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( Source of the document: ICC Digital Library )
Most international commercial disputes that are referred to arbitration are not resolved by reference to the governing law but by reference to the relevant contractual provisions and the relevant facts. There may well be (indeed there frequently are) arguments about the meaning and effect of the relevant contractual provisions in the context of the governing law,2 but such arguments serve only to set the parameters of the arbitral tribunal's task, which is to establish the facts of the dispute in order to reach a decision upon it. The ICC Rules of Arbitration have it correctly. They state plainly that, after various procedural steps have been taken, including the establishment of Terms of Reference:3
The arbitral tribunal shall proceed within as short a time as possible to establish the facts of the case by all appropriate means.
But how is the arbitral tribunal to do this?
In criminal cases, proof of 'the facts of the case' may come from many different sources. It may come, inter alia, from DNA samples or from closed circuit television (CCTV) cameras, from identity parades or from the kind of forensic pathology which is all too familiar from our television screens. However, in civil cases, whether litigation or arbitration, there are usually only two sources for proof of the facts - first, the evidence of witnesses (including expert witnesses4) and secondly, documentary evidence.
The evidence of witnesses can be valuable. It can throw new light on a particular occurrence or on the meaning of a document. It helps to establish the factual matrix; and it serves to bring reality to the proceedings, to emphasize that these are real events, affecting the working lives and the careers and reputations of real people. However, the evidence of witnesses is not always reliable. Experienced lawyers, including Jennifer Kirby, former Deputy Secretary General of the ICC, and Toby Landau QC, have written about the fallibility of memory, including clear memories of 'real' events which in fact never took place.5 As Ms Kirby notes:
Memory is a funny thing. In his Kaplan Lecture last year, Toby Landau drew on recent scientific research into the workings of human mind to consider how we approach witness evidence in international arbitration. It turns out that what we think we remember is often not what actually happened, but what we think should have happened based on our understanding of the way events normally unfold. This is particularly common with respect to events that happen regularly, like getting ready for work, going to the office, attending regular meetings. When we remember such events, our minds often don't call up an actual memory of what happened, but rather a 'schema' - a sort of generalized mental impression of the activities based on our past experience. We feel like we're remembering what actually happened, but we're often instead describing what generally happens, not what happened on the particular day and at the particular time in question.
In an international arbitration, the witness is giving evidence of something that happened years ago. That evidence will have been recorded in a witness statement; but it will have been recorded by the party's lawyers, conscious of the issues involved in the dispute and almost inevitably influencing the witness's recollection. Such a witness statement, drafted and re-drafted as the case may be, then becomes the formal testimony of the witness. He or she may honestly believe what is written; but this does not mean that it is necessarily an accurate record of what actually occurred.
As an English judge said, in a recent case:6
The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.
The same judge made a similar point in an earlier case7 in which he refused to give any credence at all to the evidence of one of the two witnesses of fact who appeared before him. He said:
I approach the evidence on the basis that, as in almost every case where there is a contemporaneous documentary record, the documents provide the best evidence of what happened. Human memory is notoriously unreliable, and the strong interests and emotions to which disputes resolved through litigation give rise are powerful distorting factors, however honest and well-intentioned the witness. Indeed, the more patently honest and convincing the witness, the greater can often be the risk of placing reliance on their testimony.
In common with this English judge, international arbitrators will generally prefer to rely upon the contemporaneous documentary record, rather than on the memory of witnesses; and this serves to emphasize the importance of documentary disclosure in international arbitration.
Disclosure of documents
In international arbitrations, the disclosure of documents usually takes place in two stages. At the first stage, each party produces the documents on which it relies to support its case. Only later, at the second stage, does a party produce documents which its opponent asks it to produce or which the tribunal orders it to produce.
It is not immediately obvious to many businessmen (or indeed to some lawyers) why a party which believes that it has a good case should be required to produce documents that may well damage that case. Some years ago, a French businessman was talking on one of the French radio channels about litigation in the United States in which his company was involved. He had some advice for his listeners, which was, in effect: 'If your lawyers ask you for notes, emails and other documents, don't let them have anything which damages your case. If you do, they will hand it straight to the other side.'
