Procedural Order in ICC Case No. 5542

D. Hascher, Collection of Procedural Decisions in ICC Arbitration 1993-1996, 63 (1997)

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Procedural Order in ICC Case No. 5542

Panel of Arbitration
D. Hascher, Collection of Procedural Decisions in ICC Arbitration 1993-1996, 63 (1997)

Facts

An International Chamber of Commerce (ICC) tribunal with its seat in Ethiopia heard a contract dispute between a claimant (plaintiff) and a defendant (defendant). The claimant and the defendant had agreed that the proceedings before the tribunal would be governed by the ICC Rules (the rules). The claimant and the defendant had also agreed that if the rules were silent on any issue, the arbitral tribunal could set rules for the proceeding with or without reference to municipal procedural law. During the arbitration, the claimant asked the defendant to disclose (1) all documents that had passed between the defendant and a bank that the defendant had allegedly instructed not to pay the claimant as required under the contract, and (2) all documents in the defendant’s possession or control regarding the contract. The claimant also requested discovery from an engineer whom the defendant had allegedly instructed to issue a certificate related to the dispute. The defendant objected to the claimant’s discovery request as premature and likely to lead to the production of many irrelevant documents. The defendant asserted that under the Ethiopian Code of Civil Procedure, courts had the power to request production of documents necessary for framing the issues of the case correctly, but courts exercised that power very rarely and only if the documents were clearly relevant and important. The defendant further asserted that Ethiopian courts exercised their power to request production only on the courts’ initiative rather than at the request of a party. The claimant subsequently narrowed the request to (1) all documents that had passed between the defendant and the engineer between specific dates and (2) all documents passing between the defendant and the bank relating to specific instructions by the defendant that the bank should not pay the claimant on five enumerated certificates.

Rule of Law

Issue

Holding and Reasoning ()

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