6.1  Article 3 deals with documents. Most importantly, it addresses requests to produce documents made by one party to another, objections to such requests, and the process by which disputes around requests for production are to be determined. It also deals with the introduction of documents relied on by a party and requests for documents by the tribunal, as well as a number of other issues connected with access to documents and the form in which documents are to be produced.

6.2  Documents play a very important role in the arbitration process. Tribunals attach significant weight to documentary evidence that is (save in the case of fraud) often regarded as a more reliable source of fact evidence than that provided by a witness whose memory may be unreliable and/or whose recollection of events may have been influenced by their employer or legal team. However, the approach to document production in civil law and common law jurisdictions is very different. While the precise rules for obtaining documents may vary between common law jurisdictions, most common law lawyers will generally regard document production—in particular, the right to access all relevant documents held by an opponent—as an essential tool in the fact-finding exercise necessary to the preparation of a client’s case. The underlying principle is that all documents relevant to the disputes must be disclosed to the other party.

6.3  In contrast, the approach to document production adopted in civil law jurisdictions is much more restricted and the right to request documents of an opponent may be (p. 110) limited to those documents that prove an already pleaded fact.¹ Marghitola gives the example of a Request to Produce the original of a contract of which the requesting party has only an unsigned copy.²

6.4  Article 3 of the IBA Rules represents a compromise between the two legal traditions and, as such, it is invaluable for use by parties to international arbitration. Given the importance of documentary evidence, it is logical that Article 3 should be a fundamental provision of the IBA Rules. It may also explain why Article 3 is the longest and most detailed provision.

6.5  The results of an IBA survey show that Article 3 is by far the provision most frequently referred to of the IBA Rules. Approximately 21 per cent of references to the IBA Rules were references to Article 3.³

6.6  The term ‘Documents’ is widely defined in the IBA Rules 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’.⁴ The breadth of this definition is unsurprising. The IBA Rules are concerned with the taking of evidence. It is important that the provisions relating to ‘Documents’ pick up all forms of evidence that are not witness evidence or expert opinion evidence.

6.7  The Commentary to the IBA Rules helpfully summarizes the categories of documents with which Article 3 is concerned:

Article 3 refers to three groups of documents: (1) documents that are at the party’s own disposal; (2) documents that the party wants to use as evidence for its submissions but cannot produce on its own, because they are either in the possession of the other party in the arbitral proceedings or in the possession of a third party outside of the arbitration; and (3) documents that neither party has introduced or wants to introduce as evidence into the arbitral proceedings, but which are seen as relevant and material by the arbitral tribunal.⁵

(p. 111) 6.8  Article 3 contains discrete procedural mechanisms dealing with each of these three categories:⁶

1. (a)  Article 3.1 and Article 3.11 deal with documents accessible to a party and upon which it wishes to rely;

2. (b)  Articles 3.2–3.9 address documents that a party believes to be relevant and material to the case, but which it cannot produce/access because they are in the possession, custody, or control of another party to the arbitration, or a third party; and

3. (c)  Article 3.10 concerns documents that neither party has introduced nor wants to introduce as evidence, but that are regarded as relevant and material by the tribunal.

6.9  The provisions of Article 3 dealing with voluntary production of documents in support of a party’s own case are relatively uncontroversial. These provisions are addressed in further detail at 6.26-6.36 and 6.341-6.349. The position in relation to a request for production of documents made by an opponent party, or by the tribunal, is more complex and invites some further introduction before being addressed in more detail later in this chapter.

6.10  It is rare to see detailed provisions covering the process of document production. It is relatively uncommon for the parties’ arbitration agreement to contain any reference or detailed provision about production of documents. In addition, although express provision empowering the tribunal to order document production—either pursuant to its general powers or by means of a specific reference to document production—is often found in applicable national arbitration legislation,⁷ and in arbitration rules,⁸ such provisions are often silent as to the criteria to be applied by the tribunal when exercising that power. Even published guidelines on managing the conduct of arbitration proceedings say very little about this topic.

(p. 112) 6.11  Accordingly, although the power of a tribunal to order document production will nearly always exist, the exercise of that power will generally be a matter for the discretion of the tribunal. For a variety of reasons this may be unsatisfactory both to the parties and to the tribunal. As noted, depending on the backgrounds of individual tribunal members, a common law party may fear that it will not be able to obtain all of the documents that it considers it should have from the other party. A civil law party may fear that its common law opponent will obtain access to documents that the civil law party does not accept that its opponent should have. A tribunal may look for external guidance and a tried and tested route to navigate party disagreements. The regime for document production set out in the IBA Rules accommodates those concerns.

6.12  The IBA Rules make no provision for a general obligation of discovery of documents, under which a party has an automatic obligation to disclose to its opponent all documents that are germane to the dispute.

6.13  Accordingly, save for specific documents that may have been requested by a tribunal pursuant to Article 3.10,⁹ documents on the record in the arbitration will derive only from those that each party has volunteered in support of its case, or that have been disclosed following a request for production made by one party to another. As mentioned, the latter process is regulated by Articles 3.2–3.8. The core provision is Article 3.3, which sets out the requirements that must be met in relation to the substance and content of a Request to Produce. Article 3.2 grants a party the right to deliver a Request to Produce and Articles 3.4–3.8 deal with the voluntary production of the requested documents by the party in possession, as well as with the raising and resolution of objections to production by that party. Article 9.2 sets out the grounds upon which objection to a request for production may be made.

6.14  Within the committee charged with drafting the 1999 IBA Rules, the issue of non-voluntary document production was the subject of heated debate between participants from different legal traditions. As noted in the commentary to the IBA Rules:

The issue of whether and under what conditions one party should be able to request production of documents from another party occupied much of the Working Party’s discussions in 1999. The vigour with which this issue was debated demonstrated that the question of document production was the key area in which practitioners from common law countries and civil law countries differ.¹⁰

6.15  The requirements of Article 3 of the IBA Rules were drafted in accordance with a number of principles articulated in the commentary to the 1999 IBA Rules and (p. 113) expanded upon in the Commentary to the current (2010) IBA Rules. Those principles include the following:¹¹

• •  Expansive American-style or English-style discovery is generally inappropriate in international arbitration;

• •  There is a general consensus, even among practitioners from civil law countries, that some level of document production is appropriate in international arbitration; and

• •  The scope of the permissible document production request is to be limited by certain objections set out in Article 9.2.

6.16  In broad terms, the regime arrived at in the IBA Rules has at its heart the requirement in Article 3.3 that, if a request for production of documents by another party is to be advanced, the document requested must be ‘relevant to the case and material to its outcome’. The grounds for objection set out at Article 9.2 add further protections designed to contain the scope of document production under the rules to that representing a reasonable compromise between legal traditions, and in which the rights of the requesting and producing parties are properly balanced.