The French businessman had a point. If you have a claim which you consider to be fully justified, why should you show your opponent documents which undermine that claim? In proceedings in a court of law (for example, in the United States or in England) the answer is clear. You do it because the law, which is concerned with reaching the correct decision rather than with 'who wins and who loses', requires it to be done:
'Why,' [some people] ask, 'should I be expected to provide my opponent with the means of defeating me?' The answer, of course, is that litigation is not a war or even a game. It is designed to do real justice between opposing parties and, if the court does not have the relevant information, it cannot achieve this object.8
The IBA Rules
Courts of law have evolved rules - often elaborate rules9 - governing the disclosure of documents in civil litigation. Given the importance of contemporaneous documentary evidence in the search for truth, it is perhaps surprising (although something of a blessing) that international arbitration has not developed its own compendious regulations. The nearest we come to this is in the set of rules formulated by the International Bar Association ('IBA') and it is instructive to see how these have evolved over the last thirty years or so.
The IBA first published its Supplementary Rules Governing the Presentation and Reception of Evidence in International Commercial Arbitration in 1983. They contained a few short paragraphs dealing with the production of documents, including Article 4, paragraph 4, which said:
A party may by 'Notice to Produce a Document' request any other party to provide him with any document relevant to the dispute between the parties and not listed, provided such document is identified with reasonable particularity and provided further that it passed to or from such other party from or to a third party who is not a party to the arbitration. If a party refuses to comply with a Notice to Produce a Document he may be ordered to do so by the Arbitrator.
It will be seen that this provision did not cover documents which were internally generated (for instance, a note from the project director to the company's board of directors) but it did introduce both the concept of a 'Notice to Produce' and the concept of an order from the tribunal if production of the requested document was not made voluntarily.
Sixteen years later, in May 1999, the IBA produced a very much stronger version of its rules on document production.10 These provided for a party to submit to the arbitral tribunal a 'Request to Produce' setting out:
a description of the requested document sufficient to identify it; or
a description in sufficient detail of a narrow and specific requested category of documents that were reasonably believed to exist; and a description of how the documents requested were relevant and material to the outcome of the case.
This provision no longer applied only to 'third party' documents. It applied also to internally generated documents, so long as they were sufficiently identified, relevant and material to the outcome of the case.
The rules were revised again in 2010. They now set out provisions for obtaining documents in the opposing party's possession or control, by means of a 'Request to Produce' containing:11
(i) a description of each requested Document sufficient to identify it, or
(ii) a description in sufficient detail (including subject matter) of a narrow and specific requested category of Documents that are reasonably believed to exist; in the case of Documents maintained in electronic form, the requested Party may, or the Arbitral Tribunal may order that it shall be required to, identify specific files, search items, individuals or other means of searching for such Documents in an efficient and economical manner;
(b) a statement as to how the Documents requested are relevant to the case and material to its outcome; and
(i) a statement that the Documents requested are not in the possession, custody or control of the requesting Party or a statement of the reasons why it would be unreasonably burdensome for the requesting Party to produce such Documents; and
(ii) a statement of the reasons why the requesting Party assumes the Documents requested are in the possession, custody or control of another Party.
It is then for the party to whom the Request to Produce is addressed to either (i) produce the requested documents within the time ordered by the Tribunal or (ii) if it objects to production of some or all of the requested documents, to state its objection and the reason for it.
