Evidentiary issues in international arbitration are of great importance, based on their impact on fulfilling the burden of proof, and consequently, on the decisions on merits. The taking of evidence is regulated under the International Bar Association ("IBA") Rules on the Taking of Evidence in International Arbitration ("IBA Rules" or, Rules"), which is referred to in many arbitral proceedings as a point of reference for evidentiary issues, both in the arbitrations conducted under institutional rules, and also in ad hoc arbitrations. The Rules provide for a helpful basis, especially if the parties and the arbitrators come from different legal systems.
In this article, we analyze the general framework and principles of the provisions of the IBA Rules on document production requests, while the grounds for objection to document production requests under Art. 9.2 of the Rules will be analyzed in our next article.
The IBA Rules are widely used in international arbitration. In the foreword of the Rules, it is stated that the IBA issued these rules as a resource to parties and to arbitrators to provide an efficient, economical, and fair process for the taking of evidence in international arbitrations1. The Rules cover a large variety of issues concerning the taking of evidence, such as presentation of documents, issues concerning witnesses, and the principles with respect to evidentiary hearings.
Pursuant to the Preamble of the Rules, parties and arbitral tribunals may adopt the Rules in whole, or in part, to govern the proceedings. The rules may also be used as a guideline to develop the parties' own procedures.
Pursuant to Art. 1.5 of the Rules, if the Rules and the institutional, ad hoc, or other rules that apply to the conduct of the arbitration are silent on any matter concerning the taking of evidence, the arbitral tribunal shall conduct the taking of evidence as it deems appropriate, in accordance with the general principles of the Rules.
Document Production Requests under the Rules
Pursuant to Art. 3.2 of the Rules, within the time ordered by the arbitral tribunal, the parties may submit to the arbitral tribunal and to the other parties a request to produce.
Accordingly, there are certain elements that a request to produce shall contain. Firstly, the request shall provide a description sufficient to identify the relevant document, or a description of a narrow and specific category of documents that the requesting party reasonably believes to exist. Accordingly, as stated in the commentary of the Working Group on the IBA Rules, even if a party cannot identify the dates or the authors of the documents, it can, nevertheless, identify with some particularity the nature of the documents sought, and the general time frame in which they would have been prepared, so that the request may qualify as a narrow and specific category of documents pursuant to Art. 3.3(a)(ii) of the Rules2.
In practice, the parties may submit very broad document production requests. If these requests pertain to all correspondence exchanged, covering a very long period of time, these requests will generally not be granted3.
Additionally, the request shall contain a statement as to how the documents are relevant to the case and material to its outcome. In this provision, relevance and materiality of the documents sought is important, and may be a reason to object to document production requests.
Finally, the document production request shall contain a statement that the documents are not in the possession, custody or control of the requesting party, or a statement concerning the reasons why it would be unreasonably burdensome for the requesting party to produce such documents, and a statement explaining why the requesting party assumes that the requested documents are in the possession, custody, or control of another party.
Procedure concerning the Objections to Document Production Requests
The party to whom the document production request is addressed may object to the request, pursuant to Art. 3.5 of the IBA Rules. Accordingly, the objection shall be made in writing to the arbitral tribunal and the other parties within the time ordered by the arbitral tribunal.
The reasons for objection may be the failure to meet the conditions laid down under Art. 3.3, or based on the grounds set forth under Art. 9.2 of the Rules4. In the event that there is such objection, the arbitral tribunal may invite the parties to consult with each other to resolve the objection.
In the event that the objections are not resolved between the parties, either party may request the arbitral tribunal to rule on the objection. In this case, the arbitral tribunal shall consider the requests to produce, as well as the objection. The arbitral tribunal, in this consideration, decides whether the issues that the requesting party wishes to prove are relevant to the case and material to its outcome, whether the grounds for objection laid down under Art. 9.2 apply, and whether the requirements detailed under Art. 3.3 have been satisfied.
Upon this review, the arbitral tribunal shall order that the documents within the scope of the document production request shall be produced to the other parties, and if the arbitral tribunal so orders, to the tribunal, itself.
Document Production Requests from Third Parties
Pursuant to Art. 3.9 of the Rules, in the event that the document production request should be directed to a person or organization who is not a party to the arbitration, the relevant party may ask the arbitral tribunal to take whatever steps are legally available to obtain the requested documents, or may seek leave from the arbitral tribunal to take these steps, itself. The arbitral tribunal shall take, or authorize the requesting party to take, the steps that the arbitral tribunal considers to be appropriate, in its discretion. It should be noted that this request shall fulfill the criteria applied for document production requests analyzed, above.
Document production requests are of great importance in arbitration proceedings. In the event that the documents on which the party wishes to rely are in the possession, or in the custody of the opposing party, these documents may be obtained through document production requests. Considering their importance, document production requests shall be addressed attentively, in line with the provisions of the IBA Rules, and the provisions that provide a guideline on this issue shall be carefully reviewed, in order not to encounter any problems during arbitration proceedings.
1. IBA Rules on the Taking of Evidence in International Arbitration, Foreword.
2. 1999 IBA Working Party & 2010 IBA Rules of Evidence Review Subcommittee, Commentary on the revised text of the 2010 IBA Rules on the Taking of Evidence in International Arbitration, p. 8.
3. Bernard Hanotiau, Massive Production of Documents and Demonstrative Exhibits, Written Evidence and Discovery in International Arbitration, Ed. Teresa Giovanini and Alexis Mourre, ICC Publication No. 698, 2009, p. 358.
4. These grounds shall be analyzed in our next article.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.