Under Article 15 of LCIA Rules[1], parties only need to submit essential documents, which means identified documents that are relevant to the case and material to its outcome. This concept is common in international arbitration, but differs from English common law traditions, which require far more rigorous disclosure[2]. In order to encompass arbitration held both in common law jurisdictions and civil law jurisdictions, Art. 22(1)(v)[3] leaves a large scope of discretion to the arbitral tribunal to order parties to produce relevant documents in their possession, custody or power. However, tribunals should be bound by their general obligation under article 14.4,[4] which requires them to act fairly and impartially, and to avoid unnecessary delay and expense.
The unique aspect of the LCIA Rules on document production is its Annex,[5] which prohibits legal representatives from knowingly procuring or assisting in the preparation of, or relying upon, any false evidence,[6] and knowingly concealing or assisting in the concealment of any document when the legal representative knew that the party had an obligation to produce the ordered document[7]. In case of violation, the Tribunal[8] may issue a ‘written reprimand’ or a ‘written caution as to future conduct in the arbitration,’ or even exclude legal representatives from the arbitration or report misconduct to local professional authorities. This is a far stronger sanction than under other arbitration rules, where the primary sanction is the potential drawing of adverse inferences against a party.
[1] http://www.lcia.org/Dispute_Resolution_Services/lcia-arbitration-rules-2014.aspx#Article%2015
[2] Courts may impose parties to search for and disclose relevant documents to each other and to the court, regardless if such documents are helpful or unhelpful to a party’s case.
[3] Article 22 (1) of LCIA Rules (2014) The Arbitral Tribunal shall have the power, upon the application of any party or (save for sub-paragraphs (viii), (ix) and (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: (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: http://www.lcia.org/Dispute_Resolution_Services/lcia-arbitration-rules-2014.aspx#Article%2022
[4] http://www.lcia.org/Dispute_Resolution_Services/lcia-arbitration-rules-2014.aspx#Article%2015
[5] General Guidelines for the Parties’ Legal Representatives: http://www.lcia.org/Dispute_Resolution_Services/lcia-arbitration-rules-2014.aspx#Annex
[6] Paragraph 4 of ANNEX TO THE LCIA RULES: A legal representative should not knowingly procure or assist in the preparation of or rely upon any false evidence presented to the Arbitral Tribunal or the LCIA Court.
[7] Paragraph 4 of ANNEX TO THE LCIA RULES: A legal representative should not knowingly conceal or assist in the concealment of any document (or any part thereof) which is ordered to be produced by the Arbitral Tribunal
[8] Article 18.6: If such violation is found by the Arbitral Tribunal, the Arbitral Tribunal may order any or all of the following sanctions against the legal representative: (i) a written reprimand; (ii) a written caution as to future conduct in the arbitration; and (iii) any other measure necessary to fulfil within the arbitration the general duties required of the Arbitral Tribunal under Articles 14.4(i) and (ii): http://www.lcia.org/Dispute_Resolution_Services/lcia-arbitration-rules-2014.aspx#Article%2018
