Damián Vallejo and Marta González-Ruano | Global Arbitration Review
Introduction
Document disclosure is an area in which the divide between the civil law and common law systems is particularly pronounced. Although both systems share the principle of affirmanti incumbit probatio, common law jurisdictions enable parties in a dispute to have access to factual elements in possession of the other party, or third parties, through discovery or disclosure proceedings, whereas this right is not generally available in civil law countries.[1] With a still-developing transnational lex evidentiae, these competing visions inform the discussion in international arbitration. Controversy is therefore inevitable, and it is not uncommon to see parties and their counsel enter heated discussions with the other side about the scope of document production.
From the common law perspective, document disclosure facilitates getting at the truth as a means to achieving justice.[2] The US Supreme Court has stated: ‘Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession.’[3] This type of disclosure also attempts to reduce the possibility of surprise or trial by ambush with, as the Court of Appeal of England and Wales puts it, all ‘cards face up on the table’.[4]
Conversely, under the civil law tradition, plaintiffs are expected to gather all the necessary evidence for their claims before initiating legal proceedings.[5] The underlying assumption is that truth cannot be sought by limitless means and that value should be balanced with other competing concerns, such as social peace, legal security, the right to privacy or protection of personal data.[6] Although certain disclosure mechanisms are available in civil law jurisdictions, these tend to be limited in scope.[7] Cases are therefore typically decided on the evidence that has mostly been submitted voluntarily by each party.
These conflicting approaches to the access of evidence are, nevertheless, part of broader legal systems that include their own procedural characteristics and differing pleading and admissibility rules within adversarial or inquisitorial frameworks.[8] Unless specifically agreed by the parties, neither option should be transposed in isolation to international arbitration proceedings.
As a meeting point between both legal traditions, the International Bar Association (IBA) published soft law guidelines in the form of the ‘Rules on the Taking of Evidence in International Arbitration’ (the IBA Rules), which were last revised in 2020. The authors of the IBA Rules acknowledged that expansive US-style or English-style discovery are generally inappropriate for international arbitration, but that there seemed to be ‘a general consensus, even among practitioners from civil law countries, that some level of production is appropriate in international arbitration’.[9]
Accordingly, the IBA Rules contemplate a targeted document disclosure, subjecting the parties’ requests to specific requirements and limits. For example, requests must contain a narrow and specific description of the document or category of documents requested, and the documents must be relevant to the case and material to its outcome.[10] Relevancy is described as the characteristic to prove a fact from which conclusions are drawn.[11] Materiality is described as the characteristic to consider a document significant for deciding the case (or part of it).[12] Requests are also subject to the condition that documents are not under the possession, custody or control of the requesting party but under that of the requested party.[13] The IBA Rules also contemplate an exception to this general rule (i.e., that it would be unreasonably burdensome for the requesting party to produce these documents).[14] In addition, document requests are further limited by the availability of certain objections, such as those of privilege, confidentiality or unreasonable burden.[15]
These requirements are intended to ‘curtail so-called fishing expeditions’ and contain the costs and burdens associated with document production.[16] Even if this sets them apart from extensive US-style discovery, documents requested under, and produced in accordance with, the IBA Rules can go beyond those necessary to satisfy a party’s burden of proof, as the rules permit requesting internal documents and more than specific documents (i.e., categories of documents) from the other party.[17]
Notwithstanding the IBA Rules’ attempts to strike a compromise between common and civil law approaches, these are seen as insufficient by some in the international arbitration community. As a response to a perceived ‘Americanisation’ of arbitration, a group of representatives from 30 countries, mainly civil law jurisdictions, prepared an alternative set of rules: the ‘Rules on the Efficient Conduct of Proceedings in International Arbitration’, commonly known as the Prague Rules.[18] The Prague Rules adopt a more restrictive approach to document production than the IBA Rules, provided that ‘the arbitral tribunal and the parties are encouraged to avoid any form of document production, including e-discovery’.[19]
Advantages and disadvantages of document production
Advantages
Document disclosure in international arbitration serves as a procedural tool for the parties to obtain factual evidence to support disputed allegations.[20] As a fact-finding tool, document disclosure can expedite the resolution of factual issues that are crucial to the case.[21] This is particularly important given the central role of documentary evidence in arbitral proceedings.[22] Unlike documents, witness testimony is not contemporaneous with the events giving rise to the dispute, and recollections may be inaccurate or even influenced by the witness’ position in the dispute.[23] As noted by the International Chamber of Commerce (ICC) Arbitration Commission’s ‘Report on the Accuracy of Fact Witness Memory in International Arbitration’, ‘the memory of an honest witness who gives evidence in international arbitration proceedings can easily become distorted’.[24] This is especially relevant in civil law jurisdictions, where examination of witnesses is limited.[25]
Common law practitioners generally view it as a matter of fairness that no party should benefit from withholding a relevant document.[26] In fact, failure to produce responsive documents whose production has been ordered by courts in common law jurisdictions may lead to an order requiring the payment of the other party’s reasonable expenses, an adverse inference jury instruction and, potentially, other sanctions (e.g., evidence or claim preclusion).[27] In international arbitration, parties that have not received the requested documents ordered for production by the tribunal will generally ask for adverse inferences on the questions of fact that those documents were supposed to address. When properly invoked, this can be a powerful procedural tool. And knowing how to use it effectively may provide a significant tactical advantage.