6.17  The 1999 IBA Rules introduced the concept of ‘relevant and material to outcome’. Provisions in the 1999 Rules expanded the limited document production contained in the 1983 Rules¹² and, for the first time, permitted a party to address a request to the tribunal for an order requiring production of internal documents from the other party’s files. However, this right was made subject to a requirement that the request identify the documents with precision and include an explanation as to how those documents were ‘relevant and material to the outcome of the case’.¹³ The other party was permitted to raise an objection to the request on one of a number of grounds expressly provided for in the rules.¹⁴ Those grounds for excluding evidence and denying requests for production (now set out in Article 9)—relevance and materiality, privilege, unreasonable burden, loss or destruction, commercial or technical confidentiality, political or institutional sensitivity, and considerations of fairness or equality—provided a series of checks and balances. These two mechanisms were the foundation for the provisions in the current IBA Rules.

6.18  The 1999 IBA Rules attracted stinging criticism at a number of levels, including assertions that those rules facilitated unnecessary document production beyond what was necessary to protect a party’s position, encouraged delay and costs, had the potential to increase antagonism between the parties, and could lead to a lack of party confidence in the tribunal when it was forced to make (arguably) premature (p. 114) decisions on document production without a proper appreciation of the issues in the case.¹⁵

6.19  Despite such criticisms, and with the benefit of the passage of time, the document production provisions contained in Article 3 have undoubtedly gained wide acceptance by arbitration practitioners from around the world. As noted in the Commentary to the IBA Rules, Article 3 represents a ‘balanced approach’ that is ‘widely accepted by both common law and civil law practitioners’.¹⁶ This is confirmed by statistical data that indicates there is no significant preference for use of IBA Rules in either common law countries or in civil law ones:

In terms of the frequency with which the Rules on Evidence are referenced in common and civil law jurisdictions, the survey results interestingly do not indicate any significant difference between the two. By way of example, a relatively high number of English arbitrations referred to the [IBA Rules] (72%), while a lower number of U.S. arbitrations (56%) did so. The frequency of such references in France, however, appears to lie somewhere between the two (62 %).¹⁷

As one commentator puts it:

A civil lawyer may find the Rules helpful when seeking to limit an extensive request for document production by a common law party; and a common law party may be able to use the Rules to obtain at least some internal documents from a civil law party which this party would otherwise not provide.¹⁸

6.20  However, there are still calls for amendment to Article 3, most often on the basis that the rules lean too far towards the common law approach to document production. An IBA Survey on the issue notes that:

Respondents who call for a revision of Article 3 believe that the IBA Committee should further limit the scope of disclosure to strike a proper balance between the civil law tradition and the US legal culture. These respondents, based in both civil and common law jurisdictions, and from all regions but Africa, complained about the number and scope of document requests, as well as the cost and burden associated with addressing such requests. In their view, disclosure under Article 3 still resembles too closely discovery as it is practiced in common law litigation, or at least in the US.¹⁹

(p. 115) 6.21  Other mooted possibilities for change include a provision for automatic production of documents manifestly relevant to the dispute. This would be a radical amendment since, unlike the position under court rules in many common law jurisdictions,²⁰ there is no practice of automatic discovery of documents (helpful and adverse) in international commercial arbitration. It has been suggested that the introduction of such a requirement into the IBA Rules could be based on the obligation of parties to arbitration to act in good faith. There is force in this argument but, as has been recognized, pursuit of such a revision is probably best left for another day.²¹ Despite these various suggestions for revision to the Article 3 regime, the prevailing view appears to be that the IBA Rules should not be amended for the time being.²² In our view, if applied properly, the IBA regime for document production requests represents a reasonable compromise between legal traditions and is flexible enough to accommodate the majority of circumstances, and the diverse (or sometimes uniform) cultural mix existing in individual arbitrations.

6.22  O’Malley and other commentators suggest that the presumption in arbitration is that a party will establish its case based largely (if not entirely) on the documents within its own possession.²³ Applying that perspective, a wide-ranging discovery process that allows a party to substantiate a case by ‘discovering’ the primary evidence to support its arguments is not compatible with the threshold concept set out in Article 3.1, ie that a party to arbitration will produce the documents on which it relies. On the other hand, Article 3.3 avoids the restricted view of disclosure held in certain civil law jurisdictions. In particular, it expressly contemplates the production of categories of documents (rather than just specific identified documents), and (as a result of amendments first made in the 1999 IBA Rules) it does not exclude production of ‘internal’ documents held by another party. Overall, it represents a genuine compromise between the civil law approach of (predominantly) voluntary disclosure and the common law ‘discovery’ process described at 6.2.

(p. 116) 6.23  However, it should be borne in mind that, although it is important not to lose sight of differing cultural perspectives, when it comes to operation of the Article 3 procedures in an individual arbitration those procedures should be applied as a standalone autonomous regime.

6.24  The current IBA Rules introduced some adjustments reflecting the ever-increasing volume of document production resulting from electronic communications. The definition of ‘Documents’ was revisited during drafting to ensure that it was adequate, and changes were made. The possible use of search teams to capture electronic documents was also introduced.²⁴ However, there was no fundamental rethinking of how document production of electronic documents should be managed. The draftsmen took a largely ‘hands-off’ approach towards such issues as data preservation measures, or possible limitations on the types of sources of electronic information that might be requested.²⁵ For the most part, electronic documents are treated in the same manner as paper documents.

6.25  A further related change influenced by the volume of e-documents introduced into arbitration, and the desire to cater for greater economy in the document production process, was the introduction of ‘considerations of procedural economy’ as a ground for excluding documents from production or oral testimony from evidence under Article 9.2.²⁶

6.26  Article 3.1 imposes an obligation on each party to produce the documents upon which it relies in a timely fashion. This is consistent with the principle in Preamble 3 that each (p. 117) party shall be entitled to know reasonably in advance of the evidentiary hearing the evidence on which the other parties rely. It helps avoid a situation in which a party is served with a large volume of documents shortly before the hearing.

6.27  The requirement for disclosure of documents on which a party wishes to rely is uncontroversial. Leaving aside the question of timing, it is in that party’s interests to produce these documents. The requirement has been present in the IBA Rules since they were first published.²⁷ Article 3.1 requires production of all documents available to a party upon which it relies. The only exception is that a party need not produce a document that has already been submitted by another party. It is not enough that the producing party believes that the other party already has a copy of the document. If it has not already been introduced into the arbitration then it must be produced under Article 3.1. There is no exception for documents that are in the public domain. Article 3.1 states expressly that these must be produced.

6.28  Under Article 3.1, production of documents relied on must take place ‘within the time ordered by the Arbitral Tribunal’. The relevant deadlines will normally be set out in the procedural timetable.

6.29  The parties may be required to produce the supporting documents that they rely on with their written submissions. They may be given an additional longstop date by which any other documents upon which they rely must be produced. That date may be the one contemplated by Article 3.11 (ie following document production, witness statements, and expert evidence) or an earlier one.²⁸

6.30  For the purposes of Article 3.1, we suggest that a date prior to delivery of witness/expert evidence is desirable since the witnesses/experts may not otherwise have an opportunity to address something important arising out of the documents. The further deadline referred to in Article 3.11 will provide a final opportunity to produce additional documents that have become relevant as a result of what is said in witness statements, expert evidence, or other documents produced (see 6.341-6.349 for more detail).

