Production of Documents - ICSID Convention Arbitration (2022 Rules)

Parties can request documents from each other, and exchange documents at any stage of the proceeding. At the first session, the parties provide their views as to whether they envisage making requests for production of documents and discuss the procedures to be followed for such requests (Arbitration Rule 29(4)(g)). The parties should endeavor to reach agreement on the timing and scope of any request for production of documents so that the procedure can be incorporated into the procedural calendar in Procedural Order No. 1.

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 36(3)). If there is a dispute between the parties about the production of a document or category of documents, the Tribunal will decide that dispute, taking into account all relevant circumstances including:

• the scope and timeliness of the request
• the relevance and materiality of the documents requested
• the burden of production
• the basis of the objection to produce the document (Arbitration Rule 37).

In addition, parties often refer to the International Bar Association Rules on the Taking of Evidence in International Arbitration (the “IBA Rules of Evidence”) to guide the Tribunal.

Tribunals usually 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.