Arbitration Evidence Toolkit: Redfern Schedules, Witness Statement Templates, and Expert Protocols

Evidence in an international arbitration is mostly paperwork that has to be right the first time. The evidence provisions of Procedural Order No. 1 become the rule book. The Redfern schedule becomes the record of every production fight. The witness statement becomes the direct examination, and the expert's instruction letter may end up in front of the tribunal. This toolkit supplies those papers in usable form.

How to use this toolkit

Each template states its purpose, its owner, and when to use it, then gives the template in a fenced block or table and a short drafting commentary. Text in [BRACKETED CAPITALS] is to be completed. References to "the IBA Rules" are to the IBA Rules on the Taking of Evidence in International Arbitration (2020). Adapt each template to the institutional rules that apply (ICC Rules 2021 arts. 22 to 26; LCIA Rules 2020 arts. 19 to 22; UNCITRAL Rules arts. 27 to 29; ICSID Arbitration Rules 2022 Rules 36 to 40) and to the law of the seat.

The doctrine is in Evidence in International Arbitration: The IBA Rules, Document Production, Witness Statements, and Expert Evidence; the production process step by step is in Requesting and Resisting Document Production in International Arbitration: A Practical Guide; and the witness and expert task list is in the Witness and Expert Evidence in International Arbitration Checklist: A Practical Checklist. For the broader case papers (model clause, full PO1 outline, enforcement petition), see the International Arbitration Toolkit: Clauses, Procedural Orders, and Enforcement Petitions; this toolkit goes deeper on evidence.

Running example. Arden Biologics, Inc., a Massachusetts biotech company, licensed a cell-line technology to Lindqvist Pharma AB of Uppsala, Sweden, for royalties on net sales. Arden claims Lindqvist under-reported net sales by treating sales through a Swiss affiliate, Lindqvist Distribution GmbH, as outside the royalty base, and claims USD 31 million in unpaid royalties. The license has an ICC clause seated in New York, English law of contract (as the parties chose), and English as the language. Lindqvist's royalty calculations were reviewed by an outside accounting firm, Fairhurst Advisory LLP, in New York. The sample entries below follow that case.

Template 1: PO1 evidence provisions

Purpose: Set the evidence rules for the whole case in one place. Owner: Both parties propose; the tribunal decides. When to use: Draft before the first case management conference; negotiate with the other side so the tribunal receives agreed text with limited disputed points.

SECTION [X]: EVIDENCE

[X.1] Applicable rules. In addition to the [ICC/LCIA/UNCITRAL] Rules, the
Tribunal shall be guided by [OR: the Parties agree to adopt as binding] the
IBA Rules on the Taking of Evidence in International Arbitration (2020)
("IBA Rules"). Where this Order and the IBA Rules differ, this Order prevails.

[X.2] Documents relied upon. Each Party shall submit with its written
submissions all documents on which it relies, numbered consecutively
(Claimant: C-1, C-2 ...; Respondent: R-1, R-2 ...), and legal authorities
(CL-1 ...; RL-1 ...).

[X.3] Requests to Produce. Each Party may submit Requests to Produce in the
form of the Redfern Schedule annexed as Annex [A], by [DATE]. Each Party may
submit no more than [NUMBER] requests. Requests shall comply with Article 3.3
of the IBA Rules. For electronic documents, requests shall identify
custodians, date ranges, and, where practicable, search terms.

[X.4] Voluntary production and objections. By [DATE], the requested Party
shall produce documents to which it does not object and shall state any
objections in the Redfern Schedule, with reasons, by reference to Articles
3.3, 9.2, or 9.3 of the IBA Rules.

[X.5] Consultation and replies. The Parties shall consult in good faith to
narrow disputed requests. By [DATE], the requesting Party shall reply to
objections in the Redfern Schedule. No new requests may be made in replies.

[X.6] Ruling and production. The Tribunal will rule on disputed requests by
[DATE]. Documents ordered shall be produced by [DATE]. Produced documents do
not form part of the record unless submitted as exhibits.

[X.7] Form of production. Documents shall be produced electronically in
[searchable PDF / native format for spreadsheets] with the following metadata
fields where available: [CUSTODIAN, DATE SENT, AUTHOR, RECIPIENTS, FILE
NAME]. Essentially identical copies need not be produced.

[X.8] Privilege. [INSERT TEMPLATE 2.]

[X.9] Confidentiality. Documents produced shall be used only for this
arbitration. A Party may designate documents "Confidential" or "Counsel and
Experts Only." [DESCRIBE ACCESS FOR EACH TIER.] Disputes about designations
shall be referred to the Tribunal, which may review documents itself or
appoint an independent reviewer under Article 3.8 of the IBA Rules.

[X.10] Personal data. The Parties shall limit production of personal data to
what is necessary for the requests as ordered, may redact or pseudonymize
irrelevant personal data, and shall transfer productions using [ENCRYPTED
PLATFORM]. [IF APPLICABLE: The Parties acknowledge that processing of
personal data in this arbitration may be subject to Regulation (EU) 2016/679
and shall cooperate to comply with it.]