(p. 118) 6.31  The purpose behind these various deadlines is to ensure that other parties have sight of the documents at the earliest possible opportunity. This limits the possibility of any party gaining a tactical advantage by submitting documents late or so close to the hearing that the other party is not able to deal with them properly and, as a result, may suffer prejudice in presentation of its case. Of course, it is always open to the tribunal to adjust the timetable to give the receiving party more time, but this can then lead to procedural inefficiency.²⁹

6.32  In practice, it is not uncommon to see a request from one or more parties to introduce new documentary evidence after the relevant deadline has passed. How the tribunal responds will depend on the facts of the case and the attitude of the individual tribunal members.

6.33  For example, a tribunal will generally admit new documents into the record where all parties agree to this.³⁰ Absent such agreement, some tribunals may expect the producing party to provide a compelling reason why the tribunal should admit the documents late. The tribunal may be willing to admit them if the producing party can demonstrate to the tribunal’s satisfaction that it did not have, and could not have obtained, the documents any sooner.

6.34  In circumstances where the evidence suggests that the producing party could have submitted the documents earlier but chose not to in order to gain a tactical advantage, a robust tribunal may refuse to admit them after the deadline has passed. Other tribunals may take a pragmatic approach and admit documents even where there is no satisfactory explanation for the delay and the other party does not agree to their admission. If the tribunal has seen the documents it may conclude that they are not material to the tribunal’s determination and so can be safely admitted, and discounted in the award, without prejudice to either party. Some tribunals may admit the documents without any such analysis simply because they are concerned that if they do not, the award will be vulnerable to challenge on the basis that the producing party was denied the opportunity to put its case.³¹

6.35  Decisions by tribunals not to admit documents filed after a procedural deadline has passed have been upheld by courts.³² In one ICC case where the tribunal took a robust approach, the tribunal made the following comments:

The arbitrators have a duty to take into account the fundamental right of each party to present its case properly, but they also have a duty to ensure that the (p. 119) arbitration progresses at a reasonable pace and to avoid unwarranted or deliberate delays. If a party which has had ample opportunity to prepare its case or to submit requests to the arbitral tribunal at an earlier stage of the proceedings, applies to the tribunal, belatedly and without giving legitimate reasons for tardiness, with requests which are liable to cause substantial delays, it may well be the duty of the arbitrators to continue the arbitration without accepting the request of the tardy party.³³

6.36  Where it is clear that a party could have produced documents earlier and chose not to do so as a part of its tactical strategy then, even if the documents are admitted, a tribunal may consider it appropriate to sanction the producing party in costs pursuant to Article 9.7 of the IBA Rules.

(p. 120) 6.37  Articles 3.2 and 3.3 of the IBA Rules deal with the delivery and content of a request for production of documents made by one party to another.

6.38  Article 3.2 states expressly that any party may deliver a request for documents to any other party to the arbitration.

6.39  It is, of course, open to parties to an international arbitration to agree to limit the scope of document production, or to exclude it altogether. The ICC Commission Report on Controlling Time and Costs in Arbitration identifies an agreement to limit the number of permitted document production requests as a technique for managing document production efficiently.³⁴ We are aware of cases in which parties have agreed that they will each make no more than five document production requests. The ICC Guide for Effective Management of Arbitration³⁵ highlights that the ICC Rules contain no specific provisions governing document production and that the parties may agree on the procedures to be applied. Suggested options mentioned in the Guide include no document production at all.

6.40  In practice, parties rarely consider document production procedures when drafting their arbitration agreement. In one survey on document production in international arbitration, 73 per cent of respondents said that they rarely or never included a procedure for document production in their arbitration clauses; 15 per cent said that they sometimes included such provisions; and only 6 per cent said that they frequently did so.³⁶ Even when parties consider the issue, they may be reluctant to agree to limit or exclude the right to request documents from an opponent party.³⁷ Until a dispute arises it is difficult to anticipate what categories of document will be relevant and therefore which party will hold them. Once a dispute has arisen, the potential for agreement is much diminished.

6.41  We suggest that the possibility of limiting document production requests should be on the agenda for discussion during the consultation process required under Article 2 of (p. 121) the IBA Rules. The parties’ willingness to place limits on the number or scope of document production requests may aid efficiency in time and costs.

6.42  As to timing of the Request to Produce, Article 3.2 simply says that the Request to Produce should be delivered within the time ordered by the tribunal. A deadline for delivery of requests to produce is often contained in the first procedural order following discussion with the parties on the procedural timetable. In cases where such consultation takes place pursuant to Article 2 of the IBA Rules, one of the suggested agenda items for discussion set out in that provision is ‘the requirements, procedure and format applicable to production of documents’. Discussion around this is likely to include debate on appropriate dates for delivery of requests to produce and how this step fits into the overall procedural timetable. What those dates are will depend on the individual circumstances of the case.

6.43  In general, the procedural framework into which a Request to Produce will fit is relatively straightforward. Each party will volunteer in advance of the document production phase all of the documents on which it intends to rely (as prescribed by Article 3.1 of the IBA Rules), sometimes with its written submissions. Under Article 3.2 of the IBA Rules, the parties will then deliver—by a date fixed by the tribunal—their document production requests containing the information set out in Article 3.3, including a statement explaining the relevance and materiality of the requested documents. The parties will then usually be given a reasonable time in which to either produce the requested documents or to provide details of any applicable grounds of objection under Article 3.3 and/or Article 9.2. There may be an opportunity for the requesting party to respond to the objections. In the event that the objection to production cannot be resolved between the parties, the requesting party may ask the tribunal to make an order for production under Article 3.7.

6.44  As discussed elsewhere, the Article 3.1 provision for voluntary production of documents relied on, the requirements of the IBA Rules as to the content of a Request to Produce, as well as other factors of more general application may all have some influence on the precise date for delivery of document production requests.³⁸ It has been suggested that best practice is for document production to take place between the first and second round of written submissions.³⁹

6.45  We agree that this is likely to be the approach adopted in many arbitrations, although it may require some adaptation according to the circumstances of the case, particularly (p. 122) where English-style pleadings are utilized and the range of issues that can be identified from first round pleadings are limited.

