1. The aims underlying the idea of a Special Supplement of the ICC International Court of Arbitration Bulletin devoted to document production were threefold:

(i) to gather information on rules and practices in the field of document production in various parts of the world, in order to better understand the procedural approaches and expectations of parties in that field;

(ii) to collect experiences and suggestions from leading international arbitration specialists on ways of bridging the gap between different procedural cultures;

(iii) on the basis of the above, to make suggestions and recommendations in order to promote a satisfactory, efficient and cost-effective process of document production in international arbitration.

2. The contributions presented in this volume contain a wealth of knowledge and experience from all over the world. Now is the time to make suggestions and proposals as to what could or should tentatively be considered as 'best practices' in the document production process.

Preliminary remarks

3. The various contributions have highlighted a number of important features which it is important to summarize. In the first place, they have all underlined the well-known fact that lawyers and arbitrators are generally influenced by their own national procedural background. As pointed out by Mr Kimmelman and Ms MacGrath: 'The nationality as well as the legal training and experience of the participants in an international arbitration may have a significant impact on the extent of document production in the case. . . . International arbitration in the United States often reflects the document production process in United States litigation'.1 In more general terms, Mr Derains stressed that 'arbitrators and counsel often bring the "bag and baggage" of their respective legal cultures, as well as their own timetables, into the process of bridging gaps between practices rooted in national procedural traditions'.2

4. The contributions have also emphasized the fundamental difference between common law and civil law procedural traditions in the field of document [Page114:] production. As pointed out by Mr Derains: 'For the Continental lawyer, it is essential that the legal problem in dispute be clearly defined so that the judge can solve it. Facts are relevant and have to be proved beyond any doubt only insofar as they help to define the legal problem. The common lawyer generally takes the opposite approach, the chief concern being that all parties have equal and full knowledge of the facts.'3 In practice this means that in the common law world, and especially in the United States, '[r]equests for documents typically are far-reaching in scope and require parties and non-parties to expend considerable time and expense in responding to such requests',4 whereas in Continental Europe, Latin America and Arab States it is generally for the parties to submit with their briefs the documents on which they rely; and although national courts may have a residual power to order the production of documents, they rarely seem to use it.

5. Whatever differences there may be between the various legal cultures, it is generally agreed that document production has a place in international arbitration. The issue is therefore not whether there will be document production but rather how much document production will be required.5

6. In this respect, the ICC Rules of Arbitration leave ample room to achieve the required degree of flexibility. They give arbitrators the possibility to adapt their approach to document production to the particular circumstances of the case and the procedural expectations of the parties. Under the ICC Rules, the arbitral tribunal has a general mandate to 'proceed within as short a time as possible to establish the facts of the case by all appropriate means'.6 The only additional requirement is that this mandate should be exercised fairly and impartially, so as to 'ensure that each party has a reasonable opportunity to present its case'.7 At any time during the proceedings the arbitral tribunal may, furthermore, direct any party 'to provide additional evidence'.8 The ICC Rules therefore permit the parties to request documents and provide the arbitral tribunal with the power to order production.

7. Document production has undergone fundamental changes during the last twenty years. In the 1980s, the view was often expressed that discovery had no place in international arbitration and that this was one of the reasons why, in countries like the United States, parties had recourse to arbitration rather than submitting their dispute to domestic courts. It is generally considered that the movement towards a more comprehensive document production process began with the publication of the IBA Rules on the Taking of Evidence in International Commercial Arbitration ('IBA Rules') in 1999. Although the IBA Rules are rarely adopted as such by parties and arbitrators,9 they are commonly followed as a guide or a source of inspiration. They may be 'imperfect and incomplete in certain respects'10 such as timing, but they give at least a partial answer to many issues encountered by parties in the document production process. In particular, they set forth the principal parameters which it is suggested arbitral tribunals use when deciding whether or not to grant a request for production of documents.