In addition, document disclosure can level the landscape in cases where, owing to the underlying business or relationship between the parties, there is an inherent asymmetry of information (e.g., licensor and licensee, merger and acquisitions, large construction projects or insurance cases).[28] It has also been suggested that document production allows the parties to better evaluate the strengths and weaknesses of their respective positions, potentially helping to facilitate a settlement of the claims early on in the case.[29]
Finally, document disclosure can enhance the perception of legitimacy of the arbitral award. An adverse award might be more easily accepted by the losing party if the facts of the case have been fully established through the process of document production.[30]
Disadvantages
The most-cited disadvantage of document disclosure is that it entails a significant increase in the costs of the dispute.[31] This problem has been further aggravated during the past decade with the proliferation of electronic documentation, which has exponentially increased the volume of material and its dispersal among different devices and servers.[32]
Document production is also seen as time-consuming.[33] The document disclosure phase has a significant impact on the procedural calendar, invariably extending it.[34] In our experience, two to four months are typically allocated to document production, and it is not uncommon for parties to agree to, or request, extensions so as to comply with their respective production obligations. In many cases, arbitrations involve organisations with complex corporate structures and the documents requested are held across various departments and business units. Retrieving them requires close coordination between counsel and clients, and typically demands a significant time commitment for all parties involved. Similar, and perhaps more complex, situations arise when dealing with sovereigns, in which the documents are typically held across different ministries.
In spite of this lengthy and expensive process, the production of relevant evidence is not guaranteed.[35] A ‘smoking gun’ is seldom found.[36] In contrast, it has been noted that ‘an accumulation of documents often buries the truth, rather than revealing it’.[37] Document disclosure is often seen as a fertile ground for guerrilla tactics and procedural abuse, such as delaying the proceedings by making a significant number of requests, burying the opponent with a large number of irrelevant documents or, simply, causing a document to disappear.[38]
Finally, the presence of a document production phase can be seen as creating an imbalance in favour of common law attorneys and parties, who, contrary to their civil law peers, have greater levels of training and experience in discovery and disclosure proceedings in their home jurisdictions.[39]
Perspectives
Arbitrators
There is wide scholarly consensus that arbitrators enjoy broad discretion in ordering the production of documents.[40] Both national legislation and institutional arbitration rules generally grant arbitrators disclosure powers.[41] Accordingly, the role of arbitrators is crucial in this stage of the arbitral proceeding.
The approach adopted by arbitrators to document disclosure is often influenced by their background and legal training.[42] These differing approaches can result in significantly different outcomes. On this point, we have experienced conflicting reactions to similar document requests: while a common law tribunal admitted virtually every broadly worded request, a civil law panel rejected redundant requests that were not clearly linked to the requesting party’s burden of proof. This highlights the importance of understanding each case at the outset, including the amount (and type) of evidence available and choosing the right arbitrators in accordance with the strategy designed. Nevertheless, arbitrators are increasingly relying on international principles when deciding on procedural issues.[43] This is a welcome trend, as it may enhance predictability in the process and provide useful guidelines to less experienced participants.
In the absence of an agreement, tribunals will typically take into account different factors when fashioning the document disclosure phase of the arbitration. When exercising their discretionary powers, arbitrators should strive for procedural neutrality applying a neutral, non-domestic procedure, avoiding the adoption of rules that might unfairly benefit one party simply because they reflect the tribunal members’ home jurisdictions.[44]
Alongside procedural neutrality, arbitrators should bear in mind the expectations of the parties, which can again depend on their nationality.[45] This consideration was made by an International Centre for Settlement of Investment Disputes (ICSID) tribunal when deciding the scope of document production by noting that ‘the present arbitration is a case also involving parties domiciled in Kazakhstan which is predominantly a civil law country where production of documents is far less used than in common law countries’.[46] However, when parties come from different legal traditions, it becomes more difficult to identify shared expectations, and arbitrators should aim to strike a fair balance.