6.46  Article 3.3 lays down requirements relating to the substantive content of a Request to Produce Documents.

6.47  These requirements are an important part of the checks and balances that exist within the IBA Rules, and which are designed to maintain an appropriate balance between ‘too much’ and ‘too little’ document production, as viewed from the perspectives of parties from different legal traditions, and in the interests of efficiency of process.⁴⁰

6.48  In summary, under Article 3.3 of the IBA Rules, the Request to Produce must contain:

1. (a)  a narrow and specific description of the document(s) requested;⁴¹

2. (b)  a statement as to why the requested documents are relevant to the case and material to its outcome;⁴²

3. (c)  a statement that the requested documents are not in the possession, custody, or control of the requesting party, or a statement that it would be unreasonably burdensome for that party to have to produce them;⁴³ and

4. (d)  the reasons why the requesting party assumes that the documents requested are in the possession, custody, or control of the party to whom the request is addressed.⁴⁴

6.49  In general terms, even when contested, a Request to Produce documents should succeed under the IBA Rules where:

1. (a)  the requirements of Article 3.3 have been met;

2. (b)  the tribunal considers that the issues that the requesting party wishes to prove by means of the documents are relevant to the case and material to its outcome;⁴⁵ and

3. (p. 123) (c)  none of the grounds for objection raised under Article 9.2 of the IBA Rules is found to apply.⁴⁶

6.50  Some commentators have expressed the view that a number of the requirements to be applied under Article 3.3 remain uncertain and subject to conflicting views, with the result that the document production phase of an arbitration remains highly contentious, and often costly and time-consuming.⁴⁷ We do not disagree that document production is often hotly disputed and extremely expensive. Whether that outcome can be laid at the door of the IBA Rules, rather than the parties themselves, is a different question.

6.51  Article 3.3(a) requires the requesting party to provide a description of the document it wants.

6.52  A party may request either an individual document, or a narrow and specific category of documents.⁴⁸ Whatever document is sought, the description should be such that the producing party can easily understand whether a document it holds falls within the terms of the request.

6.53  Where an individual document is sought, the description provided in the Request to Produce must be ‘sufficient to identify it’.⁴⁹

6.54  In many ways it is more straightforward to seek production of an individual document than a category of documents. When a party seeks production of an individual document, that party will generally have a very clear idea of what it is. In (p. 124) some instances, the requesting party may have found a reference to or description of the document in another piece of evidence or in a public register. For example, a document already on the record in the arbitration may refer to a specific email or letter from the other party to a third party, or it may be clear from the first document that it addresses matters that have been raised in another document. In such circumstances, it is often relatively easy for the requesting party to identify the letter by date and sender/recipient, or by a description, perhaps cross-referenced to the document in which it is mentioned. In other cases, the requesting party may not know a precise date or author but is nonetheless able to describe the document in a way that will still permit the producing party to identify it. For example, in relation to payment of a certain amount made to company X in August of a given year, it may be possible to request production of the payment order by means of a description referencing those matters. The requirements of Article 3.3(a)(i) will be met because the description is sufficient for the respondent to search for and identify the document.

6.55  Article 3.3(a) also allows parties to request a category of documents as long as the category of documents requested is ‘narrow and specific’ and the category of documents is ‘reasonably believed to exist’.⁵⁰

6.56  In many cases, a requesting party may not know the details of specific documents and will have to frame its request by reference to a category of documents. The requirements mentioned are designed to ensure that the right to request a category of documents is not used as a basis for a ‘fishing expedition’, while at the same time not shutting out reasonable requests for documents that are germane to issues in the case. The Commentary to the IBA Rules mentions the example of an arbitration involving the termination by one party of a joint venture agreement. The requesting party may know that a notice of the termination was given on a certain date, that the Board of the other party must have made the decision to terminate at a meeting shortly before that notice, that certain documents must have been prepared for the Board’s consideration of that decision, and that minutes must have been taken concerning the decision. The requesting party cannot identify the dates or the authors of such documents, but nevertheless can identify with some particularity the nature of the documents sought and the general time frame in which they would have been prepared. Such a request may qualify as a ‘narrow and specific category of Documents’, as permitted under Article 3.3(a)(ii).⁵¹

6.57  Although the term ‘narrow and specific’ may sometimes be construed differently by arbitrators with civil or common law backgrounds (or even by arbitrators with the same legal background), it seems to be common ground that a request for a category of documents should not be couched in nebulous terms. For example, a request for ‘any and all documents’, references to lengthy time frames, and/or ‘relating’ to a broad description of subject matter are, in most cases, judged by tribunals to be too broad and failing to meet the ‘narrow and specific’ standard.⁵²

6.58  Where the inadequacy of a request is less obvious a more considered approach to assessing its legitimacy may be required and the approach taken by different tribunals may vary.

6.59  It is suggested that the ‘narrow and specific’ standard has generally been understood to apply to both the time frame for a Request to Produce, as well as its subject matter.⁵³ Some tribunals have indicated other requirements. In one ICC case, in which the need for a high degree of specificity was acknowledged, it was suggested that a request for a category of documents should, for example, describe the kind of document, the identity of the authors and their addressees, cover a narrow time period, describe the contents and the other characteristics of the documents sought, and in general allow the other party to divine precisely what documents were responsive to the request.⁵⁴

6.60  In our view, the correct approach is to consider whether the description provided in the request is adequate to enable the party on whom the request is served to judge without too much difficulty whether a particular document it has in its possession falls within the category of documents requested or outside of it.

6.61  Where a request for a category of documents is overbroad, and is contested, many tribunals will deny the request and there is therefore an element of risk in drafting requests too widely. However, some tribunals may invite the requesting party to refine the request. A certain amount of negotiation on the scope of a particular request may also take place between the parties. For more detail on this point see 6.258-6.261.

6.62  Box 6.1 provides some examples of ICC cases cited by Hamilton⁵⁵ where a tribunal regarded a request for a category of documents as being insufficiently specific and refused to make an order for production in the terms of the request.

(p. 126)

In example 5, the tribunal made the following observation:

The description ‘assessing or relating to the assessment of [Company] X's equity’ does not elicit the type of automatic understanding of the nature of the responsive document, or category of documents, sought, which a sufficiently detailed document request—indicating narrow parameters such as the authors, recipients, specific contents, and specific characteristics of the documents—would. Virtually any [Company X] document could be interpreted as ‘relating’ in some way to the assessment of its equity and, therefore, be covered by this document request.

6.63  National courts have in appropriate cases endorsed the decision of a tribunal to dismiss a request for documents not framed in sufficiently precise terms, and have found that such dismissal did not result in unfair treatment of the requesting party. For example, in one case drawn to our attention, proceedings were initiated before the Paris Court of Appeal to set aside an arbitral award for, inter alia, lack of due process.⁵⁶ The court (p. 127) held that a tribunal rightly dismissed a request for production of another party’s entire correspondence on grounds that the Request to Produce was not sufficiently specific.

6.64  An interesting question arises in relation to the volume of documents potentially caught by a document production request. If such volume is extremely large, does this suggest that the request is insufficiently narrow? We do not think that volume can be relevant to the adequacy of the description of the category of document requested, although it may give rise to other grounds of objection to production.⁵⁷ A request may describe a category of documents very precisely and it simply be the case that a large number of documents meeting that description exists.⁵⁸

6.65  In addition to the requirement that the category of documents requested be a narrow and specific category, Article 3.3(a) requires that the documents requested are ‘reasonably believed to exist’. If the request is contested by the other party and the requesting party has to seek an order for production from the tribunal, the tribunal will have to be satisfied that there is a reasonable basis for belief in the existence of the documents. Accordingly, we suggest that it is an implied requirement, and that it would be prudent that the requesting party mention the grounds for belief in the request, particularly where this is not obvious from the nature of the documents requested.