[X.11] Cybersecurity. The Parties, counsel, and the Tribunal shall use
[PLATFORM] for filings, with multi-factor authentication. Any Party that
becomes aware of a security incident affecting arbitration data shall notify
the others and the Tribunal within [48] hours.

[X.12] Witness statements. Witness statements shall comply with Article 4.5
of the IBA Rules and shall stand as the evidence-in-chief of the witness.
Reply witness statements shall be limited to responding to matters in the
other Party's submissions or evidence. The Parties shall have regard to the
IBA Guidelines on Party Representation in International Arbitration (2013).

[X.13] Experts. Expert reports shall comply with Article 5.2 of the IBA
Rules. Drafts of expert reports and communications between counsel and
experts shall not be disclosable, save that the expert's instructions shall
be described in the report [OR: produced]. Experts in the same discipline
shall meet after reply reports and prepare a joint statement under Article
5.4 of the IBA Rules [SEE TEMPLATE 9].

[X.14] Hearing. By [DATE], each Party shall notify the witnesses and experts
of the other Party it wishes to cross-examine. Direct examination shall not
exceed [15] minutes per witness. The Tribunal may order witness conferencing
[SEE TEMPLATE 10]. Fact witnesses [may / may not] attend the hearing before
giving evidence. Counsel shall not discuss the substance of a witness's
evidence with the witness during that witness's cross-examination.

[X.15] Remote testimony. A witness may testify remotely with the Tribunal's
leave, under the protocol at Annex [B] [SEE TEMPLATE 11].

Drafting commentary. Article 2 of the IBA Rules requires the tribunal to consult on evidentiary issues "at the earliest appropriate time," and Article 2.2(e) adds cybersecurity and data protection. Each clause above answers a question that otherwise becomes a mid-case dispute. The no-disclosure rule for drafts in X.13 fills the gap left by the absence of anything like Fed. R. Civ. P. 26(b)(4); without it, Article 5.2(b)'s requirement to describe instructions can lead to production orders. The witness contact rule in X.14 tracks the practice U.S. courts apply in depositions (Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993)). Clear written rules also protect the award: in Iran Aircraft Industries v. Avco Corp., 980 F.2d 141 (2d Cir. 1992), enforcement was refused because a party relied on an informal evidentiary understanding the tribunal later disregarded. For data protection background, see International Data Transfers After Schrems II: Standard Contractual Clauses and Transfer Impact Assessments.

Template 2: Privilege rule and clawback clause

Purpose: Resolve the choice-of-law problem for privilege in advance and protect against waiver by inadvertent production. Owner: Both parties. When to use: PO1, before either side knows which documents matter.

[X.8.1] Privilege. A Party may withhold or redact a document on grounds of
legal impediment or privilege under Article 9.2(b) of the IBA Rules. In
determining whether a privilege applies, the Tribunal shall apply [CHOOSE
ONE]:

  [Option A: most favored nation] the rule affording the greatest protection
  among the rules of the jurisdictions with which the document or
  communication has a close connection, and that rule shall apply equally to
  all Parties.

  [Option B: closest connection] the rules of the jurisdiction with which the
  document or communication has its closest connection, taking into account
  the factors in Article 9.4 of the IBA Rules.

  [Option C: named law] the law of [JURISDICTION].

[X.8.2] Scope. Privilege includes, without limitation, communications with
outside or in-house counsel made for the purpose of giving or obtaining legal
advice, documents prepared in contemplation of this arbitration, and
documents relating to settlement negotiations.

[X.8.3] Log. A Party withholding or redacting documents on privilege
grounds shall serve a privilege log in the form of Annex [C] [TEMPLATE 6]
at the time of production.

[X.8.4] Inadvertent production. Production of a privileged document shall
not waive privilege if the producing Party notifies the receiving Party
within [14] days after discovering the production. The receiving Party shall
return or destroy the document and shall not use it, without prejudice to
its right to ask the Tribunal to decide whether the document is privileged.

Drafting commentary. Article 9.4 lists the considerations a tribunal may weigh, including the parties' expectations at the time the privilege arose and the need for fairness and equality where the parties are subject to different rules. Option A is usually the safest for a party whose in-house lawyers sit in a jurisdiction with weaker protection, such as an EU company facing Akzo Nobel Chemicals Ltd v. European Commission (CJEU, Case C-550/07 P, 2010), which denied privilege to in-house counsel in Commission competition investigations. A U.S. party benefits from the breadth of Upjohn Co. v. United States, 449 U.S. 383 (1981), and work product protection under Hickman v. Taylor, 329 U.S. 495 (1947), and may be tempted by Option B; but equality arguments under Article 9.4(e) often push tribunals toward Option A anyway. The clawback in X.8.4 serves the function of Fed. R. Evid. 502 in U.S. courts. In the running example, Arden and Lindqvist agree Option A. Lindqvist's Swedish in-house counsel's advice on the treatment of Swiss affiliate sales receives the same protection as Arden's Massachusetts in-house counsel's advice on the audit.

Template 3: Redfern schedule format and model entries

Purpose: Present each request, objection, reply, and ruling in one table. Owner: The requesting party creates it; the responding party completes the objection column; the requesting party completes the reply; the tribunal completes the decision column. When to use: At each round of document production.