8. It is now generally acknowledged that when the IBA Rules were first discovered and applied by arbitral tribunals at the end of the last century, they were often misused. At that time many arbitrators were unsure exactly how to handle their application. Several years have since passed, during which time the application of the IBA Rules has been the subject of many seminars and much discussion and practices have evolved, with the result that there now seems to be a relatively common approach to the IBA Rules, which will be further [Page115:] developed below. The proposals that follow are based on what appears to be widely prevailing practice as far as document production in international arbitration is concerned. The proposals are in the fashion of a 'restatement', but that does not mean that they should be, or are, followed everywhere in all circumstances. As rightly pointed out by Mr Veeder, the best procedures for document production will differ from case to case depending upon the dispute, the parties and their legal representatives11. In a similar vein, Mr Hwang and Mr Chin emphasized that in dealing with applications for document production arbitral tribunals should take into consideration the expectations of the parties and their lawyers, the amount in dispute, the nature of the issues in dispute, and various other factors such as whether or not there are other means of obtaining the requisite information without resorting to discovery.12 It is paramount that in each case the arbitral tribunal strike a balance between a number of fundamental requirements: the integrity of the arbitral process, its efficiency in terms of time and costs, fairness to the parties and, to the best extent possible, satisfaction of their legitimate expectations and, above all, compliance with due process.

An attempt to define best practices

The IBA Rules

9. It is suggested that the IBA Rules be used as a guide in the document production process and that they be applied and complemented as follows.

Timing

10. No one would ever accept that parties to an arbitration be allowed to make written submissions at any time during the procedure. Why should it be any different for the production of documents? Parties should, of course, be free to request documents from each other at any time. However, in the event that these requests are not satisfied, the procedural calendar for the arbitration should clearly indicate when the parties will have an opportunity to file a request (or requests) for document production with the arbitral tribunal. It is suggested that the best practice is to give the parties this opportunity after the first exchange of submissions (statement of claim and statement of defence). The reasoning for this is as follows: the claimant considers it has a case and presents it to the arbitral tribunal in its statement of claim; at this point the defendant's role is simply to present its defence in its answer; if after this first exchange it appears that documents are necessary for one or other of the parties to successfully argue its position or satisfy the burden of proof lying upon it, requests for those documents to be produced should be filed with the arbitral tribunal; if the documents submitted are not fully satisfactory or raise new issues, leave should be requested from the tribunal to make additional requests. It may be necessary to vary this approach from time to time. For example, in investment arbitration, where the investor has been expelled from the country and does not have any documents to defend itself, it would be appropriate to allow document production requests to be filed early in the proceedings.

11. In the procedural calendar, it is important to provide time for the filing of requests and objections, for the arbitral tribunal's response and for the [Page116:] production of documents. Failure to do so will inevitably cause slippage in the calendar and may make it necessary to postpone the hearing.

Form

12. In order to facilitate the work of the arbitral tribunal and make the document production process more efficient, it is suggested that document requests made by one party to the other and related correspondence should not be copied to the arbitral tribunal, but that the tribunal should simply be provided with a table consisting of four columns: the first column will list each document or category of documents that has been requested; the second column will contain brief reasons justifying the request according to the criteria set forth in Article 3 of the IBA Rules or in the relevant procedural order; the third column will contain a summary of the objections raised by the other party against production of the requested documents; and the fourth column will be left blank for the arbitral tribunal's decision. This tabular presentation will save the arbitral tribunal from having to handle a mass of correspondence between the parties, which may often be hard to understand and difficult to deal with.

13. It is also suggested that the parties should be encouraged not to submit to the arbitral tribunal the documents they exchange in the course of the document production process, for those documents that are subsequently used in the arbitration will be included at a later stage in the trial bundle.

Relevance, materiality and burden of proof

14. Relevance and materiality are two related criteria which the arbitral tribunal will use when deciding whether or not to grant a document production request. This is one of the reasons why it is preferable to postpone the filing of requests to the second stage of the arbitration, when the arbitral tribunal will be better informed of the case and in a better position to determine whether a document that has been requested is relevant and material to the outcome of the case. To assist the tribunal in making that decision, it is suggested that the parties link their requests to the factual allegations in the submissions they have filed or to factual allegations they intend making in their upcoming submissions. In other words, the requesting party should be invited to make clear with reasonable particularity what facts or allegation(s) each document or category of documents sought is intended to establish.