6.66  For example, in a construction dispute between an employer and main contractor relating to particular aspects of the project for which the contractor seeks an extension of time, the employer may be arguing that the delay was caused by problems with the contractor’s design. The employer may wish to see correspondence between the main contractor and subcontractors relating to any problems with a particular component over the period when the alleged delay occurred. Where it is clear from the contract documents or other correspondence that the main contractor has used subcontractors on the relevant part of the project, the employer will have reasonable grounds for believing that correspondence between the main contractors and the subcontractor will exist and may wish to explain this in the document request.

6.67  Individual documents can be sought without such qualification,⁵⁹ probably because when requesting a specific document, the description of the document will contain details such as a date and sender/recipient, which will tend to confirm its existence. When it comes to a category, the request is necessarily broader and to prevent a fishing exercise the requesting party must be able to point to circumstances that suggest the existence of the documents.

6.68  Article 3.3(a)(ii) also specifically deals with a situation where a party requests production of documents held in electronic form. The provision highlights ways in which the (p. 128) search for such documents may be made more efficient and economical by the provision of additional information.

6.69  A number of modest revisions introduced into the IBA Rules in 2010 are directed at the growing use of e-discovery.⁶⁰ Aside from these changes there was no fundamental rethinking of how document production of electronic documents should be managed.⁶¹ In substance, under the IBA Rules electronic documents are treated in the same way as paper documents. There is no additional express provision dealing with particular issues generated by the nature and volume of electronic documents—for example, data preservation measures, or a limitation on the types of sources of electronic information that may be requested—or a separate regime for production of electronic documents.

6.70  The absence of the latter has been seen by some as a positive feature of the 2010 IBA Rules. For example, it has been said that:

Issuing an entire set of new rules for production of electronic documents as part of the 2010 Rules would have been likely to lead to unwanted and unfortunate results. In particular, new detailed rules may well have led to an increase of the production of electronic documents and hence document production in general. [ . . .] it is thought that the 1999 Rules contributed to an overall increase of document production in international arbitration practice, and the same might have happened if the 2010 Rules had been amended by detailed rules on e-disclosure. Accordingly, a well-intended ‘cure’ may have eventually become a part of the ‘disease’ itself. Moreover, a new set of rules as to production of electronic documents might, in effect, jeopardise the flexibility of the parties and the arbitrators to address such issues in view of the particular circumstances of the case.⁶²

6.71  In our view, and despite the absence of detailed provisions on electronic document production, it clearly lies within the discretionary powers of a tribunal operating under the IBA Rules to take an active role in relation to the management of e-documents or related issues should it wish to do so.⁶³

6.72  Article 3.3(a)(ii) states expressly that:

. . . in the case of Documents maintained in electronic form, the requesting Party may, or the Arbitral Tribunal may order that it shall be required to, identify specific files, (p. 129) search terms, individuals or other means of searching for such Documents in an efficient and economical manner.

The proposed use of search terms and other search parameters is intended to assist in making the search for electronic documents that are the subject of a Request to Produce as efficient as possible, bearing in mind that the volume of electronic documents that a party may possess may often run into tens of thousands of documents, if not more. The availability of this mechanism applies to a request for production of a category of documents.⁶⁴

6.73  Given the volume of documents held electronically by most commercial parties, it is simply not feasible or cost-efficient for a manual search/review of all of those documents to take place in all cases. Even where a party has the necessary resources, the costs associated with such a search may well be disproportionate. Out of necessity the parties must therefore employ search parameters as a filter to catch documents that may fall within the category of documents requested. A manual review of that set of captured documents (sometimes referred to as the review set) will then generally be done to identify those documents from the review set that do fall within the request, and those documents within that group that may be privileged or sensitive. The skill in this exercise is to formulate initial search parameters that are not too narrow so that the risk of missing important documents is high, and not so wide so that the set to be manually reviewed is too large. Although the advent of predictive coding⁶⁵ has the potential to improve upon and possibly supersede this approach to finding electronic documents, for the moment at least, the use of appropriate search criteria remains an important element in trying to manage and contain the burden of electronic document production while at the same time ensuring so far as possible that relevant and material documents are made accessible to the requesting party.

6.74  This express reference to the power of a tribunal to require formulation of appropriate search terms is consistent with guidelines on production of electronic documents found elsewhere.⁶⁶

6.75  In our view a request for documents in electronic form should volunteer suggested search criteria formulated by reference to as many as possible of the following parameters:

• Date range: In most cases it should be relatively straightforward to identify a date range. It should be as narrow as possible and linked to the likely time period within which (p. 130) documents in the particular category of documents described are likely to have been created, with perhaps a small degree of leeway either side of those dates. For example, a request for correspondence relating to what was agreed at a meeting between named individuals on a particular date is likely to have been generated in a relatively short period after the date of the meeting.

• Custodians (identified by name or email address): Identification of individuals who are likely to be the sender, recipient, or author of documents requested, or likely to hold such documents by reason of their role or function is extremely useful. Searches can be made by reference to these details. Depending on how conscientious the requesting party is, there are various refinements that may be made to limit custodian related searches. For example, a request for emails passing between Mr A and Mr B will produce two copies of each email (the one sent and the one received). In contrast, if the request limits the search to email folders of Mr A and asks for emails to or from Mr B, only one copy should be produced. In practice, the wider search may not impose a significant additional burden because of the availability of software that can deduplicate a data set to remove identical copies. However, all such methods of limiting searches for documents in electronic form should be carefully considered.

• Search terms. Date and custodian criteria can impose useful limits on a search for electronic documents. However, depending on the nature of the business being conducted by the party in possession of the documents, application of these filters alone may still produce a large volume of irrelevant documents. It is therefore useful to identify particular words or phrases that are likely to occur in the particular documents being sought, either on their own or in combination with other words or phrases. Clearly, to be useful, these must be specific to the particular subject matter of the documents. For example, in a dispute between an hotel owner and a large management company with responsibility for a number of hotels, where the owner claims the management company is in breach of contract for letting customer service standards slip at the owner’s hotel, a search for ‘complaint’ in the management company’s records has the potential to pull up a large number of documents unrelated to the owner’s hotel. If that search were run in combination with the name of the owner’s hotel, a more targeted set of documents might be produced.

• File types: to avoid misunderstanding it is prudent to indicate the standard file types that the requesting party expects to receive (for example, .pst files (emails), Microsoft Word files, pdf files, .msg, .xls/xlsx, .ppt/.pptx, and jpg files, although some parties will wish to make clear that this is a non-exhaustive list.

