I. Introduction

For a long time the differences between the litigation procedures in common law countries, such as England and the United States of America, and in civil law countries on the European Continent and elsewhere, have created problems in international commercial arbitration. Party representatives tend to present their cases in accordance with the rules under which they have been trained, and arbitrators often do the same, when issuing orders and when deciding on motions by the parties.

Such differences in background create misunderstandings, which in turn may have a negative effect on the fairness of the award.

Perhaps the most frequent of these misunderstandings relates to the issue of whether, when and how specifically the relevant facts have to be alleged.

Civil law proceedings are normally divided into two stages, the exchange of briefs in which the factual allegations are made (Behauptungsverfahren) and the taking of evidence (Beweisverfahren). Typically, the allegations made during the exchange of briefs must cover not only the ultimate facts on which the party relies, but also the evidentiary facts, from which the ultimate facts can be deduced or for which they serve as examples. In Switzerland the courts customarily refer to the 'obligation to specify' (Substantiierungspflicht); in other civil law countries other terms are used, but the rules are similar. Documents on which a party relies as evidence must usually be submitted with the briefs. If after the exchange of briefs factual issues remain in dispute, the court will normally hear witnesses and take other evidence.

In common law proceedings there is usually no need to allege evidentiary facts in the briefs (pleadings) exchanged prior to the trial. The pleadings typically contain only a statement of the ultimate facts constituting each cause of action or of defence. 1 The specific facts are not presented until the trial, when the witnesses are questioned. [Page347:]

If at a hearing lawyers trained in common law countries try to submit evidence for facts they did not allege specifically, and if their evidence is, therefore, not admitted, they may suffer an unfair disadvantage. If, on the other hand, their evidence is admitted, this may be unfair to their opponent from a civil law country, since he is confronted with evidence that he did not expect and to which he may not be able to react adequately.

The International Bar Association (IBA) tried to prevent such misunderstandings by adopting the IBA Rules on the Taking of Evidence in International Commercial Arbitration in 1999 (hereinafter, 'IBA Rules of 1999' or 'IBA Rules'), which replaced earlier rules that had been issued in 1983.

Since the traditional trial system, as practised in common law courts, is often not suitable for international commercial arbitration, most international arbitration proceedings are today conducted in the civil law style with an exchange of briefs, 2 in which specific allegations are made, followed by a hearing at which witnesses and sometimes expert witnesses are heard. The practical effect of the IBA Rules of 1999-if the parties agree to follow them-is, therefore, to add features from the common law system to proceedings that in essence follow the civil law system.

Many of the provisions of the IBA Rules facilitate the efficient and economical conduct of arbitral proceedings. It is certainly useful to remind the arbitrators and the parties in paragraph 4 of the Preamble that the taking of evidence should be conducted according to the principle that each party is entitled to know reasonably in advance the evidence on which the other party will rely. Article 4.2, which clarifies that parties and officers of parties may be questioned as witnesses, and Article 4.3, which states that it is not improper for a party or its representatives to interview witnesses before the hearing, bring sensible solutions to issues that have often been disputed. The use of witness statements, which is encouraged by the IBA Rules of 1999 (Article 4.4-4.8) is likely to save time and expense and to improve the quality of the fact finding.

The same cannot be said of the provisions in Article 3 of the IBA Rules of 1999, which, in combination with Article 9, cover the power of the arbitral tribunal to order the production of documents by one party at the request of the other party. This power is not limited to specific documents that have been[Page348:]

identified by the requesting party and which are intended to prove a specific allegation. Article 3.3(a)(ii) of the IBA Rules expressly permits requests for the production of documents that are identifiable only by category.

Documents that can only be identified by category are typicallyinternal documents of the opponent, such as confidential memoranda, internal reports and minutes of board and committee meetings. Such documents cannot be identified by the requesting party for the very reason that they are internal and confidential. The requesting party may assume that they must exist, without, however, having any actual knowledge.

