1. Introduction

In 2006, the ICC published a Special Supplement on Document Production in International Arbitration in its Bulletin series.1The purpose of the Special Supplement was to provide information on document production practices in arbitration in different parts of the world, as compared with court practices, and to suggest ways of "overcoming the unwieldiness of document production" in international commercial arbitration.2 The contributions covered several European jurisdictions, the United States, Latin America, the Middle East and Singapore. As highlighted in the concluding observations of the Special Supplement, all contributors pointed to the frequently agreed upon fact that "lawyers and arbitrators are generally influenced by their own national background".3 Some commentators noted that:

"[w]here counsel for one or more of the parties is experienced in United States litigation, it is likely that such counsel will seek document discovery. Similarly, United States arbitrators may be more receptive to requests for document production. 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."4

Elsewhere it was noted that "arbitrations 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 routed in national procedural traditions".5

One contributor emphasized that there had to date been only little experience with respect to discovery in international arbitration proceedings in his part of the world, namely the Middle East,6 while another contributor referred to the "insecurity" to which lack of familiarity with international arbitration on the part of counsel leads, highlighting that the so-called uneven playing field is not only created by the common law-civil law divide.7

In contrasting the rules of international arbitration with local court procedures, one contributor observed that "breaches for document production in international arbitration are subject to less severe sanctions than in court proceedings".8 By way of example, the contributor observed that "a solicitor acting for a party in an arbitration faces no sanction if he fails to inform his client of the latter's obligations under an order for document production, as an arbitral tribunal has no power to punish the solicitor".9 Another contributor made reference to the fact that in international arbitration there is no general obligation upon any party to disclose specific documentation that either support its opponent's case or detracts from its own case.10

Acknowledging that this approach, in some cases, is the only way in which justice can be reached, a procedural order might be called for that would require each party's legal representative to certify that, to the best of that party's knowledge, after reasonable search, no document remained undisclosed that either supported its opponent's case or detracted from its own case.11 The commentator noted, however, that such an order could potentially raise quite difficult issues regarding the different ethical rules to which legal representatives from different jurisdictions are subjected.12

The ICC Bulletin contributions that recorded the views on document production of some of the most eminent practitioners in the area of international arbitration pointed to issues concerning ethical behaviour by counsel but did not discuss these matters in any detail. Yet, the issue of counsel conduct has increasingly come under scrutiny and merits further examination, including in the context of document exchanges.

2. Counsel conduct and ethical issues in International Arbitration

In recent years, a number of commentators have advocated that there is a need to establish ethical standards for counsel appearing in international arbitration proceedings.13 The basic argument for the call for ethical standards comes from concerns regarding the uneven playing field that different national ethics rules can create. The discussion has for the most part focused on conceptual issues, and little progress has been made in the formulation of applicable rules or guidelines.14 The complexity of the problem is underscored by the fact that commentators hold different views as to the form in which such standards should be articulated. Some have called for binding rules with broad application; others have suggested that individual institutions ought to lead the way; and other proposals have put forward the idea that parties to individual proceedings work through an "ethical checklist" that could be used at the beginning of a case to ensure that the parties, their counsel and the tribunal would be following the same guidelines insofar as ethical standards are concerned.15 Such a checklist, according to the proposal, would indentify the areas in which ethical standards among counsel might differ and give parties suggested solutions that could be agreed, failing which the tribunal could determine the issues. The proposal that parties' counsel and the tribunal at the outset agree to identify and decide areas of differing ethical rules and obligations is consistent with the observation of another commentator. Noting that the system of international arbitration is essentially self-policing and recalling that fairness can be harmed by the conduct of the parties' legal representatives, this commentator concluded that self-policing by lawyers and arbitrators depends on practitioners having a clear idea of where the line is drawn between good and bad arbitration practices and that practical guidance on good faith for the legal representatives of the parties is necessary.16

In addition to concerns about the so-called uneven playing field and the continued need for the international arbitration system to police itself, there are several other dimensions that ought to be taken into account. One such dimension concerns the involvement of states as parties in both investment and commercial cases, which has added a public interest factor to the equation, particularly as a result of increasing publication of investment awards.

