The beauty of international commercial arbitration lies above all in its capacity to adapt to different situations. Within the limits imposed by applicable rules and national laws, the parties and the arbitrators can fine-tune the proceedings to their needs. Should they wish to include elements reflecting the traditions and practices with which they are familiar, they are free to do so, provided they all agree and this is permissible. However, when doing so, it is important to remember that arbitration has its specificity as a means of dispute resolution distinct from litigation in the courts on the one hand and amicable settlements on the other hand.

One aspect of arbitration proceedings that is particularly exposed to the influence of diverse legal traditions and practices is the production of documents. Documentary evidence has a central role to play in the determination of any dispute and the parties to an arbitration should be allowed to rely on such evidence when pleading their cause. However, the enormous proliferation of paper, and now electronic, documents, combined with a predilection for the written word, has given documentary evidence a place that some consider to be at odds with the efficiency and lack of formality that arbitration should seek to achieve and to blur the distinction that separates it from litigation.

There is therefore a need to reflect on the practices to be adopted by international arbitrators with respect to document production. Institutional rules and national arbitration laws are deliberately silent. A partial response can be found in the IBA Rules on the Taking of Evidence in International Commercial Arbitration, which offer a resource that seeks a balance between common law and civil law practices. The purpose of this Special Supplement is to help further fill the gap by providing 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.

We are grateful to the practitioners who have shared their experience and reflections and, in particular, to Professor Bernard Hanotiau, from whom the idea of a Special Supplement on document production originated.

Pierre Tercier

Chairman

International Court of Arbitration