Furthermore, the new IBA Rules of 1999 are often understood to permit not only requests for documents that will serve as evidence for allegations already made, but also requests aimed at obtaining factual information as a basis for further allegations. It is true that most authors agree that socalled 'fishing expeditions' should not be permitted3 and that the subject of the IBA Rules of 1999 is defined in Article 2.1 as the taking of evidence and not the collection of information. Nevertheless, requests for the production of documents are often filed at a very early stage of arbitral proceedings, long before the exchange of briefs has been concluded and before the requesting party knows which of its allegations will be disputed and therefore need to be proved. The IBA Rules of 1999 contain no provision clearly excluding requests for the purpose of obtaining information as a basis for the presentation of the case. 4

Doubts have been expressed about the usefulness of these provisions5 and some arbitration practitioners feel that they are disturbing rather than furthering the efficient and economical conduct of arbitral proceedings. Requests made in accordance with these provisions may lead to substantial delays and additional costs and they may spoil the climate of the proceedings. The arbitral tribunal's task of distinguishing between legitimate requests for evidence and improper requests for information is often difficult, particularly if a request is made at an[Page349:]

early stage of the proceedings. Unwise decisions at this stage are likely to undermine the confidence of the parties in their arbitrators and such lack of confidence will not facilitate the further conduct of the arbitration. It is often impossible for the parties to anticipate how the arbitral tribunal will decide on requests to produce documents, 6 and this uncertainty may make it more difficult for the parties to prepare their briefs and their cases. 7

It is submitted in this paper that the interest of a party that is not in possession of documents it needs to prove its allegations is adequately protected by the procedural systems of most civil law countries. It is further submitted that most of the elements of the US discovery procedure, which the IBA Rules of 1999 would introduce into international commercial arbitration, were developed in light of the distinctive features of the US trial system. They do not fit into modern arbitral proceedings.

II. Problems created by Article 3 of the IBA Rules of 1999

In civil law proceedings it is possible to make certain requests for the production of documents. They typically relate to specific documents needed as evidence for an allegation made by the requesting party. While such requests have always played a role in international commercial arbitration, there seems to be general agreement that since the adoption of the IBA Rules of 1999 their number has increased substantially. 8

The criticism of Article 3 of the IBA Rules does not concern requests that could have also been made in civil law proceedings, such as requests for the production of a specified document needed as evidence. It primarily concerns requests for the production of internal documents containing internal information. The aim of such requests is typically to learn what occurred within the requested party and what communications were exchanged between its officers and agents. Quite often such requests involve the implicit accusation that the requested party is not acting in good faith. [Page350:]

When the parties have agreed that the IBA Rules shall govern their proceedings, the arbitral tribunal will often, when issuing its first procedural order, define the time within which such requests must be submitted. 9 This time limit may end before the exchange of briefs has been completed and before it is known which allegations will be disputed and which will be admitted by the opponent.

As it is difficult to anticipate the approach the arbitral tribunal will take towards a request for production of documents, many party representatives regard it as sound litigation practice to file a request that is as comprehensive as possible at an early stage of the proceedings.

It is true that Article 3.3 of the IBA Rules of 1999 provides that if a category of documents is requested it must be 'narrow and specific' and that the documents must be 'relevant and material to the outcome of the case', but these limitations are subject to interpretation and they do not prevent a party from requesting the production of a category of documents that is neither narrow nor specific. It is often impossible for the arbitrators to determine whether a category as described by the requesting party will in fact be narrow and specific. The same is true for the requirement that the documents must be relevant and material. Must all the documents in the category described by the requesting party be relevant and material, or is it sufficient if one of them is likely to meet this requirement?

Upon receipt of a request to produce documents, the arbitral tribunal will have to invite the other party to answer the request. The preparation of such an answer may be timeconsuming, and it is likely that it will involve a substantial amount of work. It may be necessary for the requested party to explain categorybycategory, or even piecebypiece, why it has a legitimate interest in not making the requested disclosure and why its interest in keeping internal documents confidential should prevail.