For the sake of efficiency, it seems appropriate that arbitrators encourage agreements between the parties over document production requests. For instance, in cases administered by the International Centre for Dispute Resolution (ICDR), tribunals tend to require that counsel for the parties ‘meet and confer’ about disagreements about requests for the exchange of documents.[47]
In light of this, some authors call arbitrators to become proactive case managers that strive to limit the costs and time of the document disclosure phase.[48] This approach can involve, among other things, a rigorous application of the relevant criteria of specificity, relevancy and materiality included in the IBA Rules; reliance on adverse inferences as a way to sanction parties who fail to comply with their disclosure obligations;[49] or cost-allocation decisions at the end of the proceedings on the basis of the parties’ conduct during the document production phase – whether because of a failure to produce documents or the submission of unreasonable requests.[50]
This is, of course, more easily said than done. Practitioners find that, when in doubt, arbitrators frequently lean towards liberally admitting most document requests.[51] In some cases, the problem is that arbitrators are not sufficiently familiar with the facts of the case at that stage of the proceedings, which prevents them from thoroughly assessing the relevance and materiality of the documents – or categories of documents – requested.[52] In addition, commentary often refers to ‘due process paranoia’, which discourages tribunals from acting decisively in relation to document requests for fear of their award being successfully challenged before domestic courts.[53] Although there have been cases in which final awards were annulled based on document production orders, these remain rare and exceptional.[54] In fact, recent decisions confirm that an arbitral tribunal’s refusal to order the production of documents does not in itself justify setting aside an award.[55] On the whole, domestic courts tend to uphold arbitrators’ procedural decisions concerning document disclosure.[56]
Counsel
As with arbitrators, counsel’s perspective on document disclosure will frequently be influenced by their legal tradition: while document disclosure will be viewed as a foreign, burdensome procedure to continental lawyers, the same will often be deemed essential to fact-finding by common law attorneys.[57] Nevertheless, this divide is generally nuanced and eased by counsel’s experience in international arbitration. On the one hand, attorneys from civil law jurisdictions may feel at a disadvantage during this procedural stage. On the other hand, their common law counterparts can also find it challenging to adapt to the limited, narrowly targeted document production requests typical of international arbitration.
That said, counsel also plays a leading role in shaping the document production phase in international arbitration. It is good practice that, from the outset of the dispute, counsel considers and discusses with their client the stance that ought to be adopted with regard to document production. A generous approach can be determined, inter alia, by the absence of a ‘smoking gun document’ in the client’s files or when it lacks crucial documents to support its claims, and vice versa.[58] This also requires counsel to command a good understanding of the case from an early stage, which ideally entails having conducted a thorough review of the universe of documents under the client’s control.
Once a decision is made, counsel can indirectly influence the design of the document production phase when selecting the members of the panel, and more directly during the organisational conference and the drafting of document production requests.[59] Unfortunately, attorneys also need to be prepared for the deployment of guerrilla tactics by their opponents at this stage.[60]
Parties
The divide between the approaches to document disclosure can be felt more starkly with respect to the parties of the dispute, who are naturally less exposed to, and experienced with, legal proceedings than arbitrators or legal counsel. On this point, companies and individuals from common law jurisdictions might take for granted that there will be a discovery mechanism put in place to ensure that litigation is conducted ‘cards face up on the table’.[61]
In contrast, civil law parties may be surprised when ordered to deliver potentially detrimental documents that assist their opponent.[62] This can be worsened by the fact that, arguably, individuals or entities’ employees or officers are less cautious when drafting documents and emails.[63] They might inadvertently create a record that could end up being adverse to the entity’s interests when a dispute arises, under the assumption that the documents were private communications. In addition, civil law parties may not have expansive document retention policies in place, nor may they benefit from the same privilege protections available in common law systems.[64] Luckily, the IBA Rules take into consideration the difference in legal and ethical rules to which the parties are bound when ordering the production of documents.[65] Interestingly, and notwithstanding expectations that a more limited document production would be a view exclusive to civil law practitioners, counsel from common law backgrounds are also open to limiting document production.[66]
In our experience, taking advantage of the principle of party autonomy that underlies arbitration, parties sometimes agree in advance to limit the number of documents permitted so as to mitigate some of the disadvantages inherent to the document production phase. Given the strategical importance of this procedural stage and the potential adverse consequences of failing to comply with production orders, counsel can, and should, educate their client on the nature of this procedural stage.[67] This requires counsel to have a proper understanding of the different alternatives available and how to choose the most suitable option in accordance with the specifics of the case and the client’s interests. In arbitration the production of documents is often organised using specific schedules or models that help structure requests and objections efficiently. The most commonly used model is the Redfern Schedule or its modified version, the Stern Schedule, but the Armesto Schedule and the Reed Schedule have gained popularity in recent years.
As noted above, arbitrators should factor in the expectations of the parties when fashioning the document disclosure phase, and counsel should also aim to advance their clients’ expectations throughout the different stages of the proceedings. This can prove challenging in practice, especially if the arbitration agreement includes no indication of the parties’ expectations, leaving the tribunal with little to work with. Parties could benefit, therefore, from anticipating these issues at the contractual stage and perhaps consider including provisions regarding document disclosure in their arbitration agreements.[68] It has been suggested that, for example, parties could limit the scope of production by excluding internal documents or categories of documents in their arbitration clause.[69] On the other hand, parties accustomed to having discovery available to them can also decide to contract for a broader document disclosure regime than the one to which they would be subject by default.
