• Tutorial video

Author

Ms Justine Touzet

Associate in International Arbitration - Touzet Associés

Editor

Ms Camilla Gambarini

Senior Associate - Withers LLP

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Document Production

I. Definition

1.

Document production is a procedural tool by which a party or the tribunal can request (and order) the production of documents in possession of the other party allowing them to obtain further evidence to substantiate their case.1 

2.

The IBA Rules on the Taking of Evidence (the "IBA Rules") define a “document” as “a writing, communication, picture, drawing, program or data of any kind, whether recorded or maintained on paper or by electronic, audio, visual or any other means.”2 Only documents that already exist can be subjected to requests for document production.3 This is consistent with the purpose of document production which is “to enable a party to prove its case but not to build its case.4

3.

The term production has been defined either to refer specifically to the production of documents during this specific phase of the arbitration or generally that a party relies on to support its case.5

II. A different procedure from discovery and disclosure 

4.

Common and civil law practitioners adopt different approaches towards fact-finding.6 Disclosure or discovery are not present in civil law jurisdictions. 

5.

Discovery is a formal process used in the United States by which adverse parties in litigation exchange information and documents in order to identify the evidence by which they will prove their case at trial.7 Discovery occurs at the outset of a case and is much larger than document production because, on top of exchanges of documents, it also includes depositions, interrogatories and requests for admissions.8 Disclosure in English law is a similar procedure by which a party must disclose, first through a list, all documents that have a bearing on the case even if they are harmful to it.9

6.

Although similar, document production in international arbitration differs from discovery and disclosure. Because it combines features from both common and civil law approaches, document production in arbitration is considered as “one of the most remarkable examples of a merger between different national civil procedure approaches.”10

III. Document production in international arbitration: legal framework

7.

Although document production is not mandatory in either commercial or investment international arbitration,11 it is commonly used.12

8.

The ICSID Convention, the UNCITRAL Model Law, the ICSID, UNCITRAL, LCIA, PCA, and HKIAC Arbitration Rules do not directly address document production, but they broadly empower the tribunal to call upon the parties to produce documents.13

9.

The IBA,14 and the ICC,15 have put tremendous efforts into harmonizing the applicable rules of evidence between common and civil law cultures to create general principles for dealing with the parties’ right to evidence in arbitration.16

10.

Tribunals and/or parties often refer to the IBA rules17 which are a soft law instrument. As such, parties are free to choose to be bound by them or to apply them as mere guidelines.18 Even without an express agreement, they are still relevant19 and are used and followed by arbitral tribunals20 in both the commercial and investment context.21

11.

In 2018, a new soft law instrument was enacted: the Prague Rules. Taking a more inquisitorial approach than the IBA Rules,22 they recommend at the outset that parties should “avoid any form of document production, including e-discovery.23 However, if parties choose to have a document production phase, the Prague Rules, which seek to promote efficiency, provide inter alia that all requests be made at the first case management conference except “exceptional circumstances.24

IV. Procedure for document production

A. Timing for the request

12.

Although document production can occur at any time,25 parties usually agree at the beginning of the arbitration on a procedure for document production.26 In practice, the requests are often27 scheduled for after the exchange of the statement of claim and the statement of defence.28

13.

Document production can be sought in a request for provisional measures.29 The requesting party must prove that such documents could be lost or jeopardized without the provisional measure30 as well as prove that the usual criteria for provisional measures are met.31 However, ordering document production pursuant to Article 47 of the ICSID Convention remains exceptional.32 Tribunals considered that preserving relevant documents for the proceedings is part of parties’ “general duty of good faith”.33

14.

Document production was considered in assessing if a bifurcation request provides procedure efficiency and economy.34

B. Form of the request

15.

Parties often use a Redfern Schedule to exchange document requests.35 This schedule usually has five columns.36

16.

The requesting party’s37 document requests are contained in the first column which identifies precisely the documents/categories of documents requested,38 providing a short description of each document's relevance to the case and materiality to its outcome.39 It must also demonstrate that the document sought are “more than likely” not in “possession, custody or control” of the requesting party and that it would not be "unreasonably burdensome” for the requesting party to produce them.40

C. Response of the requested party and reply

17.

The requested party fills out the next column indicating whether it agrees to produce non-contested documents41 or whether it objects to the other party's request.42 It can object to each request on the following grounds: (a) lack of sufficient relevance to the case or materiality of its outcome; (b) legal impediment or privilege; (c) unreasonable burden to produce; (d) loss or destruction, commercial or technical confidentiality and considerations of procedural economy; (e) proportionality, fairness or equality of the Parties that the Tribunal determines to be compelling.43

18.

