Perspectives on Document Disclosure

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Introduction

Document disclosure is an area in which the civil law/common law dichotomy is very pronounced. Although both systems share the principle of affirmanti incumbit probatio, common law jurisdictions enable parties in a dispute to have access to factual elements in possession of the other party, or third parties, through discovery or disclosure proceedings, while this right is not generally available in civil law countries.[2] With a premature transnational lex evidentiae, these competing visions inform the discussions in international arbitration. Controversy is therefore guaranteed, and it is not uncommon to see parties and their counsel enter heated discussions with the other side about the scope of document production.

From the common law perspective, document disclosure facilitates getting at the truth as a means to achieving justice.[3] The US Supreme Court has stated that ‘[m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession.’[4] This type of disclosure also attempts to reduce the possibility of surprise or trial by ambush with, as the Court of Appeal of England and Wales puts it, all ‘cards face up on the table’.[5]

Conversely, under the civil law tradition, plaintiffs are expected to gather all the necessary evidence for their claim before filing a lawsuit.[6] The underlying assumption is that truth cannot be sought by limitless means and that value should be balanced with other competing concerns, such as social peace, legal security, the right to privacy or protection of personal data.[7] Although certain disclosure mechanisms are available in civil law jurisdictions, these tend to be very limited.[8] Cases are therefore typically decided on the evidence that has mostly been voluntarily submitted by each party.

These conflicting approaches to the access of evidence are, nevertheless, part of broader legal systems that include their own procedural characteristics and differing pleading and admissibility rules within an adversarial or inquisitorial framework.[9] Unless specifically agreed by the parties, neither option should be transposed in isolation to international arbitration proceedings.

As a meeting point between both legal traditions, the International Bar Association (IBA) published soft law guidelines in the form of the Rules on the Taking of Evidence in International Arbitration (the IBA Rules), that were last revised in 2020. The authors of the IBA Rules acknowledged that expansive US or English-style discovery are generally inappropriate for international arbitration, but that there seemed to be ‘a general consensus, even among practitioners from civil law countries, that some level of production is appropriate in international arbitration’.[10]

Accordingly, the IBA Rules contemplate a targeted document disclosure, subjecting the parties’ requests to specific requirements and limits. Among those requirements, requests must contain a narrow and specific description of the document or category of documents requested, and the documents must be relevant to the case and material to its outcome.[11] Relevancy is described as the characteristic to prove a fact from which conclusions are drawn.[12] Materiality is described as the characteristic to consider a document significant for deciding the case (or part of it).[13] Requests are also subject to the condition that documents are not under the possession, custody or control of the requesting party, but under that of the requested party.[14] The IBA Rules also contemplate an exception to this general rule (i.e., that it would be unreasonably burdensome for the requesting party to produce these documents).[15] In addition, document requests are further limited by the availability of certain objections, such as those of privilege, confidentiality or unreasonable burden.[16]

These requirements are intended to ‘curtail so-called fishing expeditions’ and contain the costs and burdens associated with document production.[17] Even if this sets them apart from extensive US-style discovery, documents requested under, and produced in accordance with, the IBA Rules can go beyond those necessary to satisfy a party’s burden of proof, as the rules permit requesting internal documents and more than specific documents (i.e., categories of documents) from the other party.[18]

Notwithstanding the IBA Rules’ attempts to strike a compromise between common and civil law approaches, these attempts are seen as insufficient by some in the international arbitration community. As a response to a perceived ‘Americanisation’ of arbitration, a group of representatives from 30 countries, mainly civil law jurisdictions, prepared an alternative set of rules: the Rules on the Efficient Conduct of Proceedings in International Arbitration, commonly known as the Prague Rules.[19] The Prague Rules adopt a more stringent approach to document production than the IBA Rules, providing that ‘the arbitral tribunal and the parties are encouraged to avoid any form of document production, including e-discovery’.[20]

