International Bar Association Rules on the Conduct of International Arbitration 2020

Scope of Application 1. Whenever the Parties have agreed to apply the IBA Rules on Evidence or the Arbitral Tribunal has decided to apply them, these Rules shall govern the conduct of evidence, unless it is determined that a specific provision of the Rules conflicts with a mandatory legal provision applicable to the proceedings as determined by the Parties or the Arbitral Tribunal. 2. When the Parties have agreed to apply the IBA Rules on Evidence, in whole or in part, it shall be understood that, unless otherwise agreed, they have agreed to apply the version in force at the date of such agreement. 3. In case of conflict between the provisions of the IBA Rules on Evidence and the General Rules, the Arbitral Tribunal shall apply, unless the Parties provide otherwise, the IBA Rules on Evidence in the manner that it considers best suited to achieve, to the extent possible, the objectives of both the General Rules and the IBA Rules on Evidence. 4. In case of any discrepancy as to the meaning of the IBA Rules on Evidence, the Arbitral Tribunal shall interpret them in accordance with their purpose and in the manner most appropriate for the arbitration in question. 5. To the extent that the IBA Rules on Evidence and the General Rules are silent on any matter relating to the conduct of evidence and if the Parties have not otherwise agreed, the Arbitral Tribunal may conduct the evidence in such manner as it considers appropriate, in accordance with the general principles of the IBA Rules on Evidence.

Consultation on Evidentiary Issues 1. The Arbitral Tribunal shall consult with the Parties as soon as procedurally convenient and invite them to consult with each other in order to agree on an efficient, economical and fair procedure for the conduct of evidence. 2. Consultation on evidentiary issues may address the scope, timing and manner of the conduct of evidence, including, to the extent applicable: (

• a)

  the preparation and submission of Witness Statements and Expert Reports; (

• b)

  oral witness testimony at any Evidentiary Hearing; (

• c)

  the requirements, procedure and format applicable to Document production; (

• d)

  the degree of confidentiality that shall be afforded to evidence in the arbitration; (

• e)

  the handling of any cybersecurity and data protection issues; and (

• f)

  the promotion of efficiency, economy and conservation of resources in relation to the conduct of evidence. 3. The Arbitral Tribunal is invited to identify to the Parties, as soon as it deems appropriate, any issue: (a) that the Arbitral Tribunal may consider relevant to the case and material to its resolution; and/or (b) for which a preliminary ruling may be appropriate.

Documents 1. Within the time limit set by the Arbitral Tribunal, each Party shall submit to the Arbitral Tribunal and to the other Parties all Documents in its possession or control on which it relies, including Documents of a public nature and in the public domain, except for any Documents that have already been submitted by another Party. 2. Within the time limit set by the Arbitral Tribunal, any Party may submit to the Arbitral Tribunal and to the other Parties a Request to Produce Documents. 3. A Request to Produce Documents shall contain: (a) (i) a description of each Document with respect to which production is requested that is sufficient to identify it, or (ii) a description sufficiently detailed (including the subject matter) of the specific category of Documents requested that is reasonably believed to exist. In the case of Documents maintained in electronic form, the requesting Party may—or the Arbitral Tribunal may require it to—identify specific files, search terms, individuals or any other means of searching for such Documents in an efficient and economical manner. (b) a statement of why the requested Documents are relevant to the case and material to its resolution; and (c) (i) a statement that the requested Documents are not in the possession, custody or control of the requesting Party or a statement of the reasons why it would be unreasonably burdensome for the requesting Party to produce such Documents, and (ii) a statement of the reasons why the requesting Party believes the requested Documents are in the possession, custody or control of another Party. 4. Within the time limit set by the Arbitral Tribunal, the Party from whom the Request to Produce Documents is made shall submit to the other Parties, and, if so ordered by the Arbitral Tribunal, to the Arbitral Tribunal, all requested Documents in its possession, custody or control as to which it does not object. 5. If the Party from whom the Request to Produce Documents is made objects to any or all of the requested Documents, it shall state its objection in writing to the Arbitral Tribunal and the other Parties within the time limit set by the Arbitral Tribunal. Only objections as stated in Articles 9.2 or 9.3 or failure to comply with any of the requirements of Article 3.3 may be raised as objections. If so ordered by the Arbitral Tribunal and within the time limit set, the requesting party may respond to the objection. 6. Upon receipt of any such objection and response, the Arbitral Tribunal may invite the relevant Parties to consult with each other with a view to resolving the objection. 7. Any Party may, within the time limit set by the Arbitral Tribunal, require the Arbitral Tribunal to rule on the objection. The Arbitral Tribunal shall, within a reasonable time, consider the Request to Produce Documents, the objection and any response thereto. The Arbitral Tribunal may order the Party from whom the Request to Produce Documents is made to produce any of the requested Documents in its possession, custody or control with respect to which the Arbitral Tribunal determines that (