6.76  Article 3.3(b) expresses a requirement that a Request to Produce contain a statement as to why the documents requested of the other party are ‘relevant to the case and material to its outcome’. The requirement of relevance and materiality, as well as the specificity requirement set out in Article 3.3(a),⁶⁷ are critical elements of a document production request made under the IBA Rules.⁶⁸

6.77  The benchmark of relevance and materiality underpins each of the tests for introduction of evidence contained in the IBA Rules. In addition to the requirement at Article 3.3(b), there is express provision for application of this benchmark at Article 2.3(a); Article 3.7; Article 3.10;⁶⁹ Article 3.11; Article 4.9; Article 4.10; Article 8.2; Article 8.5; Article 9.1; and Article 9.2(a). Those provisions are addressed in detail elsewhere in this text. Although the benchmark is the same in each case, the stage of the proceedings at which it is applied, the facts of the case, and the other requirements of the particular provision being applied are all factors that will all influence the outcome of its operation in each case.

6.78  The benchmark of relevance and materiality is one of the tools given to a tribunal to help it ensure that document production assists, rather than frustrates, an efficient determination of the dispute. Importantly, the benchmark also sets parameters for document production that—for the most part—are acceptable to parties and practitioners from different legal traditions. As mentioned, if applied robustly it can prevent ‘fishing expeditions’, but will also facilitate introduction into evidence of documents that are germane to the dispute.

6.79  At a practical level, confining document production within reasonable parameters assists in reducing the number of documents introduced to the record in an arbitration. The large and growing volume of documentary evidence used in international arbitration brings a number of challenges. It often involves delay, as documents are searched for, reviewed, delivered, and digested. It can also involve significant additional costs that, as well as being generally undesirable, can exacerbate inequalities of resources between parties. In addition, while the parties may very often have teams of lawyers and experts available to pore over these documents, the same is not true of arbitrators, who are very often expected to wade through a vast amount of material that later turns out to be of little significance.⁷⁰ A review of the transcripts of evidentiary hearings, and of (p. 132) the final award(s) in many arbitrations, will show that the number of key documents referred to by the parties, and relied on by the tribunal, is usually few in number.

6.80  Whether the benchmark of relevance and materiality introduced under the 1999 IBA Rules⁷¹ led the way, or followed an emerging approach, it is clear that the current IBA formulation represents accepted best practice for document production in international arbitration. In some cases, the benchmark may be stated expressly in the applicable arbitration rules (see, for example, SIAC Rules Article 27(b); SCC Rules Article 31(3); and HKIAC Rules Article 22.3). In other cases, it is not mentioned, but the test of relevance and materiality is nonetheless applied by the tribunal.

6.81  The LCIA Rules omit any reference to materiality;⁷² however, in the leading commentary on the LCIA Rules, it is noted that the benchmark of relevance and materiality set out in the IBA Rules is frequently adopted by LCIA tribunals. When commenting on application of Article 22.1(v) the authors say:

International arbitrators will have different approaches to the scope of disclosure each party must make. Arbitrators from civil law jurisdictions are often said to be less keen to order disclosure than their colleagues from common law jurisdictions. However, in recent years growing reliance has been placed by many international arbitrators, including in LCIA arbitration proceedings, on the provisions of the IBA Rules on the Taking of Evidence in International Arbitration. In particular, Articles 3 and 9.2 of the IBA Rules are regularly cited as containing the relevant principles governing documentary disclosure in international arbitration.

Thus, the requesting party will have to satisfy the Arbitral Tribunal that . . . the document is ‘ . . . relevant to the case, and material to the outcome . . . ’.⁷³

6.82  The ICC Rules contain no provision dealing specifically with the production of documentary evidence.⁷⁴ However, the ICC Commission Report on Techniques for Controlling Time and Costs in Arbitration recommends that the parties and the (p. 133) tribunal should consider referring to Article 3 of the IBA Rules for guidance and limiting requests to the production of documents that are relevant and material to the outcome of the case.⁷⁵ The list of case management techniques available to tribunals for controlling time and costs suggested at Appendix IV of the ICC Rules suggests the same approach.⁷⁶

6.83  One review of ICC procedural orders indicates that, in just over half of the ICC orders examined, the tribunal referred to the relevance and materiality of the documents when deciding whether or not to order their production. The review also noted a number of references made by tribunals to the IBA Rules as an embodiment of accepted good practice.⁷⁷

6.84  The ICC Task Force on E-Discovery adopted a broadly similar formulation to the relevance and materiality benchmark in the IBA Rules, providing also for considerations of proportionality in addition to picking up the requirements of specificity stated in Article 3.3(a)(ii).⁷⁸ There are many other examples.⁷⁹

6.85  There are exceptions to this approach. A small number of arbitration rules contain express reference to a different benchmark. For example, Article 50(b) of the WIPO Rules refers to the power of the tribunal to order production of documents that the tribunal considers ‘necessary or appropriate’.⁸⁰ The ICSID Rules state that production of documents may be ordered by a tribunal where it ‘deems it necessary’.⁸¹

6.86  It might be argued that the standard for document production contained in these alternative formulations imposes a more onerous burden on the requesting party than the relevance and materiality test laid down in the IBA Rules. However, there is some evidence to suggest that, in practice, tribunals may see little difference between these benchmarks.⁸² For example, a procedural order issued by one ICSID tribunal contained the following statement:

(p. 134)

The Tribunal further considers that in deciding whether or not it is necessary to order production of a document, it should be guided by the tests of relevance and materiality in the IBA Rules. The Tribunal finds no underlying conflict between these concepts.⁸³

6.87  In another ICSID case, the tribunal gave guidance suggesting that necessity and relevance are synonyms in the context of document disclosure. It stated that the required analysis:

[R]elates to a substantive inquiry into whether the documents requested are relevant to, and in that sense necessary for, the purposes of the proceedings where the documents are to be used.⁸⁴

6.88  The review of ICC procedural orders mentioned supports this view. While noting that arbitrators have considerable freedom when deciding how to exercise the power to order document production, the review shows that tribunals tend to be guided by a number of recurrent standards and principles reflecting the position under the IBA Rules.⁸⁵

6.89  Thus, while the manner in which tribunals exercise their discretion over document production will vary from one arbitration to another, a representative ‘international’ approach has begun to evolve in recent decades, consistent with the benchmark contained in the IBA Rules.⁸⁶

6.90  The concepts of ‘relevance’ and materiality’ find their origins in different legal traditions. Relevance to the case is a requirement for document disclosure that is typically used in common law jurisdictions where there is a broad understanding of what this description means. In these jurisdictions, provided a document is ‘relevant’, there is generally no inquiry as to whether the document is ultimately necessary in order to enable the court to decide the case. In contrast, civil law concepts strongly influence the IBA requirement that a document must be material to the outcome of the case. In civil law jurisdictions, the judge will examine and inquire what allegations are disputed and may order production of any document necessary to establish those allegations.⁸⁷

6.91  Under the 1999 IBA Rules the benchmark adopted was ‘relevant and material to the outcome of the case’. This is in contrast to the formulation used in the current IBA Rules: ‘relevant to the case and material to its outcome’.⁸⁸ The formulation in the 1999 IBA Rules was often interpreted to mean that ‘relevance’ and ‘materiality’ were part of a (p. 135) single requirement that carried a degree of redundancy between the two concepts.⁸⁹ It is widely accepted that the revised formula in the current IBA Rules contains two limbs (‘relevant to the case’ and ‘material to its outcome’) and that both limbs must be satisfied.⁹⁰ The IBA Rules do not contain a definition of either term.

