17.01  The IBA Rules on the Taking of Evidence, first issued in 1999, were designed as a tool for parties and for arbitrators to promote ‘an efficient, economical and fair process for the taking of evidence in international arbitration’.¹ Article 3 of these Rules concerns the taking and presentation of documentary evidence, and is arguably the central provision of the Rules given the important role played by documentary evidence in international arbitral proceedings as compared to other means of evidence.

17.02  While Article 3 of the IBA Rules on the Taking of Evidence is now routinely applied in the setting of international arbitration,² its practical application and interpretation is often the subject of debate between disputing parties. This is particularly true as it relates to Article 3.3, which sets forth the positive requirements that a party must meet when submitting a request to produce documents that are in the control of an opposing party (a ‘Request to Produce’).³ Indeed, while the Rules were designed as a principled approach to disclosure that reflects a compromise between procedures in use in different legal systems,⁴ certain standards under Article 3.3 remain uncertain and subject to conflicting views, with the (p. 175) result that the document production phase of an arbitration remains highly contentious, and all too often costly and time consuming.

17.03  This chapter will briefly explore the most debated criteria of Article 3.3 of the IBA Rules on the Taking of Evidence with a view to identifying the characteristics of a well-drafted Request to Produce. Meeting the requirements of Article 3.3 will assist a party in advancing its case by obtaining the production of vital and specific documents in an adversary’s possession, and more generally, will promote an efficient and cost-effective process of taking evidence in international arbitration.

17.04  Article 3.3(a) of the IBA Rules on the Taking of Evidence provides that a Request to Produce shall contain a description of ‘each requested document’ or ‘a narrow and specific category of documents’.⁵

17.05  It is widely commented that the ‘narrow and specific’ requirement of Article 3.3(a) distinguishes document production under the Rules from the practices of certain domestic legal systems.⁶ The IBA Working Group explained that these Rules were intended to avoid ‘expansive American or English style discovery’, which it considered ‘generally inappropriate in international arbitration’.⁷ Article 3.3 does not contemplate a process of American-style discovery which would require a party to submit any and all documentary evidence in its possession, regardless of whether it would support its adversary’s case. At the same time, the IBA Working Group expressly recognized that some level of document production is appropriate in international arbitration, even in procedures involving practitioners from civil law countries where such practices remain highly restrictive.⁸

17.06  It should also be noted that the presumption under the IBA Rules on the Taking of Evidence is that a party will substantiate its allegations based primarily on documents already within its own possession. This is reflected in Article 3.1, which obliges parties to submit those documents in the procedure on which they rely.⁹ In light of this presumption, the scope of document production ordered by an arbitral tribunal will typically be restrictive.

17.07  While the exact meaning of ‘narrow and specific’ is ultimately a matter of interpretation by an arbitral tribunal, the generally accepted meaning of this requirement may be gleaned by reference to case law and commentary on the IBA Rules on the Taking of Evidence. As (p. 176) the drafters of the Rules note, the ‘narrow and specific’ requirement is designed to enable a party’s adversary to decide whether it wishes to voluntarily comply with a document request pursuant to Article 3.4, or to raise objections to some or all of the documents requested pursuant to Article 3.5, as well as to make it possible for the arbitral tribunal to decide whether or not it should grant the request.¹⁰

17.08  A well-drafted request for an individual document is relatively straightforward. As its drafters note, the IBA Rules ‘simply require that a description be “sufficient to identify a document” ’.¹¹ A member of the IBA Working Party has explained that a request for an individual document should normally identify the presumed author/recipient of the document, the date or presumed time frame within which the document was established, and the presumed content of the document.¹²

17.09  The IBA Rules on the Taking of Evidence contemplate that parties are often unable to specifically identify documents despite the fact that such documents may be relevant and material.¹³ Pursuant to Article 3.3(a)(ii) of the Rules, accordingly, a party may request a ‘narrow and specific category of documents’ relating to a certain topic or contention which the requesting party wishes to prove. As explained by the NAFTA tribunal in International Thunderbird v The United States:

In accordance with article 3.3(a) of the IBA Rules, the categories of documents to be produced shall be ‘narrow and specific’, which the tribunal interprets to mean narrowly tailored, ie reasonably limited in time and subject matter in view of the nature of the claims and defenses advanced in the case.¹⁴

17.10  A request for a narrow and specific category of documents must be ‘carefully tailored’ in order to meet the requirements of Article 3.3(a). A request should thus clearly tie the time frame of the requested category of documents to the relevant chronology of the case. Where possible, a description of the subject matter of the requested category should identify its technical or commercial function (eg business plan, or meeting minutes) as well as the authors and possible recipients of the documents targeted.¹⁵

17.11  Despite the fact that the IBA Rules on the Taking of Evidence were expressly intended to preclude ‘fishing expeditions’, parties often submit requests for overly broad and vaguely defined categories of documents. A party who seeks broad and sweeping categories of documents should expect its adversary to object in writing to the request, in its entirety or in part. Article 3.5 of the Rules provides that the reasons for an objection shall be any of those set out in Article 9.2, or a failure to satisfy the requirements of Article 3.3. Parties typically object to overly broad requests on the grounds that it would be unreasonably burdensome to produce the requested documents as provided by Article 9.2(a), and that the request fails to meet the ‘narrow and specific’ standard of Article 3.3(a).

17.13  If a tribunal considers that a request fails to meet the ‘narrow and specific’ requirement of Article 3.3, the question arises whether Article 3.7 of the IBA Rules on the Taking of Evidence permits a tribunal to reformulate or narrow the request by its own initiative in order to elicit documents that appear to be relevant and material.

17.14  It is uncontroversial that an arbitral tribunal has broad powers to control the arbitral procedure. In the words of one commentator, ‘the power on the part of the arbitral tribunal to require the parties to produce documentary or other materials, relevant and important to resolving a dispute, is a venerable and highly important aspect of the arbitral process’.¹⁶ Moreover, certain institutional rules which the parties may choose to govern their arbitration expressly provide the tribunal with discretion to establish the facts of a case by the means it considers necessary.¹⁷ If after reviewing a Request to Produce that is overly broad and fails to meet the requirements of Article 3.3(a) as drafted, a tribunal has a clear idea of which of the requested documents it wishes to see, it would theoretically be within its power to reformulate the Request, and to order the opposing party to produce documents responsive to the reformulated request.

17.15  In Vito G Gallo v Canada, for instance, a US claimant filed a claim against Canada under the NAFTA, alleging to be the owner of a Canadian company that had been expropriated as a result of the promulgation of certain legislation restricting the company’s business activities.¹⁸ Canada objected to the jurisdiction of the tribunal on the ground that the claimant was not the legal owner of the company (and thus a protected investor under NAFTA) at the time of the alleged measures. During the document production phase, Canada requested broad categories of documents, many without time limitations, which would clarify the links between the claimant and the Canadian company. In its procedural order, the tribunal narrowed several of Canada’s requests, and ordered the claimant to produce only documents that the tribunal expressly considered relevant, such as documents demonstrating (p. 178) the identity of the ultimate shareholders of the company for a six-year period beginning on the date of its incorporation, and agreements or contracts signed by the company during the same time frame.¹⁹ Given the specific jurisdictional issues in that case, the tribunal was well placed to identify the documents that would inform its decision, and by narrowing Canada’s document requests it was able to promote a more efficient and streamlined disclosure process.

