3 Nigel Blackaby and others, Redfern and Hunter on International Arbitration (6th edn, OUP 2016) para 6.148 (hereafter ‘Redfern and Hunter’). In the example cited, the matter was settled before the proposal could be acted upon.
4 IBA Rules on the Taking of Evidence in International Commercial Arbitration 1999, Article 7: ‘ . . . the Arbitral Tribunal may . . . inspect or require the inspection . . . of any site, property, machinery or any other goods or process, or documents . . .’.
5 Tobias Zuberbühler and others, IBA Rules of Evidence: Commentary on the IBA Rules on the Taking of Evidence in International Arbitration (Schulthess 2012) 146 (hereafter ‘Zuberbühler’).
6 For example, an expert appointed by the tribunal under the provisions of the IBA Rules on the Taking of Evidence in International Commercial Arbitration 2010, Article 6 (hereafter ‘IBA Rules’).
7 See, for example, SCC Rules, Article 23(1): ‘The Arbitral Tribunal may conduct the arbitration in such manner as it considers appropriate, subject to these Rules and any agreement between the parties’; HKIAC Rules, Article 13.1: ‘Subject to these Rules, the arbitral tribunal shall adopt suitable procedures for the conduct of the arbitration in order to avoid unnecessary delay or expense, having regard to the complexity of the issues, the amount in dispute and the effective use of technology, and provided that such procedures ensure equal treatment of the parties and afford the parties a reasonable opportunity to present their case.’; SIAC Rules, Rule 19.1: ‘The Tribunal shall conduct the arbitration in such manner as it considers appropriate, after consulting with the parties, to ensure the fair, expeditious, economical and final resolution of the dispute’; LCIA Rules, Article 14.5: ‘The Arbitral Tribunal shall have the widest discretion to discharge these general duties [regarding the conduct of the arbitration] subject to such mandatory law(s) or rules of law as the Arbitral Tribunal may decide to be applicable’.
8 ‘The arbitral tribunal may decide to order any party to make any documents, goods, samples, property, site or thing under its control available for inspection by the arbitral tribunal, any other party, any expert to such party and any expert to the tribunal’.
9 ‘Unless otherwise agreed by the parties, the Tribunal has the power to order the parties to make any property or item in their possession or control available for inspection’.
11 See further Zuberbühler (n 5) 146.
12 ‘If a Party fails without satisfactory explanation . . . to make available any evidence, including testimony, ordered by the Arbitral Tribunal to be produced, the Arbitral Tribunal may infer that such evidence would be adverse to the interests of that Party’. IBA Rules (n 6) Article 9.6.
13 The opening lines of IBA Rules (n 6) Article 9.2 expressly state that: ‘The Arbitral Tribunal shall, at the request of a Party or on its own motion, exclude from evidence or production any Documents, statements, oral testimony or inspection for any of the following reasons’ (emphasis added).
14 See further Zuberbühler (n 5) 147.
15 Gary B Born, International Commercial Arbitration (2nd edn, Kluwer Law International 2014) 2353–54 (footnotes omitted).
16 See further Redfern and Hunter (n 3) para 6.151.
17 UNCITRAL Notes on Organizing Arbitral Proceedings (United Nations 2016) paras 57 and 58.
18 See further Redfern and Hunter (n 3) para 6.150.
20 As required by IBA Rules (n 6) Article 6.3.
22 Zuberbühler (n 5) 149.
23 See further Redfern and Hunter (n 3) para 6.151, which suggests that if a transcript is made the usefulness of the inspection may be lost as a result of the delay and formality that accompanies the presence of a reporter.