Parties are free to adopt the IBA Rules in whole or in part or, as is generally done, to agree to use them as 'guidelines'. The proliferation of 'notes' and 'guidelines' in international arbitration is not always to be welcomed, since it risks swamping the arbitral process in new rules and regulations and so depriving it of its essential flexibility.12 However, the [Page348:] IBA Rules have proved to be of significant value. As Professor Park has said, they 'represent a shift in legal culture precisely because they are perceived as a relatively fair and neutral compromise'.13
Stage 1: voluntary disclosure
Producing the documents upon which a party relies in support of its case can be an expensive and time-consuming exercise; but it is an exercise which is (or should be) relatively straightforward. Every 'document'14 that may possibly be relevant is assembled, by the client or by its lawyers. The lawyers then go through the assembled documents (including emails and other electronic documents) and pick out those upon which they wish to rely. These documents will form part of their case and will necessarily be disclosed to the adverse party. The selection of documents upon which reliance is placed needs to be done both thoroughly and thoughtfully. An arbitral tribunal will not thank a party that throws everything into the mix, leaving it to the tribunal to sort out.15 But it is a comparatively simple task compared with that of attempting to identify documents which may be helpful, but which are in the opposing parties' possession or control.
Stage 2: requested disclosure
Under the IBA Rules, a "Request to Produce" must be for a narrow and specified category of document, believed to be in the possession or control of the opposing party. But how can you identify the documents you would like to see, without knowing precisely what documents the opposing party has in its possession or control? Is this meant to be a lawyer's version of the game of 'Battleships'?16
It is not easy to know what 'relevant and material' documents an adverse party has in its possession without, so to speak, being given 'the key to the warehouse' and allowed to roam through it, looking for such documents. However, 'warehouse discovery' (as it used to [Page349:] be known17) is not permissible under the IBA Rules. What the party's lawyers have to do is to make a reasonably intelligent guess as to what relevant and potentially useful documents might exist. Take, for instance, a claim under an engineering and construction contract in which the employer is alleging that the project was completed late and that the contractor should be ordered to pay damages for delay in completion. The employer will not know precisely what documents the contractor has in its possession or control. But the employer may know, for instance, that there were site meetings or progress meetings at which representatives of both the employer and the contractor were present and at which (for example) the contractor claimed to be entitled to an extension of time, because of failure of a nominated contractor to deliver equipment and material to the site as and when required. It is a fairly reasonable bet that in such circumstances there will have been communications between the contractor and the nominated supplier relating to the ordering and supply of the necessary materials and equipment. Accordingly, it would be reasonable to request production and disclosure of such communications over a specified period of time so as to show, for instance, that the fault lay with the contractor for failing to order sufficient materials and equipment in sufficient time.18
The ICC, in its publication Controlling Time and Costs in Arbitration,19 explains how to manage requests for production of documents efficiently. It says:20
Time and costs associated with requests for production of documents, if any, can further be reduced by agreeing upon one or more of the following:
• Limiting the number of requests;
• Limiting requests to the production of documents (whether in paper or electronic form) that are relevant and material to the outcome of the case;
• Establishing reasonable time limits for the production of documents;
• Using the Schedule of Document Production devised by Alan Redfern and often referred to as the Redfern Schedule, in the form of a chart containing the following four columns:
First Column: identification of the document(s) or categories of documents that have been requested;
Second Column: short description of the reasons for each request;
Third Column: summary of the objections by the other party to the production of the document(s) or categories of documents requested; and
Fourth Column: left blank for the decision of the arbitral tribunal on each request.
Disputed requests: the Redfern Schedule
A party will usually produce voluntarily some of the documents requested by its opponent, but object to the production of others. If the dispute is then referred to the arbitral tribunal, that tribunal must decide whether to order production or to refuse production. Under the IBA Rules it may refuse production for any of the following reasons:
(a) lack of sufficient relevance to the case or materiality to its outcome;
(b) legal impediment or privilege under the legal or ethical rules determined by the Arbitral Tribunal to be applicable;
(c) unreasonable burden to produce the requested evidence;
(d) loss or destruction of the Document that has been shown with reasonable likelihood to have occurred;
(e) grounds of commercial or technical confidentiality that the Arbitral Tribunal determines to be compelling;
(f) grounds of special political or institutional sensitivity (including evidence that has been classified as secret by a government or a public international institution) that the Arbitral Tribunal determines to be compelling; or
(g) considerations of procedural economy, proportionality, fairness or equality of the Parties that the Arbitral Tribunal determines to be compelling.21
When it comes to requests for production of documents, what tends to happen in practice is that there are exchanges of correspondence, and perhaps meetings, between the opposing lawyers, in the course of which some requests are granted and others are opposed. This leads to requests being withdrawn, modified or supplemented and to further exchanges of correspondence between the opposing lawyers, until stalemate is reached and the disputed requests are referred to the tribunal for decision.
