The expansion of international commercial arbitration in Latin America and the increasing involvement of Latin American lawyers as counsel and arbitrators in international arbitrations during the last fifteen years, as well as the exponential growth of seminars, workshops and other means of disseminating modern arbitration trends in the legal profession have had the positive consequence of educating Latin American professionals in the art of arbitration, including the production of documentary evidence in arbitral proceedings. Special mention should be made in this respect of the activity of the International Bar Association and, in particular, its 1999 Rules on the Taking of Evidence in International Commercial Arbitration (the 'IBA Rules'), which, in arbitrations held in Latin America or involving Latin American parties or counsel, as elsewhere, are increasingly adopted to govern evidentiary issues or serve as a source of inspiration in dealing with evidentiary matters. As far as document production is concerned, the IBA Rules constitute a felicitous blend of different legal traditions and may be seen as largely representative of present trends regarding document production in international arbitration.

It can therefore hardly be said that Latin American arbitrators and practitioners are ignorant of these trends and the particularities of document production in international arbitration. However, there are occasions when Latin American lawyers disregard or choose to depart from generally accepted trends regarding document production, just as experienced arbitration lawyers from a common law background not infrequently do likewise by importing into document disclosure procedures discovery practices rooted in the common law tradition.

As far as Latin American practitioners are concerned, various reasons explain why document production practices prevailing in international arbitration are sometimes not followed. Despite the greater availability of knowledge on international arbitration referred to above, practitioners may lack direct experience of how evidentiary matters are actually handled in practice in international arbitrations. In a significant number of cases, the principal reason for counsel not following prevailing trends in document production in international arbitration is strategy. Simply put, counsel prefers to resort to the forms of document production that he or she perceives as most appropriate to advance the client's interest in the case at hand. Thus, it is not uncommon to see Latin American counsel-with or without the back-up of common law counsel-pursue broad document discovery, prior to drawing up and submitting memorials on the merits, with the same eagerness as a seasoned New York litigator. [Page16:]

Strategy concerns may, on the other hand, lead Latin American counsel to seek agreement with its counterpart or a procedural determination from the arbitral tribunal on document production rules less flexible or open-textured than those found, for example, in the IBA Rules. When counsel does so, the pattern followed is often found in the rules of civil procedure governing court proceedings, for example in the Latin American country where the arbitral tribunal is seated or from which one or both parties to the dispute originate, since arbitration statutes and arbitration rules are likely to be of no avail.

If counsel to both parties agree on the application of document discovery mechanisms rooted in parochial procedural rules or principles, there is little the arbitral tribunal can do-having failed to persuade the parties not to take this course-to attenuate the effects of this decision, given that international arbitration rules and modern arbitration statutes (which have proliferated in Latin America) do not contain detailed provisions on document production and give the parties a predominant role in determining any procedural matters they do not cover. It is in such situations, therefore, that the contrast with current international arbitral practice regarding document production is likely to be most apparent. For this reason, below we turn our attention to the rules and principles regarding document production that are likely to be advanced by Latin American counsel or parties who look towards home practices or the codes of civil procedure of the Latin American countries where the arbitrations are seated. On the basis of our observations we would make the following four remarks:

1. The first remark to be made is that most national procedural systems in Latin American countries encourage full production of documents from the very beginning of court proceedings. In many (although not all) Latin American codes of civil procedure, the claimant is required to annex all documentary evidence to its petition.1 A distinction may be made between documents on which the claimant's claims are based (e.g. contract and its annexes, exchange of letters, company by-laws) and the documents upon the claimant is relying to prove facts in support of its case. The general trend, however (and sometimes this is explicitly stated in the relevant rules), is for the claimant to include with its petition all documents supporting its case, including those it relies upon to prove factual, and not merely legal, matters.2 Some Latin American countries have recently even included this requirement in their arbitration legislation-usually in relation to domestic arbitration (although not always confined thereto).3 Only in exceptional circumstances can documents predating the petition be later introduced into the proceedings, e.g. (i) documents or facts invoked in the answer to the petition or in the counterclaim, (ii) allegations of hechos nuevos or 'new events or facts' that occurred after the filing of the petition or the counterclaim or that could not have been known at the time of filing the petition or counterclaim.4 This system is to be contrasted with the flexibility allowed, for example, in institutional international arbitration rules that require only a minimum of documents to be submitted with the arbitration request so as to provide the institution with the information necessary for taking the preliminary steps to set the arbitration in motion.5