The reality is that, in most transactions that include arbitration agreements, the parties do not usually know what type of dispute they would face in the future (or whether they would be claimant or respondent), which makes it difficult to contract around or adapt the arbitration agreement in a specific way. Disputes counsel tend not to be involved at the contract-drafting stage, limiting the chances of tailoring the arbitration agreement to contain specific needs; it is recommended to have the arbitration agreement reviewed by disputes counsel before executing the contract.
How much document production?
In arbitration, document disclosure is not a given.[70] However, most arbitral proceedings include some sort of document production phase.[71] The real question, therefore, is the appropriate scope of document production. As expressed by the ICDR Arbitration Rules: ‘The parties may provide the tribunal with their views on the appropriate level of information exchange for each case, but the tribunal retains final authority.’[72]
On the one hand, the complexity of the case will be important in this determination. In construction cases, which are typically highly technical and fact-driven, significant disclosure might be deemed necessary.[73] In contrast, a straightforward dispute about the meaning of a contract might primarily depend on the law and require minimal document production.[74]
On the other hand, document disclosure should also be commensurate with the amount in dispute, to prevent the risk of a Pyrrhic victory. Litigator Reto Marghitola suggests that the ‘arbitrators should look at document production not only from a purely legal point of view, but also from a business perspective’.[75] It would be unreasonable to allow a broad (and expensive) document disclosure in a small-sized claim.
Moreover, the arbitral tribunal should always bear in mind the general goal of efficiently managing the arbitration.[76] This principle is embodied in the IBA Rules, which allow the arbitral tribunal to exclude the production of any documents based on considerations of procedural economy or proportionality that it determines to be compelling.[77] In addition, the burden of a party to produce certain requested documents should not outweigh the usefulness of these documents for resolving the dispute.[78]
There have been multiple proposals to help contain the duration and costs that document disclosure entails. Some of these proposals include limiting the number of requests that each party can submit or setting tight deadlines for completing disclosure.[79]
Availability of document disclosure and the choice of arbitration over litigation
In the 2021 Queen Mary University of London and White & Case International Arbitration Survey, ‘Adapting Arbitration to a Changing World’, 27 per cent of the interviewees responded that they would forego document production to make arbitration cheaper or faster, and 31 per cent of in-house lawyers reported being willing to exclude any kind of document production.[80] Additionally, document production was the third most voted-for option to be removed to make arbitration cheaper or faster.[81] In the 2025 edition of the same survey, interviewees reinforced that ‘parties often refrain from including extensive, or even any, document production phases in expedited arbitration schedules’, again pointing to cost concerns.[82]
The evidentiary phase is one of the main areas of discontent for arbitration users.[83] As pointed out by arbitrator Duarte Gorjão Henriques, massive document production can deter parties from entering into arbitration agreements in the first place.[84] The concern that arbitration might become less attractive for these reasons is tangible: the ICC Commission has invited arbitral panels ‘not to discourage businesses from having recourse to arbitration by proposing approaches that are likely to increase the expense of the proceedings and the disruption to their business activities’.[85]
Nevertheless, users seem to chiefly take issue with the unintended side effects of document disclosure (that is, an increase in time and costs of the proceeding) and not in this evidentiary tool itself. In the above-mentioned survey, interviewees acknowledged that document disclosure ‘makes sense in some cases’ and expressed a willingness to limit document production.[86]
Those problems, however, can be addressed without completely suppressing document disclosure in international arbitration, which, as stated above, has its own advantages. Some of the above-mentioned tools to make it practicable can be applied. Also, additional technological developments in artificial intelligence may help to further mitigate the burdens of this procedural step in the future.[87]
Conclusion
Common law and civil law traditions are radically different in terms of conferring discovery rights to the parties in a dispute. It is no surprise that document disclosure is one of the subjects of greatest controversy in international arbitration. For its proponents, the production of documents at the request of a party can bolster fact-finding and equality of arms throughout the arbitration process, as well as enhancing the legitimacy of the final award. Critics note, however, that document disclosure frequently results in increased costs and duration, is often unproductive and subject to abuse, and is perceived to disfavour civil law parties and counsel who are unfamiliar with this procedural mechanism.
The setbacks that document disclosure seems to entail are such that many arbitration users appear willing to forgo it. However, a closer look at the topic reveals that most concerns are not intrinsic to document production itself but stem from the unintended side effects of this mechanism, which can, in many cases, be mitigated.
In the absence of agreement by the parties, international arbitration is not, and should not aim to be, similar to domestic litigation. This is also true with respect to document disclosure, and the international arbitration community has a unique opportunity to craft a tertium genus that takes the best from both legal traditions. By applying transnational principles, procedural neutrality can be achieved in a manner that allows parties from different jurisdictions to resolve their disputes in an even-handed forum. Equally important, the flexibility of the arbitration proceedings and the institutional rules most commonly used permit arbitral tribunals to adjust the availability and scope of document disclosure to the specific circumstances of the dispute.
Participants in the arbitration play a key role in making document disclosure a valuable tool for the parties, while keeping the process efficient in terms of both cost and time. First, the parties can contract their preferences on document production by way of including them in their arbitration agreements. Second, counsel can shape the proceeding at different stages of the arbitration and make it productive by acting in good faith and refraining from abusive and dilatory tactics. Finally, by using their broad powers as active case managers, tribunals can play a crucial role in ensuring that the arbitration is conducted efficiently.