Advantages and disadvantages of document production

Advantages

Document disclosure in international arbitration is a tool available to the parties for obtaining factual evidence so as to prove disputed allegations.[21] As a fact-finding tool, document disclosure can accelerate the resolution of factual issues that are crucial to the case.[22] This is particularly important considering the predominant weight given to documentary evidence in arbitral proceedings.[23] As opposed to documents, witness testimony is not contemporaneous to the events giving rise to the dispute and recollections can be inaccurate or even influenced by the witness’ position in the dispute.[24] As noted by the International Chamber of Commerce (ICC) Arbitration Commission Report on the Accuracy of Fact Witness Memory in International Arbitration, ‘the memory of an honest witness who gives evidence in international arbitration proceedings can easily become distorted’.[25] This is especially so for civil law jurisdictions, where examination of witnesses is limited.[26] Common law practitioners consider that, as a condition for justice, no party should benefit from hiding a relevant document.[27] In fact, failure to produce responsive documents whose production has been ordered by courts in common law jurisdictions may lead to an order requiring the payment of the other party’s reasonable expenses, an adverse inference jury instruction and, potentially, other sanctions (e.g., evidence or claim preclusion).[28] In international arbitration, parties that have not received the requested documents (whose production has been ordered by the tribunal) will generally ask for adverse inferences on the questions of fact that those documents were supposed to touch upon. This can be a powerful tool if properly used, and understanding how to do so can provide a substantial tactical advantage to a party.

In addition, document disclosure can level the landscape in cases where, due to the underlying business or relationship between the parties, there is an inherent asymmetry of information (e.g., licensor and licensee, merger and acquisitions, large construction projects or insurance cases).[29] It has also been argued that document production allows the parties to better evaluate the strengths and weaknesses of their respective positions, potentially helping to facilitate a settlement of the claims early on in the case.[30]

Finally, document disclosure can enhance the perception of legitimacy of the award to the parties in the arbitration. An adverse award might be more easily accepted by the losing party if the facts of the case have been fully established through the process of document production.[31]

Disadvantages

The most-cited disadvantage of document disclosure is that it entails a significant increase in the costs of the dispute.[32] This problem has been further aggravated over the past decade with the proliferation of electronic documentation, which increases exponentially the volume of material and its dispersal among different devices and servers.[33]

Document production is also seen as time-consuming.[34] The document disclosure phase has a significant impact on the procedural calendar, invariably extending it.[35] In our experience, two to four months are typically allocated to document production, and it is not uncommon for parties to agree to, or request, extensions so as to comply with their respective production obligations.

In spite of this lengthy and expensive process, the production of relevant evidence is not guaranteed.[36] A ‘smoking gun’ is seldom found.[37] In contrast, it has been noted that ‘an accumulation of documents often buries the truth, rather than revealing it’.[38] Document disclosure is often seen as a fertile ground for guerrilla tactics and procedural abuse, such as delaying the proceedings by making a significant number of requests, burying the opponent with a large number of irrelevant documents or, simply, by making a document disappear.[39]

Finally, the presence of a document production phase can be seen as creating an imbalance in favour of common law attorneys and parties, who, contrary to their civil law peers, have training and experience on discovery and disclosure proceedings in their home jurisdictions.[40]

Perspectives

Arbitrators

There is wide scholarly consensus that arbitrators enjoy broad discretion in ordering the production of documents.[41] Both national legislation and institutional arbitration rules generally grant arbitrators disclosure powers.[42] Accordingly, arbitrators play a crucial role in this stage of the arbitral proceeding.

The approach adopted by arbitrators to document disclosure is often influenced by their background and legal training. The difference in approaches can lead to very different results. On this point, we have experienced conflicting reactions to similar document requests: while a common law tribunal admitted virtually every broadly worded request, a civil law panel rejected redundant requests unrelated to the requesting party’s burden of proof. This highlights the importance of understanding each case at the outset, including the amount (and type) of evidence available and choosing the right arbitrators in accordance with the strategy designed. Nevertheless, arbitrators are increasingly relying on international principles when deciding on procedural issues.[43] This is a welcomed trend that will hopefully provide more certainty to the process and will also serve as a guideline to less experienced participants.

In the absence of an agreement, tribunals will typically take into account different factors when fashioning the document disclosure phase of the arbitration. When exercising their discretionary powers, arbitrators should strive for procedural neutrality applying a neutral, non-domestic procedure, to avoid unfairly benefiting either party by adopting disclosure rules akin to those of their home jurisdictions.[44]

Alongside procedural neutrality, arbitrators should bear in mind the expectations of the parties, which can again depend on their nationality.[45] This consideration was made by an International Centre for Settlement of Investment Disputes tribunal when deciding the scope of document production by noting that ‘the present arbitration is a case also involving parties domiciled in Kazakhstan which is predominantly a civil law country where production of documents is far less used than in common law countries’.[46] However, when parties come from different legal traditions, identifying common expectations among them will prove more challenging and the arbitrator should attempt to strike a balance.