Drafting commentary. Article 3.3 requires identification, relevance and materiality, and possession statements; the columns force each. Keep each cell short; many tribunals impose word limits. Cite the paragraphs of the pleadings that make the documents material. A row like Request 12 is the kind tribunals deny in two words, and a schedule with many of them undermines the good rows. The responding party's best move on a row like Request 4 is to propose a protective solution instead of refusing; tribunals rarely sustain bare confidentiality objections when tiered protection is available. Provide the schedule in an editable format (word-processing or spreadsheet) so the tribunal can enter rulings.

Template 4: Request language bank

Purpose: Precise, reusable phrasing for common request types. Owner: Requesting party. When to use: Drafting the first column of the Redfern schedule.

(a) Specific document:
"The [TITLE / DESCRIPTION] dated [DATE] [prepared by / sent to] [PERSON],
referred to in [EXHIBIT / WITNESS STATEMENT ¶]."

(b) Narrow category by custodian and date:
"Communications between [CUSTODIAN 1] and [CUSTODIAN 2 / EXTERNAL PARTY]
dated [START] to [END] concerning [SPECIFIC SUBJECT]."

(c) Electronic search:
"Documents in the mailboxes and [CHAT / SHARED DRIVE] accounts of
[CUSTODIANS] dated [START] to [END] responsive to the following search terms:
[TERMS WITH CONNECTORS]."

(d) Documents referred to in the other side's evidence:
"Documents referred to in [WITNESS] Statement ¶ [X] / [EXPERT] Report
§ [X] that have not been exhibited, namely [DESCRIPTION]."

(e) Board and committee materials:
"Minutes, board papers, and presentations for meetings of [BODY] held between
[START] and [END] at which [SUBJECT] was discussed."

(f) Data:
"The [SYSTEM] data for [PRODUCT / PERIOD] showing [FIELDS], produced in
native format."

(g) Documents sufficient to show (use sparingly):
"Documents sufficient to show [SPECIFIC FACT] for [PERIOD]."

Relevance and materiality paragraph:
"These documents are relevant to [ISSUE] (SoC ¶¶ [X-Y]; SoD ¶¶ [X-Y]) and
material to the outcome because [EXPLANATION: what they will show and why
the Tribunal needs them to decide the issue]. Respondent disputes [FACT]
(SoD ¶ [X]), so the documents are not cumulative of admitted facts."

Possession paragraph:
"Claimant does not have these documents, which are internal to Respondent.
Claimant believes they exist and are in Respondent's possession, custody, or
control because [REASON: referred to in exhibit; author is employee; standard
practice]."

Drafting commentary. Avoid "all documents relating to," "including but not limited to," and broad definitions of "document" borrowed from U.S. requests under Fed. R. Civ. P. 34. Article 3.3(a)(ii) permits search terms and custodians for electronic documents, and tribunals increasingly expect them. "Documents sufficient to show" requests can be useful for data or organizational facts, but tribunals sometimes view them as interrogatories in disguise; reserve them for facts a short production can establish. For U.S.-style ESI concepts that do translate, see Negotiating an ESI Protocol and Managing E-Discovery Costs.

Template 5: Objection language bank

Purpose: Specific, grounded objections that the tribunal will take seriously. Owner: Responding party. When to use: Completing the objection column; always pair an objection with a proposal where one is possible.

(a) Not narrow and specific (art. 3.3(a)):
"The request seeks [all documents / an open category] without limitation by
[custodian / date / subject]. On Respondent's estimate it would capture
[NUMBER] documents across [NUMBER] custodians, most concerning [UNRELATED
MATTERS]. Without prejudice, Respondent will produce [NARROWER CATEGORY]."

(b) Not relevant or material (arts. 3.3(b), 9.2(a)):
"The documents concern [ISSUE], which is [admitted at SoD ¶ X / not pleaded
/ reserved for the quantum phase under PO1 ¶ X]. They cannot affect the
outcome of any issue the Tribunal must decide in this phase."

(c) Already available to requester (art. 3.3(c)):
"Claimant already has these documents: [IDENTIFY EXHIBIT / PRIOR
CORRESPONDENCE / PUBLIC SOURCE]."

(d) Privilege (arts. 9.2(b), 9.4):
"Respondent withholds [NUMBER] documents as privileged under PO1 ¶ [X.8]
[the most protective applicable rule / the law of JURISDICTION], because
they are communications with [in-house / external] counsel made for the
purpose of obtaining legal advice. They are listed in the privilege log
served on [DATE]."

(e) Unreasonable burden (art. 9.2(c)):
"Collection and review would require [DESCRIPTION: restoration of backup
tapes / review of NUMBER documents in LANGUAGE], at an estimated cost of
[AMOUNT] and [TIME], disproportionate to the marginal relevance of the
documents given [REASON]. Respondent proposes [ALTERNATIVE]."

(f) Loss or destruction (art. 9.2(d)):
"The documents were [deleted under retention policy X on DATE / lost in
EVENT], before [the dispute arose / receipt of the Request for Arbitration].
Respondent will provide a witness statement from [PERSON] describing the
circumstances."