• i)

  the matter that the requesting Party seeks to prove is relevant to the case and material to its resolution, (

• ii)

  none of the objections stated in Articles 9.2 or 9.3 apply and (

• iii)

  the requirements of Article 3.3 are satisfied. Any such Documents shall be produced to the other Parties and, if so ordered by the Arbitral Tribunal, to the Arbitral Tribunal. 8. In exceptional circumstances, if the relevance of an objection can only be determined by reviewing the Document, the Arbitral Tribunal may rule that it shall not review the Document. In such case, the Arbitral Tribunal, after consultation with the Parties, may appoint an independent and impartial expert, subject to confidentiality, to review the Document and report on the objection. To the extent that the Arbitral Tribunal sustains the objection, the expert shall not disclose the contents of the Document reviewed to either the Arbitral Tribunal or the other Parties. 9. If a Party wishes to obtain Documents from a person or organization that is not a party to the arbitration and from which the Party cannot obtain the Documents by itself, such Party may request, within the time limit set by the Arbitral Tribunal, that the Arbitral Tribunal take any legally available steps to obtain the Documents or request permission from the Arbitral Tribunal to take such steps itself. Such request shall be submitted in writing to the Arbitral Tribunal and the other Parties and shall contain the specifications of Article 3.3, to the extent applicable. The Arbitral Tribunal shall decide on such request and shall take, authorize the requesting Party to take, or order any other Party to take, such steps as it considers appropriate if, in its judgment, it determines that (

  • i)

    the Documents would be relevant to the case and material to its resolution, (

  • ii)

    the requirements of Article 3.3 have been satisfied to the extent applicable and (

  • iii)

    none of the objections stated in Articles 9.2 or 9.3 apply. 10. At any time before the close of the arbitration, the Arbitral Tribunal may (

    • i)

      request any Party to produce Documents, (

    • ii)

      request any Party to use best efforts to take or (

    • iii)

      itself take any steps it considers appropriate to obtain Documents from any person or organization. Any Party may object to such request on any of the grounds stated in Articles 9.2 or 9.3. In such cases, Articles 3.4 to 3.8 shall apply as appropriate. 11. Within the time limit set by the Arbitral Tribunal, the Parties may submit to the Arbitral Tribunal and to the other Parties any additional Documents on which they intend to rely or that they consider have become relevant to the case and material to its resolution as a result of issues raised in Documents, Witness Statements or Expert Reports submitted or produced or in other materials submitted by the Parties. 12. With respect to the form of submission or production of Documents, unless the Parties otherwise agree or, in the absence of agreement, the Arbitral Tribunal otherwise orders: (

      • a)

        copies of Documents shall correspond to originals and, at the request of the Arbitral Tribunal, any original shall be submitted for comparison; (

      • b)

        Documents maintained by a Party in electronic form shall be submitted or produced in the form most convenient or economical for it and that is reasonably usable by the recipients; (

      • c)

        a Party is not obligated to produce multiple copies of Documents that are essentially identical; (

      • d)

        Documents produced in response to a Request to Produce Documents need not be translated; and (

      • e)

        Documents in a language other than the language of the arbitration that are submitted to the Arbitral Tribunal shall be accompanied by translations identified as such. 13. Any Document not in the public domain, submitted or produced in the arbitration by a Party or by a third party, shall be treated as confidential by the Arbitral Tribunal and the other Parties and shall be used only in connection with the arbitration. This requirement shall apply unless and to the extent that disclosure of a Document is required of a Party in compliance with a legal obligation, to protect or enforce a right or to enforce or, in good faith, seek review of an award in legal proceedings before a state court or other judicial authority. The Arbitral Tribunal may issue orders establishing the terms of such confidentiality. This requirement shall not affect any other confidentiality obligations of the arbitration. 14. If the arbitration is organized in different issues or phases (such as jurisdiction, preliminary objections, liability or damages), the Arbitral Tribunal, after consultation with the Parties, may schedule the submission of Documents and Requests to Produce Documents separately for each issue or phase.