For the sake of efficiency, it seems appropriate that arbitrators encourage agreements between the parties over document production requests. For instance, in cases administered by the International Centre for Dispute Resolution (ICDR), tribunals tend to require that counsel for the parties ‘meet and confer’ about disagreements related to requests for the exchange of documents.[47]

In light of this, some authors call arbitrators to become proactive case managers that strive to limit the costs and time of the document disclosure phase.[48] This approach can involve: a rigorous application of the relevant criteria of specificity, relevancy and materiality included in the IBA Rules; reliance on adverse inferences as a way to sanction parties who fail to comply with their disclosure obligations;[49] or making cost-allocation decisions at the end of the proceedings on the basis of the parties’ conduct during the document production phase – either by failure to produce documents or by making unreasonable requests.[50]

This is, of course, more easily said than done. Practitioners find that, when in doubt, arbitrators frequently lean towards liberally admitting most document requests.[51] In some cases, the problem is that arbitrators are not sufficiently familiar with the facts of the case at that stage of the proceedings, which prevents them from thoroughly assessing the relevance and materiality of the documents, or categories of documents, requested.[52] In addition, commentary generally points to the ‘due process paranoia’, which deters tribunals from acting decisively in relation to document requests for fear of their award being successfully challenged before domestic courts.[53] Cases in which final awards are annulled based on document production orders are not unheard of,[54] but it is fair to say that they are rare, extreme cases and that domestic courts generally uphold arbitrators’ procedural decisions concerning document disclosure.[55]

Counsel

As with arbitrators, counsel’s perspective on document disclosure will frequently be influenced by their legal tradition: while document disclosure will be viewed as a foreign, burdensome procedure to continental lawyers, the same will often be deemed essential to fact-finding for common law attorneys.[56] Nevertheless, this divide is generally nuanced and eased by counsel’s experience in international arbitration. While attorneys from civil law jurisdictions may feel at a disadvantage during this procedural stage, their common law counterparts can also find it challenging to adapt to the limited, narrowly targeted document production requests permitted in international arbitration.

That said, counsel also plays a leading role in shaping the document production phase in international arbitration. It is good practice that, from the outset of the dispute, counsel considers and discusses with its client the stance that ought to be adopted with regard to document production. A generous approach can be determined, inter alia, by the absence of a ‘smoking gun document’ in the client’s files or when it lacks crucial documents to support its claims, and vice versa.[57] This also requires counsel to command a good understanding of the case from an early stage, which would ideally imply having conducted a thorough review of the universe of documents under the client’s control.

Once a decision is made, counsel can indirectly influence the design of the document production phase when selecting the members of the panel, and more directly during the organisational conference and the drafting of document production requests.[58] Unfortunately, attorneys also need to be prepared for the deployment of guerrilla tactics by their opponents at this stage.[59]

Parties

The divide between the approaches to document disclosure can be felt more starkly with respect to the parties of the dispute, who are logically less exposed to, and experienced with, legal proceedings than arbitrators or legal counsel. On this point, companies and individuals from common law jurisdictions might take for granted that there will be a discovery mechanism put in place so as to allow to have all ‘cards face up on the table’.[60]

In contrast, civil law parties may be surprised when ordered to deliver give-away detrimental documents that assist their opponent.[61] This can be worsened by the fact that, arguably, individuals or entities’ employees or officers are less cautious when drafting documents and emails.[62] They might be carelessly, and unknowingly, creating a record that could end up being adverse to the entity’s interest when a dispute arises, under the assumption that the documents were private communications. In addition, civil law parties may not have expansive document retention policies in place.[63] Or entities and individuals operating in those jurisdictions may not have the same privilege protections available to them (luckily, the IBA Rules take into consideration the difference in legal and ethical rules the parties are bound to when ordering the production of documents).[64] Counsel can, and should, play an important role in educating their client on the nature of this procedural stage. This requires counsel to have a proper understanding of the different alternatives available and how to choose the most suitable option in accordance with the specifics of the case and the client’s interests.

As noted above, arbitrators should factor in the expectations of the parties when fashioning the document disclosure phase, and counsel should also aim to advance their clients’ expectations throughout the different stages of the proceedings. This can prove challenging in practice, especially if the arbitration agreement includes no insight into the parties’ expectations, leaving the tribunal with little to work with. Parties could, therefore, benefit from anticipating these issues at the contractual stage and perhaps consider including provisions related to document disclosure in their arbitration agreements.[65] It has been suggested that parties could, for example, limit the scope of production by excluding internal documents or categories of documents in their arbitration clause.[66] On the other hand, parties accustomed to having discovery available to them can also decide to contract for a broader document disclosure than the one they would be subject to by default.

