Production of Documents - ICSID Convention Arbitration

Parties can request documents from each other, and exchange documents even before the written pleadings are filed. The Tribunal has discretion to decide on the relevance and admissibility of the evidence adduced by the parties, and can exercise the power to summon further evidence at any stage of the case (Arbitration Rule 33 and Arbitration Rule 34). The Tribunal will decide on any objection to production by the parties.

If a party fails to cooperate, the Tribunal may draw adverse inferences or may make an adverse cost award.

Parties often refer to the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration (the “IBA Rules of Evidence”).

Tribunals often organize requests for production of documents in a “Redfern Schedule.” This Schedule contains four columns: identification of the documents/categories of documents that have been requested; short description of the reasons for each request; summary of the objections by the other party to the production of the documents/categories requested; and decision of the Tribunal on each request.

Example of Redfern Schedule (Claimant Request)

​Documents Requested Relevance and Materiality​ Respondent's Objections​ Claimant Reply​ Tribunal's Decision​
​All documents produced by, and correspondence exchanged between, the Respondent and financial advisors in the period before concession was granted. ​Claimants are entitled to understand fully the mechanism and the aim of the Respondent's privatization program (may refer to pleadings and evidence). ​The Respondent objects to this request as ambiguous and overly broad. ​Can narrow to documents made in 2005-2007. ​The Tribunal accepts Document Request No. 1. The Respondent shall therefore produce these documents by [date].

 

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