Document production is one of the most controversial yet essential steps in international arbitration. Since cases are generally decided based on documents rather than oral testimony, document production can be a powerful tool for discovering evidentiary material crucial to winning an arbitration.[1]
It is not surprising that arbitral proceedings commonly include a document production phase. The scope of such disclosure can differ because of the parties’ expectations from civil and common law jurisdictions. Most national laws and institutional rules recognise, implicitly or expressly, the arbitral tribunal’s power to order the production of documents and draw adverse inferences from an unjustified refusal to produce documents.[2]
In today’s practice, the IBA Rules on the Taking of Evidence in International Arbitration (the “IBA Rules of Evidence”) outline the typical international approach to document production. These rules are widely used in the arbitration community and are considered to reflect best practices.[3]
Document Production: The Civil and Common Law Perspectives
In international arbitration, parties, counsel and arbitrators often come from different countries and have different legal backgrounds. The scope of production will therefore be, to some extent, influenced by the legal training and experience of the arbitrators.[4]
Whereas the principles and rules on document production differ significantly between common law and civil law regimes, these differences have been mitigated in recent decades.[5] Additionally, experienced arbitrators will generally seek to reach procedural decisions that are in line with internationally accepted standards.[6]
The Common Law Approach
In the common law system, the production of documents is based on the presumption that all relevant documents to a dispute should be disclosed to the other party.[7] Under the common law system, the judge is more inclined to seek out the truth, which justifies the necessity of disclosing all pertinent documents in the hands of the other party.[8]
In this respect, parties in a common law system have a duty to produce documents that may be unfavourable to their claims or defences in this search for the truth.[9]
Further, common law proceedings are more adapted to the disclosure of documents. Discovery is usually conducted by the parties and occurs after a round of pleadings and before the trial. The courts do not receive the produced documents but may intervene if one party does not cooperate. Only at the trial will the court have access to the documents exchanged, if one of the parties uses them as evidence.[10]
Thus, in the common law system, the purpose of document production is not to prove particular facts but to inform the other party about the existence and content of documents that are in the possession of its opponent.[11]
The Civil Law Approach
The civil law system, on the other hand, focuses on the burden of proof. Thus, document production is a mechanism to discharge this burden rather than a tool to inform the parties about particular facts of the case.[12] Each party will have its version of the factual background and will confront these versions before the court.[13]
In typical civil law proceedings, the parties will plead their cases before the court and submit all evidence to prove their case. The scope of document production is, therefore, narrow.[14] Parties can only request documents that can be identified with sufficient precision and details.[15]
Another difference lies in the role of the judge. The judge in civil law courts will conduct the evidentiary phase and is expected to intervene in the parties’ requests.[16]
In sum, under the civil law system, parties are expected to prove their own case and are not encouraged to file a claim without already being in possession of the core documents establishing their claims.[17]
Both the civil and common law systems have influenced contemporary arbitration practice, however.[18]
The Arbitral Tribunal’s Powers in Document Production
Document production is governed by the arbitration agreement and the procedural law of the arbitration (generally the law of the seat).[19]
These two sources outline arbitral tribunals’ power to order document production.[20] In practice, most national legislation contains few provisions regarding document production in arbitration, leaving to the parties and arbitrators the decision on the scope of document production.[21]
Arbitration Rules in Document Production
Most institutional rules grant the arbitral tribunal power to order the production of documents by the parties.
- The LCIA Rules
Article 22 of the 2020 LCIA Rules gives tribunals ample authority to order the parties to produce documentary evidence and to provide access to other materials, such as goods, samples and property:[22]
The Arbitral Tribunal shall have the power, upon the application of any party or (save for sub-paragraph (x) below) upon its own initiative, but in either case only after giving the parties a reasonable opportunity to state their views and upon such terms (as to costs and otherwise) as the Arbitral Tribunal may decide:
[…]
(iv) to order any party to make any documents, goods, samples, property, site or thing under its control available for inspection by the Arbitral Tribunal, any other party, any expert to such party and any expert to the Tribunal;
(v) to order any party to produce to the Arbitral Tribunal and to other parties documents or copies of documents in their possession, custody or power which the Arbitral Tribunal decides to be relevant[.]
For more information on document production under the LCIA Rules, see Document Production under the LCIA Rules.
- ICC Rules of Arbitration
The 2021 ICC Rules are less explicit than the LCIA Rules. Article 25(1) of the ICC Rules provides that “[t]he arbitral tribunal shall proceed within as short a time as possible to establish the facts of the case by all appropriate means.”[23] Article 25(4) adds that “[a]t any time during the proceedings, the arbitral tribunal may summon any party to provide additional evidence.”