A further consideration is the fact that, although some procedures in international arbitration have evolved into what has been termed "hybridization neutrality", ethical norms are not easy to hybridize.17 The result has been the sub-surface collision of the ethical rules, sometimes obscured even to the participants in the proceeding.18 The combination of enhanced transparency and greater public scrutiny of the arbitral procedure with non-transparency in ethics obligations, including the existence of conflicting rules, has created an unstable foundation that may put international arbitration at risk of falling short of the demands of the 21st century.19

These concerns are not merely speculative, as was brought to light in three recent rulings of ICSID panels that dealt with applications for recusal of counsel. The decisions have been discussed in some detail elsewhere. Suffice it to recall here that the panels took different approaches to the question of their powers to rule on such applications, and one of the panels made clear that, as an international tribunal, it had no deontological responsibilities over the lawyers. In commenting on the ethical rules under which the lawyer in question acted, as well as the Code of Conduct for Lawyers issued by the Council of the Bars and Laws Societies of the European Union, the panel stated:

"This material is valuable to the extent that it reveals common general principles which may guide the Committee. But none of it directly binds the Committee, as an international tribunal. Accordingly, the Committee's consideration of the matter is not, and should not be, based upon a nice reading of any particular code of professional ethics, applicable in any particular national jurisdiction. Such codes may vary in their detailed application. Rather, the Committee must consider what general principles are plainly indispensable for the fair conduct of the proceedings."20

Another panel similarly refuted any deontological responsibilities, stating that:

"For an international system … it seems unacceptable for the solution to reside in the individual national bodies which regulate the work of professional service providers, because that might lead to inconsistent or indeed arbitrary outcomes depending on the attitudes of such bodies, or the content (or lack of relevant content) of their rules. It would moreover be disruptive to interrupt international cases to ascertain the position taken by such bodies."21

Against this background, the opportunity to examine the issue of document exchanges and the collision of ethical duties of counsel from different legal systems is welcome.

3. Issues related to what constitutes ethical counsel conduct in connection with document exchanges

As is frequently pointed out, the extent of document production by one party to the other party is one of the principal areas of difference between common law and civil law dispute-settlement systems. The differences are particularly pronounced in court proceedings. As may be recalled, in common law systems, parties to court proceedings are required to collaborate in pre-trial discovery of documents. This generally leads to each party having to disclose to the other party all documents in its possession that are relevant to the dispute, except documents that are privileged from production, for instance because of a confidential attorney-client relationship. The obligation to disclose is extensive and covers both documents supportive of the disclosing party's claim and those that are not supportive, including even documents that are adverse to the party presenting them. The broad-ranging discovery process is generally regarded as the only basis on which the truth can be established in cases in which one side has more ready access to the facts underlying the dispute. While this approach has its advantages, a broad discovery process is often criticized for being time consuming and overly expensive.22

In civil law systems, parties for the most part produce only those documents on which they intend to rely to prove their case. Although certain documents may be required to be produced, the grounds for such production are narrowly defined, avoiding the characterization sometimes levelled at US-style discovery as "fishing expeditions".23

As is generally recognized, international arbitration has been tending towards harmonization, incorporating different elements of both civil and common law systems. In so doing, international arbitration has never embraced the full discovery process allowed in common law systems. Rather, when there is no party agreement on the scope of document disclosure between the parties, the tribunal will generally decide on the extent of disclosure to which the parties will be obligated.24 It is accepted practice that failure by a party to comply with a production order exposes the party to the risk of the tribunal drawing adverse inferences.25

Ethical considerations in international arbitration have in many instances focused on arbitrators. However, as noted above, there is increasing concern about the ethical standards that apply to counsel conduct. In the context of document production, such issues might raise the question of the lawyer's professional obligation in terms of ensuring that documents required to be disclosed are searched for with diligence and, insofar as they are found, disclosed. Another issue is whether counsel have a duty of candour towards the tribunal, requiring full and objective presentation of adverse legal authority. A further question is whether counsel have an obligation of confidentiality when a client's wrongdoing or potential wrongdoing is involved. A different aspect of the question of confidentiality concerns communications generally between attorneys and clients, and the extent to which such communications are protected. As framed by one commentator, "the term 'confidentiality' does not come with a readily definable content".26 In a discussion of the risk of the so-called "uneven playing field" that may apply to counsel bound by different national ethics standards, one commentator concluded that "there are no readily accessible data from which to draw conclusions about the frequency with which the application of different ethical standards in international arbitration proceedings may result in uneven playing fields".27 "Indeed," the commentator continued, "there is no data at all on the basis of which one might determine what ethical standards have been applied by any single counsel to any single arbitration."28 While this is generally true, a review of several investment tribunal decisions provides some, albeit scant, insight into proceedings in which issues implicating counsel conduct have been at play.