17.16  In certain circumstances, however, a tribunal’s decision to narrow or reformulate a party’s document requests will be more controversial. Where parties agree that the IBA Rules on the Taking of Evidence should strictly govern their procedure, there would normally be no expectation that the tribunal would grant a requesting party a ‘second chance’ to obtain documents despite its failure to meet the requirements of Article 3.3(a).²⁰ In this connection, the Rules contain no express provision that contemplates the power of the tribunal to reformulate document requests. The drafters of these Rules rather specified that the burden is placed on the requesting party to ‘identify the document or documents sought, described in sufficient detail’, and to put the tribunal in a position to decide if the requested documents are in fact appropriate proof for the allegations it advances.²¹ A tribunal’s decision to unilaterally reformulate a party’s document request could also raise concerns of procedural unfairness, particularly where parties are not granted any further opportunity to raise objections to those document requests that the tribunal redrafted.²²

17.17  Furthermore, in complex cases where the issues in dispute are not sufficiently clear during the early phases of the procedure, an arbitral tribunal may be ill-placed to redraft a request for documents. Crucially, a tribunal does not have access to the same facts as the disputing parties, and justifications that accompany a Request to Produce are normally the tribunal’s principal reference point. A tribunal that reformulates or narrows a request without guidance from the parties risks turning what appears to be an innocuous exercise (for example, providing a date range for a request lacking a time limitation) into a decision that inadvertently imposes a significant and unjust burden on one or more of the parties.

17.18  Article 3.3(b) of the IBA Rules on the Taking of Evidence also provides that a Request to Produce must contain ‘a statement as to how the Documents requested are relevant to the case and material to its outcome’. The requirements of this Article are essential to ensure the probative value of a document request under these Rules.²³ Under the 1999 version of (p. 179) the Rules, this requirement was formulated as ‘relevant and material to the outcome of the case’. With the adoption of the new formula in the 2010 Rules, ‘relevant to the case, and material to its outcome’, it is clear that the requesting party must satisfy the distinct requirements of both prongs of this standard.²⁴

17.19  The requesting party has the burden to clearly demonstrate the relevance of the requested documents to the case as presented by the parties. Document production under the IBA Rules on the Taking of Evidence cannot be used as a means of identifying new allegations or claims, but is rather aimed at obtaining evidence that is relevant and material to existing claims and issues in dispute between the parties.²⁵ A well-drafted request should, wherever possible, tie the requested documents to specific allegations made in the parties’ written submissions so as to show how obtaining the requested document would assist it in discharging the requesting party’s burden of proof. An ICC arbitral tribunal thus described in an unpublished award:

The request for production must establish the relevance of each document or each specific category of documents sought in such a way that the other party and the Arbitral Tribunal are able to refer to factual allegations in the submissions filed by the parties to date. Obviously, this shall not prevent a party from referring to upcoming factual allegations (subsequent memorials) provided such factual allegations are made or at least summarized in the request for the production of documents. In other words, the requesting party must make it clear with reasonable particularity what facts/allegations each sought document (or category of documents) will establish.²⁶

17.20  In this connection, when determining whether requested documents are relevant to the case, a tribunal will normally perform only a prima facie analysis of the matter based on facts known by the tribunal and the representations of counsel.²⁷ The requirement to tie the document requests to the parties’ specific allegations (and not simply vague issues in dispute between the parties) becomes even more important in this context.

17.21  Furthermore, it may be advisable for parties to agree that the document production phase of their arbitration should take place only after the filing of the first submissions. As noted in the IBA Commentary: ‘The specificity required in the request to produce makes it likely that a request will be made only after the issues have become sufficiently clear in the case.’²⁸ After the first submissions have been filed, the arbitral tribunal will presumably be more informed of the issues in dispute, and will have a better understanding as to whether the requested materials are relevant and material to the parties’ allegations.