(g) Commercial or technical confidentiality (art. 9.2(e)):
"The documents contain [trade secrets / pricing for third-party customers].
Respondent will produce them designated 'Counsel and Experts Only' with
redaction of [CATEGORY], or proposes review by an independent expert under
art. 3.8."

(h) Political or institutional sensitivity (art. 9.2(f)):
"The documents are classified under [LAW / REGULATION] by [AUTHORITY].
[Respondent proposes / cannot lawfully offer] [REDACTED VERSION / TRIBUNAL
REVIEW]."

(i) Proportionality, fairness, equality (art. 9.2(g)):
"Claimant has refused comparable production at Request R-[X]; ordering this
production without a corresponding order would treat the Parties unequally."

(j) Data protection (art. 9.2(b) and PO1 ¶ [X.10]):
"Respondent does not object to production but proposes that personal data of
employees not involved in [SUBJECT] be redacted, consistent with PO1 ¶ X.10
and applicable data protection law."

Drafting commentary. Article 3.5 requires written objections, within the time ordered, on the grounds in Articles 9.2 or 9.3 or for failure to meet Article 3.3. Failure to object in time can waive the objection and supports an adverse inference under Article 9.6 if the documents are not produced. Quantify burden; tribunals treat unquantified burden objections as boilerplate. Data protection statutes are rarely treated as absolute bars; U.S. courts likewise weigh foreign restrictions as comity factors under Société Nationale Industrielle Aérospatiale v. U.S. District Court, 482 U.S. 522 (1987). Write objections that preserve the record: if a production order later appears fundamentally unfair, the objection in the schedule is the evidence that the point was raised. For U.S. deficiency and response practice that adapts well, see the Discovery Enforcement Toolkit: Deficiency Letters, Meet-and-Confer Records, and Rule 37 Motions.

Template 6: Arbitral privilege log

Purpose: Let the requesting party and the tribunal test privilege claims without seeing privileged content. Owner: Responding party. When to use: With each production from which documents are withheld or redacted.

Drafting commentary. Tribunals generally want enough detail to test the claim: who the lawyer is, whether in-house or external, the general subject, and the privilege claimed. They are less likely than U.S. courts to demand entry-by-entry logs for long privileged email chains; PO1 can permit categorical logging for communications with external counsel after the dispute arose. Redact rather than withhold where a document mixes business discussion and legal advice. Tribunals may review contested documents themselves under Article 3.8. For log discipline, see Preparing a Privilege Log: A Practical Checklist.

Template 7: Witness statement template

Purpose: A statement that satisfies Article 4.5 and reads as the witness's own account. Owner: The party presenting the witness; drafted from interview notes, reviewed and corrected by the witness. When to use: Each written round; reply statements under Article 4.6.

[CASE CAPTION: ICC Case No. [NUMBER]; Claimant v. Respondent]

[FIRST / SECOND] WITNESS STATEMENT OF [FULL NAME]

1. Introduction
1.1 My name is [FULL NAME]. My business address is [ADDRESS].
1.2 I am [POSITION] at [EMPLOYER]. [Describe present and past relationship
    with each Party, including employment, directorships, shareholdings,
    consultancy.]
1.3 [Background, qualifications, training, and experience, to the extent
    relevant.]
1.4 I make this statement in support of [PARTY]'s [SUBMISSION]. The facts
    in it are within my own knowledge unless I say otherwise. Where I refer
    to information I learned from others or from documents, I identify the
    source.
1.5 This statement was prepared in [LANGUAGE] following [NUMBER] interviews
    with [PARTY]'s counsel. [It has been translated into English; the
    original is submitted with it.] I expect to give oral evidence in
    [LANGUAGE].
1.6 I have been shown the documents referred to in this statement. Those not
    already in the record are exhibited as [C-/R-NUMBER].

2. [TOPIC HEADING: e.g., "The 2022 restructuring of Lindqvist's
   distribution"]
2.1 [Chronological, first-person narrative. One fact per paragraph. Cite
    exhibits: "On 2 June 2022 I attended a meeting with Ms. Ek and Mr. Berg
    in Uppsala (minutes at R-44)."]
2.2 [Distinguish observation from belief: "I was not at that meeting. Mr.
    Berg told me afterwards that..."]

3. [RESPONSE TO OTHER SIDE'S EVIDENCE, IF A REPLY STATEMENT]
3.1 [Respond to specific paragraphs: "At ¶ 14 of his statement, Mr. Doyle
    says... That is not my recollection because..."]

4. Statement of truth
4.1 I confirm that the facts stated in this witness statement are true to
    the best of my knowledge and belief.

Signed: ______________________
[FULL NAME]
Date: [DATE]     Place: [CITY, COUNTRY]

Drafting commentary. Article 4.5 requires each element in sections 1 and 4. Article 4.3 permits counsel to interview witnesses and discuss prospective testimony, and the IBA Guidelines on Party Representation in International Arbitration (2013) ask counsel to ensure the statement reflects the witness's own account. Draft in the witness's language and vocabulary; translate rather than having a non-native speaker sign an English text they cannot fully defend. Do not include argument or legal conclusions. Remember Article 4.7: if the witness does not appear when called without a valid reason, the statement will generally be disregarded. In a U.S.-seated case, some counsel add language tracking 28 U.S.C. § 1746 so the statement can be used in any related court proceeding without re-execution; tribunals do not require it.