Furthermore, it is likely that such a request will increase the antagonism between the parties. The requested party is likely to resent the often implicit accusation of bad faith and, as the request will cause extra work and expense, may come to the conclusion that the real goal of the request is harassment rather than a genuine need for information. All this is contrary to one of the principal motives for submitting disputes to arbitration, namely the parties' desire to continue a businesslike and gentlemanlike relationship, despite their disagreement. [Page351:]

Requests to produce internal documents may, therefore, lead to delays, as well as work and expense for the opponent, and the climate of the proceedings may be damaged, even if the request is ultimately rejected by the arbitral tribunal.

If the request is granted and if the arbitral tribunal orders the production of one or more categories of documents, this is likely to cause further delays and substantial work and expense. As the category of documents defined in the order may not correspond to the requested party's system of categorization, an extensive review of the files may be necessary in order to locate the documents covered by the order. When producing the documents, the requested party may have to comment on their contents so that the requesting party and the arbitral tribunal do not draw any incorrect and unfavourable conclusions from them. It seems that one of the reasons why many US corporations prefer to avoid the ordinary US courts and instead to provide for arbitration in their contracts is the wish to avoid the burden of extensive discovery.

Since compliance with an order to produce documents may cause substantial work and expense for the party ordered to produce, requests for production are sometimes used to harass the adversary. In particular, a respondent who knows that the claimant will ultimately succeed is encouraged to file extensive production requests, hoping that the delays, expenses and possibly also the fear of having to disclose confidential information will induce the claimant to agree to a settlement.

Apart from causing delays and increasing litigation expenditure for the parties, the discovery provisions of the IBA Rules of 1999 may also be contrary to the rule that the parties are to be treated equally. According to Article 9.2(a) of the IBA Rules of 1999, privileged documents are excluded from production. This may lead to unequal treatment if the parties are governed in this respect by different rules of law. Under most US laws, memoranda and reports by a company's inhouse counsel are privileged, 10 whereas in most civil law countries this privilege covers only the relationship between companies and their outside attorneys. Therefore, the production of a document prepared and kept by the inhouse counsel of a US corporation cannot normally be ordered, whilst no similar privilege applies to the documents of the inhouse counsel of its opponent from a civil law country. [Page352:]

The Working Party which drafted the new IBA Rules of 1999 has tried to deal with this problem through Article 9.2(g), which provides that documents may also be excluded as evidence-and therefore from production-for 'considerations of fairness or equality of the Parties that the Arbitral Tribunal determines to be compelling'. It was the intention that this provision should permit the arbitral tribunal to exclude from production and from evidence not only internal reports by a US inhouse counsel but also reports by his counterpart from a civil law country. 11

However, this provision does not fully reestablish equality between the parties. The civil law party must be informed about the extent of the legal privilege of the US side well in advance, in order to be able to benefit effectively from Article 9.2(g). 12 More importantly, a US party that enters into an agreement in which it anticipates the possibility of a dispute that may turn on whether or not it acted in good faith is likely to see to it that any considerations and statements that could be harmful in the event of a dispute will be limited to papers prepared by its inhouse counsel. A party from a civil law country, on the other hand, will be unlikely to take such precautions. Even though Article 9.2(g) allows the papers of the inhouse counsel of the party from a civil law country to be excluded from discovery, this will not reinstate equality between the parties if the US party has from the very outset been taking advantage of the privilege of inhouse counsel, while its opponent was unaware that this possibility existed.

This illustrates another undesirable effect of Article 3 combined with Article 9 of the IBA Rules of 1999: at an early stage of their relationship, the parties are encouraged to create a record that will be helpful rather than harmful if, in the event of a dispute in the future, the arbitral tribunal orders the production of internal documents. 13

Other problems arising from the discovery provisions of the IBA Rules relate to the difficulty of enforcement: there are few adequate sanctions, if the requested party either refuses to comply with the order to produce or if it appears to comply but omits to produce any documents harmful to its own case. [Page353:]

If in US proceedings a party violates obligations under the applicable discovery rules, the other party will usually seek a court order. If this court order is not obeyed, the disobedient party can be held to be in contempt of court, and a person who is in contempt can be fined or even jailed until she or he complies with the courts' discovery order. 14A US court ordering discovery therefore has the means to compel a party to comply with its order.