At one time, parties would simply photocopy their frequently voluminous correspondence, file it in lever-arch files and send the files to the tribunal, with the proposal that the tribunal should sort out the correspondence, establish the positions that the parties had finally reached in relation to their respective production requests and make a decision on disputed requests.
The Redfern Schedule was devised22 in order to crystallize the precise issues of document production which were in dispute between the parties. The arbitral tribunal would then know what position the parties had reached in the course of their exchanges, which may well have been going on for several months. The Redfern Schedule makes it possible for both the parties' lawyers and the arbitral tribunal to know where the parties finally stand in relation to disputed requests for document production and the reasons for objection to them. The tribunal can then go through the requests, one by one, and decide how each is to be dealt with.
It is sometimes said that the Redfern Schedule does not allow sufficient space for the lawyers to write what they wish to write, either in support of a request for production or as a reason for rejecting it. This criticism misses the point. First, the Schedule is not intended to be an opportunity for the parties' lawyers to set out again in extenso the arguments that they have already set out in their pleadings, supported in their witness statements and will no doubt set out again before the hearing, at the hearing and after the hearing. Secondly, there is nothing to stop the lawyers repeating their case again in the Schedule - but nor is there any guarantee that the arbitrators will do anything more than skim through any needless repetition.
Nor is the Schedule set in concrete. Sometimes the parties' lawyers find it convenient to add extra columns and there is, of course, nothing against this. Sometimes, too, the Schedule is regarded as if its completion marks the end of the disclosure process. Certainly, the hope is that when the arbitrators have given their decision on disputed document requests, the arbitral proceedings will move on to the next stage. But there may be good reasons why this does not happen. It may be, for instance, that the arbitrators refuse a request for production on the basis that the request is too broad and that compliance would be too burdensome, but nevertheless indicate their readiness to consider a better targeted and more specific request. Or again, faced with an objection on the grounds of 'confidentiality', or on the grounds of '[Page352:] 'legal professional privilege', arbitrators are likely to want to look more closely at the precise circumstances in which such an objection is said to be justified.
Two practices in particular are unlikely to find favour with international arbitrators. Indeed, they are the kind of unacceptable practices which are targeted (although not by name) in the IBA Rules. The first is the so-called fishing expedition; the second is the global enquiry. A fishing expedition is in effect a speculative request for the production of documents, launched in the hope of uncovering information which might possibly prove to be helpful. It is akin to the practice of pursuing a 'train of enquiry', to advance your own case or damage that of the other side, which used to be permitted under the old Peruvian Guano rules governing disclosure of documents in the English courts.23 A global enquiry is an enquiry for a broad category of documents - for instance 'all the company's internal reports, including minutes of Executive Committee and Board meetings over the five years for which the project lasted' - which is an example of the old-fashioned 'blunderbuss' or 'scatter-gun' approach to the production of documents, rather than the narrowly targeted 'rifled' approach which is mandatory under the IBA Rules.
In international arbitration, a balance has to be struck between the right of a party to present its case and the duty of the arbitral tribunal to conduct the proceedings fairly, but to do so as economically and expeditiously as possible: justice delayed is justice denied. The purpose of the IBA Rules, along with such procedural devices as the Redfern Schedule, is to assist arbitral tribunals to strike the right balance.
Member of the English bar and practising arbitrator with chambers at One Essex Court Temple, London; former Vice-President and UK member of the ICC International Court of Arbitration; email@example.com">.
It may be argued, for example, that a particular contractual provision is unenforceable because it has the effect of imposing a penalty that is unenforceable under the law governing the contract.
Expert evidence is primarily opinion evidence, but it is necessarily based on facts, which may or may not be agreed by the opposing side's expert or experts.