Witnesses 1. Within the time limit set by the Arbitral Tribunal, each Party shall identify the witnesses whose testimony it intends to rely on and the subject-matter of their testimony. 2. Any person, including a Party or an officer, employee or other representative of a Party, may testify. 3. It shall not be improper for a Party, its officers, employees, legal advisors or other representatives to interview its witnesses or potential witnesses and to discuss with them their prospective testimony. 4. The Arbitral Tribunal may order that each Party shall submit to it and to the other Parties, within a specific time period, a Witness Statement from each witness whose testimony it intends to rely on, except for witnesses whose testimony is requested in accordance with Articles 4.9 or 4.10. If Evidentiary Hearings are organized in different issues or phases (such as jurisdiction, preliminary objections, liability or damages), the Arbitral Tribunal or the Parties, by agreement, may schedule the submission of Witness Statements separately for each issue or phase. 5. Each Witness Statement shall contain: (

• a)

  the witness's full name and address, a statement about the witness's past and present relationship (if any) with the Parties and a description of the witness's background, qualifications, training and experience, if such description is relevant to the dispute or to the contents of the Witness Statement; (

• b)

  a complete and detailed description of the facts and, where applicable, the source of the witness's information about such facts, sufficient to constitute the evidentiary value of the witness's testimony on the matters in question. Documents on which the witness relies that have not already been submitted shall be appended; (

• c)

  a statement as to the language in which the Witness Statement was originally prepared and the language in which the witness expects to testify at the Evidentiary Hearing; (

• d)

  a statement of the truthfulness of the Witness Statement; and (

• e)

  the witness's signature, as well as the date and place. 6. If Witness Statements are submitted, any Party may, within the time limit set by the Arbitral Tribunal, submit to the Arbitral Tribunal and to the other Parties revised or additional Witness Statements, including statements from persons not previously designated as witnesses, provided that such revisions or additions are limited to: (a) issues that have been raised in the Witness Statements of another Party, Expert Reports or other evidence that have not been previously submitted in the arbitration; or (b) new facts that could not have been addressed in the earlier Witness Statements. 7. If a witness whose attendance has been requested in accordance with Article 8.1 fails to appear to testify at the Evidentiary Hearing without sufficient justification, the Arbitral Tribunal shall disregard any Witness Statement from that witness relating to such Evidentiary Hearing, unless in exceptional circumstances the Arbitral Tribunal decides otherwise. 8. If the attendance of a witness has not been requested in accordance with Article 8.1, it shall be presumed that the other Parties accept the truthfulness of the contents of the Witness Statement. 9. If a Party wishes to present testimony from a person who will not appear voluntarily at its request, such Party may, within the time limit set by the Arbitral Tribunal, request that the Arbitral Tribunal take any legally available steps to obtain the attendance of that person or request its permission to take such steps itself. When requesting the Arbitral Tribunal's assistance, the Party shall identify the potential witness, describe the issues on which it seeks the witness's testimony and explain the relevance of such issues to the case and their materiality to its resolution. The Arbitral Tribunal shall decide on such request and shall take, authorize the requesting Party to take, or order any other Party to take, such steps as the Arbitral Tribunal considers appropriate if it determines, in its judgment, that the testimony of that witness could be relevant to the case and material to its resolution. 10. At any time before the close of the arbitration, the Arbitral Tribunal may order any Party to facilitate or employ best efforts to make it possible for any person to appear for testimony at the Evidentiary Hearing, including a person whose testimony has not yet been offered. Any Party may object in accordance with Articles 9.2 or 9.3.