An arbitral tribunal acting on the basis of the IBA Rules does not have a similar power. If the requested party fails or refuses to comply, according to Article

9.4 of the IBA Rules of 1999 the arbitral tribunal may 'infer that such documentwould be adverse to the interest of that party'. This may be appropriate if the production of a specific document was requested as evidence for a specific allegation. In many cases, however, such inference would clearly not be appropriate and in other cases it may not even be possible for the arbitral tribunal to determine what adverse inference should be drawn. 15This creates the risk that the noncompliance will remain without any sanction, which in turn is likely to entail further difficulties: the party failing to produce the requested documents may fear that its refusal to comply has offended the arbitrators and may even argue that they have become biased as a result; the party requesting production may complain that the other party's failure to comply has gone unpunished. In any case, the arbitral tribunal's authority will be affected by such noncompliance and it is not unlikely that the efficiency of the subsequent proceedings will suffer.

If the requested party appears to comply but omits from production those documents that are really harmful to its case, it is unlikely that it will suffer any grave consequences. The risk that the omission will be detected is slim, and if it is discovered, the excuse that the omission was due to an oversight may be difficult to disprove, particularly if the category of documents to which the order applied was broadly defined. The criminal sanctions that enable the ordinary courts in civil law as well as common law countries to enforce compliance with their orders will not normally apply to orders issued by an arbitral tribunal under Article 3.6 of the IBA Rules of 1999.

Decisions on discovery rendered by arbitral tribunals pursuant to the IBA Rules may also be used in attempts to challenge the arbitrators or they may be the basis for attempts to set aside an award or to oppose its enforcement. It has, for instance, been argued that a party could claim that by rejecting a request for the production of documents an arbitral tribunal has violated the party's right of due process. 16[Page354:]

The opposite risk, namely the claim that a party's rights have been violated by an arbitral tribunal that has ordered the production of documents, seems even more relevant. It is customary for courts in many civil law countries to issue a 'procedural order' at the request of a party, by which the other party is directed to disclose a specific document on which the requesting party relies as evidence for a specific allegation. Such a procedural order is usually accompanied by a notice informing the requested party that if it fails to comply the court will consider the allegation as proven by the requesting party. The issuing of similar procedural orders by arbitral tribunals should not create any problems, provided that there is a clear link between the allegation to be proven and the document to be produced. Needless to say, even if there is such a link, the requested party may still raise objections, which will have to be considered by the arbitral tribunal.

If, however, an arbitral tribunal orders the production of documents in the absence of such a clear link between the allegation and the documents requested as evidence, the order may be problematic. Under many civil law systems it is primarily a question of substantive law and not of procedural law whether a party has an obligation to disclose information or produce a document. In Switzerland and other civil law countries a court may issue a procedural order specifying the sanction that will be applied if, by refusing to disclose a document, a party prevents its opponent from proving its allegation. But if there is no clear link between the requested document and a specific allegation, a court- or arbitral tribunal-may order the disclosure of information or documents only if the obligation to disclose follows from a rule of substantive law. 17 Failing a clear link, an order by an arbitral tribunal to disclose documents might, therefore, be the source of future difficulties.

III. The origin of pretrial discovery in the USA

Having reviewed the problems likely to arise from the IBA Rules on discovery, we will now examine the reasons that have led to discovery rules in common law countries, particularly the USA.

The Seventh Amendment to the US Constitution guarantees a right of trial by jury in all lawsuits at common law. 18 Similar guarantees have been adopted in the constitutions of almost every State in the USA. 19 Although the right to a[Page355:]

jury trial can be waived by the parties, there is little doubt that the US rules on civil procedure and especially those on evidence are tailored to proceedings in which questions of fact may have to be determined by a jury rather than a professional judge. In a jury trial the jurors may consider only what they have heard and seen at the trial. The briefs (pleadings) exchanged between the parties are not available to them, and they are informed of the parties' positions' only at the beginning of the trial when the parties' attorneys make their opening statements.