4. Case law

a. Search for documents

The question whether a search for documents had been carried out diligently arose in the Tidewater v. Venezuela case. In this case, the respondent had stated that it "did not possess, maintain or control" any of the documents sought by the claimants. The respondent observed that, in the context of other cases, "the Republic had made every effort to find relevant documentation from other sources, but said that, unfortunately, those efforts had been unsuccessful".29 The respondent undertook to conduct a new investigation to confirm that there was nothing to produce and said that it would inform the claimants and the tribunal in due course if the investigation was fruitful. In its ruling, the tribunal decided that the respondent should state which sources "it had so far checked" and undertake a fresh search. The tribunal further decided that:

"If documents within the scope of the Claimant's request are discovered in the course of the Respondent's further investigation, the Respondent must produce copies of those documents; save for any which it claims it should be excluded from production on any of the grounds specified under IBA Rule 9. If documents are found which fall within the request, but which the Respondent wishes to exclude from production, it must produce a schedule itemising the documents which it objects to producing, identifying their author, date, type of document and the grounds for its objection. In that event, the Claimant may, if it wishes to do so, contest the objection."30

The above procedural order suggests that counsel had no duty towards the tribunal independent of the party to the dispute with respect to the outcome of the search for documents. Such a duty is also not stipulated in the Venezuelan Code of Civil Procedure, which in article 436 provides that:

"A party seeking to utilize a document that, according to its declaration, lies within the control of the other party, may request its presentation. The request for presentation shall be accompanied by a copy of the document or, failing that, by a statement of the facts known to the requesting party concerning the content of the document and evidence showing that there is at least a serious presumption that the document is or has been within the control of the other party.

The court shall require the other party to present or hand over the document within the period it indicates or be subject to a penalty.

If the document is not presented within the time-limit fixed and no evidence is provided to show that it does not lie within the control of the other party, the text of the document as it appears in the copy presented by the requesting party shall be presumed to be accurate, or in its absence, the data provided by the requesting party concerning the content of the document shall be deemed to be correct. …"31

In contrast, US counsel, which appeared for both the claimant and the respondent, might have been influenced by rules which provide as follows.

Rule 3.4(d) of the American Bar Association's Model Rules of Professional Conduct states that:

"A lawyer shall not: …

(a) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;" (emphasis added)

Rule 26(g) of the Federal Rules of Civil Procedure states that:

"(1) Every disclosure made pursuant to subdivision (a)(1) or subdivision (a)(3) shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated. An unrepresented party shall sign the disclosure and state the party's address. The signature of the attorney or party constitutes a certification that to the best of the signer's knowledge, information and belief, formed after a reasonable inquiry, the disclosure is complete and correct as of the time it is made.

...

(3) If without substantial justification a certification is made in violation of the rule, the court, upon motion or upon its own initiative, shall impose upon the person who made the certification … an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney's fee." (emphasis added)

It goes beyond the scope or ability of this paper to examine how those differing standards might have been argued or influenced decisions in the Tidewater case. Suffice it to say that the duties of counsel under the two national legal systems varied significantly and that, as pointed out above in the ICC Bulletin, each side's legal training and experience might have played a role in the manner in which counsel approached the document request.

b. Duty of candour to the arbitral tribunal

One of the questions posed above addressed the issue whether the duty of candour owed to the arbitral tribunal requires a lawyer to bring adverse, controlling authority to the attention of the arbitral tribunal. In the Generation Ukraine, Inc. v. Ukraine case, the claimant was taken to task by the tribunal for the way its case had been argued:

"[T]he Claimant's written presentation of its case has also been convoluted, repetitive, and legally incoherent. It has obliged the Respondent and the Tribunal to examine a myriad of factual issues which have ultimately been revealed as irrelevant to any conceivable legal theory of jurisdiction, liability or recovery. Its characterization of evidence has been unacceptably slanted, and has required the Respondent and the Tribunal to verify every allegation with suspicion. … The Claimant's position has also been notably inconsistent. … Moreover, the Claimant's presentation of its damages claim has reposed on the flimsiest foundation. … The Claimant's presentation has lacked the intellectual rigour and discipline one would expect of a party seeking to establish a cause of action before an international tribunal. … Even at the stage of final oral submissions in March 2003, counsel for the Claimant relied on two ICSID awards without mentioning that they had been partially annulled. The Tribunal assumes in counsel's favour that he was unaware of the annulments; that is bad enough, and does no credit to the Claimant."32 (emphasis added)