Party-Appointed Experts 1. The Parties may rely on Party-Appointed Experts as a form of evidence for specific matters. Within the time limit set by the Arbitral Tribunal, (i) each Party shall identify any Party-Appointed Expert whose testimony it intends to rely on and the subject-matters on which the expert's testimony shall focus; and (ii) the Party-Appointed Expert shall submit an Expert Report. 2. The Expert Report shall contain: (

• a)

  the expert's full name and address, a statement about the expert's past and present relationship (if any) with any of the Parties, their legal advisors and the Arbitral Tribunal and a description of the expert's background, qualifications, training and experience; (

• b)

  a description of the instructions in accordance with which the expert will render its opinion and conclusions; (

• c)

  a statement of the expert's independence from the Parties, their legal advisors and the Arbitral Tribunal; (

• d)

  a statement of the facts on which the expert's opinion and conclusions are based; (

• e)

  the expert's opinion and conclusions, including a description of the methods, evidence and information used by the expert in arriving at such conclusions. Documents on which the Party-Appointed Expert relies that have not been previously submitted shall be appended; (

• f)

  if the Expert Report has been translated, a statement as to the language in which the report was originally prepared and the language in which the expert expects to testify at the Evidentiary Hearing; (

• g)

  an affirmation of the expert's genuine belief as to the opinion expressed in the Expert Report; (

• h)

  the expert's signature, as well as the date and place of the Expert Report; and (

• i)

  if the Expert Report has been signed by more than one person, the attribution of the Expert Report as a whole or of each part thereof to each author. 3. If Expert Reports are submitted, any Party may, within the time limit set by the Arbitral Tribunal, submit to the Arbitral Tribunal and to the other Parties revised or additional Expert Reports, including reports or statements from persons not previously designated as Party-Appointed Experts, provided that such revisions or additions are limited to: (a) issues that have been raised in the Witness Statement, Expert Report or arguments of another Party that have not been previously submitted in the arbitration; or (b) new circumstances that could not have been addressed in the earlier Expert Reports. 4. The Arbitral Tribunal may order, in its discretion, that the Party-Appointed Experts who are to present or have presented Expert Reports on the same or related issues meet and confer regarding such issues. At such meeting, the Party-Appointed Experts shall endeavor to reach agreement on the issues in question and shall record in writing those points on which they agree and those on which they disagree, together with the reasons for their disagreement. 5. If a Party-Appointed Expert whose attendance has been requested in accordance with Article 8.1 fails to appear to testify at the Evidentiary Hearing without sufficient justification, the Arbitral Tribunal shall disregard the Expert Report of that Party-Appointed Expert relating to such Evidentiary Hearing, unless in exceptional circumstances the Arbitral Tribunal decides otherwise. 6. If the attendance of a Party-Appointed Expert has not been requested in accordance with Article 8.1, it shall be presumed that the other Parties accept the truthfulness of the contents of the Expert Report.

Tribunal-Appointed Experts 1. The Arbitral Tribunal, after consultation with the Parties, may appoint one or more independent experts to report on specific issues determined by the Arbitral Tribunal. The Arbitral Tribunal shall, after consultation with the Parties, establish the terms and conditions of the Tribunal-Appointed Expert's report. The Arbitral Tribunal shall send to the Parties a copy of the final version of such terms and conditions. 2. Before accepting appointment, the Tribunal-Appointed Expert shall submit to the Arbitral Tribunal and to the Parties a description of its qualifications and a statement of its independence from the Parties, their legal advisors and the Arbitral Tribunal. Within the time limit set by the Arbitral Tribunal, the Parties shall inform the Arbitral Tribunal whether they have any objection regarding the qualifications or independence of the Tribunal-Appointed Expert. The Arbitral Tribunal shall decide promptly whether to accept any such objection. Once a Tribunal-Appointed Expert has been appointed, a Party may only object to the expert's qualifications or independence on the basis of facts of which the Party became aware after the appointment. The Arbitral Tribunal shall promptly decide on any measures to be taken. 3. Subject to Articles 9.2 and 9.3, the Tribunal-Appointed Expert may request from a Party that the Party provide any information or permit access to any Documents, goods, samples, property, machinery, systems, processes or sites for inspection to the extent that they are relevant to the case and material to its resolution. The Parties and their representatives shall have the right to receive such information and to be present at any inspection. Any disagreement between a Tribunal-Appointed Expert and a Party as to the relevance, utility or pertinence of a request shall be resolved by the Arbitral Tribunal in accordance with Articles 3.5 to 3.8. The Tribunal-Appointed Expert shall record in its Expert Report any failure by a Party to comply with a request or decision by the Arbitral Tribunal and shall describe its effects on the expert's assessment of the issue on which the expert is to report. 4. The Tribunal-Appointed Expert shall report in writing to the Arbitral Tribunal by means of an Expert Report. The Expert Report shall contain: (