Discovery has not always been a part of US litigation. Before it was introduced, the rule that evidence may be presented only at the trial meant that not only the jurors but also the parties and their attorneys were often left in the dark about what their opponent's position or evidence at the trial would be. 20 Each party was aware of the pleadings of its opponent, but these normally stated only the 'ultimate facts' and not the specific 'evidentiary facts'. The common law courts were unable to compel a litigant to disclose before the start of the trial the facts and documents on which it relied.

The principal purpose of pretrial discovery was to eliminate this uncertainty. Discovery became a vital part of common law litigation in the USA in 1938 when the Federal Rules of Civil Procedure 26-37 were introduced. They were widely copied and nearly every US State adopted similar provisions permitting broad, intensive discovery. 21

The original purpose of discovery in the USA was to permit the parties and their attorneys to properly prepare for trial by informing them about the specific facts which their opponent intended to prove at the trial. In civil law litigation there is no need for such advance information. Evidence by testimony from witnesses is only admitted to prove facts that a party has specifically alleged in its briefs, and the documents on which a party relies as evidence will normally have been submitted to the court long before the hearing. When the questioning of the witnesses begins, both parties usually have a clear idea of the subject matter to be covered by the testimonies.

Since the facts are determined by judges, who usually follow the case from the beginning to the end, and not by jurors, who serve only for the duration of the trial, there is no need to restrict the presentation of evidence to the trial or[Page356:]

hearing. Civil law judges will start to evaluate the facts when they read the allegations and offers of proof in the briefs and when they study the documents annexed thereto. Sound litigation strategy in civil law countries is guided by the endeavour to bring the relevant facts to the attention of the court as early and as completely as possible. Since any allegation made by a party and any document filed by it will come to the attention of its opponent, both parties will know at an early stage, and in any case before the questioning of witnesses begins, what the specific subject matter of the testimonies will be.

Consequently, there is little risk of surprise and the problem that USstyle discovery was intended to resolve is not a major problem in civil law litigation. It certainly does not justify the discovery provisions in the IBA Rules of 1999.

IV. Means of obtaining information and evidence in civil law proceedings

Another purpose of discovery in the USA and other common law countries is to allow a party to obtain information that will lead to admissible evidence on the issues in dispute22 and-under certain conditions-factual information. It may, therefore, be worthwhile looking at the means of obtaining information and evidence available to a party in a civil law country.

1.Information to which a party is entitled as a matter of law or according to contract

If the party requesting the disclosure is entitled to receive the information as a matter of substantive law or according to its contract with the other party, it will normally be able to file a motion for information or for disclosure of documents, either together with its principal lawsuit or separately.

2.Disclosure of a specific document as evidence

If a party requests the disclosure of a document as evidence for a specific allegation that it is able to identify, it will usually be possible to apply for a procedural order directing its opponent to disclose the document in question. If such an order is issued, it will normally indicate that if it is not complied with the allegation will be deemed to be proven. [Page357:]

.

3. Evidence of facts internal to the requested party

A party may also have a legitimate interest in the disclosure of documents that it is not able to identify specifically and which serve not only as evidence for specific allegations already made but are also intended to enable the requesting party to make specific allegations. It is this situation that the Working Party must have had in mind when drafting Article 3.3(a)(ii) of the IBA Rules of 1999.

Such information and evidence sought by a party from its opponent typically concern events internal to the latter party and internal documents relating to such events. In some cases, the internal information sought may also relate to confidential transactions between the opposite party and a third party. In most of these cases the party requesting disclosure suspects that its opponent is not acting in good faith or has not stated the truth.

It may be useful to illustrate this by an example. 23The claimant has concluded an agreement with the respondent, in which the respondent has undertaken neither to challenge the validity of a patent owned by the claimant nor to support third parties in such actions. Thereafter, a third party brings an action against the claimant challenging the validity of the patent, and the claimant has strong reasons to believe that this third party is in some way supported by the respondent. However, the claimant does not know how this support has been given and is therefore not in a position to make specific allegations about the transactions that must have been carried out between the respondent and the third party or about the relationship between them.

If the reasons for the claimant's suspicion are strong enough, its interest in having the true facts determined is worthy of protection. If it is obvious that the respondent has violated its undertaking, it would be unsatisfactory if the claimant were thwarted in its action merely because it is unable to substantiate how the respondent has supported the third party. While it will never be easy for the claimant to succeed with an action for breach of contract in such a situation, its chances of success are not substantially improved by applying the IBA Rules of 1999.

