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Ms Mélanie Riofrio Piché

Secretary General - Madrid International Arbitration Center (MIAC)

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Document Production: the Armesto Schedule

I. Definition

1.

Document production refers to the process by which a party can request - and the tribunal can order - the production of documents in possession of the counterparty, allowing said party to obtain further evidence to substantiate its case (See Document Production).1

2.

The Armesto Schedule (or “Schedule”) is a tool devised by Juan Fernández-Armesto to help parties and arbitrators to increase efficiency in the production of documents. Inspired by the classic Redfern Schedule,2 the Armesto Schedule is a user-friendly collaborative table proposed by the tribunal and agreed by the parties at the outset of the proceedings, in which the party describes the requested document, the requested party agrees or objects to this request and the tribunal decides on its admissibility.

II. Format

3.

The Schedule integrates the standards of the IBA Rules on the Taking of Evidence in International Arbitration (the “IBA Rules of Evidence”) under three requirements (R1 to R3) and six objections (O1 to O6). Format-wise, the Schedule is a vertical table with three columns and several rows. The pink areas are for the requesting party to complete, while the blue ones correspond to the requested party. The white areas are left to the arbitral tribunal. Each page of the Armesto Schedule corresponds to a single document request.3

III. Armesto Schedule in practice

4.

The following flow chart shows how the Armesto Schedule works in practice, identifying the different stages of the document production request:

IV. Advantages

A. Systematization

5.

The Schedule systematizes the IBA Rules of Evidence requirements and objections in a format that is visually easy to follow. This compels the parties to ensure that their requests meet all necessary requirements and allows the counterparty to easily reply the requests (either by agreeing or by raising objections). Additionally, it allows the tribunal to visualize the position of the parties on each of the specific requirements or objections, leading to a more straight-forward solution.

B. Definition of criteria

6.

The Schedule clearly define, from the outset, the criteria which will be used by the tribunal when making its decision. The rules governing the Armesto Schedule are contained in a specific Procedural Order Model (the “PO”) which is previously agreed by the parties.4 The PO defines and sets forth the tribunal’s understanding for each requirement and objection.

C. Limitation of document production

7.

The Schedule also limits the production of documents:5

  • First, the requesting party has to identify the requested document or describe a narrow and specific category of documents. The model PO sets specific requirements and goes as far as to give specific examples of what shall not be considered a narrow and defined category of documents.
  • Second, the parties’ allegations can only be introduced in the Schedule, which has word limit to which parties must refrain. This avoids endless discussions on the scope of document production.
  • Third, the model PO also gives the parties the possibility of agreeing on limiting the number of document requests.

V. New features

8.

The Schedule contains two unique features to dissuade parties from making unfounded document requests and launching fishing expeditions:6

  • It uses affidavits to make the parties take responsibility for the document production from the outset; and
  • It provides for the imposition of specific costs for the document production phase. The PO provides that the tribunal may take into consideration the reasonableness of the requests and objections, each party’s willingness to produce the documents under its control and the relative success of each party.

Bibliography

Blackaby, N., Partasides, C., Redfern, A. and Hunter, M., Redfern and Hunter on International Arbitration, Ch. 1 An Overview of International Arbitration, Sixth Edition, Oxford University Press, 2015.

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

Riofrio Piché, M. and Sampaio Jalles de, S., The Armesto Schedule: a Step Further to a More Efficient Document Production, Kluwer Law Arbitration Blog, April 4, 2020.

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