1 Reto Marghitola, Document Production in International Arbitration (Kluwer Law International 2015) 11 (hereafter ‘Marghitola’).
4 See Chapter 3 (Definitions).
6 See further Hilmar Raeschke-Kessler, ‘The Production of Documents in International Arbitration: A Commentary on Article 3 of the New IBA Rules of Evidence’ (2002) 18 Arbitration International 411 (hereafter ‘Raeschke-Kessler’).
7 For example, the English Arbitration Act, s 34(2)(a). This provision grants to arbitrators broad powers to order disclosure by the parties to an arbitration but imposes no specific restrictions on the manner by which the tribunal arrives at a decision on this issue, subject always to the tribunal’s underlying duties of fairness, impartiality and efficiency under the English Arbitration Act, s 33. A decision of the Argentinian Court confirms that the tribunal has a wide discretion in relation to production of evidence: ‘[e]very Arbitral Tribunal has the power to ponder the evidence offered by the parties and only order the production of such evidence that it deems useful for the resolution of the conflict’. Sociedad de Inversiones Inmobiliarias del Puerto SA v Constructora Iberoamericana SA, Chamber D of the National Court of Appeals on Commercial Matters.
8 See, for example: SCC Rules Article 31(3); HKIAC Rules Article 22.3; UNCITRAL Rules Article 27.3; ICC Rules Article 25(5); Belgium Judicial Code Article 1700 s 4; Netherlands Code of Civil Procedure Article 1039 (4); English Arbitration Act 1996 s 34(2)(d).
10 Commentary on the IBA Rules (n 5) 7.
13 IBA Rules on the Taking of Evidence in International Commercial Arbitration 1999, Article 3.3 (hereafter ‘1999 IBA Rules’).
15 Peter Hafter, ‘The Provisions on the Discovery of Internal Documents in the IBA Rules of 1999’ in Gerald Aksen (ed), Global Reflections on International Law, Commerce and Dispute Resolution: Liber Amicorum in Honour of Robert Briner (International Chamber of Commerce 2005) 347.
16 Commentary on the IBA Rules (n 5) 7.
17 2016 IBA Report (n 3) para 39.
18 Tobias Zuberbühler and others, IBA Rules of Evidence: Commentary on the IBA Rules on the Taking of Evidence in International Arbitration (Sellier European Law Publishers 2012) 40 (hereafter ‘Zuberbühler’)
19 2016 IBA Report (n 3) para 87. The development of the Prague Rules on the Efficient Conduct of Proceedings in International Arbitration issued in December 2018 are another manifestation of this disquiet. The Note from the Working Group, in the draft of 1 September 2018, explained the rationale of the Prague Rules: ‘The drafters of the IBA Rules on the Taking of Evidence in International Arbitration (IBA Rules) bridged a gap between the common law and civil law traditions of taking evidence. The IBA Rules were very successful in developing a nearly standardized procedure in international arbitration, at least for proceedings involving Parties from different legal traditions and those with significant amounts at stake. However, from a civil law perspective, the IBA Rules are still closer to common law traditions, as they follow a more adversarial approach regarding document production, fact witnesses and party-appointed experts. In addition the parties’ entitlement to cross-examine witnesses is almost being taken for granted. [ . . . ]. In light of all of this, the drafters of the Prague Rules believe that developing the rules on taking evidence, which are based on the inquisitorial model of procedure and would enhance more active role of the Arbitral Tribunals, would contribute to increasing efficiency in international arbitration’.
20 For example, this is the case in England. See CPR 31.6.
21 See remarks in VV Veeder, ‘Are the IBA Rules “Perfectible”?’ in Teresa Giovannini and Alexis Mourre (eds), Written Evidence and Discovery in International Arbitration: New Issues and Tendencies (Kluwer Law International 2009) 321. An express obligation of good faith is contained in the IBA Rules on the Taking of Evidence in International Arbitration 2010, Preamble 3 (hereafter ‘IBA Rules’). See Chapter 2. Veeder suggests that, in principle, the introduction of a requirement of production of all documents manifestly relevant to the substantive issues between the parties into the IBA Rules could be based on the obligation to act in good faith.
22 2016 IBA Report (n 3) para 79.