(p. 180) 17.22  As noted above, under the 2010 version of the IBA Rules on the Taking of Evidence, the requirement of ‘materiality to the outcome of the case’ is a separate requirement aimed at avoiding ‘wasteful duplication and the provision of unnecessary material’.²⁹ The materiality requirement pertains to ‘the tribunal’s right to evaluate the requested records in light of whether such documents will bear upon the final award’.³⁰ This additional requirement is another feature that distinguishes document production in international arbitration from that in civil litigation. As Redfern and Hunter comment:

Most legal practitioners are accustomed to the obligation to satisfy a court, or arbitral tribunal, as to the question of relevance of documents or other information that they are seeking from the opposing party. But the requirement of showing ‘materiality to the outcome of the case’ is a greatly increased burden. It also enables arbitral tribunals to deny document requests where, although the requested documents would clearly be relevant, they consider that the production of them will not affect the outcome of the proceedings.³¹

17.23  The requirement of materiality under Article 3.3(b) would thus allow a tribunal to reject a request to produce that would unduly delay the arbitral procedure without yielding any additional evidence that would bear on its final award. For instance, an ICSID tribunal in El Paso v Argentina rejected document production requests filed after a jurisdictional hearing, on the grounds that the evidence already before the tribunal was ‘sufficient to decide the jurisdictional issues raised by the Respondent’.³²

17.24  Requiring a party to demonstrate that requested documents are material to a tribunal’s decision could be considered unduly burdensome. In most international arbitrations, regardless of their complexity, a tribunal cannot know the extent of the evidentiary record of both parties. Furthermore, as noted above, at the time of the document production phase a tribunal is normally not in a position to fully understand the relative importance of the parties’ contentions to its final award. All of these considerations call for arbitrators to be effective case managers and to interpret the materiality requirement practically in light of the issues of the particular case. In the words of one commentator:

The tribunal needs to be as reasonably familiar as possible with the case as then presented to make decisions on such issues. A tribunal will need to consider how much it asks the applicant to explain in demonstrating materiality. To the extent that the tribunal itself considers this question, the aim is not to prejudge the ultimate issue but only to deal fairly with the production request.³³

17.25  In the event that a tribunal is unsure whether documents requested by a party would be material to the outcome of a dispute, but does not wish to foreclose that possibility, it may postpone a decision on a document request to a later stage of the proceeding. This was the approach adopted by the tribunal in El Paso v Argentina which, when ruling on the Respondent’s document requests, held: ‘If the proceedings reach the merits of the (p. 181) dispute, it will be open to the Respondent to reiterate the above request for the production of documents.’³⁴

17.26  Article 3.3(c) of the IBA Rules on the Taking of Evidence provides that a Request to Produce must contain ‘(i) a statement that the Documents requested are not in the possession, custody or control of the requesting Party or a statement of the reasons why it would be unreasonably burdensome for the requesting Party to produce such Documents, and (ii) a statement of the reasons why the requesting Party assumes the Documents requested are in the possession, custody or control of another Party’.

17.27  Fulfilling the requirements of Article 3.3(c) is generally straightforward. For instance, where a party requests an individual document that was authored by or communicated to its adversary, or a narrow category of documents that would clearly be contained in its adversary’s company files, there would be little debate as to whether or not such documents are in the requesting party’s possession, custody, or control.

17.28  The question of possession, custody, or control is in other cases more difficult, for instance where the requesting party seeks documents that are not in the possession of its adversary, but rather in the possession of a third party such as its adversary’s corporate affiliates or advisors. The question then arises whether the party should be deemed to have ‘control’ over such documents and should be compelled to obtain them from those third parties.

17.29  Under English law, courts have analysed these requirements by reference to Rule 31.8(1) of the English CPR, which provides that ‘a party’s duty to disclose documents is limited to documents which are or have been in his control’. Rule 31.8(2) of the English CPR specifies that ‘a party has or has had a document in his control if (a) it was in his physical possession; (b) he has or has had a right to possession of it; or (c) he has or has had a right to inspect or take copies of it’.