Despite the trend towards flexibility in international arbitration, it is not unusual for Latin American counsel to organize arbitral proceedings in such a way that they mirror the rigid system of document production described above or to incorporate in the proceedings a rigid pattern for controlling document production. This is due to a wish to avoid any surprises that might result from documents produced after the initiation of the proceedings. For this reason, they may require that all documentary evidence be produced with the initial pleadings [Page17:] or at an early stage of the proceedings, and exclude the possibility of introducing documentary evidence later. Occasionally, provision is made for a distinct stage in the proceedings at which objections may be made to evidence already produced and to the inclusion as evidence of documents submitted with the initial pleadings. Provision may even be made for parochial procedures aimed at challenging the authenticity of documents produced (tachas),6 which unnecessarily and adversely interfere with the proceedings on the merits and delay the rendering of the final award.

Such rigid views regarding document production have an impact on the procedural organization of the case and run counter to the commonly held view in international arbitration that the knowledge of a case continuously evolves as the case unfolds, and that the proceedings must adapt 'in light of developments and any new elements that may emerge'.7 This is to say that the allegation or emergence of facts-old or new-as the arbitration goes forward is a normal occurrence and requires a flexible structure for producing evidence that both permits and is adapted to such a changing scenario. It is quite often the case in arbitration that all the issues (and corresponding legal arguments) are not fully known or understood until the pre-hearing production of evidence has been completed (indeed, some may be properly grasped only after the post-hearing submissions) and that those issues and arguments may in principle be freely raised-subject to certain limitations8-throughout the proceedings. The greater flexibility of arbitration in this respect may possibly be attributed also to the fact that arbitral awards are normally not subject to review by appeal and the parties must therefore have a sufficient opportunity to present their cases and supporting evidence. To make sure that they are properly heard and to reduce the risk of error or confusion at the decision-making stage, the parties should not be burdened with rigid rules conspiring against their ability to produce and present evidence in support of their respective cases.

Nothing is more inimical to such flexibility and to the efficient management of the proceedings than, for example, subjecting the production of new documents to proof that new or unknown events have occurred or have become known, with all the concomitant procedural hurdles likely to ensue and derail the arbitration if a dispute arises over whether the event is indeed 'new' or 'previously unknown' to the party raising it. The same may be said of disputes arising over whether the party seeking to introduce documents that were not submitted with the petition was indeed unaware of their existence when the petition was filed. It is equally cumbersome and unnecessarily time-consuming to split the proceedings into different stages, with evidence produced at an initial stage being challengeable on grounds of admissibility and subject to determination at a subsequent stage prior to the hearing and the award on the merits. Such approach is not in keeping with the practice in international arbitration of allowing the arbitral tribunal to assess the evidentiary record before it in the course of its deliberations leading to an award on the merits.

2. Our second remark concerns the meaning and scope of the rights and concomitant obligations to produce documents under Latin American procedural codes and how they relate to: (i) the obligation for a party spontaneously to disclose all documents under its control relating to the dispute in question; and (ii) the obligation for a party to produce documents under its control at the request of another party or the court of law or arbitrator.

