## Facts

- An International Chamber of Commerce (ICC) arbitral tribunal, seated in Ethiopia, heard a contract dispute between a claimant and a respondent.
- The parties agreed the arbitration would be conducted under the ICC Rules of Arbitration.
- The parties also agreed that if the ICC Rules were silent on a procedural question, the tribunal could set procedural rules with or without reference to municipal procedural law.
- During the arbitration, the claimant requested that the respondent disclose: (1) all documents exchanged between the respondent and a bank that the respondent allegedly instructed not to pay the claimant as required under the contract, and (2) all documents in the respondent’s possession or control regarding the contract.
- The claimant also sought discovery connected to an engineer whom the respondent allegedly instructed to issue a certificate relevant to the dispute.
- The respondent objected that the requests were premature and likely to result in production of many irrelevant documents.
- The respondent argued that under the Ethiopian Code of Civil Procedure, courts could request production of documents needed to frame the issues correctly, but that courts did so very rarely and only when the documents were clearly relevant and important.
- The respondent further argued that Ethiopian courts generally exercised that power on their own initiative rather than at a party’s request.
- After the objection, the claimant narrowed its requests to targeted categories: (1) all documents exchanged between the respondent and the engineer between specified dates, and (2) all documents exchanged between the respondent and the bank relating to specific instructions allegedly given by the respondent that the bank should not pay the claimant on five identified certificates.

## Issues

1. Whether, under the ICC Rules and the parties’ procedural agreement, the tribunal could order the respondent to produce documents requested by the claimant in an Ethiopia-seated arbitration.
2. Whether, and to what extent, the tribunal should be guided or limited by the Ethiopian Code of Civil Procedure and Ethiopian court practice when deciding a party’s request for document production.
3. Whether the claimant’s narrowed requests were defined and connected enough to the matters in dispute to justify an order for production.

## Decision

- The tribunal treated the ICC Rules, together with the parties’ agreement on gap-filling procedure, as the main framework for deciding the request for document production.
- The tribunal declined to treat Ethiopian civil-procedure practice in local courts as a strict limit on its authority to order production in the arbitration.
- The tribunal granted document production in a restricted form, ordering production only within the claimant’s narrowed, specified categories (bank communications tied to identified nonpayment instructions and engineer communications within a defined time period), rather than permitting broad production of “all documents” relating to the contract.

## Legal Principles

- An ICC tribunal’s authority to manage evidence and procedure flows from the parties’ arbitration agreement and the ICC Rules, including the tribunal’s discretion to order production of documents.
- Where the parties authorize the tribunal to fill procedural gaps, the tribunal may set procedures without being bound to copy the document-production practice used in court litigation at the seat.
- Municipal procedural law and local court practice may inform a tribunal’s case-management choices, but they do not automatically govern arbitral procedure when the parties have selected institutional rules and given the tribunal discretion on procedure.
- Document production is more likely to be ordered when requests are narrowed to identifiable categories tied to disputed events, defined transactions, and limited time periods, rather than broad requests for all documents on a subject.
- Concerns about prematurity, burden, or irrelevance may be handled by limiting the scope of production instead of rejecting production altogether.

## Conclusion

In this procedural order, the ICC tribunal seated in Ethiopia exercised its procedural discretion under the ICC Rules and the parties’ gap-filling agreement to require targeted document production, granting the claimant’s narrowed requests for bank- and engineer-related communications while refusing broader, open-ended disclosure and treating Ethiopian court practice as nonbinding context rather than a controlling constraint.


Procedural Order in ICC Case No. 5542, D. Hascher, Collection of Procedural Decisions in ICC Arbitration 1993-1996, 63 (1997)