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Optional Guidelines
The Authority of the Arbitral Tribunal and the Courts with respect
to Provisional and Conservatory Measures
It is rarely regulated in the arbitration agreement. In certain condi-
tions where the availability of provisional and conservatory measures
are restricted, the parties can explicitly regulate the authority of the
courts and the arbitral tribunal, or decide to modify the applicable arbi-
tration rules.
Document Production
The parties can choose to remain silent on document production,
and adopt the provisions set forth in the applicable arbitration rules.
The parties can adopt the IBA Rules on the Taking of Evidence in
International Arbitration (“IBA Rules”), or can designate their own
rules.
Confidentiality
Arbitral proceedings are private, and have the potential to be con-
fidential. In some jurisdictions, confidentiality is regulated; whereas in
many jurisdictions, the parties are not under any confidentiality oblig-
ations. It may be beneficial to include confidentiality obligations in the
arbitration agreement (e.g. trade secrets). It is advisable that the parties
not regulate confidentiality in absolute means since, in some instances,
disclosure may be necessary for the benefit of one of the parties, or for
the enforcement of the award.
Disclosure of confidential information to third parties (such as wit-
nesses or expert witnesses) may also be required and necessary during
the preparation of claims, counterclaims and defenses. The parties can
prefer to execute a separate confidentiality agreement.
Allocation of Costs and Fees
Arbitrators have wide discretion in terms of cost allocation. The
parties may allow the arbitrators to decide on costs and fees, or request
that arbitrators make no allocation of costs and fees, or request to allo-
cate the costs on a success basis. The parties should be careful in the
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