15. The importance of the burden of proof in determining whether or not a request should be granted is often underestimated. As rightly pointed out by Mr Derains: 'To be efficient, document production must serve the purpose of bringing to the arbitral tribunal's knowledge not just any documents relevant and material to the outcome of the dispute, but documentary evidence without which a party would not be able to discharge the burden of proof lying upon it. . . . On the other hand, when a document production request is disputed, the arbitrators have the responsibility of determining whether the requesting party actually needs the documents to discharge the burden of proof. If not, the request should be denied. . . .When assessing requests, arbitrators must carefully check that the burden of proof actually lies on the requesting party.'13 In other words, when a party alleges that its opponent has failed to prove a submission it has made and requests that party to produce the relevant evidence, this request should in most cases be dismissed. It is possible that the mere fact of reminding a party that it has most probably not satisfied the burden of proof lying upon it in relation to the allegation in question will cause it to spontaneously provide the requested documents. [Page117:]

16. As rightly pointed out by Ms Hamilton,14 relevance is generally considered as 'prima facie relevance' or 'likelihood of relevance'. There are times when the arbitral tribunal will ask the requesting party to reformulate its request so as to better demonstrate the relevance of the requested document, or, when premature, to submit its request later in the proceedings. Prudent arbitrators may wish to point out in their procedural orders that, to use the words of an ICC arbitral tribunal, '[i]n ruling on the request for document production, the Arbitral Tribunal will rule on the prima facie relevance of the requested documents, having regard to the factual allegations made by the Parties in the submissions filed to date . . . the tribunal will not be in a position to make any ruling on the ultimate relevance of the requested documents to the final determination of the Parties' claims and defenses in this arbitration'.15

The document is in the possession of the other party

17. In most jurisdictions, the arbitral tribunal does not have the power to order the production of documents that are in the possession of a person other than the parties to the arbitration. If the document is requested from a party, which is normally the case, the requesting party must show that the document is likely to be in the possession, power, custody or control of that party, at least if this is contested.

18. If the party from which the document is requested objects that it does not have it or that it was unable to locate it, the request will normally be denied. The requesting party should be reminded that it has the possibility of arguing in its upcoming submission(s) that this is not true and asking the arbitral tribunal to draw appropriate conclusions from the other party's refusal to produce.

Specificity

19. Any document production request should contain a description of the document sufficient to identify it or a description in sufficient detail of a narrow and specific category of documents. The degree of precision required will be determined on a case-by-case basis. In this respect, it would be appropriate for the arbitral tribunal, when discussing document production with the parties at the first procedural hearing, to emphasize that sweeping requests asking for 'all documents relating to' or 'all minutes of the board' over a long period of time will not usually satisfy the criterion of specificity. The specificity requirement serves a number of purposes: it prevents 'fishing expeditions', helps to ensure the relevance of the document sought, and saves a party from having to engage in a burdensome and costly exercise that at first blush does not appear indispensable.

Burdensomeness, confidentiality, privileges

20. The arbitral tribunal should also take into consideration the legitimate interests of the other party, including any applicable privileges, unreasonable burden, and the need to safeguard confidentiality, while having regard to all the surrounding circumstances.16

21. As rightly pointed out by Ms Hamilton, the burden on the requesting party is not in itself a sufficient reason to disallow a request for the production of documents. It should be weighed against the potential use of the documents. In other words '[t]he efforts required of the producing party in assembling the necessary documents should . . . be proportionate to the evidentiary value of the documents'.17[Page118:]

22. As far as confidentiality is concerned, it may be appropriate to include in the first procedural order a provision mentioning that if a party produces a document that is confidential, it should point this out to the arbitral tribunal which, after consultation with the parties, will determine what measures should be taken to preserve the confidentiality of the document while allowing as much evidence as possible to be produced for the purpose of the arbitration.

Proposal

23. On the basis of the above, it is suggested that a text along the following lines could be usefully included in an arbitral tribunal's first procedural order.

Production of documents

1) The parties may request documents from each other at any time during the proceedings. Correspondence and documents exchanged in the course of this process should not be sent to the Arbitral Tribunal.

2) If any of the requests referred to in section 1) are not satisfied, the parties may file requests for document production with the Arbitral Tribunal. These requests, which may be made only after the parties have exchanged their initial briefs as provided in [the relevant provision of the procedural calendar], shall be presented as a joint submission in the form of a table (commonly referred to as a 'Redfern Schedule') comprising two sections:

i) the Claimant's request(s) for the production of documents; and

ii) the Respondent's request(s) for the production of documents.

The joint submission shall be presented in four columns, as follows:

- first column: identification of the document(s) or the category or categories of document(s) that have been requested;

- second column: short presentation of the reasons for each request;

- third column: a summary of the objections by the other party to the production of the requested document(s);

- fourth column: left blank for the decision of the Arbitral Tribunal.