If the IBA Rules of 1999 apply, it is likely that early in the proceedings the claimant will file a request for the production of documents, including in particular all correspondence and any agreements between the respondent and[Page358:]

the third party. The respondent is likely to object, claiming for instance that its agreements with the third party contain a confidentiality clause. Instead of proceeding to the merits of the case, the parties may spend considerable time fighting over the request to produce. If in the end the arbitral tribunal orders the production of the requested documents and if the respondent complies, the claimant's strategy might be successful. However, it could also fail if, for instance, the support to the third party was not given by the respondent directly, but by an intermediary acting at the respondent's request and on its behalf. In this case, the claimant's request will not produce any evidence or information that could be used.

In civil law proceedings, the respondent, in its first brief, will allege the facts that are known to it and which indicate that the respondent must have entered into agreements or made other arrangements with the third party that were contrary to its agreement with the claimant. In most civil law systems, a party has the right in such a situation to allege several sets of facts either as alternative allegations or as subsidiary allegations (Eventualstandpunkte). In our example the claimant's principal position might be that the respondent has concluded a nominee agreement with the third party, in which the third party undertook to challenge the patent in its own name but at the respondent's cost and risk. The first subsidiary position might be that the respondent promised a reward to the third party if it filed an action and a second subsidiary position might be that the respondent granted a loan to the third party allowing it to proceed against the claimant. The claimant's allegations may also cover the possibility that the respondent did not deal directly with the third party, but through an intermediary.

If the claimant makes these allegations and is able to show that one of them is likely to be correct in the prevailing circumstances, it will normally be a dangerous strategy for the respondent to limit its answer to disputing the claimant's allegations, without giving additional explanations. Under the procedural rules of many civil law countries, not only the allegations themselves but also denials of allegations must be reasonably substantiated. If, for instance, the claimant has alleged that during the crucial period correspondence was exchanged between the respondent and the third party and highlevel meetings took place between the two companies, the respondent will have to either admit or contest that correspondence was exchanged and meetings took place. The claimant may also request the respondent to produce any agreements made with the third party during the relevant period. If the respondent cannot state that it has not concluded any agreements with the third party, it would normally be well[Page359:] advised-even in the absence of an order by the arbitral tribunal-to explain and show why its agreements with the third party had nothing to do with the challenge of the claimant's patent.

When the exchange of briefs has been concluded, it is likely that the claimant will have a better idea of the facts and the merits of the various alternative or subsidiary allegations it made in its first brief. It is now also in a much better position to determine the evidence it will submit to the court. This evidence may include a formal request to order the opponent to produce documents that can be specified and possibly also a request to question officers, employees and former employees of the respondent or the third party as witnesses.

As judges in civil law proceedings are essentially free to evaluate evidence, strange or unreasonable behaviour by a party may do more harm than in common law proceedings, where there are detailed rules on what may or may not be acceptable as evidence. Arbitral Tribunals have even more freedom in determining the facts than the ordinary courts, since the grounds on which their findings of fact can be challenged in an action to set aside the award are usually quite limited.

Another reason why it is questionable whether the kind of discovery permitted by the IBA Rules of 1999 is likely to facilitate the fair and efficient conduct of arbitral proceedings has to do with the fact that when the discovery of internal documents is requested, this is usually because the good faith of the party requested to produce the documents is at issue.

A party that knows it is bound by an agreement containing an arbitration clause providing for the application of the IBA Rules of 1999 and that is intent on acting in bad faith or carrying out a transaction prohibited by the agreement is likely to make sure that no records are prepared that could be used as evidence of improper intentions or transactions. 24

4.Fishing expeditions

It has been mentioned above that socalled 'fishing expeditions' should not be permitted under the IBA Rules of 1999. Fishing expeditions might be defined as requests for the production of documents which are not intended to prove or to substantiate a general allegation that is highly plausible in the circumstances. [Page360:]

If, in the example given above, no facts can be established making it seem probable that the respondent is supporting the third party, then the claimant's request for the production of the correspondence between the respondent and the third party becomes a fishing expedition. In more general terms, if the requesting party is able to show that it is plausible that an improper transaction has occurred within the realm of the requested party, its interest in obtaining the requested information is normally worthy of protection, even though it is not able to specify the precise elements of the transaction. If, on the other hand, the requesting party merely tries to collect information which it might use as the basis for a claim or for its defence, we are dealing with a fishing expedition, in which case an order compelling the requested party to disclose internal documents is unjustified.

