Newsletter-21

200 NEWSLETTER 2016 Document Production Requests from a Person or an Organization not Party to the Arbitration The foregoing applies when one of the parties relies on the docu- ments in possession, control or custody of the other party, and who is a party to the arbitration. In some cases, a party may rely on documents that are in the possession of a person or an organization not party to the arbitration, and from whom the party cannot obtain the documents on its own. In this case, the party may ask the arbitral tribunal to take whatever steps are legally available to obtain the requested docu- ments, or seek leave from the arbitral tribunal to take such steps. The arbitral tribunal shall decide on this request and shall take, authorize the requesting party to take, or order any other party to take, such steps it considers appropriate, if it determines that the conditions for document production are met (Art. 3.9 of the Rules). Consequences of Failure to Produce the Requested Documents It may be the case that the party to whom the document produc- tion request is addressed, without making the necessary objections in due time, fails to produce the requested documents, without satisfac- tory explanation. In such a case, under Art. 9.6, the arbitral tribunal may infer that such evidence would be adverse to the interests of the party failing to produce the requested evidence. Additionally, pursuant to Art. 9.7 of the IBA Rules, if the Arbitral Tribunal determines that a party failed to conduct itself in good faith in the taking of evidence, this may be taken into account in the assign- ment of the costs of the arbitration, including those arising out of or in connection with the taking of the evidence. It is clear that these two provisions give rise to adverse inferences where a party has failed to identification of the requested documents in sufficient detail which would permit the counterparty to identify the documents, and which put forward their relevance and materiality as per the case. Furthermore, document production requests shall contain a statement that the requested documents are not in possession, custody or control of the requesting party, and a statement of the reasons why the request- ing party assumes that the documents are in the possession, custody or control of another party.