In the following column, the requesting party can reply.44

D. Production of documents

19.

Non-contested documents are usually exchanged between the parties without submitting the documents to the arbitral tribunal. Documents produced are not automatically part of the proceedings. Parties should therefore produce them as evidence if they want to subsequently use them in the arbitration.45

20.

Parties can agree on redacting parts of the documents produced during the proceedings,46 and preserve their officials’ right to privacy.47

E. Tribunals’ powers and authority to decide on the requests

21.

In case of contested documents, the tribunal’s decision is contained in the last column of the schedule, usually48 accompanied by a procedural order to which it is attached.49

22.

Although the tribunal has ample discretion in ruling on evidence,50 the tribunal’s decision is generally based on two factors:51 the specificity of the request for a document or a category of documents52 and its relevance and materiality to the outcome of the case.53 (See further Admissibility of Evidence)

23.

In principle, arbitral tribunals do not have any authority to order production from non-parties if the documents sought are in the possession of third parties. However, some arbitral institutions or national law provide for the possibility to seek judicial assistance.54 Nevertheless, it is avoided in practice as it is “often time-consuming in an international context.55

24.

Investment tribunals have great discretion in dealing with objections to document production requests.56  Their decision on document production might however give rise to annulment on the grounds of serious departure from a fundamental rule of procedure57 or manifest excess of power.58

25.

The arbitral tribunal’s decision has no impact on the parties’ burden of proof.59

26.

Tribunal mostly rely on international law and have generally60 refused to follow domestic law.61

VI. Specific issues related to investment arbitration

A. Privilege

27.

In international arbitration, including in investment arbitration, one of the main issues and most common objections to document production revolves around privilege.62 The applicability of privilege can be set out by an agreement between the parties; however, the applicable law to the agreement is not binding.63

28.

Both parties often object to document production requests on the ground of:

  1. Attorney-client privilege.64 The burden of proof lies within the party asserting it.65
  2. The work product doctrine (also called the litigation privilege)66 or settlement privilege.67 The party asserting this privilege will have to prove that the content of the document “related to a likely lawsuit by an identifiable adversary in respect of a specific dispute.”68
  3. Trade or industrial secrets.69
29.

From the point of view of States, privilege also includes institutional privileges such as “cabinet confidence,”70crown privilege,”71deliberative process privilege,”72public interest immunity,”73 or “national security privilege.74

30.

Arbitral tribunals have to balance two opposing considerations. On one hand, States define what information are privileged under their national law thereby potentially compromising the system.75 On the other, revealing privileged information may endanger State’s interests, sovereign rights, politics, law-making process and sometimes even national security.76

B. Political and institutional sensitivity

31.

In case of political or institutional sensitivity, tribunals have requested very specific requests from States77 and a showing that States performed a balancing test between the sensitivity of the requested information and its value for the requesting party’s case.78 Requests of document production were also rejected where they were important to ongoing criminal proceedings.79

C. Difficulties of access to documents

32.

The production of documents in investment arbitration is also hindered by complex corporate’s structures because relevant documents would be out of reach for the tribunal80 or if States have control over the investor’s documents in the context of criminal investigations or bankruptcy proceedings.81

D. Destruction of documents

33.

Finally, destruction of relevant documents is another important issue in investment arbitration, particularly in the context of wars or revolutions. This was the case in Iran where revolutionary turmoil resulted in either the destruction of relevant evidence on which parties could no longer rely or, since the claims were against States, it was impossible for parties to compel them to produce evidence through the court system.82

E. Document production in the context of disqualification of an arbitrator

34.

Document production was requested in the context of an arbitrator’s challenge as well. However, the arbitral tribunal rejected it.83

F. The issue of mass claims

35.

Document production in proceedings including mass claims can be lengthy. However, arbitrators refused to consider that it would infringe due process rights and can have an impact on the schedule set out for the document production.84

VI. Sanctions for non-compliance with the tribunal’s order for document production

A. Adverse inferences

See Note on Adverse Inference.

36.

Arbitral tribunals do not have the same powers as domestic courts in the context of document production.85 However, tribunals can draw adverse inferences against parties who fail to comply with a document production order. It consists of inferring from a party’s failure to produce the requested evidence that such evidence was detrimental to that party’s case and that such refusal may confirm the requesting party’s position on a particular factual issue.86

37.

In investment arbitration, only the ICSID Rules specifically refer to adverse inferences.87 The IBA Rules88 and now, the Prague Rules89 explicitly allow arbitral tribunals to draw adverse inferences.

38.