3) When making its decision, the Arbitral Tribunal shall be guided by Articles 3 and 9 of the IBA Rules on the Taking of Evidence in International Commercial Arbitration. On this basis, the Tribunal considers that the following standards should guide its reasoning:

(i) the request for production must identify each document or specific category of documents sought with precision;

(ii) the request must establish the relevance and materiality of each document or each specific category of documents sought in such a way that the other party and the Arbitral Tribunal are able to refer to factual allegations in the submissions filed by the parties to date. This shall not prevent a party from referring to upcoming factual allegations (subsequent memorials) provided such factual allegations are made or at least summarized in the document production request. In other words, the requesting party must make it clear with reasonable particularity what facts/allegations each document (or category of documents) sought is intended to establish; [Page119:]

(iii) the Arbitral Tribunal will only order the production of documents or categories of documents if they exist and are within the possession, power, custody or control of the other party. If contested, the requesting party must show that it is likely that the document is indeed within the possession, power, custody or control of the other party.

(iv) If necessary, the Arbitral Tribunal shall also balance the request for document production against the legitimate interests of the other party, including any applicable privileges, unreasonable burden and the need to safeguard confidentiality, while having regard to all the surrounding circumstances.

4) If, subsequent to the document production requests referred to above, additional documents are needed by a party, leave should first be requested from the Arbitral Tribunal. If leave is granted, the procedure detailed above in sections 1 to 3 will be applicable.

5) The Arbitral Tribunal may also, at any time, on its own initiative, direct the parties to file any documentary evidence in their possession or under their control, which the Arbitral Tribunal considers to be relevant and material.

6) If any documentary evidence which the Arbitral Tribunal orders a party to produce or file contains privileged and proprietary information or trade secrets, that party shall so indicate to the Arbitral Tribunal and to the other party. In that case, after consultation with the parties, the Arbitral Tribunal shall determine what measures should be taken to respect the proprietary nature of the information while allowing as much evidence as possible to be produced for the purpose of the arbitration proceedings.

Conclusion

24. The articles contained in this Special Supplement show that the rules and practices relating to document production may vary substantially from one jurisdiction to another, and that consequently so too may the expectations of the parties and their lawyers. Nonetheless, all experienced arbitrators confirm that if the issue of document production is openly and candidly discussed with the parties and their counsel at the first procedural hearing, agreement is usually reached on a document production process along the lines described above. In the present author's opinion, the suggested procedure corresponds to the practice adopted in most international arbitrations. Consequently, if problems arise in relation to document production during an arbitration, it is generally because the arbitral tribunal has not dealt with the matter adequately at the beginning of the arbitration. In other words, any problems that may arise are due not so much to the expectations of the parties or the scope of production, but rather to inadequate case management by the arbitral tribunal.

1
L.B. Kimmelman & D.C. MacGrath, 'Document Production in the United States', p. 53 above.

2
Y. Derains, 'Towards Greater Efficiency in Document Production before Arbitral Tribunals-A Continental Viewpoint', p. 83 above.

3
Ibid.

4
L.B. Kimmelman & D.C. MacGrath, 'Document Production in the United States', p. 43 above.

5
Ibid., p. 53.

6
Article 20(1).

7
Article 15(2).

8
Article 20(5).

9
It seems indeed that in the United States procedures to set aside an award have been initiated in some cases on the ground that the arbitrators did not correctly or fully apply the IBA Rules that the parties had adopted at the beginning of the arbitration. It is therefore better to refer to them only as a source of guidance.

10
R.H. Smit, 'Towards Greater Efficiency in Document Production before Arbitral Tribunals-A North American Perspective', p. 95 above.

11
V.V Veeder, 'Document Production in England: Legislative Developments and Current Arbitral Practice', p. 60 above.

12
M. Hwang & A. Chin, 'Discovery in Court and Document Production in International Commercial Arbitration-Singapore', pp. 37-38 above.

13
Y. Derains, 'Towards Greater Efficiency in Document Production before Arbitral Tribunals-A Continental Viewpoint', p. 87 above

14
V. Hamilton, 'Document Production in ICC Arbitration', p. 69 above.

15
Ibid.

16
See Article 9 (2) of the IBA Rules.

17
V. Hamilton, 'Document Production in ICC Arbitration', p. 73 above