3 Examples include ICC Rules Article 24; LCIA Rules Article 14; SCC Rules Article 28(1); SIAC Rules Rule 19; HKIAC Rules Article 13; and UNCITRAL Rules Article 17.2.
4 UNCITRAL Notes on Organizing Arbitral Proceedings (United Nations Commission on International Trade Law 2016) para 1(a) (hereafter ‘UNCITRAL Notes’) sets out the general principle of consultation between the parties and the arbitral tribunal. Effective Management of Arbitration: A Guide for In-House Counsel and Other Party Representatives (International Chamber of Commerce 2014) 13 (hereafter ‘ICC Guide to Effective Management of Arbitration’).
5 IBA Rules on the Taking of Evidence in International Commercial Arbitration 1999, Preamble 3 (hereafter ‘1999 IBA Rules’) states that: ‘Each Arbitral Tribunal is encouraged to identify to the Parties, as soon as it considers it to be appropriate, the issues that it may regard as relevant and material to the outcome of the case, including issues where a preliminary determination may be appropriate’. IBA Rules on the Taking of Evidence in International Arbitration 2010, Article 2.3 (hereafter ‘IBA Rules’) contains a stand-alone reference to issues suitable for preliminary determination.
7 Tobias Zuberbühler and others, IBA Rules of Evidence: Commentary on the IBA Rules on the Taking of Evidence in International Arbitration (Sellier European Law Publishers 2012) 18 (hereafter ‘Zuberbühler’; internal references are omitted).
8 Cypress Oilfield Holdings Limited v China Petrochemical International Company Limited Case T-5296-14 (Swedish Svea Court of Appeal, 19 February 2016).
9 For example, LCIA Rules Article 14.1 requires the parties to make contact as soon as practicable but no later than twenty-one days from the date of the formation of the arbitral tribunal.
10 Commentary on the IBA Rules (n 1) 5.
11 BCLP Survey on the use of the IBA Rules.
12 See, for example, Order 7170 of 1991 in Dominique Hascher, The Collection of Procedural Decisions in ICC Arbitration 1993–1996 (2nd edn, Kluwer Law International 1998) 24.
13 Chartered Institute of Arbitrators, International Arbitration Practice Guidelines: Managing Arbitrations and Procedural Orders 5.
14 For a more detailed discussion of the advantages and disadvantages of the different options see ICC Guide to Effective Management of Arbitration (n 4).
15 ‘Practice Guideline 17: Guidelines for Arbitrators Dealing with Cases Involving Consumers and Parties with Significant Differences of Resources’ (Chartered Institute of Arbitrators 2011).
16 Nassib G Ziadé, ‘Taking of Evidence in Arbitration: The Arab Experience’ in Andrea Carlevaris and others (eds), International Arbitration Under Review. Essays in Honour of John Beechey (ICC Publication No. 772E, International Chamber of Commerce 2015) 442. Ziadé goes on to make the point that ‘[i]n the end, irrespective of the evidentiary rules chosen by the parties, the tribunal retains full discretion to determine the relevance, materiality and weight of the evidence presented’.
17 Hans Smit, ‘Roles of the Arbitral Tribunal in Civil Law and Common Law Systems with Respect to Presentation of Evidence’ in Albert Jan van den Berg (ed), Planning Efficient Arbitration Proceedings: The Law Applicable in International Arbitration (Kluwer Law International 1996) 161–72, 164 (hereafter ‘Smit’).
18 Chartered Institute of Arbitrators (n 13) 3 (emphasis added).
19 Such duty may be a mandatory requirement of the law of the seat. For example, see the English Arbitration Act 1996, s 33; the Swedish Arbitration Act 1999, s 21.
20 LCIA Rules Article 14.2, and ICC Rules Article 22. See also ICC Rules Article 19.
21 One manifestation of this in extreme circumstances is the right (subject to any applicable mandatory provisions of law) of the parties by agreement to remove the arbitrator/s. For example, the English Arbitration Act 1996, s 23 (3)(a) expressly recognises the right of the parties jointly to revoke the authority of an arbitrator. In practice, the consequences of such action in wasted time and costs will militate against it. See further Robert Merkin and Louis Flannery, Arbitration Act 1996 (5th edn, Informa Law from Routledge 2014) 82.