The reality is that, in most transactions that include arbitration agreements, the parties do not usually know what type of dispute they would face in the future (or whether they would be claimant or respondent), which makes it difficult to contract around or adapt the arbitration agreement in a specific way. Disputes counsel tends not to be involved at the contract-drafting stage, limiting the chances of tailoring the arbitration agreement to contain specific needs; it is recommended to have the arbitration agreement reviewed by disputes counsel before executing the contract.

How much document production?

In arbitration, document disclosure is not a given.[67] However, most arbitral proceedings include some sort of document production phase.[68] The real question, therefore, is the scope of the document production. As expressed by the ICDR Arbitration Rules: ‘The parties may provide the tribunal with their views on the appropriate level of information exchange for each case, but the tribunal retains final authority.’[69]

On the one hand, the complexity of the case will play an important role in this determination. In construction cases, which are typically highly technical and fact-driven, significant disclosure might be deemed necessary.[70] In contrast, a straightforward dispute over the meaning of a contract might primarily depend on the law and require very little document production.[71]

On the other hand, document disclosure should also be commensurate with the size of the amount in dispute to prevent the risk of a Pyrrhic victory. Author Reto Marghitola suggests that the ‘arbitrators should look at document production not only from a purely legal point of view, but also from a business perspective’.[72] It would be unreasonable to allow a broad (and expensive) document disclosure in a small-sized claim.

Moreover, the arbitral tribunal should always bear in mind the general goal of efficiently managing the arbitration.[73] This principle is embodied in the IBA Rules, which allow the arbitral tribunal to exclude the production of any documents under consideration of procedural economy or proportionality that it determines to be compelling.[74] In addition, the burden of a party to produce certain requested documents should not outweigh the usefulness of these documents for resolving the dispute.[75]

There have been multiple proposals for attempting to contain the duration and costs that document disclosure entails. Some of these proposals include limiting the number of requests that each party can submit or setting reasonably short deadlines for completing disclosure.[76]

Availability of document disclosure and the choice of arbitration over litigation

In the 2021 Queen Mary University of London and White & Case International Arbitration Survey, ‘Adapting Arbitration to a Changing World’, 27 per cent of the interviewees responded that they would forego document production to make arbitration cheaper or faster.[77] Document production was the third most voted-for option to remove to make arbitration cheaper or faster.[78]

The evidentiary phase is one of the main areas of discontent for arbitration users.[79] As pointed out by author Duarte Gorjão Henriques, massive document production can deter parties from entering into arbitration agreements in the first place.[80] The concern that arbitration might become less attractive for these reasons is tangible: the ICC Commission has invited arbitral panels ‘not to discourage businesses from having recourse to arbitration by proposing approaches that are likely to increase the expense of the proceedings and the disruption to their business activities’.[81]

Nevertheless, users seem to chiefly take issue with the unintended side effects of document disclosure (that is, an increase in time and costs of the proceeding), and not in this evidentiary tool itself. In the above-mentioned survey, interviewers recognised that document disclosure ‘makes sense in some cases’ and expressed a willingness to limit document production.[82]

Those problems, however, can be addressed without completely suppressing document disclosure in international arbitration, which, as stated above, has its own advantages. Some of the above-mentioned tools to make it practicable can be applied. Also, additional technological developments in artificial intelligence may help to further mitigate the burdens of this procedural step in the future.[83]

Conclusion

Common law and civil law traditions are radically different in terms of conferring discovery rights to the parties in a dispute. Unsurprisingly, document disclosure is one of the subjects of greater controversy in international arbitration. For its proponents, the production of documents at the request of a party can bolster fact-finding and equality of arms throughout the arbitration process, as well as enhance the legitimacy of the final award. Critics note, however, that document disclosure frequently results in an increase of costs and duration, is often unproductive and subject to abuse, and is perceived to disfavour civil law parties and counsel unfamiliar with this procedural mechanism.

The setbacks that document disclosure seems to entail are such that many arbitration users appear to be ready to go without it. However, a closer look at the topic reveals that most concerns are not intrinsic to document production itself but to the unintended side effects of this mechanism that can, in many cases, be mitigated.

