Notes on Document Production in International Commercial Arbitration

Abstract

It is a truism that arbitration needs to be a dispute resolution form capable of producing decisions which are substantively correct. To that end the applicable procedural rules should be conducive to attaining that goal whilst at the same time providing reasonable guarantees that the decision-making meets basic principles of fairness and legality. Prominent among these principles are the right to be heard and that of equal treatment.
To establish the facts necessary for proper decision-making written evidence plays an important role. Documents are often seen to be less prone to intentional and unintentional distortion. Many jurisdictions, particularly among the civil law systems, traditionally attribute higher evidentiary value to documentary evidence than to oral. Rules on document production (“DP”) exist in most developed legal systems.
It is well established that arbitral tribunals, within their general mandate to establish the facts by all appropriate means, are authorized to issue DP orders1. In addition, arbitration practitioners have developed “soft law” rules on the subject. DP issues arise in many arbitrations. Dealing with those is often costly and time consuming. This paper will discuss some of the issues arising in connection with DP Requests, with particular focus on the IBA Rules on the Taking of Evidence in International Arbitration 2010 (the “IBA Rules”). The perspective is international commercial arbitration with a bit of North European bias.