Template 8: Expert instruction letter

Purpose: Instruct a party-appointed expert in terms that will survive the tribunal reading them. Owner: Counsel for the appointing party. When to use: On retention, and by supplementary letter if the questions change.

[DATE]
[EXPERT NAME, FIRM, ADDRESS]

Re: ICC Case No. [NUMBER], [Claimant] v. [Respondent]

1. Appointment. We act for [PARTY]. We instruct you to provide an
   independent expert report in this arbitration, which is subject to the
   [ICC Rules (2021)] and in which the Tribunal will be guided by the IBA
   Rules (2020). A copy of Article 5 of the IBA Rules is enclosed.

2. Duty. Your overriding duty is to assist the Tribunal on matters within
   your expertise. Your report must state your independence from the
   Parties, their legal advisors, and the Tribunal, and must reflect your
   own genuine opinions. You should say so if a question falls outside your
   expertise or if you cannot reach a concluded view.

3. Questions. Please address the following questions:
   (a) [NEUTRAL QUESTION, e.g., "What were the net sales of the Licensed
       Products by Lindqvist Pharma AB and its Affiliates, including
       Lindqvist Distribution GmbH, for each quarter from Q3 2022 to Q4
       2025?"]
   (b) [e.g., "On the basis of your answer to (a), and applying a royalty
       rate of [X]%, what royalties were payable, and what was paid?"]
   (c) [e.g., "What interest would be payable on any shortfall at the rates
       set out in Annex 1, from the dates set out there?"]

4. Assumptions. Where a question depends on disputed facts, please state
   your assumptions expressly. You should assume [LIST], which reflects
   [PARTY]'s case as set out in [SUBMISSION ¶]. You should also state, where
   practicable, the effect on your conclusions if the Tribunal finds
   otherwise.

5. Materials. We enclose the materials listed in Annex 2, which comprise
   [the full exhibit record and documents produced to date]. Please tell us
   if you need further information; requests to the other Party will be
   made through us.

6. Independence and conflicts. Please confirm that you have no relationship
   with [PARTIES, AFFILIATES, COUNSEL, ARBITRATORS: NAMES] other than as
   disclosed in Annex 3, and tell us promptly if that changes.

7. Fees. Your fees are [hourly rates / fixed fee] as set out in Annex 4 and
   are not contingent on the outcome.

8. Report. Your report must contain the matters listed in Article 5.2 of
   the IBA Rules [LIST OR REFER TO ANNEX 5], including a description of
   these instructions. You should expect this letter to be read by the
   Tribunal.

9. Meetings. The Tribunal may order you to meet the other Party's expert
   and record areas of agreement and disagreement, and may hear you
   concurrently with that expert.

Drafting commentary. Article 5.2(b) requires a description of the instructions, and tribunals sometimes order the letter produced. Write it neutrally: questions rather than desired conclusions, and stated assumptions with sensitivity analysis. There is no Daubert gatekeeping in arbitration (Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) do not bind the tribunal), so credibility rests on independence and transparency of method. Check relationships with the arbitrators; the IBA Guidelines on Conflicts of Interest in International Arbitration (revised 2024) address arbitrators' relationships, and a late-surfacing conflict with an expert can create problems. For engagement terms used in U.S. litigation, see the Expert Witness Toolkit.

Template 9: Expert joint meeting and joint statement protocol

Purpose: Narrow the expert issues before the hearing. Owner: Both parties propose; tribunal orders. When to use: After reply reports, four to eight weeks before the hearing.

EXPERT MEETING PROTOCOL (Annex [D] to PO [NUMBER])

1. Experts in each discipline ([quantum]; [DISCIPLINE]) shall meet by
   [DATE], in person or by video, without counsel present [OR: with one
   counsel per Party attending as observers without speaking].

2. Discussions at the meeting are without prejudice and shall not be
   referred to at the hearing except as recorded in the Joint Statement.

3. By [DATE], the experts shall jointly sign a Joint Statement in the
   following form:

   | Issue no. | Issue | Agreed / Not agreed | Expert A position and
     reasons (with report refs) | Expert B position and reasons | Effect on
     figures if resolved each way |

4. The experts shall not be instructed by counsel to withhold agreement on
   any issue on which they agree. Counsel may comment on drafts only to
   identify errors of fact or omissions.

5. The Joint Statement shall form the agenda for any witness conferencing
   under Annex [E].

Drafting commentary. Article 5.4 of the IBA Rules lets the tribunal order experts to meet and confer and record agreement and disagreement in writing. The "effect on figures" column is the most useful: it lets the tribunal see which issues matter. Paragraph 4 protects the process from counsel interference, which is consistent with the IBA Guidelines on Party Representation. In the running example, the quantum experts agree on the arithmetic of net sales if affiliate sales are included and disagree on two deductions and the interest rate; the joint statement reduces a 140-page disagreement to five issues.