Fishing expeditions should not be permitted by arbitral tribunals, regardless of whether or not the IBA Rules on discovery apply. But while an arbitral tribunal not subject to these rules may simply reject a request that it qualifies as a fishing expedition, an arbitral tribunal operating under the IBA Rules of 1999 will have to be careful to avoid the complaint that by rejecting the request it has violated Article 3.3. Although there seems to be general agreement that even under the IBA Rules of 1999 fishing expeditions should not be permitted, 25 Article 3 does not contain an express provision to this effect. Neither the requirement that the documents falling within the requested category are 'reasonably believed to exist' nor the requirement that the documents are 'relevant and material to the outcome of the case'26 clearly excludes fishing expeditions. The essential ingredient that makes a request for production of documents legitimate and excludes its rejection as a fishing expedition is the plausibility or probability of the general allegation the requesting party intends to substantiate and prove with the requested documents. That the requested documents are reasonably believed to exist and that they may be relevant and material does not necessarily mean that there is a plausible assumption justifying an invasion into the requested party's internal documents.

V. Conclusion

The IBA Rules of 1999 were issued with a view to enabling the parties and the arbitrators 'to conduct the evidence phase of international arbitration proceedings in an efficient and economical manner'. 27 The provisions of Articles 3 and 9 [Page361:]

concerning discovery hardly help towards this end. Even if the arbitration is conducted before experienced and competent arbitrators, these provisions are likely to make the proceedings less efficient and less economical. For legitimate requests to produce documents, the desired result can generally be achieved without using the IBA Rules of 1999, but rather by applying the tools that have been used for many years in traditional international arbitration.

The provisions of the IBA Rules of 1999 on discovery imply that requests for the production of documents by the opponent are a regular part of arbitral proceedings rather than an exceptional measure to be used in special situations. 28 The IBA Rules encourage the filing of discovery requests by the parties, and this encouragement is reinforced by the practice of many arbitral tribunals to fix a time limit at the beginning of the proceedings for submitting requests to produce. 29

The provisions of Article 3 have been praised for their flexibility, as they 'leave ample room for interpretation'. 30 It is undisputed that flexibility is essential in arbitral proceedings and is particularly important where the interest of one party in proving its case must be weighed against the interest of the other in keeping its internal matters confidential. However, a traditional arbitral tribunal, which is not bound by any specific rules and which can only rely on the sound judgement of the arbitrators, is not less flexible but more flexible than an arbitral tribunal applying Article 3 of the IBA Rules of 1999. It is true that Article 3.6 seems to leave considerable discretion to the arbitrators in deciding on a request to produce documents, but it also indicates what tests the arbitral tribunal should apply. Even though the arbitrators will not normally have an obligation to give reasons for issuing or refusing an order to produce documents, since such a decision is not an interim or partial award, 31 most arbitral tribunals will consider it appropriate to give reasons for their decision. This may lead them to record their reasoning in writing at a time when it might be preferable not to do so.

A further effect of the IBA Rules of 1999 on the production of documents is that they tend to increase the weight of documentary evidence as compared to testimonial evidence, which is not necessarily a step in the direction of finding[Page362:]

the true facts. In his essay 'Three Evidentiary Problems in International Arbitration', Laurence Shore asks 'Does the Document Speak for Itself?' and comes to the conclusion that this is often not the case and that testimonial evidence is not necessarily less reliable than documentary evidence. 32 This is true even not allowing for the fact that a party might, at an early stage, start drafting its internal documentation and its correspondence with a view to possible future litigation.