24 Lord Justice Saville, ‘Departmental Advisory Committee on Arbitration Law 1996 Report on the Arbitration Bill’ (1997) Arbitration International 275 para 113.
26 Julio César Rivera, Arbitraje comercial, internacional y doméstico (2nd edn, Actualizada Abeledoperrot 2014) 603.
27 The practice of producing multiple expert reports where one or none were necessary was one of the reasons for reforms in civil litigation in the English Courts. See: Doug Jones, ‘Party Appointed Expert Witnesses in International Arbitration: A Protocol at Last’ Arbitration International (2006) 24(1) 138.
28 IBA Rules (n 5) Article 9.2.
29 See for example: LCIA Rules, Article 20.3; SIAC Rules, Rule 25.2; and ICDR Arbitration Rules, Article 20.3. ICC Rules, Article 3(4) of Appendix VI (Expedited Procedure Rules) provides: ‘The arbitral tribunal shall have discretion to adopt such procedural measures as it considers appropriate. In particular, the arbitral tribunal may, after consultation with the parties, decide not to allow requests for document production or to limit the number, length and scope of written submissions and written witness evidence (both fact witnesses and experts)’. Interestingly, the UNCITRAL Rules and SCC Rules do not explicitly give the Arbitral Tribunal a right to exclude witness or expert evidence. See further Chapter 7.
30 IBA Rules (n 5) Article 4.10.
33 The disadvantages of this approach in all but the most exceptional cases are dealt with in more detail in Chapter 7.
35 The advantages and implications of each approach are addressed at Chapters 8 and 9.
36 See Chapter 8, paras 8.22–8.24. This practice is adopted in some courts, for example, there is provision for the Singapore International Commercial Court to order that any question of foreign law be dealt with by way of submission. See: para 110 of the Singapore Commercial Court Practice Directions. See also David Foxton, ‘Foreign Law in Domestic Courts’ 2017 29 SAcLG 194 for an interesting discussion of domestic court practice.
37 See, for example: Christopher Harris, ‘Expert evidence: the 2010 revisions to the IBA Rules on the Taking of Evidence in International Arbitration’  International Arbitration Law Review 212, 215.
38 ‘International Arbitration Practice Guidelines: Party-Appointed and Tribunal-Appointed Experts’ (Chartered Institute of Arbitrators 2016) 4 suggests that the following factors are relevant when considering the benefits of adducing expert opinion on law: (a) the degree of familiarity of the arbitrators with the applicable law and/or similar system(s) of law; (b) the degree of counsel’s competence in and familiarity with the applicable law and/or similar system(s) of law; (c) the extent to which the application of the law will impact on that issue and the likely effect this will have on the case; and (d) whether it involves general legal principles or some unique aspects of the applicable law.
40 If the IBA Rules (n 5) are adopted as binding rules, rather than being used as guidance only, the provisions of IBA Rules Article 4.7 will determine this issue unless excluded by agreement between the parties. See Chapter 7, paras 7.137–7.167.
41 Further guidance can be found in the ICC Arbitration Commission Report on Information Technology in International Arbitration (International Chamber of Commerce 2017) (hereafter ‘ICC Report on Information Technology’).
42 See further Zuberbühler (n 7) 17.
43 The Commentary on the IBA Rules (n 1) notes that, should the circumstances of the case make this appropriate, the tribunal and the parties may decide not to require disclosure of electronic evidence.
44 These provisions address the requirement of a sufficiently detailed description of the document/category of document requested by the other party, and address the format in which the document/category of document is to be provided. See Chapter 6.