In the absence of agreement by the parties, international arbitration is not, and should not aim to be, similar to domestic litigation. This is also true with respect to document disclosure, and the international arbitration community has a unique opportunity for crafting a tertium genus that takes the best from both legal traditions. By applying transnational principles, procedural neutrality can be achieved in a manner in which parties from different jurisdictions can resolve their disputes in an even-handed forum. Equally important, the flexibility of the arbitration proceedings and the institutional rules more commonly used permit arbitral tribunals to adjust the availability and scope of document disclosure to the specific circumstances of the dispute.

Participants in the arbitration play a key role in making document disclosure a valuable tool for the parties, while keeping the process efficient in terms of both cost and time. First, the parties can contract their preferences on document production by way of including them in their arbitration agreements. Second, counsel can shape the proceeding at different stages of the arbitration and make it productive by acting in good faith and refraining from abusive and dilatory tactics. Finally, by using their broad powers as an active case manager, tribunals can play a crucial role in ensuring that the arbitration is conducted efficiently.


Notes

[1] Damián Vallejo is a partner and Esther Romay is an associate at Dunning Rievman & MacDonald LLP.

[2] Yves Derains, ‘Towards Greater Efficiency in Document Production before Arbitral Tribunals – A Continental Viewpoint’ in Special Supplement 2006: Document Production in International Arbitration (International Chamber of Commerce (ICC), 2006), ¶ 11.

[3] ‘Chapter 1: Foundational Concepts of International Discovery’ in Lucas V M Bento (ed), The Globalization of Discovery: The Law and Practice under 28 U.S.C. § 1782 (Kluwer Law International, 2019), p. 22.

[4] Hickman v. Taylor, 329 U.S. 495, 507, 67 S. Ct. 385, 392, 91 L. Ed. 451 (1947).

[5] Davies v. Eli Lilly & Co and Others [1987] 1 W.L.R. 428 at 431; [1987] 1 All E.R. 801; [1987] E.C.C. 340.

[6] Nathalie Meyer-Fabre, ‘Les preuves détenues par l’autre partie’, Revue de l’Arbitrage (2020), Vol. 2020, Issue 1, ¶ 3.

[7] Jalal El Ahdab and Amal Bouchenaki, ‘Discovery in International Arbitration: A Foreign Creature for Civil Lawyers?’ in Albert Jan van den Berg (ed), Arbitration Advocacy in Changing Times, ICCA Congress Series No. 15 (ICCA and Kluwer Law International, 2011), pp. 85–86.

[8] See, e.g., Spanish Civil Procedural Law, Article 328 or French Civil Procedural Code, Article 142.

[9] See, generally, Reto Marghitola, ‘Chapter 3: Purpose of Document Production’, Document Production in International Arbitration, International Arbitration Law Library, Vol. 33 (Kluwer Law International, 2015), pp. 11–20.

[10] ‘Commentary on the revised text of the 2020 IBA Rules on the Taking of Evidence in International Arbitration’, prepared by the 2020 IBA Review Task Force, p. 8, www.ibanet.org/MediaHandler?id=4F797338-693E-47C7-A92A-1509790ECC9D.

[11] Article 3(3)(a) and (b) of the International Bar Association Rules on the Taking of Evidence in International Arbitration (IBA Rules).

[12] Roman Mikhailovich Khodykin and Carol Mulcahy, ‘Commentary on the IBA Rules on Evidence, Article 3 [Documents]’, A Guide to the IBA Rules on the Taking of Evidence in International Arbitration (Oxford University Press, 2019), ¶ 6.97, citing Gabrielle Kaufmann-Kohler and Philippe Bärtsch, ‘Discovery in international arbitration: How much is too much?’, SchiedsVZ (2004), Vol. 2, Issue 1, p. 18.

[13] Tobias Zuberbühler, Dieter Hofmann, et al., ‘Article 3: Documents’, IBA Rules of Evidence: Commentary on the IBA Rules on the Taking of Evidence in International Arbitration (2nd edition, Schulthess Juristische Medien AG, 2022), ¶ 129.

[14] IBA Rules, Article 3(3)(c).

[15] id., Article 3(3)(c)(i).

[16] id., Article 9(2).

[17] Landmark Ventures Inc. v. Insightec Ltd., ICC Case No. 18807/VRO/AGF, Procedural Order No. 2, ¶ 9.

[18] Roman Mikhailovich Khodykin and Carol Mulcahy, op. cit., ¶ 6.22.

[19] ‘Creeping Americanization of international arbitration: is it the right time to develop inquisitorial rules of evidence?’, session at the IV Russian Arbitration Association Annual Conference on 20 April 2017, https://praguerules.com/news/is-it-time-for-a-change-/.