17.30  In the 2012 decision North Shore Ventures Ltd v Anstead Holdings Inc, the English Court of Appeal held that ‘in determining whether documents in the physical possession of a third party are in a litigant’s control for the purposes of CPR Rule 31.8, the court must have regard to the true nature of the relationship between the third party and the litigant’. On the facts of that case, the court held that documents in the possession of certain trustees were in the ‘control’ of the settlors of trusts within the meaning of Rule 31.8 of the English CPR, and that the settlors would be required to produce those documents. According to the court, ‘the concept of “right to possession” covers … a situation where a third party is in possession of documents as agent for a litigant’. The Court of Appeal further noted that the concept of ‘control’ for the purposes of disclosure was not limited to the three circumstances outlined in Rule 31.8(2) of the English CPR and, ‘even if there were, on a strict legal view, no “right to possession” … it would be open to the English court in such circumstances to find that, as a matter of fact, the documents were nevertheless within the control of that party within the meaning of CPR 31.8(1)’.³⁵

(p. 182) 17.31  When determining whether the duty of disclosure extends to documents in the possession of third parties to a proceeding, arbitral tribunals have likewise interpreted the requirements of Article 3.3(c) liberally and practically and have looked beyond strict legal definitions of ‘control’. For instance, an ICC arbitral tribunal composed of North American and European arbitrators expressed the requirement as follows:

‘Possession, custody or control’ shall include documents to the extent Claimant or Respondent has actual knowledge, without an obligation to do any research or inquiry, that a document responsive to a request for production is in the possession, custody or control of a person or entity (i) within the same group as Claimant or Respondent, as the case may be, or (ii) from which the Claimant or Respondent, as the case may be, has a contractual right to obtain such document … An entity shall be deemed to belong to the same group as Claimant or Respondent if such entity directly or indirectly owns or controls such Claimant or Respondent, or is directly or indirectly owned or controlled by the same entity as Claimant or Respondent.³⁶

17.32  Arbitral tribunals in investment treaty cases have applied a similar standard, and have required parties to search the records of affiliated entities, their advisors, and/or their agents. In CME v Czech Republic, for example, the tribunal ordered that ‘documents of advisors to Claimant shall be disclosed to the extent that these documents are in the possession of the Claimant and/or its affiliated companies or should have been transmitted by the advisor to the Claimant in the ordinary course of business’.³⁷ In Vito G Gallo v Canada, the tribunal considered that ‘the duty of production extends to entities controlled by each party’, and required that Canada seek to obtain documents from its municipalities and that the claimant do the same in relation to documents in the possession of a successor company to its investment vehicle.³⁸

17.33  The 2010 Rules also impose an express duty on the parties to act in good faith in the taking of evidence.³⁹ In the words of one NAFTA tribunal, ‘for a party to claim that documents are not in its control, it must have made its “best efforts” to obtain documents that are in the possession of persons or entities with whom that party has had a relevant relationship’.⁴⁰ While under the IBA Rules on the Taking of Evidence a party is required to use its ‘best efforts’ to obtain documents in the possession of third parties, it may nonetheless object to a request for documents and seek to convince the tribunal that the requested evidence would be ‘unreasonably burdensome’ to produce, as provided by Article 9.2(c).

17.34  As drafters of the IBA Rules explain, an ‘unreasonable burden can take many forms, and the nature of the burden is purposely left to the discretion of the arbitral tribunal’.⁴¹ What ‘burdensome’ means is therefore largely dependent on the facts of each case. According to one commentator: ‘When considering the burden of production arbitral tribunals are likely to have in mind the potential use of the documents, the relevance and materiality, the costs (p. 183) of production, the reasonableness of each party’s position and the likely probative value.’⁴² A party who submits requests for documents in the possession of third parties should take all of these factors into account in assessing the likelihood of their acceptance by a tribunal.

17.35  The foregoing discussion has sought to define some best practices for parties seeking to draft effective Requests to Produce that meet the requirements of Article 3.3 of the IBA Rules on the Taking of Evidence. A well-drafted Request to Produce will ultimately enable a party to obtain the vital and specific documents for its case, and will promote an efficient and economical process of taking documentary evidence in the setting of international arbitration.(p. 184)