Template 10: Witness conferencing protocol

Purpose: Structure concurrent testimony of experts (or fact witnesses) on the same issue. Owner: Tribunal, on the parties' proposals. When to use: Pre-hearing conference; most often for experts.

WITNESS CONFERENCING PROTOCOL (Annex [E])

1. The experts in [DISCIPLINE] shall give evidence concurrently on
   [DATE/SESSION], after the fact witnesses.

2. Each expert shall first affirm the truth of their report and may make a
   presentation not exceeding [20] minutes, limited to the issues in the
   Joint Statement.

3. The Tribunal will then take the experts through the issues in the Joint
   Statement in order. On each issue:
   (a) each expert summarizes their position (not more than [5] minutes);
   (b) each expert may comment on and ask questions of the other;
   (c) the Tribunal asks questions;
   (d) counsel for each Party may then question both experts on that issue,
       within the time allocated to that Party.

4. [Alternative: counsel's cross-examination of each expert shall take place
   after the conferencing session, limited to matters not covered.]

5. Time spent by counsel under 3(d) counts against that Party's hearing
   time; other time is neutral.

6. Experts shall not communicate with counsel about the substance of their
   evidence from the start of the session until it ends.

Drafting commentary. Article 8 of the IBA Rules allows the tribunal to arrange testimony by issue and to question witnesses at the same time and in confrontation with each other. Conferencing rewards experts who can concede and explain, and it limits counsel's control; decide whether you want it before proposing it. If both sides distrust a single tribunal expert, consider proposing expert teaming under the protocol associated with Klaus Sachs, in which the tribunal selects one expert from each party's list to form a joint team. Cross-examination still matters in conferencing; for technique, see the Cross-Examination Toolkit: Chapter Outlines, Impeachment Sequences, and Reptile Defense Scripts and adapt it to a tribunal rather than a jury.

Template 11: Remote testimony protocol

Purpose: Make remote testimony reliable and fair. Owner: Both parties, for the tribunal. When to use: When any witness will testify remotely or the hearing is wholly virtual.

REMOTE TESTIMONY PROTOCOL (Annex [B])

1. Platform: [PLATFORM], with hearing-specific credentials and waiting room.
2. Testing: a technical test with each remote witness at least [5] days
   before testimony.
3. Location: the witness shall testify from [an office / a hearing center]
   in a closed room, alone [OR: with a technician identified in advance].
4. Camera: the camera shall show the witness's face, hands, and desk; at the
   start, the witness shall show the room by panning the camera.
5. Devices: no other device or application shall be open; the witness's
   phone shall be switched off and out of reach.
6. Documents: the witness shall have [a sealed hard-copy bundle opened on
   camera at the start / an electronic bundle on a secure platform with no
   annotations]. New documents shall be displayed by screen share.
7. Interpretation: [simultaneous / consecutive] interpretation via [CHANNEL].
8. Time zones: sessions for remote witnesses shall be scheduled between
   [HOURS] in the witness's local time where practicable.
9. Interruptions: if connection fails, the session shall pause; no
   communication with the witness about the evidence during the pause.
10. Recording: the session shall be [recorded / transcribed in real time];
    no other recording is permitted.
11. Security: participants shall use the cybersecurity measures in PO1
    ¶ [X.11].

Drafting commentary. Article 8.2 of the IBA Rules lets the tribunal order a remote hearing after consulting the parties and requires a protocol addressing technology, testing, time zones, documents, and safeguards against improper influence; ICC Rules art. 26(1) and LCIA Rules art. 19 also contemplate remote hearings. The safeguards here mirror those used for remote depositions; see the Remote Deposition Toolkit: Stipulated Protocols, Exhibit Plans, and Technology Scripts. Record any objection to remote testimony promptly, so that a later due-process argument is preserved.

Template 12: Adverse inference application outline

Purpose: Ask the tribunal to infer that withheld documents or evidence would be adverse to the party that failed to produce them. Owner: Requesting party. When to use: After a deficiency letter and, ideally, an order compelling production have failed; renew in pre-hearing and post-hearing submissions.

APPLICATION FOR ADVERSE INFERENCES UNDER ARTICLES 9.6 AND 9.7

I.   Relief sought
     The Tribunal is requested to infer that [SPECIFIC FACT], namely that
     [e.g., "by September 2022, Lindqvist's management had decided to route
     European sales through Lindqvist Distribution GmbH to reduce royalties
     payable to Arden"].

II.  The request and the order
     A. Request [NO.] (Redfern Schedule, [DATE]): [TEXT].
     B. Objection (if any) and Tribunal's ruling (PO [NO.], [DATE]).
     C. Production deadline: [DATE].

III. The failure to produce
     A. What was produced and what was not (with production references).
     B. Correspondence seeking compliance ([DATES]; Exhibits [X]).
     C. Respondent's explanation, and why it is not satisfactory.

