeking to rely on the witness's testimony may apply to the Arbitral Tribunal for permission to present the witness's testimony by video - link, audio - link or other means of telecommunication. The Arbitral Tribunal shall decide whether to grant such permission, taking into account all the circumstances of the case, including the reasons for the witness's inability to attend, the importance of the witness's testimony, and the feasibility and fairness of presenting the testimony by the requested means.

If a witness is unable to attend the Evidentiary Hearing to give oral testimony and the Arbitral Tribunal does not grant permission for the witness's testimony to be presented by video - link, audio - link or other means of telecommunication, the Witness Statement may be admitted as evidence only if the Arbitral Tribunal determines that there are exceptional circumstances justifying its admission.

The Arbitral Tribunal may, at any time before the conclusion of the arbitration, require any Party to produce any Witness Statement or other statement of a witness that has not been previously produced, if the Arbitral Tribunal considers that the statement is relevant and material to the outcome of the case.

Each witness who is called to give oral testimony at an Evidentiary Hearing shall be subject to cross - examination by the other Parties.

If a Party intends to call a witness who has not been identified in accordance with Article 4, paragraph 1, it shall obtain the permission of the Arbitral Tribunal. The Arbitral Tribunal shall decide whether to grant such permission, taking into account all the circumstances of the case, including the reasons for the failure to identify the witness, the importance of the witness's testimony, and the fairness of allowing the witness to testify.

Article 5 Party - Appointed Experts

Each Party may appoint one or more experts to report on specific issues determined by the Party.

The report of a Party - Appointed Expert shall be in writing and shall include:

(a) the full name and address of the expert, his or her present and past relationship (if any) with any Party and, if relevant and material to the dispute or the subject matter of the report, his or her background, qualifications, training and experience;

(b) a statement of the issues or questions referred to the expert;

(c) a description of the expert's approach, methodology and reasoning in arriving at his or her conclusions;

(d) the expert's conclusions, including any findings, opinions and recommendations;

(e) a confirmation that the expert has read the IBA Rules of Evidence and understands his or her duty to be independent and objective;

(f) a list of any literature, studies, reports, or other materials relied upon by the expert in preparing the report; and

(g) the signature of the expert and the date and place of signature.

The Party - Appointed Expert shall make himself or herself available for questioning at an Evidentiary Hearing by the Arbitral Tribunal and the other Parties.