[20] Article 4(2) of the Prague Rules.

[21] Reto Marghitola, op. cit., p. 17.

[22] Lucy F Reed and Ginger Hancock, ‘Chapter 7. US Style Discovery: Good or Evil?’, in Teresa Giovannini and Alexis Mourre (eds), Written Evidence and Discovery in International Arbitration: New Issues and Tendencies, Dossiers of the ICC Institute of World Business Law, Vol. 6 (Kluwer Law International and ICC, 2009), p. 339.

[23] Erik Schäfer, Herman Verbist and Christophe Imhoos ‘Commission Report – Techniques for Managing Electronic Document Production when it is Permitted or Required in International Arbitration (2012)’, ICC Arbitration in Practice (2nd edition, Kluwer Law International, 2015), ¶ 1.2.

[24] Roman Mikhailovich Khodykin and Carol Mulcahy, op. cit., ¶ 6.2.

[25] ICC Commission Report, ‘The Accuracy of Fact Witness Memory in International Arbitration: Current Issues and Possible Solutions’ (2020), https://library.iccwbo.org/content/dr/COMMISSION_REPORTS/BULCR_0004.htm. Note, however, that the report rejects the idea that witness evidence is seen as ‘second best’ to documentary evidence.

[26] Julian D M Lew and Simona Valkova, ‘Chapter 1: Cultures and the Taking of Evidence’, in Franco Ferrari and Friedrich Jakob Rosenfeld (eds), Handbook of Evidence in International Commercial Arbitration: Key Concepts and Issues (Kluwer Law International, 2022), p. 19.

[27] Reto Marghitola, op. cit., p. 12.

[28] e.g., United States Federal Rules of Civil Procedure, Rule 37(c)(1).

[29] Gary B Born, International Commercial Arbitration (3rd edition, Kluwer Law International, 2022), §16.02[E][1].

[30] Juan C García, ‘The Use of Document Production as a Strategic Tool in International Commercial Arbitration’, in Carlos González-Bueno (ed), 40 under 40 International Arbitration (Dykinson, SL, 2018), p. 235.

[31] Reto Marghitola, op. cit., p. 18.

[32] Steven C Bennett, ‘“Hard” Tools for Controlling Discovery Burdens in Arbitration’, Arbitration: The International Journal of Arbitration, Mediation and Dispute Management (2018), Vol. 84, Issue 4, pp. 295–96, and footnote 4 citing criticisms.

[33] Erik Schäfer, Herman Verbist and Christophe Imhoos, op. cit., sections 4.A and B.

[34] Sachin Trikha, ‘Chapter 10: A Vision of Document Production in Arbitration in England’, in Gregory Roy Fullelove, Laila Hamzi, et al. (eds), International Arbitration in England: Perspectives in Times of Change (Kluwer Law International, 2022), p. 189.

[35] Bernard Hanotiau,’International Arbitration in a Global Economy: The Challenges of the Future’, 28 J. Int’l Arb. 89, 99 (2011).

[36] Peter Ashford, ‘Document Production in International Arbitration: A Critique from Across the Pond’, 10 Loy. U. Chi. Int’l. L. Rev. 1, 8 (2012).

[37] Andrew Rogers, ‘Improving Procedures for Discovery and Documentary Evidence’, in Albert Jan van den Berg (ed), Planning Efficient Arbitration Proceedings: The Law Applicable in International Arbitration, ICCA Congress Series, Vol. 7 (ICCA and Kluwer Law International, 1996), p. 137.

[38] Yves Derains, op. cit., ¶ 12.

[39] Reto Marghitola, ‘Chapter 6: Document Production Strategies’, Document Production in International Arbitration, International Arbitration Law Library, Vol. 33 (Kluwer Law International, 2015), p. 125.

[40] Lucy F Reed and Ginger Hancock, op. cit., pp. 339–53.

[41] Reto Marghitola, ‘Chapter 4: Arbitral Tribunals’ Broad Discretion’, Document Production in International Arbitration, International Arbitration Law Library, Vol. 33 (Kluwer Law International, 2015), p. 31; and Gary B Born, op. cit., §16.02.

[42] See e.g., U.S. Federal Arbitration Act, 9 U.S.C. §7, English Arbitration Act, Section 34(2)(a) or United Nations Commission on International Trade Law Model Law, Article 9(2); and ICC Arbitration Rules, Article 25(4), London Court of International Arbitration Arbitration Rules, Article 22.1(v) or International Centre for Dispute Resolution (ICDR) Arbitration Rules, Article 21.