Although the ICC Rules do not expressly empower the tribunal to order disclosure, ICC tribunals have consistently held that such an authority is implied in the ICC Rules.[24]
- The UNCITRAL Rules
Article 27(3) of the 2013 UNCITRAL Rules makes clear that tribunals are empowered to order the production of documents or other evidence:[25]
At any time during the arbitral proceedings the arbitral tribunal may require the parties to produce documents, exhibits or other evidence within such a period of time as the arbitral tribunal shall determine.
Article 27(3) gives tribunals broad discretion. Thus, if a tribunal concludes that it would be assisted by a general order to produce all documents or a particular category of documents that seem to be relevant, Article 27(3) authorises the tribunal to direct an order to the parties.[26]
Notably, nothing in the above arbitration rules prevents tribunals from providing for the parties to make requests for disclosure to each other.
National Laws
- UNCITRAL Model Law
The 2006 UNCITRAL Model Law does not specifically deal with the subject of document production. Articles 19(1) and (2) broadly refer to the parties’ procedural autonomy, which by default encompasses the issue of disclosure:[27]
Subject to the provisions of this Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.
Failing such agreement, the arbitral tribunal may, subject to the provisions of this Law, conduct the arbitration in such manner as it considers appropriate. The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.
If parties have selected an arbitral institution, Article 19(1) gives effect to any provision regarding document production in the institutional arbitration rules.
- US Federal Arbitration Act (FAA)
Section 7 of the US Federal Arbitration Act, in turn, specifically authorises arbitrators to direct parties to the arbitration and third parties to produce any evidence deemed material as evidence of the case:
The arbitrators selected either as prescribed in this title or otherwise, or a majority of them, may summon in writing any person to attend before them or any of them as a witness and in a proper case to bring with him or them any book, record, document, or paper which may be deemed material as evidence in the case.
- English Arbitration Act
Section 34(1) of the 1996 English Arbitration Act also expressly provides that an arbitral tribunal has the power to determine procedural and evidential matters:[28]
It shall be for the tribunal to decide all procedural and evidential matters, subject to the right of the parties to agree any matter.
The English Arbitration Act also gives courts authority to order the production of documents by third parties for arbitrations seated in England (Sections 44(1) and (2)):[29]
(1) Unless otherwise agreed the parties, the court has for the purposes of and in relation to arbitral proceedings the same power of making orders about the matters listed below as it has for the purposes of and in relation to legal proceedings.
(2) Those matters are—
(a) the taking of the evidence of witnesses;
(b) the preservation of evidence;
(c) making orders relating to property which is the subject of the proceedings or as to which any question arises in the proceedings—
(i) for the inspection, photographing, preservation, custody or detention of the property, or
(ii) ordering that samples be taken from, or any observation be made of or experiment conducted upon, the property;
and for that purpose authorising any person to enter any premises in the possession or control of a party to the arbitration;
(d) the sale of any goods the subject of the proceedings;
(e) the granting of an interim injunction or the appointment of a receiver.
- French Arbitration Act
Despite the lack of express provisions in most civil law legislations, questions related to the disclosure of documents are understood to be inherent to the tribunal’s general power to conduct the arbitral proceedings in the absence of a contrary agreement between the parties.[30]
One exception, however, is the French Arbitration Act (Decree No. 2011-48 of 13 January 2011) which expressly allows arbitrators to order the parties to produce evidence:[31]
The arbitral tribunal shall take all necessary steps concerning evidentiary and procedural matters, unless the parties authorise it to delegate such tasks to one of its members.
The arbitral tribunal may call upon any person to provide testimony. Witnesses shall not be sworn in.
If a party is in possession of an item of evidence, the arbitral tribunal may enjoin that party to produce it, determine the manner in which it is to be produced and, if necessary, attach penalties to such injunction.
IBA Rules on the Taking of Evidence in International Arbitration
The IBA Rules of Evidence provide a frequently used procedure for document production in international arbitration. The latest edition was released on 17 December 2020.
Under the IBA Rules of Evidence, each party discloses the categories of documents relevant to its case or defence in advance. Thus, under Article 3(2) of the IBA Rules of Evidence, the tribunal determines a date on which each party shall request an identified category of documents to be disclosed by the opposing party.[32]
Each party must detail the relevance and materiality of its requests and explain why certain categories of documents “are relevant to the case and material to its outcome”.[33]
These requests are typically provided in the form of a Redfern Schedule, including:
- the requests for production;
- the justification as to the materiality and relevance of the requests;
- the reasoned objections, if any, to the requests; and
- the decision of the arbitral tribunal.