IV.  Conditions for the inference
     A. The documents were ordered (or requested without timely objection).
     B. They are within Respondent's possession, custody, or control.
     C. Claimant has produced the available corroborating evidence:
        [EXHIBITS].
     D. The inference sought is reasonable, consistent with the record, and
        closely tied to the likely content of the missing documents.
     E. Respondent had notice that production was expected and an
        opportunity to explain.

V.   Alternative relief
     A. An order for a witness statement describing the search and the
        circumstances of any loss.
     B. Costs under Article 9.8.

VI.  Proposed procedure
     Respondent to respond by [DATE]; Claimant to reply by [DATE].

Drafting commentary. Article 9.6 allows an inference where a party fails without satisfactory explanation to produce a document requested without timely objection or ordered by the tribunal; Article 9.7 extends the principle to other evidence; Article 9.8 allows costs consequences for bad faith. The conditions in Part IV reflect how tribunals and commentators have approached the issue: corroboration, control, reasonableness, a prima facie case, and notice. The inference corroborates; it rarely substitutes for proof. Contrast Fed. R. Civ. P. 37(e), which in U.S. courts generally requires intent to deprive before an adverse-inference instruction for lost electronically stored information, a change from the negligence standard of Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002). U.S. courts have upheld arbitral sanctions for bad-faith conduct under broad arbitration clauses (ReliaStar Life Insurance Co. of New York v. EMC National Life Co., 564 F.3d 81 (2d Cir. 2009)). Part VI matters for enforcement: an inference drawn after notice and an opportunity to respond is far harder to attack under Article V(1)(b) of the New York Convention (9 U.S.C. § 207) or 9 U.S.C. § 10(a)(3) than one drawn without warning.

Template 13: Request for an arbitral summons under 9 U.S.C. § 7

Purpose: Obtain documents or testimony from a nonparty in a U.S.-seated arbitration. Owner: The party seeking the evidence; the summons is issued by the tribunal. When to use: When the nonparty has refused a voluntary request and the evidence is material; allow time for enforcement proceedings.

APPLICATION FOR ISSUANCE OF SUMMONS

1. Claimant requests that the Tribunal issue the attached summons under
   Section 7 of the Federal Arbitration Act, 9 U.S.C. § 7, directed to
   [NONPARTY: Fairhurst Advisory LLP, New York, New York].

2. The nonparty holds [DESCRIPTION: working papers for its 2023 and 2024
   reviews of Lindqvist's royalty calculations], which are material to
   [ISSUE] (SoC ¶¶ [X]) because [REASON].

3. Claimant asked the nonparty to produce the documents voluntarily on
   [DATE] (Exhibit [X]); it declined on [DATE].

4. Because [the controlling circuit] does not permit pre-hearing document
   discovery from nonparties under Section 7, Claimant requests that the
   Tribunal convene an evidentiary hearing on [DATE] at [LOCATION within the
   district in which the Tribunal sits], before [the full Tribunal / the
   Presiding Arbitrator, with co-arbitrators attending remotely], at which
   the nonparty shall appear and produce the documents.

5. Claimant will bear the nonparty's reasonable costs and witness fees.

SUMMONS

TO: [NONPARTY NAME AND ADDRESS]

YOU ARE SUMMONED to attend before the Arbitral Tribunal in ICC Case No.
[NUMBER], [Claimant] v. [Respondent], at [ADDRESS], on [DATE] at [TIME],
as a witness, and to bring with you the following documents, which the
Tribunal deems material as evidence in the case: [SCHEDULE OF DOCUMENTS].

Signed by [the Tribunal / a majority of the Tribunal]:
[NAMES]                         Date: [DATE]

Drafting commentary. Section 7 (9 U.S.C. § 7) provides that arbitrators may summon any person to attend before them as a witness and, in a proper case, to bring material documents; the summons must be signed by the arbitrators or a majority of them, and enforcement lies with the district court for the district in which the arbitrators are sitting. Most circuits hold that section 7 does not authorize pre-hearing document discovery from nonparties (Hay Group, Inc. v. E.B.S. Acquisition Corp., 360 F.3d 404 (3d Cir. 2004); Life Receivables Trust v. Syndicate 102 at Lloyd's of London, 549 F.3d 210 (2d Cir. 2008); CVS Health Corp. v. Vividus, LLC, 878 F.3d 703 (9th Cir. 2017); Managed Care Advisory Group, LLC v. CIGNA Healthcare, Inc., 939 F.3d 1145 (11th Cir. 2019)), but a nonparty can be summoned to a hearing before the panel that is not the final merits hearing (Stolt-Nielsen SA v. Celanese AG, 430 F.3d 567 (2d Cir. 2005)); hence paragraph 4. The Fourth and Eighth Circuits have been more permissive (COMSAT Corp. v. National Science Foundation, 190 F.3d 269 (4th Cir. 1999); In re Security Life Insurance Co. of America, 228 F.3d 865 (8th Cir. 2000)). The FAA does not authorize nationwide service, so the location and the territorial limits of Fed. R. Civ. P. 45 matter (Dynegy Midstream Services, LP v. Trammochem, 451 F.3d 89 (2d Cir. 2006)). Chapter 2 of the FAA incorporates section 7 for Convention cases seated in the United States (9 U.S.C. § 208). Do not substitute a section 1782 application: after ZF Automotive US, Inc. v. Luxshare, Ltd., 596 U.S. 619 (2022), 28 U.S.C. § 1782 does not reach private commercial arbitral tribunals. For subpoena practice generally, see the Nonparty Discovery Toolkit: Subpoenas, Third-Party Records, and Privilege, and for the section 1782 position, Seeking or Opposing Section 1782 Discovery: A Practical Guide.

