In international arbitration involving disputed issues of fact, documentary evidence will play a central role in how parties present their respective positions and will likely have a significant bearing on a tribunal's consideration and determination of the issues. The processes and procedures of document recovery and production are often hotly contested, reflecting the influence that recovered documents can have on the outcome of the case.
Historically, there are considerable differences in the approach taken to document production between the courts of civil and common law jurisdictions. In common law jurisdictions, the generally accepted approach requires a wide scope of document disclosure – the rationale being to create an equality of arms in the interests of justice. In civil law countries there is generally not such a broad obligation to disclose. Parties are required to present their case on the information available to them. They can seek orders for recovery of documents, but there are usually strict rules as to the required degree of specificity and relevance of document requests.
The modern-day approach in International Arbitration
Because of these contrasting approaches and principles, it is often the case that an international arbitration will involve, parties, lawyers and arbitrators with very different views on the purpose of document production and very different experiences as to how the processes should work. Accordingly, to reduce the scope for uneconomic procedural disputes, the international arbitration community has had to adapt to find processes that bridge the gap and are generally seen as workable and reasonable by all.
Many international arbitrations now proceed with parties agreeing to adopt or at least informally following the International Bar Association's (IBA) rules on the taking of evidence in international arbitration. As might be expected from rules designed to compromise between contrasting approaches and different expectations, the rules combine to create a document production process which falls somewhere between the wide disclosure requirements of common law jurisdictions and the narrower and less onerous requirements of civil law jurisdictions. With the IBA rules acting as a generally accepted standard, it is now common practice for a document production process to be incorporated into the procedural timetable.
The role of a tribunal
Notwithstanding increased standardisation of the document production process across international arbitration, it remains an area in which procedural disputes are commonplace. Parties may dispute the existence of certain documents, the relevance of documents, and whether documents are confidential and/or privileged. Disputes may also arise in relation to the reasonableness of searches conducted for documents. Consequently, arbitration tribunals are regularly involved in having to determine the same kind of issues which regularly arise in our national courts.
Of upmost concern to the tribunal on ruling on document production issues is the need for proceedings to conclude with an enforceable award. Accordingly, fair process is as the heart of their thinking. Careful consideration must be taken to avoid questions of unfairness arising from either insufficient or overly onerous document production directions.
Conclusion
How to approach document disclosure is but one of many tactical decisions that must be taken by parties in international arbitration. Getting it right can pay massive dividends and unlock the evidence required to prove the case.
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