Acknowledgements
The authors thank Esther Romay, former associate at Dunning Vallejo & MacDonald LLP, for her contribution to this chapter.
Endnotes
[1] Yves Derains, ‘Towards Greater Efficiency in Document Production before Arbitral Tribunals – A Continental Viewpoint’ in 2006 Special Supplement, ‘Document Production in International Arbitration’ (International Chamber of Commerce (ICC), 2006), ¶ 11.
[2] ‘Foundational Concepts of International Discovery’, Chapter 1 in The Globalization of Discovery: The Law and Practice under 28 U.S.C. § 1782 (Lucas V M Bento (ed.), Kluwer Law International, 2020), p. 22.
[3] Hickman v. Taylor, 329 U.S. 495, 507, 67 S. Ct. 385, 392, 91 L. Ed. 451 (1947).
[4] Davies v. Eli Lilly & Co and Others [1987] 1 W.L.R. 428 at 431; [1987] 1 All E.R. 801; [1987] E.C.C. 340.
[5] Nathalie Meyer-Fabre, ‘Evidence held by the other party’, Revue de l’Arbitrage (2020), Vol. 2020, Issue 1, ¶ 3 (original title in French).
[6] Jalal El Ahdab and Amal Bouchenaki, ‘Discovery in International Arbitration: A Foreign Creature for Civil Lawyers?’ in Arbitration Advocacy in Changing Times, ICCA Congress Series No. 15 (Albert Jan van den Berg (ed.), ICCA and Kluwer Law International, 2011), pp. 85–86.
[7] See, e.g., Spanish Civil Procedural Law, Article 328 or French Civil Procedural Code, Article 142.
[8] See, generally, Reto Marghitola, ‘Purpose of Document Production’, Chapter 3 in Document Production in International Arbitration, International Arbitration Law Library, Vol. 33 (Kluwer Law International, 2015), pp. 11–20.
[9] ‘Commentary on the revised text of the 2020 IBA Rules on the Taking of Evidence in International Arbitration’, IBA Review Task Force (2020), p. 8, http://www.ibanet.org/MediaHandler?id=4F797338-693E-47C7-A92A-1509790ECC9D.
[10] International Bar Association, ‘Rules on the Taking of Evidence in International Arbitration’ (2020) (IBA Rules), Article 3(3), paras. (a) and (b).
[11] Roman Mikhailovich Khodykin and Carol Mulcahy, ‘Article 3: Documents’, Chapter 6 in A Guide to the IBA Rules on the Taking of Evidence in International Arbitration (Oxford University Press, 2019), ¶ 6.97, citing Gabrielle Kaufmann-Kohler and Philippe Bärtsch, ‘Discovery in international arbitration: How much is too much?’, SchiedsVZ (2004), Vol. 2, Issue 1, p. 18.
[12] Tobias Zuberbühler, Dieter Hofmann, et al., ‘Article 3: Documents’ in IBA Rules of Evidence: Commentary on the IBA Rules on the Taking of Evidence in International Arbitration (2nd edition, Schulthess Juristische Medien AG, 2022), ¶ 129.
[13] IBA Rules, Article 3(3)(c).
[14] id., Article 3(3)(c)(i).
[15] id., Article 9(2).
[16] Landmark Ventures Inc. v. Insightec Ltd., ICC Case No. 18807/VRO/AGF, Procedural Order No. 2, ¶ 9.
[17] Khodykin and Mulcahy, supra note 11, ¶ 6.22.
[18] ‘Creeping Americanization of international arbitration: is it the right time to develop inquisitorial rules of evidence?’, session at the IV Russian Arbitration Association Annual Conference (20 April 2017), see https://praguerules.com/news/is-it-time-for-a-change-.
[19] ‘Rules on the Efficient Conduct of Proceedings in International Arbitration’ (Prague Rules), Article 4(2).
[20] Marghitola, supra note 8, p. 17.
[21] Lucy F Reed and Ginger Hancock, ‘US Style Discovery: Good or Evil?’, Chapter 7 in Written Evidence and Discovery in International Arbitration: New Issues and Tendencies, Dossiers of the ICC Institute of World Business Law, Vol. 6 (Teresa Giovannini and Alexis Mourre (eds.), Kluwer Law International and ICC, 2009), p. 339.
[22] Erik Schäfer, Herman Verbist and Christophe Imhoos, ‘Commission Report – Techniques for Managing Electronic Document Production when it is Permitted or Required in International Arbitration (2012)’, ICC Arbitration in Practice (2nd edition, Kluwer Law International, 2015), ¶ 1.2.
[23] Khodykin and Mulcahy, supra note 11, ¶ 6.2.