Taking the Argentine National Code of Civil and Commercial Procedure as an example, one of its provisions states that 'the documentation in the possession of [Page18:] one of the parties'9 must be attached to the petition. It is not said that only documentation in support of the claimant's position is to be attached, nor that the documents are limited to those on which the claimant's claims are based. Another provision requires the parties or third parties to disclose 'essential documents for the resolution of the dispute'.10 If the document is in the possession of a party, the judge may fix a time limit for it to be produced. If it is not produced, and if it can be inferred from the facts and circumstances that the document is very likely to exist and its subject matter can be identified, the judge may draw adverse inferences against the party failing to produce it.11 A third party may refuse to produce documents in its possession if it is the sole owner of the documents and production would be prejudicial to it. A formal objection by the third-party will suffice to justify non-production: in such case, neither the judge nor the interested party may further pursue the production of the document in question.12

The wording of these provisions would seem to suggest that from the beginning of the proceedings the parties have broad discovery obligations matching those under the US discovery system. In practice, however, although the parties have a general duty to contribute to establishing the true facts and circumstances of the case, it is widely recognized that such duty does not extend to the spontaneous production of documents contrary to the interest of the party in whose possession they lie. Although such party may be ordered by the judge or the arbitrator to produce the documents, it may refuse to do so, in which case it will simply risk adverse inferences being drawn against its case.

It is also worth noting that these provisions in the Argentine National Code of Civil and Commercial Procedure (and similar provisions found in the codes of civil procedure of other countries of Latin America13) do not list criteria for identifying the documents to be produced.14 Such criteria appear to have been supplied by judicial practice in Latin American countries. This practice would seem to require that the document be identified by pointing out the parties or persons between whom it passed, that its subject matter be specified, and the approximate date of its creation be indicated. Broad references to categories of documents without further precision would not seem to satisfy the requirements of judicial practice.

However, at least in the case of the Argentine National Code of Civil and Commercial Procedure,15 it could be argued that the criteria allowing adverse inferences to be drawn when a document is not produced are relevant to determining whether the request for document production is to be implemented or not. Thus, if a request provides the judge or the arbitrator with sufficient information (i) on the likelihood that the document exists and is held by the party requested to produce it, and (ii) on the subject matter of the document, its production could be ordered, if justified by the circumstances and on a case-by-case basis, without strictly observing the practice described above.

3. A third remark is that the wholesale importation into arbitral proceedings of a procedural system based on a Latin American code of civil procedure may open the door to other evidentiary measures allowing documents not hitherto produced by any of the parties or not sought to be produced by any of them to be included in the record. Such may be the case of expert evidence. Under some codes of civil procedure in Latin America, the expert or experts are appointed by the judge and not by the parties, or party-appointed experts may have to work together with a court-appointed expert in the preparation of a joint expert report (with room for riders containing dissents). The experts prepare their report on the basis of terms of reference containing the precise points (puntos de pericia) on which their [Page19:] opinions are required. Should the parties disagree over these points, the judge will decide. Although some procedural codes state that the experts' work is to be carried out on the documents previously identified by the parties, in practice the experts request any or both parties to provide additional or all documents they consider necessary to carry out their work as defined in the puntos de pericia, which are sometimes expressed in relatively broad terms. In many cases-for example, when experts are required to deal with economic or accounting issues-it is difficult to identify in advance the documents that may be introduced into the record through the action or at the request of the experts when pursuing their tasks or in support of their conclusions. If the role of the experts is not closely monitored by alert counsel, their intervention could lead to unexpected document production along the lines of, or even exceeding, Anglo-American discovery practices. Thus, an apparently more rigid evidentiary system, purportedly corresponding to Continental law traditions, may have the surprising and unexpected effect of allowing documents to be included in the record without any prior say by the parties to the arbitration.

4. A fourth and last remark is that the modern statutes on arbitration adopted by most Latin American countries provide that local courts shall, to varying degrees, lend support to arbitral tribunals with respect to enforcement orders and do not exclude orders for gathering evidence by way of document production.16 This is a very positive development, since the enforcement of orders or requests for document production facilitates the creation of a complete evidentiary record and thereby contributes to the fairness of the arbitral process, the just determination of disputes submitted to arbitration and the enhancement of the quality of arbitral justice. It remains to be seen, however, when such orders are addressed to non-parties, how questions regarding the jurisdiction of the arbitrators to issue them will be considered by local courts and under applicable arbitration statutes.