6.92  In addition to the mentioned distinction between legal traditions, there is some suggestion that the two limbs reflect two differing perspectives—that of the parties, and that of the tribunal. This makes sense. ‘Relevant to the case’ may be seen as meaning that a document or content of a document will reasonably assist a party in establishing its case while ‘material to its outcome’ is to be seen as relating to the tribunal’s right to evaluate a requested document in light of whether it will have a bearing upon the final award.⁹¹

6.93  Some commentators suggest that the requirement of ‘relevancy’ continues to be wrapped up in the second limb of materiality—ie a document that is material to outcome is always relevant to the case.⁹² While in some cases this may be true, it is a simplistic analysis that ignores the dual perspective highlighted earlier.

6.94  A more general point to bear in mind in relation to both relevance and materiality is that the IBA Rules are not intended to limit a substantive right to documents that may exist independently of the document production process.⁹³ The benchmarks of relevance and materiality cannot be used by a party to resist operation of a substantive right—for example, a contractual or statutory obligation.⁹⁴ Both the form and substance of production requests based on a substantive right have to be examined by reference to rights and obligations existing under the applicable substantive laws, and not against the benchmark of relevance and materiality.⁹⁵

6.95  The IBA Rules contain no definition of ‘relevant to the case’.

6.96  Various descriptions of what must be demonstrated by a statement of relevance delivered under Article 3.3(b) have been put forward. We suggest that an appropriate (p. 136) base test for relevance is whether the document will assist the requesting party, either to establish the truth of the allegations of fact relied on to support its legal case, or because it is inconsistent with the facts relied on by its opponent(s). Documents meeting this formulation will not be limited to documents relevant to witness evidence, and may include documents that establish or discredit facts on which expert evidence is based.

6.97  This approach is supported by other commentators. For example, it is said that to demonstrate relevance the requested document must be useful for a line of evidence followed by the requesting party in order to establish the truth of factual allegations on which legal conclusions are based.⁹⁶ In similar terms, a document is said to be relevant if it is likely to prove a fact from which legal conclusions are drawn.⁹⁷ Another view notes that the requested document may serve to support the requesting party’s allegations in the case or, on the contrary, may be necessary to repudiate allegations made by the other party.⁹⁸

6.98  Documents that contradict a written witness statement are relevant to the case. A party can typically use such documents to present them to an opponent’s witness during cross-examination. A more interesting question concerns documents that are unrelated to the case, but which touch on the credibility of the witness. On one view, such documents are irrelevant to the issues in the case and therefore fall outside of the parameters laid down by Article 3.3(b).⁹⁹ However, if the documents are of a nature that are likely to substantially undermine the credibility of a key witness for the producing party, it is difficult to see why they would not be material to the outcome of the case and therefore also relevant to it within the context mentioned.

6.99  In order to demonstrate relevance in the terms described here, it is good practice for parties to explain in their document production requests the relationship between a document requested and the issue in the written submissions to which it is said to relate. One experienced arbitrator has put it in these terms:

[T]he requesting party should be invited to make clear with reasonable particularity what facts or allegations(s) each document or category of documents sought is intended to establish.¹⁰⁰

6.100  A ruling in an unpublished ICC award makes the point that:

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 (p. 137) arbitral tribunal are able to refer to factual allegations in the submissions filed by the parties to date.¹⁰¹

6.101  Where production requests are to be made in the form of a Redfern Schedule, the explanation should be included within the schedule.¹⁰² An example and template Redfern Schedule can be found at Appendix 4 and Appendix 5.

6.102  As noted, under the current version of the IBA Rules the requirement of materiality to outcome of the case is a separate and more onerous requirement than that of ‘relevant to the case’. It is a requirement formulated from the perspective of the tribunal. The key question to determine whether the requirement is met is if the requested document will have a material effect on the tribunal’s award. The document(s) must add something to the evidence on a factual issue that is on the critical path to a determination of the dispute. If it is clear that the document will have no bearing on the matters to be decided then the requirement is not met. The more difficult ground is where a document is likely to fall within the scope of the evidence to be considered by a tribunal in relation to an important issue between the parties, but the significance of the document is not readily apparent. Whether an IBA tribunal will be satisfied that the requirement of materiality is met is likely to turn, in practice, on the individual predilections of tribunal members, the quality of the analysis put forward by the party in support of the request and (if the request is opposed), the quality of the argument made by the other party. That said, if a very large number of requests are made it is only the most diligent of tribunals that may give such opposing arguments the consideration they merit.

6.103  It is nonetheless useful to consider some of the different ways in which the ‘material to outcome’ test has been paraphrased. These include: ‘[the documents are] material to the tribunal’s decision’;¹⁰³ ‘[the document] is needed to allow complete consideration of the factual issues from which legal considerations are drawn’;¹⁰⁴ ‘[a document which] would have a tendency to influence the tribunal's determination of issues in dispute’¹⁰⁵ or that will have a bearing upon the ‘likely merit of the point the requesting party seeks to support’.¹⁰⁶

6.104  Examples of documents likely to be material to outcome include: the test results of an allegedly defective product; sales statistics in relation to a claim for royalties; the (p. 138) metadata of a document where the issue is the timing or authenticity of the document; internal schedule analysis where there are claims of construction delay; or distributor sales figures in a claim for unpaid commission.

6.105  Examples of circumstances where a document may be found not to be material include: where an issue has already been conceded by one side and the document is not therefore material to the tribunal’s determination; where the matter to which the document relates is connected with the events underlying the dispute but is not on the critical path to a determination by the tribunal; or where the tribunal already has sufficient evidence on the particular issue.

6.106  ‘Relevant’ and ‘material’ are two separate requirements and it therefore follows that a document may be found by a tribunal to be relevant to the case, but not material to outcome.¹⁰⁷ In such circumstances, a request for production may be denied.

6.107  There are a number of circumstances where a tribunal may feel that, despite its relevant content, a document or category of documents will not be material to outcome. An obvious example is where the tribunal does not believe that the argument to which a document is relevant will affect its final award. The decision of the English Court in ABB v Hochtief Airport GmbH is a good illustration of this point.¹⁰⁸ In that case, the complaining party argued before the court that it had been unfairly discriminated against when a number of its document requests were denied by the tribunal during the arbitration. It argued that it had clearly shown that the documents in question were relevant to one of its arguments. In reviewing the conduct of the tribunal in light of the standards found in the IBA Rules (which by order of the tribunal were to apply), the court noted that, even though there did appear to be a connection between the document requests and the complaining party’s arguments in the case, the tribunal had not acted unfairly in denying document production. It was plain that the tribunal did not consider that the requested documents would assist with its determination. The argument to which the requested documents related was immaterial to outcome.¹⁰⁹ In practice, a tribunal will have to be very careful not to prejudge the issue, or to be perceived as doing so.