[24] ICC Commission Report, ‘The Accuracy of Fact Witness Memory in International Arbitration: Current Issues and Possible Solutions’ (2020), ¶ 1.5.a), https://iccwbo.org/wp-content/uploads/sites/3/2020/11/icc-arbitration-adr-commission-report-on-accuracy-fact-witness-memory-international-arbitration-english-version.pdf. Note, however, that the report rejects the idea that witness evidence is seen as ‘second best’ to documentary evidence.
[25] Julian D M Lew and Simona Valkova, ‘Cultures and the Taking of Evidence’, Chapter 1 in Handbook of Evidence in International Commercial Arbitration: Key Concepts and Issues (Franco Ferrari and Friedrich Jakob Rosenfeld (eds.), Kluwer Law International, 2022), p. 19.
[26] Marghitola, supra note 8, p. 12.
[27] See, e.g., United States Federal Rules of Civil Procedure, Rule 37(c)(1).
[28] Gary B Born, International Commercial Arbitration (3rd edition, Kluwer Law International, 2024), §16.02[E][1].
[29] Juan C García, ‘The Use of Document Production as a Strategic Tool in International Commercial Arbitration’ in 40 under 40 International Arbitration (Carlos González-Bueno (ed.), Dykinson, SL, 2018), p. 232.
[30] Marghitola, supra note 8, p. 18.
[31] Steven C Bennett, ‘Hard Tools for Controlling Discovery Burdens in Arbitration’ in Arbitration: The International Journal of Arbitration, Mediation and Dispute Management (2018), Vol. 84, Issue 4, pp. 295–96, and footnote 4 citing criticisms.
[32] Schäfer, Verbist and Imhoos, supra note 22, ¶¶ 4.A and B.
[33] Sachin Trikha, ‘A Vision of Document Production in Arbitration in England’, Chapter 10 in International Arbitration in England: Perspectives in Times of Change (Gregory Roy Fullelove, Laila Hamzi, et al. (eds.), Kluwer Law International, 2022), p. 189.
[34] Bernard Hanotiau, ‘International Arbitration in a Global Economy: The Challenges of the Future’, 28 J. Int’l Arb. 89, pp. 99–100 (2011).
[35] Peter Ashford, ‘Document Production in International Arbitration: A Critique from Across the Pond’, 10 Loy. U. Chi. Int’l. L. Rev. 1, 8 (2012).
[36] Andrew Rogers, ‘Improving Procedures for Discovery and Documentary Evidence’ in Planning Efficient Arbitration Proceedings: The Law Applicable in International Arbitration, ICCA Congress Series, Vol. 7 (Albert Jan van den Berg (ed.), ICCA and Kluwer Law International, 1996), p. 137.
[37] Derains, supra note 1, ¶ 12.
[38] Reto Marghitola, ‘Document Production Strategies’, Chapter 6 in Document Production in International Arbitration, International Arbitration Law Library, Vol. 33 (Kluwer Law International, 2015), p. 125.
[39] Reed and Hancock, supra note 21, pp. 340.
[40] Reto Marghitola, ‘Arbitral Tribunals’ Broad Discretion’, Chapter 4 in Document Production in International Arbitration, International Arbitration Law Library, Vol. 33 (Kluwer Law International, 2015), p. 31; and Born, supra note 28, §16.02. See also Dongwoo Mann Hummel Co. Ltd v. Mann & Hummel GmbH [2008] 3 SLR 871, ¶ 87 (Singapore High Court) (rejecting challenge to award based on procedure for compelling document production: ‘This is a matter well within the jurisdiction of the tribunal, which has the power and the discretion to determine the rules of procedure and to conduct the hearing in a manner that it considers most appropriate to ensure the fair, expeditious, economical and just determination of the dispute procedure it would adopt.’); Ibrahim Shehata, ‘Annulment of Egyptian Arbitral Awards’, Chapter 10 in Arbitration in Egypt: A Practitioner’s Guide (Kluwer Law International, 2021), ¶ 24 (‘The Cairo Court of Appeal has repeatedly considered that arbitral tribunals enjoy wide discretionary powers with respect to the applicable evidence and document production rules in arbitral proceedings governed by the EAL.’).
[41] See, e.g., U.S. Federal Arbitration Act, 9 U.S.C. §7, English Arbitration Act, Section 34(2)(d) or United Nations Commission on International Trade Law Model Law on International Commercial Arbitration, Articles 19(2), 26(1)(b) and 27; and ICC, Arbitration Rules, Article 25(4), London Court of International Arbitration, Arbitration Rules, Article 22.1(v) or International Centre for Dispute Resolution (ICDR), Arbitration Rules, Articles 24(4).
[42] Born, supra note 28, §16.02.[E][1].
[43] Nadia Darwazeh and Sarah Lucas, ‘Practical Insights on Document Production’ in Practical Insights on Arbitral Procedure (Kluwer Law International, 2021), § II.4.
[44] Born, supra note 28, §15.01[A].
[45] See, generally, Reto Marghitola, ‘The Expectations of the Parties’, Chapter 7 in Document Production in International Arbitration, International Arbitration Law Library, Vol. 33 (Kluwer Law International, 2015), pp. 129–48.