[43] Nadia Darwazeh and Sarah Lucas, ‘Practical Insights on Document Production’, Practical Insights on Arbitral Procedure (Kluwer Law International, 2021), § II.4.

[44] Gary B Born, op. cit., §15.01[A].

[45] See, generally, Reto Marghitola, ‘Chapter 7: The Expectations of the Parties’, Document Production in International Arbitration, International Arbitration Law Library, Vol. 33 (Kluwer Law International, 2015), pp. 129–48.

[46] Caratube International Oil Company LLP v. Republic of Kazakhstan (I), ICSID Case No. ARB/08/12, Procedural Order No. 2 Regarding Document Production, ¶ 1.3.

[47] General Wireless Operations Inc. v. Berjaya RS Sdn. Bhd., BRS (Cayman) Limited, Berjaya Retail RS (Cayman) Limited, Intertrust Trustees (Cayman) Limited and Berjaya Retail Berhad, ICDR Case No. 01-17-0001-2921, Procedural Order No. 1, ¶ 10.

[48] Philipp Habegger, ‘Chapter 18, Part V: Saving Time and Costs in Arbitration’, in Manuel Arroyo (ed), Arbitration in Switzerland: The Practitioner’s Guide (2nd edition, Kluwer Law International, 2018), ¶¶ 18 and 47–51.

[49] Claire Morel de Westgaver and Ellina Zinatullina, ‘Will Adverse Inferences Help Make Document Production in International Arbitration More Efficient?’, Kluwer Arbitration Blog, 2 August 2017, https://arbitrationblog.kluwerarbitration.com/2017/08/02/will-adverse-inferences-help-make-document-production-international-arbitration-efficient/.

[50] Robin Moser, ‘Effects of Procedural Misconduct on the Allocation of Costs in International Arbitration’, ASA Bulletin (2022), Vol. 40, Issue 4, pp. 6 and 7.

[51] Sachin Trikha, op. cit., p. 193.

[52] Yves Derains, op. cit., ¶ 18.

[53] Annett Rombach and Hanna Shalbanava, ‘The Prague Rules: A New Era of Procedure in Arbitration or Much Ado about Nothing?’, in Jörg Risse, Guenter Pickrahn, et al. (eds), SchiedsVZ (2019), Vol. 17, Issue 2, p. 54; Sachin Trikha, op. cit., p. 193; Josefa Sicard-Mirabal and Yves Derains, ‘Chapter 8: Evidence, Burden of Proof and Document Production’, Introduction to Investor-State Arbitration (Kluwer Law International, 2018), p. 211.

[54] Higher Regional Court of Frankfurt, 17 February 2011, 26 Sch 13/10 (annulling the award on procedural due process grounds because the tribunal had failed to enforce the parties’ agreement as to production of documents); Home Indem. Co. v. Affiliated Food Distributors, Inc., No. 96 CIV. 9707 (RO), 1997 WL 773712 (S.D.N.Y. 12 December 1997) (concluding that the petitioner was denied a ‘fundamentally fair hearing’ where the arbitrator ‘condition[ed]’ discovery on the posting of security and thus prevented ‘discovery of files central and dispositive to the dispute’).

[55] See, e.g., All Communications Network of Canada, Co. v. Planet Energy Corp., 2023 ONCA 319 (pointing out that the onus on a party seeking to set aside an arbitral award on the basis of failure of due process is high); Svea Court of Appeal, 19 February 2016, Case T 5296-14 (declaring that a tribunal ‘should not abet document production for a so-called fishing expedition’); Doscher v. Sea Port Grp. Sec., LLC, No. 15-CV-384 (JMF), 2017 WL 6061653 (S.D.N.Y. 6 December 2017), aff’d, 752 F. App’x 102 (2d Cir. 2019) (recognising the broad discretion that arbitrators enjoy in addressing discovery and other matters of procedure).

[56] Roman Mikhailovich Khodykin and Carol Mulcahy, op. cit., ¶ 6.2.

[57] Nadia Darwazeh and Sarah Lucas, op. cit., § II.3.

[58] See, generally, Reto Marghitola, ‘Chapter 6: Document Production Strategies’, op. cit., pp. 117–28.

[59] id., at p. 126.

