"Upon this first, and in one sense this sole, rule of reason, that in order to learn you must desire to learn, and in so desiring not be satisfied with what you already incline to think, there follows one corollary which itself deserves to be inscribed upon every wall of the city of philosophy: Do not block the way of inquiry."

Charles Sanders Peirce, "F.R.L." [First Rule of Logic] (1899)

The general rule of actori incumbit probatio looks simple. Each party puts forward the evidence at its disposal that it considers apt to support its case, and the judge or the tribunal freely determines the relevance and weight of the evidence thus adduced.

In the present practice of international arbitration, the game is much more complex. Beyond the traditional difference between the inquisitorial and adversarial systems, the arbitral tribunal is now faced with the essential question of the search for truth, as opposed to a "mere" evaluation and weighing of the evidence freely and willingly submitted by the parties to the proceedings. Today, the overwhelming trend is clearly that an arbitral tribunal ascertains the facts in such a way that all elements of facts are put on the table by the parties, regardless of whether these elements are favourable or harmful to their own case. As known, this approach, which stems from English legal culture, has been regarded for decades "with the greatest astonishment by the continental, and even American lawyers, who find the idea of someone being forced to disclose a document prejudicial to his own case a quaint English idiosyncracy." 1[Page8:]

Discovery involves a series of accompanying questions, some of which make it very difficult for the tribunal to know with certainty how to handle the fact-finding process.

Indeed, the problem of massive production of documents now seems to have produced a consensus, which is reflected in some arbitration rules, to the effect that only limited document discovery should be allowed as opposed to the full-fledged US-style discovery. (Even US practitioners now hold that in international arbitration "tribunal-controlled … document production is "good" or even "great".) However, the question how to identify such limited discovery remains difficult. The answer will obviously depend in the first place on the tribunal's evaluation and judgment of the evidentiary value of documents and the burden of evidence.

Within the same concept of discovery, other issues confront the arbitral community, such as the recent decisions taken in the United States under 28 U.S.C. 1782 and in the United Kingdom under Section 44(2)(a) of Arbitration Act 1996 with respect to the direct support - or interference - of the courts in obtaining or compelling the evidence. Should these recent approaches be extended to other or all jurisdictions?

In addition, the discovery process triggers complex issues that still find no unanimous concurrence within the arbitration community.

In the first place, the process raises the delicate problem of confidentiality and privilege-related issues, as well as various related questions concerning the applicable law and the most or least favoured rule approach. Is it desirable, for instance, that such issues may become the subject matter of a ruling or that they are contained in guidelines such as the IBA Rules on the Taking of Evidence in International Arbitration, which might thus be perfectible?

Secondly, when the process of the identification of the limited discovery is achieved, the questions of confidentiality are resolved and the parties have submitted and/or refused to adduce the documentary evidence requested and/or ordered, the first question that the tribunal must address is clearly the adverse inferences that can or should be drawn from the failure to produce. This question requires clear criteria on the conditions for adverse inferences and the kind of adverse inferences a tribunal can draw in law. [Page9:]

Last but not least, the tribunal is sometimes confronted with fraud in connection with the production of documents. Documents can be produced that are allegedly forged or false, illicitly or fraudulently obtained or, conversely, fraudulently withheld or concealed. How must an arbitration tribunal deal with this sort of problem? Can it intervene spontaneously, that is to say, without any party's request? Does it have the authority to rule on an objection of fraud? Does such an objection trigger higher standards of proof? What can and should the tribunal do?

These questions are multifaceted, and various approaches can be taken to solving them. Should the reader "not be satisfied with what [he or she] already incline[s] to think", then let him or her "not block the way of inquiry" but discover in this compilation the analysis and solutions that eminent international arbitration lecturers and practitioners use or suggest.

1
W.G.O. Morgan, 'Discovery in Arbitration', 3(3) Journal of International Arbitration (1986): "The purpose of discovery in English civil procedure is to ensure that all documents, including those that are unfavourable to a party, should be produced by him to the court."