A possible conclusion that may be drawn from the above is that arbitration-and particularly international arbitration-is better served by (i) keeping it insulated from local procedural notions and rules and (ii) providing for support by local courts in the enforcement of arbitral determinations. This is particularly true in respect of evidentiary measures and, more specifically, measures or procedures relating to document production. Strategic preferences that lead practitioners to import local procedural techniques into international arbitration transform the arbitral process into a hybrid, often preventing it from delivering the type of procedural and substantive justice arbitration is supposed to provide and from living up to the high standards of quality expected from the international arbitral process. Although such preferences may be strategic, they also reflect a lack of familiarity with international arbitration on the part of counsel or arbitrators and the insecurity this creates. It is to be hoped that the ever growing exposure of Latin American counsel and practitioners to international arbitration proceedings will enable them to overcome such insecurity. This would undoubtedly be to the benefit of arbitration users in the region and contribute to the acceptance and expansion of international commercial arbitration in Latin America.

1
The exceptions include Peru (Article 308 of the Code of Civil Procedure) and El Salvador (Article 202 of the Code of Civil Procedure).

2
e.g. Mexican Federal Code of Civil Procedure, Articles 323-324; Argentine National Code of Civil and Commercial Procedure, Article 335. However, according to Article 340(6) of the Venezuelan Code of Civil Procedure, only the documents giving directly and immediately rise to the claimant's claims (e.g. the contract setting forth the parties' disputed rights and obligations) are to be attached to the petition.

3
e.g. Article 47 of Decree No. 914 of El Salvador; Article 10 of the Ecuadorian Arbitration Act. Article 751 of the Argentine National Code of Civil and Commercial Procedure provides-in connection with both domestic and international arbitrations seated in Argentina-that if the parties have not expressed otherwise, arbitral proceedings shall be governed by the procedural rules set forth in the code relating to court proceedings. Such rules, as described above, require all documentary evidence in support of the claimant's claims to be annexed to the petition.

4
e.g. Article 365 of the Argentine National Code of Civil and Commercial Procedure.

5
e.g. Article 4(3)(d) of the ICC Rules of Arbitration.

6
e.g. the procedure to hear and decide on tachas set forth in Articles 438-443 of the Venezuelan Code of Civil Procedure.

7
S. Lazareff, 'Terms of Reference' (2006) 17:1 ICC ICArb. Bull. 21.

8
Such limitations are naturally found in the directions or orders issued by arbitral tribunals establishing the sequence and procedural calendar for the production of documents and the terms and conditions under which such production is to take place. Normally, the production of documents during the hearing is subject to stringent restrictions and only exceptionally admitted when good cause is shown for the failure to produce the document prior to the hearing. Other restrictions relate to the scope of the claims already submitted. In ICC arbitration, no new claims may be submitted after the Terms of Reference have been signed or approved by the ICC International Court Arbitration without agreement of the parties or leave of the arbitral tribunal under Article 19 of the ICC Rules of Arbitration. Of course, no documentary evidence may be produced in connection with claims not submitted in accordance with those Rules. Finally, without leave from the arbitral tribunal, no additional argument or evidence may be produced in a case once the arbitral tribunal has declared the proceedings closed (Article 22(1) of the ICC Rules of Arbitration).

9
Article 333.

10
Article 334.

11
Article 388.

12
Article 389.

13
e.g. Articles 283-284 of the Colombian Code of Civil Procedure. According to Article 284, the party requiring production of the document must indicate the facts it intends to prove through the document, assert that the document is held by the party or third party at whom the request for production is directed, specify the category of document requested, and how the document relates to the facts that the requesting party is seeking to prove.

14
The Venezuelan Code of Civil Procedure (Article 436) provides that the requesting party must submit a copy of the document or, if this is not possible, assert the contents of such document and provide proof establishing at least prima facie that there is a strong presumption that the document in question is held by the party requested to produce it.

15
Article 388.

16
e.g. Article 22(2) and (4) of the Brazilian Arbitration Act; Article 745 of the Bolivian Code of Civil Procedure (as modified by Act No. 1770); Article 57 of El Salvador Decree No. 914; Articles 40 and 116 of the Peruvian Arbitration Act; Article 1444 of the Mexican Commercial Code; Article 753 of the Argentine National Code of Civil and Commercial Procedure.