While the main criticism of the tribunal was directed at the claimant, counsel conduct was also implicated with respect to certain omissions, implicitly raising the question whether counsel, in the tribunal's view, was bound to bring adverse legal authority to the tribunal's attention or whether counsel was simply required to be more thorough in ascertaining the correctness of legal argument so as to avoid misleading the tribunal.33 While this particular example is drawn from counsel conduct at the oral hearing, the issue also extends to the written phase of the proceedings and could have a bearing on document exchanges.

c. Confidentiality

The third question posed above concerns the issue whether counsel has an obligation of confidentiality when client wrongdoing or potential wrongdoing is involved. In the Methanex v. Unites states case, the tribunal established during the oral hearing that certain documents presented by the claimant "had been obtained by successive and multiple acts of trespass committed by Methanex over five and a half months in order to obtain an unfair advantage over the USA as a Disputing Party to these pending arbitration proceedings".34 The tribunal took particular offense at the fact that Methanex had applied for the production of certain documents the originals of which it had already collected by unlawful means. The tribunal said that:

"[i]t would be wrong to allow Methanex to introduce this documentation into these proceedings in violation of its general duty of good faith and, moreover, that Methanex's conduct, committed during these arbitration proceedings, offended basic principles of justice and fairness required of all parties in every international arbitration."35

Although the tribunal did not reprimand counsel per se, the tribunal noted that the claimant's violation of a general duty of good faith, as imposed by the UNCITRAL Rules, was "incumbent on all who participate in international arbitration, without which it cannot operate", thus articulating a requirement that presumably extended to counsel and raising the question whether good faith requirements in certain circumstances might override obligations of confidentiality.

A related issue arose in the Cementownia v. Turkey case, in which the tribunal was called on to deal with the claimant's allegations that the respondent had illegally intercepted certain information and used such surveillance results in the arbitration. In this case, counsel for the respondent provided the arbitral tribunal with assurances that no such intercepts or surveillance results had been received or used in conjunction with the arbitration. The tribunal accepted counsel's assurances and emphasized "the fundamental importance of such a representation to the proper administration of the arbitration".36 The tribunal went on to impose on both the respondent and its counsel a "continuing duty to ensure that there shall be no use whatsoever of intercepted communications in this arbitration".37 In this case, the tribunal clearly established a formal role for counsel to ensure accountability for steps taken by the client.

5. Conclusion

The above-mentioned cases from the investment arbitration arena show that tribunals have been reluctant to hold counsel appearing in investment arbitrations to particular standards, let alone impose sanctions when the legal representation has fallen short of the tribunal's expectations. Most rulings have been directed to the parties and leave unaddressed the question what role counsel might have played in bringing about a particular situation or shortcoming.

This approach may be partly due to the fact that tribunals do not want to assume deontological responsibilities. Instead, they have relied on arbitral practice under international law to deal with allegations of misconduct of the parties, including failure to arbitrate in good faith. In so doing, tribunals have avoided the issue of the application to counsel of possibly conflicting standards, let alone poorly defined rules of international arbitration. Yet, it is evident that proper counsel conduct is of enormous value to the continued success of international arbitration and that parties, tribunals and counsel would benefit from a clearer understanding of the rules governing counsel conduct.

1
See ICC International Court of Arbitration Bulletin-2006 Special Supplement-Document Production in International Arbitration (November 2006) (hereinafter, ICC Bulletin).

2
See P. Tercier, 'Foreword', in ICC Bulletin, supra note 1, at p. 5.

3
See B. Hanotiau, 'Document Production in International Arbitration: A Tentative Definition of 'Best Practices', in ICC Bulletin, supra note 1, at p. 113.

4
See L. Kimmelman and D. MacGrath, 'Document Production in the United States', in ICC Bulletin, supra note 1, at pp. 53-54.

5
See Y. Derains, 'Towards Greater Efficiency in Document Production Before Arbitral Tribunals-A Continental Viewpoint', in ICC Bulletin, supra note 1, at p. 83, quoting G. Aguilar-Alvarez, 'To What Extent Do Arbitrators in International Arbitration Disregard the Bag and Baggage of National Systems?', ICCA Congress Series no. 8 (1998) at p. 139.

6
See A. El-Kosheri and M. Abdel Wahab, 'Trends in Document Production in Egypt and the Arab World', in ICC Bulletin, supra note 1, at p. 13.