[60] Davies v. Eli Lilly & Co and Others [1987] 1 W.L.R. 428 at 431; [1987] 1 All E.R. 801; [1987] E.C.C. 340.

[61] Mélanie Riofrio Piché and Sofia de Sampaio Jalles, ‘The Armesto Schedule: a Step Further to a More Efficient Document Production’, Kluwer Arbitration Blog, 4 April 2020, https://arbitrationblog.kluwerarbitration.com/2020/04/04/the-armesto-schedule-a-step-further-to-a-more-efficient-document-production/.

[62] Alan Redfern, Martin Hunter, Nigel Blackaby and Constantine Partasides, The Law and Practice of International Commercial Arbitration (4th edition, Sweet & Maxwell, 2004), paragraph 6-74.

[63] IBA Rules, Article 9(4)(e).

[64] Alan Redfern, Martin Hunter, Nigel Blackaby and Constantine Partasides, op. cit., paragraph 6-74.

[65] Gary B Born, ‘Chapter 3: Drafting International Arbitration Agreements’, International Arbitration and Forum Selection Agreements: Drafting and Enforcing (6th edition, Kluwer Law International, 2021), pp. 35–140.

[66] Reto Marghitola, ‘Chapter 8: Model Clauses’, Document Production in International Arbitration, International Arbitration Law Library, Vol. 33 (Kluwer Law International, 2015), § 8.05.

[67] Erik Schäfer, Herman Verbist and Christophe Imhoos, op. cit., p. 433, ¶ 5.6(a): ‘There is no automatic right in international arbitration to obtain documents from an opponent. Parties and tribunals should consider whether document requests are necessary or desirable in the context of the case at hand.’

[68] ‘2012 International Arbitration Survey: Current and Preferred Practices in the Arbitral Process’ (Queen Mary University of London, School of International Arbitration, 2012), p. 3, available at https://arbitration.qmul.ac.uk/media/arbitration/docs/2012_International_Arbitration_Survey.pdf.

[69] ICDR Arbitration Rules, Article 21(2).

[70] Nadia Darwazeh and Sarah Lucas, op. cit., § II.3.

[71] ibid.

[72] Reto Marghitola, ‘Document Production: Finding the Right Balance’, Kluwer Arbitration Blog, 7 December 2015, https://.arbitrationblog.kluwerarbitration.com/2015/12/07/document-production-finding-the-right-balance.

[73] Gabrielle Kaufmann-Kohler and Philippe Bärtsch, op. cit., pp. 20–21.

[74] Article 9(2)(g) of the IBA Rules.

[75] Frédéric G Sourgens, Kabir Duggal and Iain A Laird, ‘Documentary Evidence and Document Production’, Evidence in International Investment Arbitration (Oxford University Press, 2018), ¶ 9.48. See also Article 9(2)(c) of the IBA Rules.

[76] Marco Eliens, ‘Document Production: Quality Over Quantity’, Kluwer Arbitration Blog, 10 July 2020, https://arbitrationblog.kluwerarbitration.com/2020/07/10/document-production-quality-over-quantity/; Steven C Bennett, op. cit., pp. 298–29; ICC Commission Report, ‘Techniques for Controlling Time and Costs in International Arbitration’ (2nd edition, 2018), p. 12, ¶ 52.

[77] ‘Current choices and future adaptations’ in ‘2021 International Arbitration Survey: Adapting arbitration to a changing world’ (White & Case LLP, Queen Mary University of London, School of International Arbitration, 2021), www.whitecase.com/insight-our-thinking/current-choices-and-future-adaptations.

[78] ibid.

[79] Jalal El Ahdab and Amal Bouchenaki, op. cit., p. 65.

[80] Duarte Gorjão Henriques, ‘The Prague Rules: Competitor, Alternative or Addition to the IBA Rules on the Taking of Evidence in International Arbitration?’, ASA Bulletin (2018), Vol. 36, Issue 2, p. 351.

[81] Erik Schäfer, Herman Verbist and Christophe Imhoos, op. cit., ¶ 2.4.

[82] ‘Current choices and future adaptations’, op. cit.

[83] Claire Morel de Westgaver and Olivia Turner, ‘Artificial Intelligence, A Driver for Efficiency in International Arbitration – How Predictive Coding Can Change Document Production’, Kluwer Arbitration Blog, 23 February 2020, https://arbitrationblog.kluwerarbitration.com/2020/02/23/artificial-intelligence-a-driver-for-efficiency-in-international-arbitration-how-predictive-coding-can-change-document-production/.

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