The running example, start to finish

1. PO1 (Templates 1 and 2). The tribunal will be guided by the IBA Rules; each side may make 25 requests; the most-favored-nation privilege rule applies; drafts and counsel-expert communications are protected but instructions are described in reports; personal data of Lindqvist employees in Sweden and Switzerland is minimized and transferred via an encrypted platform.
2. Requests and objections (Templates 3 to 5). Arden's Request 4 (intercompany agreements) is granted with redactions and a counsel-and-experts tier; Request 7 (custodian emails) is granted as narrowed; Request 12 (tax planning) is denied.
3. Privilege (Template 6). Lindqvist logs its in-house counsel's September 2022 memorandum and redacts a forwarding email. Arden challenges neither, because its own audit memorandum receives the same protection.
4. Nonparty (Template 13). Fairhurst Advisory refuses to produce its working papers voluntarily. The tribunal issues a section 7 summons for a half-day hearing in Manhattan before the presiding arbitrator, with the co-arbitrators attending by video. Fairhurst's records manager appears and produces the papers, which show that Fairhurst flagged the affiliate-sales issue in 2023.
5. Inference (Template 12). Lindqvist's production for Request 7 omits Mr. Berg's emails for October 2022. After a deficiency letter and an order, Lindqvist explains a mailbox corruption but offers no forensic evidence. The tribunal, after a response and reply, infers that the October emails discussed the royalty effect of the restructuring, corroborated by the Fairhurst papers.
6. Witnesses (Template 7). Ms. Ek's statement is drafted in Swedish and translated; she testifies in Swedish through an interpreter. Arden's head of business development testifies remotely from Boston under Template 11.
7. Experts (Templates 8 to 10). The quantum experts' joint statement narrows the dispute to five issues; three hours of conferencing resolve two by concession. The tribunal awards Arden USD 24.6 million plus interest.

Takeaways

• Put the evidence rules in PO1: rules, timetable, caps, format, privilege, confidentiality, data protection, cybersecurity, witness and expert procedure, and remote testimony.
• Choose a privilege rule before the documents are known; the most-favored-nation option is usually the safest.
• Make every Redfern row short, specific, and tied to a pleaded fact; pair every objection with a proposal.
• Draft witness statements in the witness's voice and language, and expert instructions for the tribunal's eyes.
• Use joint statements and conferencing to narrow expert disputes, and decide early whether conferencing helps your case.
• Ask for inferences only after asking for the documents, and give the other side a chance to explain.
• In a U.S.-seated case, use a section 7 hearing for nonparty evidence; do not rely on section 1782.

This document is general information, not legal advice for any particular situation; arbitral rules, national law, and tribunal practice vary, and the facts matter.

Related Documents

Related Articles

• Evidence in International Arbitration: The IBA Rules, Document Production, Witness Statements, and Expert Evidence: the doctrine behind each template.
• Section 1782 Discovery in Aid of Foreign Proceedings: Who Can Ask, What They Get, and What ZF Automotive Changed: why Template 13, not a section 1782 application, is the U.S. tool.
• International Data Transfers After Schrems II: Standard Contractual Clauses and Transfer Impact Assessments: background for the PO1 personal data clause.
• Attorney-Client Privilege and Work Product for Businesses: Upjohn, In-House Counsel, and the Common Interest: the U.S. privilege rules a tribunal may consider.

Related Guides

• Requesting and Resisting Document Production in International Arbitration: A Practical Guide: the step-by-step process in which Templates 1 to 6 and 12 are used.
• Running an International Arbitration: A Practical Guide: the whole case from clause to enforcement.
• Seeking or Opposing Section 1782 Discovery: A Practical Guide: when U.S. discovery remains available for related court proceedings.

Related Checklists

• Witness and Expert Evidence in International Arbitration Checklist: A Practical Checklist: the task list that Templates 7 to 11 support.
• Preparing a Privilege Log: A Practical Checklist: log discipline for Template 6.
• International Arbitration Checklist: A Practical Checklist: the case-wide checklist.

Related Toolkits

• International Arbitration Toolkit: Clauses, Procedural Orders, and Enforcement Petitions: clause, full PO1 outline, and enforcement petition.
• Nonparty Discovery Toolkit: Subpoenas, Third-Party Records, and Privilege: nonparty subpoena practice.
• Remote Deposition Toolkit: Stipulated Protocols, Exhibit Plans, and Technology Scripts: protocols adaptable to remote arbitral testimony.
• Cross-Examination Toolkit: Chapter Outlines, Impeachment Sequences, and Reptile Defense Scripts: cross-examination materials to adapt for a tribunal.
• Expert Witness Toolkit: expert engagement templates for court cases.