Moreover, as shown above, the application of the IBA Rules of 1999 may have a number of undesirable side effects. They encourage broad requests for the production of documents at an early stage of the proceedings. Such requests may be used by a party to delay the award and to harass its opponent. Production requests are likely to aggravate the animosity between the parties and they may undermine the parties' trust in the arbitrators, particularly if the arbitrators fail to enforce their orders. The escalation of the dispute, which may result from production requests, is contrary to the underlying aim of arbitration, which is to allow parties to resolve their disputes while maintaining a businesslike relationship with each other. [Page363:]

1
J.H. Friedenthal, M.K. Kane & A.R. Miller, Civil Procedure, 3d ed. (1999) at 249-50.

2
M. Wirth, 'Ihr Zeuge, Herr Rechtsanwalt! Weshalb CivilLawSchiedsrichter CommonLawVerfahrensrecht anwenden' SchiedsVZ 2003, 9 at 10.

3
H. RaeschkeKessler, 'The Production of Documents in International Arbitration - A Commentary on Article 3 of the New IBA Rules of Evidence' (2002) 18 Arbitration International 411 at 415, 417, 418; N. Darwazeh, 'Document Discovery and the IBA Rules on Evidence: A Practitioner's View' [2002] Int. A.L.R. 101 at 105; S.H. Elsing & J.M. Townsend, 'Bridging the Common LawCivil Law Divide in Arbitration' (2002) 18 Arbitration International 59 at 61.

4
J.F. Poudret & S. Besson, Droit comparé de l'arbitrage international (Schulthess, 2002) at § 652.

5
See J.F. Poudret & S. Besson, ibid.; L. Shore, 'Three Evidentiary Problems in International Arbitration: Producing the Adverse Document, Listening to the Document that does not Speak for Itself, and Seeing the Witness through her Written Statement' SchiedsVZ 2004, 76 at 77.

6
See J.F. Poudret & S. Besson, supra note 4 at § 652.

7
These objections do not apply to all of the provisions of Article 3. For instance, there can be littleobjection to Article 3.1, according to which a party has to submit all documents 'available to it on which it relies' within the time ordered by the arbitral tribunal, or Article 3.9, which makes it clear that the arbitral tribunal may on its own initiative request a party to produce a document.

8
J.F. Poudret & S. Besson, supra note 4 at § 653.

9
According to Article 3.2 of the IBA Rules.

10
H. Raeschke Kessler, supra note 3 at 427-28.

11
Ibid. at 429.

12
Ibid.

13
See L. Shore, supra note 5 at 78: 'Some parties . . . may hold a talismanic view of documentaryevidence, to the extent that they employ "letter writers" during the performance of a contract to create a record that can be used in the event of a later dispute.'

14
J.H. Friedenthal, M.K. Kane & A.R. Miller, supra note 1 at 433.

15
N. Darwazeh, supra note 3 at 108.

16
H. RaeschkeKessler, supra note 3 at 424.

17
e.g. Article 400 of the Swiss Code of Obligations, according to which the agent has to report on the conduct of the principal's affairs.

18
According to the Seventh Amendment the value in controversy must exceed twenty dollars; the guarantee of a jury trial does not apply to suits in equity.

19
J.H. Friedenthal, M.K. Kane & A.R. Miller, supra note 1 at 501.

20
Ibid. at 386.

21
Ibid.

22
Ibid. at 387

23
See also the examples given by H. RaeschkeKessler, supra note 3 at 418.

24
See L. Shore, supra note 5 at 78.

25
See supra note 3.

26
Article 3.3(a)(i) and 3.3(b) of the IBA Rules

27
D.W. Rivkin, Foreword to the IBA Rules on the Taking of Evidence in International Commercial Arbitration of 1999.

28
L. Shore, supra note 5 at 77, writes: 'under the 1999 IBA Rules it is taken as a given that internal documents are part of the expected production, if they fall within the requested category'.

29
As contemplated in Article 3.2 of the IBA Rules.

30
N. Darwazeh, supra note 3 at 105.

31
H. RaeschkeKessler, supra note 3 at 423.

32
L. Shore, supra note 5 at 78.