6.108  Likewise, where the issue to which a document is relevant is no longer in dispute between the parties, there is little purpose to be served by admitting evidence on it.¹¹⁰ (p. 139) As mentioned, another situation where ‘relevant’ evidence can have no bearing on outcome is where the evidence already before the tribunal is sufficient to decide the particular issue to which the requested document relates. One reported ICC decision refers to a requesting party seeking the production of notes of witness interviews referred to in a report in order that the requesting party could check the accuracy and veracity of the statements made in the report. The tribunal pointed out that the requesting party would have the opportunity to question the witnesses at the hearing and that there was other material already on the record that could be used to prove the truth or otherwise of the statements made in the report. The request for production was denied.¹¹¹

6.109  In practice, depending upon the attitude of the tribunal, it may not always be essential for the issue to which the document production request relates to have been formally joined in the parties’ submissions for a tribunal to allow a request for production.

6.110  It is stated elsewhere that document production under the IBA Rules cannot be used as a means of ‘fishing’ to identify possible new allegations or claims¹¹² and that document production is aimed at obtaining evidence that is relevant and material to existing claims and issues in dispute between the parties. We agree with that position. However, the requirement of a current claim should not be applied too harshly. For example, a party may be about to amend its case to include new claims in circumstances where it would be inefficient to defer document requests relating to those new claims to a separate round of document production. The important point is that the requesting party should be in a position to explain and formulate the allegations being made in sufficiently precise terms for the benefit of the tribunal and its opponent. Provided such explanation can be provided, it will not always matter that the formal pleading containing the allegation follows shortly after the request. This will be something to be considered on a case-by-case basis.

6.111  In order to address the requirements of Article 3.3(b), when drafting document production requests, parties should be careful in relation to each document or category of document they want to see to:

(p. 140)

1. (a)  provide an explanation of the relevance of the requested document(s) that is supported by reference to the appropriate paragraphs of pleadings or submissions already before the tribunal; and

2. (b)  provide an explanation as to why the issue to which the document is said to be relevant is on the critical path to a determination by the tribunal, thereby making the document material to outcome.

There are, of course, other requirements that the Request to Produce will also have to meet—for example, narrowness and specificity of requests relating to categories of documents. These are dealt with elsewhere in this text,¹¹³ and are also described in the checklist at Appendix 7.

6.112  We are aware of a case in which the numerous strands of inter-related arguments pleaded by a respondent in an LCIA arbitration were systematically ‘unpicked’ by the claimant and an analysis carried out to determine which of those arguments were actually on the critical path to a determination of the dispute. The analysis was provided to the tribunal, which was conscientious in its review of the points made. A significant number of document requests made by the respondent were denied by the tribunal on the basis of a finding that the requested documents were not material to outcome.

6.113  A requesting party must explain in the Request to Produce why a document is relevant and material. Before ordering production of requested documents a tribunal must be satisfied that the benchmark of relevance and materiality has been met.¹¹⁴ As noted earlier, these requirements dictate to some extent the point at which a party is in a proper position to draft a Request to Produce.

6.114  In many cases the Request for Arbitration and the Response to it will contain very rudimentary information about the dispute. It is only when the parties have exchanged fully developed factual and legal submissions in a first round of submissions that it will be possible for (a) the requesting party to make out a case as to why the documents sought are relevant to the case and material to its outcome and (b) the arbitral tribunal to determine under Article 3.7 whether the issues to be proved by the documents are relevant and material.¹¹⁵

6.115  It is implicit in the terms of Article 3.1 (providing for each party to produce all documents on which it intends to rely—generally done with the first round of pleadings/submissions)¹¹⁶ that the tribunal will not entertain a request for document production (p. 141) prior to the submission of the primary substantive pleadings. In order to avoid duplication, tribunals will generally expect voluntary production of documents to take place first. In addition, until the first round of submissions is completed, the main issues in the case may not be clearly understood and it may not be possible to formulate a request meeting the requirements of specificity, relevance, and materiality.¹¹⁷ This view on the timing of requests for production under Article 3 is supported by the Commentary to the IBA Rules, which states:

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. The precise timing of such a request will be determined by the arbitral tribunal. It will naturally depend upon the specificity of the initial pleadings and any terms of reference or other documents identifying the issues.¹¹⁸

6.116  Similar views have been expressed by Professor Kaufmann-Kohler¹¹⁹ and by Yves Derains, the latter when writing more generally about achieving efficiency in international arbitration. Derains argues that document production should not take place until after the first round of submissions so that the tribunal can determine what documents are relevant and material, and to prevent fishing by the parties. He says that:

It is generally held that the parties should submit the documents on which they rely at the same time as they file their memorials, and that requests for document production should not be allowed until the parties have exchanged their first memorials fully presenting their respective cases. Only then will the arbitrators be able to determine whether the requested documents are relevant and material to the issue in dispute. This is practically impossible beforehand, as the arbitrators will not have received sufficient information on the dispute. Moreover it discourages so-called ‘fishing expeditions’, by means of which a party endeavouring to construct its case on the basis of the documents that it hopes to find in the other party’s files, without previously setting down its claims on the sole basis of the factual elements in its possession.¹²⁰

6.117  The point has also been made that making a document production request after delivery of submissions has the practical advantage that it will focus the parties’ respective document requests on the specific issues raised in submissions, and the tribunal will be better educated about what those issues are.¹²¹ There seems to be a consensus that (p. 142) having document production requests after first round submissions represents best practice.¹²²

6.118  By way of illustration, in one ICC case the tribunal rejected a request for production of accounting documents and sales information made by the claimant with its Statement of Claim because the respondent had not yet had an opportunity to submit its answer to the Statement of Claim with supporting documents.¹²³ In Merrill & Ring Forestry LP v Canada, a claim conducted under the UNCITRAL arbitration rules, the claimant made a request to have document production in the early stages of the arbitration, prior to the filing of the statement of claim, and the defence. The tribunal declined the claimant’s request and ordered that the disclosure phase take place after the filing of primary evidence by both sides with their respective statements. In its comments to the parties, the tribunal noted that the document disclosure should be restricted to relevant evidence ‘still missing’ from the record, which may be deemed necessary’.¹²⁴

6.119  US law firm respondents to a survey on use of the IBA Rules reported that they have seen tribunals resist very early requests for document production because the tribunal did not yet feel that it had enough context to understand whether a document or category was relevant. In one case, with the aim of resolving allegations that one party was engaged in a ‘fishing expedition’, the tribunal decided that documents would not be deemed relevant unless the responsive category of documents was ‘undoubtedly perceived relevant at the time of the request’. In another case, the tribunal allowed a party to present a mini-summary of its case to establish to the tribunal’s satisfaction that the documents it requested early on in the proceedings were relevant.¹²⁵