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21Oct/100

Document Production in International Arbitration – Where to draw the Line?

The admissibility of requests and orders for Document Production has been a disputed subject for considerable time now. The aim of Document Production is to give the requesting party the opportunity to close evidentiary gaps in their own submissions. It is based on the principle that the two contesting parties will have the option to survey all relevant documents. In practice, it is often used by parties for much more than just the gathering of evidence and the dispute on its admissibility and scope focuses to a high degree on the divide between civil and common law traditions.

Whilst evidentiary methods such as cross examination or issuance of witness statements are now widely accepted even by civil law practitioners, there is still a lack of understanding in relation to the role of "Production of Documents" or "Document Discovery” as a part of the arbitral process. In order to establish an international standard, some form of compromise is needed. One attempt at achieving such a compromise has been developing for almost thirty years in the form of the IBA Rules on the Taking of Evidence in International Arbitration (“IBA Rules”), available since 29 May 2010 in new revision. The IBA rules are intended as a form of “golden mean” between the continental European and the Anglo-American approach, and they have indeed managed to achieve wide acceptance amongst international arbitration practitioners. However, two major questions still remain. First, as party agreement as to the IBA Rules’ application is usually missing, what is the basis of their application? And second, if their application is accepted in general, what can the exact scope of Document Production be?

National arbitration laws only very rarely explicitly regulate the admissibility and scope of Document Production. In the absence of an agreement by the Parties, it usually falls upon the arbitral tribunal to rule on such admissibility as a part of its discretion relating to the conduct of the proceedings. However, the arbitral tribunal’s discretion cannot be boundless. After all, party autonomy constitutes the cornerstone of arbitration in general and the tribunal’s authority in particular. Whether, and to what extent, both parties to an arbitration agreement wanted to submit to an obligation to produce documents upon the respective other party’s request, must be assessed by the arbitral tribunal by appreciating all the relevant circumstances of the case.

In doing so, the arbitral tribunal must also take into account that, while the obligatory submission of specific documents is not unknown in the continental European legal area, parties from this background are often not sufficiently prepared to handle the challenges of an extensive document production procedure. Parties from a common law background on the other hand, will reasonably expect that they will not be completely limited to documents in their possession when preparing their evidence but will also be aware of the "danger" of a submission process and are well instructed, especially in case of a predictable dispute, to prepare for and anticipate such an occasion.

From an overall perspective, arbitrators can and must be expected to be flexible enough to see beyond what they deem to be “international standards” and, when deciding on the admissibility and scope of Document Production, to consider the circumstances of each individual case and the reasonable expectations of all parties involved.

Author:

Dr. Christian W. Konrad, Konrad & Justich, Austria 

KJ1 Document Production in International Arbitration – Where to draw the Line?

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