See J. Kirby, 'Witness Preparation: Memory and Storytelling' (2011) 28:4 Journal of International Arbitration 401 at 401; T. Landau, 'Tainted Memories: Exploring the Fallacy of Witness Testimony' (2010 Kaplan Lecture).
Mr Justice Leggatt in Gestmin SGPS S.A. v. (1) Credit Suisse (UK) Limited (2) Credit Suisse Securities (Europe) Limited  EWHC 3560 (Comm), § 19.
Yam Seng Pte Limited (a company registered in Singapore) v. International Trade Corporation Limited.  EWHC III (QB), § 8.
Per Lord Donaldson MR in the English Court of Appeal in Davies v. Eli Lilly & Co CA.  1 WLR 428 at 431.
For instance, the section on 'Disclosure and Inspection of Documents' in the English Civil Procedure Rules (Part 31 in Volume 1 of the 'White Book' (2015)) runs from page 960 to page 1044 and, for the aficionado, repays study.
This version was drafted by a Working Party chaired by Giovanni Ughi of Italy. One of the distinguished members of the Working Party was John Beechey.
IBA Rules on the Taking of Evidence in International Arbitration, Article 3.3.
For a lively criticism of the proliferation of guidelines see M. Schneider: 'The Essential Guidelines for the Preparation of Guidelines, Directives, Notes, Protocols and other Methods intended to help International Arbitration Practitioners to Avoid the Need for Independent Thinking and to Promote the Transformation of Errors into "Best Practices"' in Liber Amicorum Serge Lazareff (Pedone, 2011) 563.
W.W. Park, Arbitration of International Business Disputes: Studies in Law and Practice, 2d ed. (OUP, 2012) at 533, footnote 36.
The current IBA Rules define a 'Document' as meaning 'a writing, communication, picture, drawing, program or data of any kind, whether recorded or maintained on paper or by electronic, audio, visual or any other means'.
'It is wrong just to disclose a mass of background documents which do not really take the case one way or another. And there is a real vice in doing so: it compels the mass reading by the lawyers on the other side, and is followed usually by the importation of the documents into the whole case thereafter - hence trial bundles most of which are never looked at.' Per Lord Justice Jacob in Nichia Corporation v. Argos Limited  EWCA Civ 741, § 46.
'Battleships' is a guessing game for two players. Each player places a 'battleship' and other military vessels on squared paper concealed from its opponent; and then tries to 'destroy' the opposing player's vessels by calling out grid references to that player's squared paper. The winner is the player who is first to eliminate the other's fleet.
So called because one party was sometimes literally given access to the other party's warehouse full of documents and allowed to take what they wanted (subject to scrutiny by the other party's lawyers in relation to such issues as legal professional privilege).
Another example of intelligent guesswork is given in the Commentary on the Revised Text of the 2010 IBA Rules on the Taking of Evidence in International Arbitration by the 1999 IBA Working Party and 2010 IBA Rules of Evidence Review Subcommittee. It envisages an arbitration concerning the termination by one party of a joint venture agreement. The other party must know the date of the notice of termination and may assume that the decision was made by the board of the other party prior to that date, that documents were produced for the board's consideration and that minutes of the meeting were kept; and so that party can identify with reasonable specificity the nature of the documents sought and the relevant time frame.
Report of the ICC Commission on Arbitration and ADR, 2d ed., ICC Publication 861 (2012).
Ibid., § 52.
IBA Rules, Article 9.2.
See 'Efficiency in Arbitration: The Redfern Schedule' in ICCA Newsletter, April 2013 at pages 9 and 12; and Y. Derains, who commented that to increase the efficiency of requests for documents in complex cases the parties may make a joint application to the tribunal in the form of a table with four columns 'known in England as "the Redfern Schedule"' in 'Towards Greater Efficiency in Document Production before Arbitral Tribunals: A Continental Viewpoint', ICC International Court of Arbitration Bulletin, 2006 Special Supplement (Document Production in International Arbitration) 83, § 22.
See Compagnie Financière du Pacifique v. Peruvian Guano Co. (1882) 11 QRD 55.