[46] Caratube International Oil Company LLP v. Republic of Kazakhstan (I), ICSID Case No. ARB/08/12, Procedural Order No. 2 Regarding Document Production, ¶ 1.3.
[47] General Wireless Operations Inc. v. Berjaya RS Sdn. Bhd., BRS (Cayman) Limited, Berjaya Retail RS (Cayman) Limited, Intertrust Trustees (Cayman) Limited and Berjaya Retail Berhad, ICDR Case No. 01-17-0001-2921, Procedural Order No. 1, ¶ 10.
[48] Philipp Habegger, ‘Part V: Saving Time and Costs in Arbitration’, Chapter 18 in Arbitration in Switzerland: The Practitioner’s Guide (Manuel Arroyo (ed.), 2nd edition, Kluwer Law International, 2018), ¶¶ 18 and 47–51.
[49] Claire Morel de Westgaver, ‘Will Adverse Inferences Help Make Document Production in International Arbitration More Efficient?’, Kluwer Arbitration Blog, 2 August 2017, https://legalblogs.wolterskluwer.com/arbitration-blog/will-adverse-inferences-help-make-document-production-in-international-arbitration-more-efficient.
[50] Robin Moser, ‘Effects of Procedural Misconduct on the Allocation of Costs in International Arbitration’, ASA Bulletin (2022), Vol. 40, Issue 4, 5.c).vi and ix.
[51] Trikha, supra note 33, p. 193.
[52] Derains, supra note 1, ¶ 18.
[53] Annett Rombach and Hanna Shalbanava, ‘The Prague Rules: A New Era of Procedure in Arbitration or Much Ado about Nothing?’ in Jörg Risse, Guenter Pickrahn, et al. (eds.), SchiedsVZ (2019), Vol. 17, Issue 2, p. 54; Trikha, supra note 33, p. 193; Josefa Sicard-Mirabal and Yves Derains, ‘Evidence, Burden of Proof and Document Production’, Chapter 8 in Introduction to Investor-State Arbitration (Kluwer Law International, 2018), p. 211.
[54] Higher Regional Court of Frankfurt, 17 February 2011, 26 Sch 13/10 (annulling the award on procedural due process grounds because the tribunal had failed to enforce the parties’ agreement as to production of documents); Home Indem. Co. v. Affiliated Food Distributors, Inc., No. 96 Civ. 9707 (RO), 1997 WL 773712 (S.D.N.Y. 12 December 1997) (concluding that the petitioner was denied a ‘fundamentally fair hearing’ where the arbitrator ‘condition[ed]’ discovery on the posting of security and thus prevented ‘discovery of files central and dispositive to the dispute’).
[55] French Supreme Court, 18 September 2024, Civil Case No. 21-20.140 (failing to annul the award rendered in Green Network S.p.A v. SA Alpiq, ICC Case No. 18995/MHM/EMT/GR, dated 6 April 2018. The claimant sought annulment of the award, arguing that the tribunal had unjustifiably refused its request for document production and closed the investigation, depriving it of evidence essential to its case. The Paris Court of Appeal rejected the claim, finding that decisions on document production fall within the tribunal’s discretion and do not, by themselves, violate the right of defence. The French Supreme Court upheld this view, confirming that it is not for the annulment judge to assess the merits of such procedural decisions.) See also Judgment from Appellate Court of Paris, 26 November 2009, Case No. 08/11583 (finding that the arbitral tribunal did not breach due process by refusing unnecessary request for document production).
[56] See, e.g., All Communications Network of Canada, Co. v. Planet Energy Corp., 2023 ONCA 319 (pointing out that the onus on a party seeking to set aside an arbitral award on the basis of failure of due process is high); Svea Court of Appeal, 19 February 2016, Case T 5296-14 (declaring that a tribunal ‘should not abet document production for a so-called fishing expedition’); Doscher v. Sea Port Grp. Sec., LLC, No. 15-CV-384 (JMF), 2017 WL 6061653 (S.D.N.Y. 6 December 2017), aff’d, 752 F. App’x 102 (2d Cir. 2019) (recognising the broad discretion that arbitrators enjoy in addressing discovery and other matters of procedure).
[57] Khodykin and Mulcahy, supra note 11, ¶ 6.2.
[58] Darwazeh and Lucas, supra note 43, § II.3.
[59] See, generally, Marghitola, ‘Chapter 6: Document Production Strategies’, supra note 38, pp. 117–28.
[60] id., at p. 126.
[61] Davies v. Eli Lilly & Co and Others [1987] 1 W.L.R. 428 at 431; [1987] 1 All E.R. 801; [1987] E.C.C. 340.
[62] Mélanie Riofrio Piché and Sofia de Sampaio Jalles, ‘The Armesto Schedule: a Step Further to a More Efficient Document Production’, Kluwer Arbitration Blog, 4 April 2020, https://arbitrationblog.kluwerarbitration.com/2020/04/04/the-armesto-schedule-a-step-further-to-a-more-efficient-document-production.