7
See H. Grigera Naón, 'Document Production in International Commercial Arbitration: A Latin American Perspective', in ICC Bulletin, supra note 1, at p. 19.

8
See M. Hwang and A. Chin, 'Discovery in Court and Document Production in International Commercial Arbitration-Singapore', in ICC Bulletin, supra note 1, at p. 41.

9
Id

10
See V.V. Veeder, 'Document Production in England: Legislative Developments and Current Arbitral Practice', in ICC Bulletin, supra note 1, at p. 59.

11
Id.

12
Id

13
See C. Rogers, 'Fit and Function in Legal Ethics: Developing a Code of Conduct for International Arbitration', Mich. J. Int'l L. 23 (2002) 341; C. Brower and S. Schill, 'Regulating Counsel Conduct Before International Arbitral Tribunals', in P. Bekker, R. Dolzer and M. Waibel (eds.), Making Transnational Law Work in the Global Economy: Essays in Honour of Detlev Vagts (Cambridge University Press 2010); D. Bishop and M. Stevens, 'The Compelling Need for a Code of Ethics in International Arbitration: Transparency, Integrity and Legitimacy', in ICCA Congress Series no. 15 (2011).

14
See D. Bishop and M. Stevens, 'International Code of Ethics for Lawyers Practicing Before International Arbitral Tribunals', ICCA Congress Series no. 15 (2011); see also P. Sands, 'The ILA Hague Principles on Ethical Standards for Counsel Appearing Before International Courts and Tribunals (Principles developed and issued on authority of co-chairs and working group)', The Law and Practice of International Courts and Tribunals 10(1) (2011) at pp. 6-10.

15
See C. Benson, 'Can Professional Ethics Wait? The Need for Transparency in International Arbitration', Disp. Res. Int'l 3(1) (2009) at pp. 78-94.

16
See V.V. Veeder, 'The 2001 Goff Lecture-The Lawyer's Duty to Arbitrate in Good Faith', Arbitration International 18(4) (2002) at pp. 341-451.

17
See C. Rogers, 'Between Cultural Boundaries and Legal Traditions: Ethics in International Commercial Arbitration', Bocconi Legal Studies Research Paper no. 06-1 (2006) at p. 46, available at: <http://ssrn.com/abstract=280850> or <http://dx.doi.org/10.2139/ssrn.280850>.

18
Id., at p. 48.

19
See Bishop and Stevens, supra note 13.

20
U npublished ICSID decision dated 18 September 2008.

21
Hrvatska Elektroprivreda d.d. v. Republic of Slovenia, ICSID case no. ARB/05/24, Tribunal's Ruling regarding the participation of David Mildon QC in further stages of the proceedings, 6 May 2008, at para. 23.

22
See L. Reed and J. Sutcliffe, 'The Americanization of International Arbitration?', in Mealey's International Arbitration Report 16(4) (2001) at p. 39.

23
Id.

24
See S. Elsing, 'Procedural Efficiency in International Arbitration: Choosing the Best of Both Legal Worlds', Zeitschrift für Schiedsverfahren (SchiedsVZ) 3 (2011) at p. 122.

25
Id.

26
See Rogers, supra note 13, at p. 371.

27
See Benson, supra note 15, at p. 81.

28
Id.

29
Tidewater, Inc and Others v. Venezuela, ICSID case no. ARB/10/5, Procedural Order No. 1 on Production of Documents, 29 March 2011, at para. 17.

30
Id., at para. 21.

31
Article 436 of the Venezuelan Code of Civil Procedure, available at <http://www.wtocenter. org.tw/SmartKMS/fileviewer?id=34900>.

32
Generation Ukraine, Inc. v. Ukraine, ICSID case no. ARB/00/9, Award, at paras. 24.2-24.7.

33
In this proceeding, counsel representing the claimant was Irish. Article 5.3 of the Code of Conduct for the Bar of Ireland provides as follows: "Barristers must not deceive or knowingly mislead the court. A barrister must take appropriate steps to correct any misleading statement made by the barrister to the court as soon as possible after the barrister becomes aware that the statement was misleading."

34
Methanex Corporation v. United States, UNCITRAL, Final Award on Jurisdiction and Merits, Part II, Chapter I: the USA's Application for the Exclusion of Certain of Methanex's Evidence, 3 August 2005, at para. 56.

35
Id., at para. 59.

36
Cementownia "Nowa Huta" SA v. Turkey, ICSID case no. ARB(AF)/06/2, Award, 11 September 2009, at para. 44.

37
Id.