• a)

  the expert's full name and address and a description of the expert's background, qualifications, training and experience; (

• b)

  a statement of the facts on which the expert's opinion and conclusions are based; (

• c)

  the expert's opinion and conclusions, including a description of the methods, evidence and information used by the expert in arriving at such conclusions. Documents on which the Tribunal-Appointed Expert relies that have not been previously submitted shall be appended; (

• d)

  if the Expert Report has been translated, a statement as to the language in which the report was originally prepared and the language in which the Tribunal-Appointed Expert expects to testify at the Evidentiary Hearing; (

• e)

  a statement confirming the expert's genuine belief as to the opinions expressed in the Expert Report; (

• f)

  the expert's signature, as well as the date and place of the Expert Report; and (

• g)

  if the Expert Report has been signed by more than one person, the attribution of the Expert Report as a whole or of each part thereof to each author. 5. The Arbitral Tribunal shall send a copy of the Expert Report to the Parties. The Parties may examine any information, Documents, goods, samples, property, machinery, systems, processes or sites for inspection that the Tribunal-Appointed Expert has examined and any correspondence between the Arbitral Tribunal and the Tribunal-Appointed Expert. Within the time limit set by the Arbitral Tribunal, any Party shall have the opportunity to comment on the Expert Report, whether by written submission, a Witness Statement or an Expert Report from a Party-Appointed Expert. The Arbitral Tribunal shall send the Party's written submission, Witness Statement or Expert Report to the Tribunal-Appointed Expert and to the other Parties. 6. At the request of a Party or the Arbitral Tribunal, the Tribunal-Appointed Expert shall appear at the Evidentiary Hearing. The Arbitral Tribunal may examine the Tribunal-Appointed Expert and the expert may also be examined by the Parties or by a Party-Appointed Expert on the issues addressed in the expert's report, in the Parties' arguments or in Witness Statements or Expert Reports submitted by the Parties in accordance with Article 6.5. 7. Any Expert Report issued by a Tribunal-Appointed Expert and its conclusions shall be evaluated by the Arbitral Tribunal taking into account all the circumstances of the case. 8. The fees and expenses of a Tribunal-Appointed Expert, which shall be paid as determined by the Arbitral Tribunal, shall constitute part of the costs of the arbitration.

Site Inspections Subject to Articles 9.2 and 9.3, the Arbitral Tribunal may, at the request of a Party or on its own motion, inspect any place, property, machinery or any other goods, samples, systems, processes or Documents that it considers appropriate, or request an inspection by a Tribunal-Appointed Expert or a Party-Appointed Expert. The Arbitral Tribunal shall, after consultation with the Parties, determine the timing and circumstances of the inspection. The Parties and their representatives shall have the right to be present at any such inspection.

Evidentiary Hearings 1. Within the time limit set by the Arbitral Tribunal, each Party shall inform the Arbitral Tribunal and the other Parties of the witnesses whose appearance it requests. Each witness (which term includes, for purposes of this Article, witnesses on the facts and any expert) shall testify, subject to Article 8.3, at the Evidentiary Hearing if its attendance has been requested by any Party or by the Arbitral Tribunal. 2. At the request of a Party or of its own motion, the Arbitral Tribunal may order, after consultation with the Parties, that the Evidentiary Hearing shall be held as a Remote Hearing. In such case, the Arbitral Tribunal shall consult with the Parties in order to establish a Remote Hearing protocol that permits the Remote Hearing to be conducted efficiently, fairly and, to the extent possible, without involuntary interruptions. The protocol may address: (a) the technology that shall be used; (b) pre-hearing tests of the technology or training on its use; (c) start and end times, taking into account in particular the time zones in which participants shall be located; (d) the manner in which Documents can be presented to a witness or to the Arbitral Tribunal; and (e) measures to ensure that witnesses testifying orally are not improperly influenced or distracted. 3. The Arbitral Tribunal shall have full control over the Evidentiary Hearing at all times. The Arbitral Tribunal may limit or exclude any question, answer or appearance of a witness if it considers such question, answer or appearance to be irrelevant, immaterial, unreasonably burdensome, repetitive or otherwise subject to one of the grounds for objection stated in Articles 9.2 or 9.3. Questions put to a witness during examination shall not unduly suggest answers that the examining party wishes to receive. 4. Regarding oral testimony at an Evidentiary Hearing: (