[63] Alan Redfern, Martin Hunter, Nigel Blackaby and Constantine Partasides, The Law and Practice of International Commercial Arbitration (4th edition, Sweet & Maxwell, 2004), ¶¶ 6–74.
[64] IBA Rules, Article 9(4)(e).
[65] Redfern, et al., supra note 63, ¶¶ 6–74.
[66] ‘Current choices and future adaptations’ in ‘2021 International Arbitration Survey: Adapting arbitration to a changing world’ (White & Case LLP, Queen Mary University of London, School of International Arbitration, 2021), pp. 13–14, www.whitecase.com/insight-our-thinking/current-choices-and-future-adaptations (‘While it might be expected that counsel from civil law traditions would be more inclined to do without document production, it is interesting that many interviewees from common law backgrounds also expressed a willingness to limit document production.’).
[67] See H Ercüment Erdem, ‘Consequences of the Failure to comply with Document Production Orders in International Arbitrations’, Erdem & Erdem (2018), https://www.erdem-erdem.av.tr/en/insights/consequences-of-the-failure-to-comply-with-document-production-orders-in-international-arbitrations.
[68] Gary B Born, ‘Drafting International Arbitration Agreements’, Chapter 3 in International Arbitration and Forum Selection Agreements: Drafting and Enforcing (6th edition, Kluwer Law International, 2021), pp. 35–140.
[69] Reto Marghitola, ‘Model Clauses’, Chapter 8 in Document Production in International Arbitration, International Arbitration Law Library, Vol. 33 (Kluwer Law International, 2015), § 8.05.
[70] Schäfer, Verbist and Imhoos, supra note 22, p. 433, ¶ 5.6(a): ‘There is no automatic right in international arbitration to obtain documents from an opponent. Parties and tribunals should consider whether document requests are necessary or desirable in the context of the case at hand.’
[71] ‘2012 International Arbitration Survey: Current and Preferred Practices in the Arbitral Process’ (Queen Mary University of London, School of International Arbitration, 2012), p. 3, https://www.qmul.ac.uk/arbitration/research/2012.
[72] ICDR Arbitration Rules, Article 24(2).
[73] Darwazeh and Lucas, supra note 43, § II.3.
[74] ibid.
[75] Reto Marghitola, ‘Document Production: Finding the Right Balance’, Kluwer Arbitration Blog, 7 December 2015, https://arbitrationblog.kluwerarbitration.com/2015/12/07/document-production-finding-the-right-balance.
[76] Kaufmann-Kohler and Bärtsch, supra note 11, pp. 20–21.
[77] IBA Rules, Article 9(2)(g).
[78] Frédéric G Sourgens, Kabir Duggal and Iain A Laird, ‘Documentary Evidence and Document Production’ in Evidence in International Investment Arbitration (Oxford University Press, 2018), ¶ 9.48. See also IBA Rules (2020), Article 9(2)(c).
[79] Marco Eliens, ‘Document Production: Quality Over Quantity’, Kluwer Arbitration Blog, 10 July 2020, https://arbitrationblog.kluwerarbitration.com/2020/07/10/document-production-quality-over-quantity; Bennett, supra note 31, pp. 298–29; ICC Commission Report, ‘Techniques for Controlling Time and Costs in International Arbitration’ (2nd edition, 2018), p. 12, ¶ 52.
[80] ‘2021 International Arbitration Survey: Adapting Arbitration to a Changing World’ (White & Case LLP, Queen Mary University of London, School of International Arbitration, 2021), p. 13, https://www.qmul.ac.uk/arbitration/research/2021-international-arbitration-survey.
[81] ibid.
[82] ‘The need for speed’ in ‘2025 International Arbitration Survey: “The Path Forward: Realities and Opportunities in Arbitration”’ (White & Case LLP, Queen Mary University of London, School of International Arbitration, 2025), p. 19 (emphasis added), https://www.whitecase.com/sites/default/files/2025-06/white-case-qmul-2025-international-arbitration-survey-report-web.pdf.
[83] El Ahdab and Bouchenaki, supra note 6, p. 68.
[84] Duarte Gorjão Henriques, ‘The Prague Rules: Competitor, Alternative or Addition to the IBA Rules on the Taking of Evidence in International Arbitration?’, ASA Bulletin (2018), Vol. 36, Issue 2, p. 351.
[85] Schäfer, Verbist and Imhoos, supra note 22, ¶ 2.4.
[86] ‘2021 International Arbitration Survey: Adapting Arbitration to a Changing World’, supra note 80.
[87] Claire Morel de Westgaver and Olivia Turner, ‘Artificial Intelligence, A Driver for Efficiency in International Arbitration – How Predictive Coding Can Change Document Production’ (Kluwer Arbitration Blog, 23 February 2020), https://arbitrationblog.kluwerarbitration.com/2020/02/23/artificial-intelligence-a-driver-for-efficiency-in-international-arbitration-how-predictive-coding-can-change-document-production.
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