45 ICC Arbitration Commission Report on Managing E-Document Production (International Chamber of Commerce 2012).
47 Brown v BCA Trading Ltd  EWHC 1464 (Ch) endorsing the approach adopted in Pyrrho Investments Ltd v MWB Property Ltd  EWHC 256 (Ch). In the latter case, the majority of the documents were held by the party wishing to use predictive coding. One of the factors that the court took into account when approving the use of predictive coding was cost. It was estimated that using predictive coding would cost around £130,000 compared to a possible cost of £250,000–£338,000 if search terms were used. For discussion on the use of search terms see Chapter 6, paras 6.68–6.75.
48 Moore v Publicis Groupe 11 Civ 1279 (ALC) (AJP) (US District Court SDNY, 24 February 2012).
53 Commentary to the IBA Rules (n 1).
54 BCLP Survey on the use of the IBA Rules.
58 This is a ground of objection to production under IBA Rules (n 5) Article 9.2(e). If the tribunal does not find the grounds of objection compelling but recognizes the sensitive nature of the documents it may impose confidentiality safeguards. See Chapter 12, paras 12.317–12.356.
59 The nature and range of confidentiality protections that may be put in place is discussed in more detail in Chapter 12.
61 Even if a tailored regime has not been put in place pursuant to the IBA Rules (n 5) Article 9.4, the provisions of Article 3.13 will apply.
62 IBA Rules (n 5) Preamble.
63 Christopher Newmark, ‘“Efficient, Economical and Fair”: The Mantra of the New IBA Rules’ (2010) 13 International Arbitration Law Review 164, 167 (hereafter ‘Newmark’).
64 This is supported by the Commentary on the IBA Rules (n 1), which confirms that it refers to conservation of resources ‘which could include, by way of example, the economic and environmental costs of travel or document production . . . ’. See further Newmark (n 63) 167.
65 UNCITRAL Notes (n 4) paras 57, 58, and 68. A recent recommendation of the PCA Secretary General in ICSID case Vattenfall AB and others v. Federal Republic of Germany (ICSID Case No. ARB/12/12) emphasises that a tribunal may legitimately seek to complete gaps in the evidentiary records, and to ascertain the parties’ positions on particular points.
66 See, for example, the IBA Rules (n 5) Articles 3.3(b), 3.7, and 9.2(a).
67 Many national laws provide expressly that an arbitral tribunal has the power to make partial awards unless the parties agree otherwise. Examples include the English Arbitration Act 1996 s 47; Swedish Arbitration Act s 29; and Swiss Private International Law Statute Article 188. Most institutional rules also provide that the tribunal may make separate awards on different issues at different time. Examples include the LCIA Rules Article 26(1); ICC Rules Article 2(v); and SIAC Rules Rule 32.5. If the parties’ arbitration agreement were to expressly exclude partial awards and require a single award disposing of the entire dispute, that agreement must be given effect by the tribunal; otherwise, any award may be subject to annulment and non-recognition under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 Article V(1)(d). See, for example, Assoc’d Corset & Brassiere Mfrs v Corset & Brassiere Workers 16 NYS2d 736, 736 (NY Sup Ct 1939), where the award of the arbitrator was void in that he failed to rule on all the matters submitted to him for determination and there was no consent to a partial award. In practice, it is rare for parties to exclude the possibility of partial awards in their arbitration agreements. However, from a practical perspective, it should be noted that some jurisdictions (eg Dubai) impose time restrictions on the arbitral process. This may make it impossible or inadvisable for a tribunal to deal first with a preliminary issue. Federal Arbitration Law Article 42(1) states that the arbitral tribunal shall issue the award by the date agreed by the parties and that if no date is agreed, the award shall be issued within six months from the date of holding the first hearing of the arbitration procedures. The six-month time limit can be extended with the agreement of the parties. The award can be annulled pursuant to Federal Arbitration Law Article 53(1)(g) if the time limit for rendering the award is not met.
69 Zuberbühler (n 7) 19 (emphasis added).
70 ICC Rules Article 23(1)(d).
71 Jason Fry, Simon Greenberg, and Francesca Mazza, The Secretariat’s Guide to ICC Arbitration (International Chamber of Commerce 2012) para 3-849.
72 For more detail see ibid paras 3-850–3-851.