• a)

  the Claimant's witnesses shall ordinarily testify first, followed by the Respondent's witnesses; (

• b)

  following examination by the Party that called the witness, any other Party may examine the witness in the order determined by the Arbitral Tribunal. The Party that initially called the witness shall subsequently have the opportunity to ask further questions on matters that have arisen during the examination of the other Parties; (

• c)

  following witness testimony, ordinarily the Claimant shall first present its experts' testimony and then the Respondent shall present its experts' testimony. The Party that initially presented an expert shall subsequently have the opportunity to ask further questions on matters that have arisen during the examination of the other Parties; (

• d)

  the Arbitral Tribunal may examine the Tribunal-Appointed Expert, who in turn may be examined by the Parties or by any Party-Appointed Expert on matters arising in the Tribunal-Appointed Expert's report, in the Parties' arguments or in Expert Reports submitted by the Parties; (

• e)

  if the arbitration is organized in different issues or phases (such as jurisdiction, preliminary objections, liability and damages), the Parties may agree or the Arbitral Tribunal may order that witness testimony be scheduled separately for each issue or phase; (

• f)

  the Arbitral Tribunal may, of its own motion or at the request of a Party, vary this order of procedure, including by organizing cross-examinations on specific issues or in such a manner that witnesses are examined simultaneously and in confrontation with each other (simultaneous examination or witness confrontation); (

• g)

  the Arbitral Tribunal may examine a witness at any time. 5. Each witness who is to testify shall, at the outset and in the manner that the Arbitral Tribunal considers appropriate, confirm that it will tell the truth or, in the case of an expert, affirm its genuine belief as to the opinions to be expressed at the Evidentiary Hearing. If the witness has submitted a Witness Statement or Expert Report, it shall be affirmed. The Parties may agree, or the Arbitral Tribunal may order, that the Witness Statement or Expert Report shall serve as direct testimony of such witness or expert, in which case the Arbitral Tribunal may nevertheless permit additional direct oral testimony. 6. Subject to Articles 9.2 and 9.3, the Arbitral Tribunal may request any person to present oral or written evidence on any matter that the Arbitral Tribunal considers relevant to the case and material to its resolution. Any witness called and examined by the Arbitral Tribunal may also be examined by the Parties.

Admissibility and Assessment of Evidence 1. The Arbitral Tribunal shall determine the admissibility, relevance, materiality and weight of the evidence. 2. The Arbitral Tribunal shall exclude, at the request of a Party or of its own motion, any evidence or the production of any Document, statement, oral testimony or inspection, in whole or in part, on any of the following grounds: (

• a)

  lack of sufficient relevance or materiality to the resolution of the case; (

• b)

  legal impediment or privilege under the legal or ethical rules determined by the Arbitral Tribunal to be applicable (see Article 9.4); (

• c)

  unreasonable burden to produce such evidence; (

• d)

  loss or destruction of the Document, provided that a reasonable probability of its loss or destruction is established; (

• e)

  confidentiality of information of a commercial, technical or similar nature, which the Arbitral Tribunal determines to be sufficiently important; (

• f)

  considerations of special political or institutional sensitivity, which the Arbitral Tribunal determines to be sufficiently important (including evidence classified as secret by a government or a public international institution); or (

• g)

  considerations of procedural economy, proportionality, fairness or equality between the Parties that the Arbitral Tribunal considers sufficiently important. 3. The Arbitral Tribunal may, at the request of a Party or of its own motion, exclude evidence obtained illegally. 4. When evaluating the existence of a legal impediment or privilege under Article 9.2(b), and insofar as permitted by any legal or ethical rules binding on the Arbitral Tribunal, the Arbitral Tribunal may take into account: (

  • a)

    any need to protect the confidentiality of a Document created or of an oral statement or communication made in connection with or to facilitate the provision or receipt of legal advice; (

  • b)

    any need to protect the confidentiality of a Document created or of an oral statement or communication made in connection with and to facilitate negotiations for settlement; (

  • c)

    the expectations of the Parties and their legal advisors at the time when the legal impediment or privilege is alleged to have arisen; (

  • d)

    any privilege or protection against waiver that may be available to a legal impediment or privilege as a matter of applicable law by reason of consent, earlier disclosure, use as an advantage of the Document, statement, oral communication or advice or otherwise; and (