Parties shall also state that (i) the documents requested are not in their possession, custody or control or why it would be unreasonably burdensome for them to produce such documents, and (ii) the reasons why it is reasonable to assume that the requested documents are in the possession, custody or control of the other party.[34]
After the exchange of requests for disclosure, the tribunal generally grants one to four weeks for the parties to respond to the request made by the other party. Each may (i) voluntarily produce the requested document(s)[35] or (ii) challenge the request based on immateriality, insufficient specification, privilege, or considerations of procedural economy.[36]
The parties are often allowed to respond to the objections, reaffirming the materiality and relevance of the requests.
After examining the requests and objections, the tribunal gives an order for disclosure or rejects the request. Tribunals can also rephrase or narrow the requests of one party to encourage the production of certain documents.
Adverse Inferences in Document Production
Unlike domestic judges, arbitrators have no direct power to force a party to produce documents that they have ordered to be produced. As noted above, however, tribunals have broad authority regarding evidentiary matters, including the power to draw adverse inferences.[37]
For example, the ICDR Rules, in Article 24(9), explicitly authorizes the tribunal to draw adverse inference:[38]
In the event a party fails to comply with an order for information exchange, the tribunal may draw adverse inferences and may take such failure into account in allocating costs.
However, contrary to the ICDR Rules, very few provisions explicitly mention the tribunal’s ability to draw adverse inferences. In the absence of such a specific provision, it is accepted that the power to draw adverse inferences are inherent to the powers of arbitrators in evidentiary matters.[39]
Under the IBA Rules of Evidence, Article 9(6) provides that an arbitral tribunal may draw adverse inferences in the following situations:[40]
- when the party does not comply with the tribunal’s order to produce the requested document; and
- when the party does not object to a request in due time but does not produce the requested document.
Adverse inferences mean that the arbitral tribunal “may infer that such evidence would be adverse to the interests of that Party.”[41] Therefore, the tribunal can consider a fact to be proven as a consequence of an adverse inference, and a party can be discharged of its burden of proof.[42] This can be very important in practice, and many cases are won the basis of adverse inferences.
Finally, adverse inferences can only be drawn if the tribunal has granted the request. For instance, there will be no adverse inferences if the requested document is deemed immaterial and irrelevant to the outcome of the arbitration.[43]
[1] R. Marghitola, Document Production in International Arbitration (2015), p. 1.
[2] G. Born, International Commercial Arbitration (3rd ed., 2022), p. 2497.
[3] Marghitola, supra fn. 1, p. 2; see also Born, supra fn. 2, p. 2534.
[4] Born, supra fn. 2, p. 2518.
[5] Id., p. 2520.
[6] Id., p. 2521.
[7] Marghitola, supra fn. 1, p. 12.
[8] Ibid.
[9] Ibid.
[10] Id., p. 13.
[11] Ibid.
[12] Id., p. 14.
[13] Ibid.
[14] Id., p. 15
[15] Ibid.
[16] Ibid.
[17] Id., p. 16.
[18] See id., pp. 16-20.
[19] Born, supra fn. 2, p. 2498.
[20] Ibid.
[21] Ibid.
[22] 2020 LCIA Arbitration Rules, Article, 22.1(iv) and Article 22.1(v).
[23] 2021 ICC Arbitration Rules, Article 25(1) and Article 25(4).
[24] Born, supra fn. 2, pp. 2514-2515 (citing Order in ICC Case No. 5542, in D. Hascher (ed.), Collection of Procedural Decisions in ICC Arbitration 1993-1996 62 (1997)).
[25] 2013 UNCITRAL Arbitral Rules, Article 27(3).
[26] Born, supra fn. 2, p. 2513; see also Marghitola, supra fn. 1, p. 27.
[27] 2006 UNCITRAL Model Law, Article 19(1) and Article 19(2).
[28] 1996 English Arbitration Act, Section 34(1).
[29] 1996 English Arbitration Act, Section 44(1) and Section 44(2).
[30] Born, supra fn. 2, p. 2505.
[31] 2011 French Arbitration Act, Article 1467.
[32] IBA Rules of Evidence, Article 3(2), “Within the time ordered by the Arbitral Tribunal, any Party may submit to the Arbitral Tribunal and to the other Parties a Request to Produce.”
[33] IBA Rules of Evidence, Article 3(3)(b).
[34] IBA Rules of Evidence, Article 3(3)(c).
[35] IBA Rules of Evidence, Articles 3(4).
[36] IBA Rules of Evidence, Article 9(2).
[37] Marghitola, supra fn. 1, p. 175.
[38] 2021 ICDR Arbitration Rules, Article 24(9).
[39] Marghitola, supra fn. 1, p. 175.
[40] IBA Rules of Evidence, Article 9(6).
[41] IBA Rules of Evidence, Articles 9(6).
[42] Marghitola, supra fn. 1, p. 176.
[43] Ibid.