23 Nathan O’Malley, ‘Document production under Art.3 of the 2010 IBA Rules of Evidence’ (2010) International Arbitration Law Review 186 (hereafter ‘O’Malley Document Production’). See also Mark McNeil and Margaret Clare Ryan, ‘Meeting the Requirements of Article 3(3) of the IBA Rules: Recommendations for Successful Requests for Document Production’ in Julio César Betancourt (ed), Defining Issues in International Arbitration: Celebrating 100 Years of the Chartered Institute of Arbitrators (OUP 2016) para 17.06 (hereafter ‘McNeil and Ryan’).
24 IBA Rules (n 21) Article 3.3(a)(ii). See also 6.69-6.75.
25 See Richard Kreindler, ‘The 2010 Revision to the IBA Rules on the Taking of Evidence in International Commercial Arbitration: A Study in Both Consistency and Progress’ (2010) International Arbitration Law Review 157, 158 (hereafter ‘Kreindler’).
26 See further Christopher Newmark, ‘ “Efficient, Economical and Fair”: The Mantra of the New IBA Rules’ (2010) 13 International Arbitration Law Review 165.
27 IBA Supplementary Rules Governing the Presentation and Reception of Evidence in International Commercial Arbitration 1983, Articles 4.1, 4.3.
29 Nathan D O’Malley, Rules of Evidence in International Arbitration: An Annotated Guide (Informa Law/Routledge 2012) para 3.06 (hereafter ‘O’Malley Rules of Evidence’).
30 For discussion see ibid para 3.08.
31 Of course, if the documents are material, and the other party is prejudiced by their late admission, the award could be subject to a challenge from the other side.
32 For discussion and examples of cases in the Netherlands, the US, and Switzerland, see O’Malley Rules of Evidence (n 29) para 3.06 and (n 9).
33 Letter from the President of the Arbitral Tribunal in ICC Case No 6465 in Dominique Hascher (ed) Collection of Procedural Decisions in ICC Arbitration 1993–1996 (Kluwer Law International 1997) 82
34 ICC Arbitration Commission Report on Controlling Time and Costs in Arbitration (International Chamber of Commerce 2018) paras 49–57 (hereafter ‘ICC Report on Controlling Time and Costs’).
35 Effective Management of Arbitration: A Guide for In-House Counsel and Other Party Representatives (International Chamber of Commerce 2014) 33. Topic Sheet 6 goes on to describe some of the factors parties should take into account in deciding what approach to document production is sensible in an individual case, and advocates the use of a cost/benefit analysis.
36 Berwin Leighton Paisner, ‘2013 International Arbitration Survey on Document Production in International Arbitration’.
37 See further Marghitola (n 1) 160, who concludes that the practice of limiting or excluding document production is unlikely to gain broad acceptance in practice. See also Jarred Pinkston, ‘The Case for a Continental European Arbitral Institution to Limit Document Production’ in Nikolaus Pitkowitz and others, Austrian Yearbook on International Arbitration 2011 (Manz’sche Verlags- und Universitätsbuchhandlung 2011) 87, which considers the potential for arbitral institutions to set limits to document production.
39 Zuberbühler (n 18) 46.
40 See Commentary on the IBA Rules (n 5). Despite the wide acceptance of the IBA regime, the mechanisms for controlling documents production contained in the IBA Rules remain the subject of ongoing debate. For example, Jaffe, Dulani, and Stute say that ‘the scope of production continues to divide scholars and practitioners alike’. Lotfi notes that ‘Given the diverging domestic standards regarding document production, international arbitration is a prime battleground for conflicting approaches’. See Michael Jaffe, Jeetander Dulani, and David Stute, ‘Burden of Proof as a Prerequisite to Document Production Under the 2010 IBA Rules: An Obituary’ (2017) 1 Transnational Dispute Management <www.transnational-dispute-management.com/article.asp?key=2440> accessed 29 November 2018 (hereafter ‘Jaffe, Dulani, and Stute’); Courtney Lotfi, ‘Documentary Evidence and Document Production in International Arbitration’ (2014) 4 Transnational Dispute Management <www.transnational-dispute-management.com/article.asp?key=2136> accessed 29 November 2018 (hereafter ‘Lotfi’).
41 IBA Rules (n 21) Article 3.3(a).
43 ibid Article 3.3(c)(i).
44 ibid Article 3.3(c)(ii).