  • e)

    the need to maintain fairness and equality between the Parties, particularly if they are subject to different legal or ethical rules. 5. The Arbitral Tribunal may, when it considers appropriate, take measures necessary to permit the production of Documents and the presentation or consideration of evidence subject to appropriate protection of its confidentiality. 6. If a Party fails to produce a Document requested in a Request to Produce Documents that has not been objected to in timely fashion, or fails to produce a Document ordered to be produced by the Arbitral Tribunal, without sufficient explanation, the Arbitral Tribunal may infer that the Document is unfavorable to the interests of that Party. 7. If a Party fails to make available any other evidence that is relevant, which was requested by another Party and which the Party from which it was requested has failed to object to in timely fashion, or fails to make available any evidence that has been ordered by the Arbitral Tribunal, the Arbitral Tribunal may infer that such evidence is unfavorable to that Party. 8. If the Arbitral Tribunal determines that a Party has not acted in good faith in the conduct of evidence, the Arbitral Tribunal may, in addition to any other measures it may take under these Rules, take such conduct into account when distributing the costs of arbitration, including costs arising from or related to the conduct of evidence.

Admissibility and Assessment of Evidence 1. The Arbitral Tribunal shall determine the admissibility, relevance, materiality and weight of the evidence. 2. The Arbitral Tribunal shall exclude, at the request of a Party or of its own motion, any evidence or the production of any Document, statement, oral testimony or inspection, in whole or in part, on any of the following grounds: (

• a)

  lack of sufficient relevance or materiality to the resolution of the case; (

• b)

  legal impediment or privilege under the legal or ethical rules determined by the Arbitral Tribunal to be applicable (see Article 9.4); (

• c)

  unreasonable burden to produce such evidence; (

• d)

  loss or destruction of the Document, provided that a reasonable probability of its loss or destruction is established; (

• e)

  confidentiality of information of a commercial, technical or similar nature, which the Arbitral Tribunal determines to be sufficiently important; (

• f)

  considerations of special political or institutional sensitivity, which the Arbitral Tribunal determines to be sufficiently important (including evidence classified as secret by a government or a public international institution); or (

• g)

  considerations of procedural economy, proportionality, fairness or equality between the Parties that the Arbitral Tribunal considers sufficiently important. 3. The Arbitral Tribunal may, at the request of a Party or of its own motion, exclude evidence obtained illegally. 4. When evaluating the existence of a legal impediment or privilege under Article 9.2(b), and insofar as permitted by any legal or ethical rules binding on the Arbitral Tribunal, the Arbitral Tribunal may take into account: (

  • a)

    any need to protect the confidentiality of a Document created or of an oral statement or communication made in connection with or to facilitate the provision or receipt of legal advice; (

  • b)

    any need to protect the confidentiality of a Document created or of an oral statement or communication made in connection with and to facilitate negotiations for settlement; (

  • c)

    the expectations of the Parties and their legal advisors at the time when the legal impediment or privilege is alleged to have arisen; (

  • d)

    any privilege or protection against waiver that may be available to a legal impediment or privilege as a matter of applicable law by reason of consent, earlier disclosure, use as an advantage of the Document, statement, oral communication or advice or otherwise; and (

  • e)

    the need to maintain fairness and equality between the Parties, particularly if they are subject to different legal or ethical rules. 5. The Arbitral Tribunal may, when it considers appropriate, take measures necessary to permit the production of Documents and the presentation or consideration of evidence subject to appropriate protection of its confidentiality. 6. If a Party fails to produce a Document requested in a Request to Produce Documents that has not been objected to in timely fashion, or fails to produce a Document ordered to be produced by the Arbitral Tribunal, without sufficient explanation, the Arbitral Tribunal may infer that the Document is unfavorable to the interests of that Party. 7. If a Party fails to make available any other evidence that is relevant, which was requested by another Party and which the Party from which it was requested has failed to object to in timely fashion, or fails to make available any evidence that has been ordered by the Arbitral Tribunal, the Arbitral Tribunal may infer that such evidence is unfavorable to that Party. 8. If the Arbitral Tribunal determines that a Party has not acted in good faith in the conduct of evidence, the Arbitral Tribunal may, in addition to any other measures it may take under these Rules, take such conduct into account when distributing the costs of arbitration, including costs arising from or related to the conduct of evidence.