The authority of arbitral tribunal to draw adverse inferences is well accepted as deriving from its authority to appraise the probative value of evidence and90 is reflected in practice,91 although tribunals may be reluctant to draw explicit adverse inference.92

B. Monetary sanctions

39.

Arbitral tribunals can also sanction a party’s misconduct93 or failure to comply with document production requests with awards on costs,94 or even damages,95 against parties to the arbitration96 but also their representatives.97

Bibliography

Books

Born, G., International Commercial Arbitration, 2nd ed., Kluwer Law International, 2014.

Marghitola, R., Document Production in International Arbitration, International Arbitration Law Library, 2015.

Nigel, B., Partasides, Redfern, A. and Hunter, M., Chapter 6. Conduct of the Proceedings, in Redfern and Hunter on International Arbitration, 6th ed., Oxford University Press, 2015.

Park, W.W., Arbitrators and Accuracy, Oxford University Press, 2010

Reed, L.F. and Hancock, G., Chapter 7. US-Style Discovery: Good or Evil?, in Giovannini, T. and Mourre, A. (eds.), Written Evidence and Discovery in International Arbitration: New Issues and Tendencies, Dossiers of the ICC Institute of World Business Law, Vol. 6.

Reisman, W.M., Crawford, J.R. and Bishop, D.R., Chapter 12: Procedure and Proof: Developing the Case, in Foreign Investment Disputes: Cases, Materials and Commentary, 2nd ed., Kluwer Law International, 2014.

Wälde, T.W., "Equality of Arms" in Investment Arbitration: Procedural Challenges, in Arbitration Under International Investment Agreements: A Guide to the Key Issues, May 2010, Oxford University Press.

Waincymer, J.M., Chapter 11: Documentary Evidence, in Procedure and Evidence in International Arbitration, Kluwer Law International, 2012.

Publication in academic journals

Amaral, G.R., Burden of Proof and Adverse Inferences in International Arbitration: Proposal for an Inference Chart, in Scherer, M. (ed), Journal of International Arbitration, Kluwer Law International, 2018, Vol. 35, Issue 1.

Bryant, J., E-Discovery in International Arbitration - Still a Hot Topic?, Vol. 11, Issue 4, 2014.

Derains, Y., Towards Greater Efficiency in Document Production before Arbitral Tribunals - A Continental Viewpoint, ICC Bulletin, Special Supplement 83, 2006.

Derains, Y., Evidence and Confidentiality, in Confidentiality in Arbitration, ICC Bulletin, 2009.

Hanotiau, B., Document Production in International Arbitration: A Tentative Definition of 'Best Practices', ICC Special Supplement, 2006.

Kaufmann-Kohler, G., Globalization of Arbitral Procedure, Vanderbilt Journal of Transnational Law, Vol. 36, No. 4, 2003.

Lotfi, C., Documentary Evidence and Document, Production in International Arbitration, TDM, Vol. 11, Issue 4, August 2014.

Sabharwal, D. and Zaman, R., Vive la difference? Convergence and Conformity in the Rules Reforms of Arbitral Institutions: The Case of the LCIA Rules 2014, Journal of International Arbitration, Kluwer Law International, Vol. 31, Issue 6, 2014.

Sharpe, J.K., Drawing Adverse Inferences from the Non-production of Evidence, Arbitration International, Vol. 22, Issue 4, 2006.

Sinclair, A.C. and Repousis, O.G., An Overview of Provisional Measures in ICSID Proceedings, ICSID Review, Vol. 32, Issue. 2, 2017

Swerdloff, N., Elul, H.M. et al., Arbitrators’ Power to Sanction Non-Compliance in Discovery in International Commercial Arbitration, in Van den Berg, A. J. (ed.), Legitimacy: Myths, Realities, Challenges, ICCA Congress Series, Vol. 18.

Tercier, P. and Bersheda, T., Chapter 7: Document Production in Arbitration: A Civil Law Viewpoint, The Search for “Truth” in Arbitration, ASA Special Series No. 35, Juris, 2011.

Tercier, P. and Bersheda, T., Document Production in Arbitration: A Civil Law Viewpoint, The Search for “Truth” in Arbitration – ASA Special Series No. 35, 2011.

Tevendale, C. and Franc-Menget, L., The Prague Rules: Arbitral Efficiency under the Lens, ICC Dispute Resolution Bulletin, Issue 2, 2019.

Waincymer, J.M., Promoting Fairness and Efficiency of Procedures in International Commercial Arbitration – Identifying Uniform Model Norms, Contemporary Asia Arbitration Journal, Vol. 3, 2010

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