In 2003, the ICC Institute's Annual Meeting was devoted to arbitration and oral evidence. 1 It is therefore quite normal that we should now have turned to written evidence and discovery.

Whether the world is globalized or not, international arbitration has in recent years followed a similar pattern throughout the world. On the merits, there are very few areas where a notable difference can be found between civil law and common law. However, in the field of procedure and, in particular, evidence, there were profound differences, but these seem to have been largely ironed out today. In real life, it is exceedingly rare for the procedure of an international arbitration to be governed by the rules of procedure of a national law.

Such a tendency to unification must respect certain basic constraints. There seems to be a dominant practice whereby awards are increasingly based almost exclusively on documentary evidence rather than oral evidence. It is also generally recognized that the submission of documents, particularly through discovery, should be limited and controlled by the tribunal. Indeed, the time of unlimited costs is no more. The arbitrators, the parties and the institutions want to reduce the costs of arbitral procedures. Gone is the time of "fishing expeditions". Today, it is agreed that if some level of document discovery is appropriate in international litigation, this level should be reduced as much as possible.

The excellent articles that appear in this new ICC Institute Dossier address all aspects of the submission of written evidence in international arbitration. [Page6:]

They will show you the limits of discovery; the complementarities between burden of proof and adverse inferences; the rule of the supporting judge, which depending on the attitude of the state courts is either a tremendous help or a real hindrance; and the limits of discovery, particularly when one is faced with privilege-related issues. You will read about the necessary limits on the massive submission of evidence-massive to the extent that the arbitrators are not physically able to read every document with which they have been flooded. You will find out whether the IBA Rules have become a usage in the same sense as the ICC Rules. and, since the Institute always looks to the future-or at least aims to do so-you will be granted an inside view into the problems raised by electronic evidence and e-discovery.

ICC Institute Dossier VI is thus meant to complement Dossier II on Oral Evidence and to give our readers an up-to-date picture of this essential aspect of international arbitration.

On behalf of all readers, I wish to thank the co-editors of this volume most sincerely for their time and dedication, not forgetting the contributors for the quality of their work.

1
ICC Institute Dossier II: Arbitration and Oral Evidence, ICC Publication No. 689