Newsletter-21

189 ARBITRATION LAW The IBA Rules provide basic requirements to request produc- tion of documents: The requested documents should be specific (Art. 3/3(a) of the Rules), they should be relevant to the case and mate- rial to its outcome (Art. 3/3(b) of the Rules), and they should not be in the possession, custody or control of the requesting party, nor be unreasonably burdensome for the requesting party to produce such documents (Art. 3/3(c) of the Rules). Accordingly, the IBARules draw some guidelines for document production, and their focus is rather on limited document production, in line with these requirements. Objections to Document Production and Due Process Concerns Art. 9 of the IBARules provide specific provisions for the admis- sibility and assessment of evidence. Accordingly, the main principle is that the arbitral tribunal shall determine the admissibility, relevance, materiality and weight of evidence. If the tribunal is convinced that the reasons set forth under Art. 9/2 exist, it may rule on the exclusion of the relevant document. The document production requests may either be challenged by the counterparty, or the arbitral tribunal may decide to exclude the document through its own motion. Accordingly, if the requested documents fall within one of these categories, the document production request will be unsuccessful. Even though the grounds for objection will not be examined in detail in this article, 2 in practice, the arbitral tribunals are compelled by following reasons: legal impediment of privilege, unreasonable burden to produce the requested document, and grounds of commer- cial or technical confidentiality. Accordingly, the IBA Rules aim to balance the interests of the parties, and even though there are some documents that may fall within the scope of the IBA Rules, they may be excluded from evidence based on these concerns. 2 The grounds for objection to document production requests under the IBA Rules have been analyzed in our newsletter article entitled, “Document Produc- tion Requests pursuant to IBA Rules on the Taking of Evidence in International Arbitration-II.” Source: http://www.erdem-erdem.av.tr/publications/law-post/ document-production-requests-pursuant-to-iba-rules-on-the-taking-of-evidence- in-international-arbitration--ii/.