Turkey: Document Production Requests In International Arbitration And Due Process Concerns

Document production requests in international arbitration play an important role, since they ensure that the parties have access to documents that are not in their possession, in order to provide sufficient proof for their claims. In parallel with this important role, document production requests are closely related to the parties' right to due process, since the documentation of an issue may totally depend on a document production request.

An unsuccessful document production request may give rise to claims of infringement of the right to due process, and may even lead to requests to set-aside, or grounds for non-recognition or non-enforcement of the arbitral award, which makes it an important concern for parties, as well as arbitrators. The link between document production requests and concerns of right to due process shall be analyzed in this article.

In General

In international arbitration, document production requests are usually conducted pursuant to IBA Rules on the Taking of Evidence in International Arbitration ("IBA Rules" or "Rules"). In the foreword of the Rules, it is emphasized that the Rules aim to provide a resource to parties and arbitrators to ensure an efficient, economical and fair process for the taking of evidence in international arbitration.1 Accordingly, fair process is a major subject in the IBA Rules.

The IBA Rules provide basic requirements to request production of documents: The requested documents should be specific (Art. 3/3(a) of the Rules), they should be relevant to the case and material to its outcome (Art. 3/3(b) of the Rules), and they should not be in the possession, custody or control of the requesting party, nor be unreasonably burdensome for the requesting party to produce such documents (Art. 3/3(c) of the Rules). Accordingly, the IBA Rules draw some guidelines for document production, and their focus is rather on limited document production, in line with these requirements.

Objections to Document Production and Due Process Concerns

Art. 9 of the IBA Rules provide specific provisions for the admissibility and assessment of evidence. Accordingly, the main principle is that the arbitral tribunal shall determine the admissibility, relevance, materiality and weight of evidence. If the tribunal is convinced that the reasons set forth under Art. 9/2 exist, it may rule on the exclusion of the relevant document. The document production requests may either be challenged by the counterparty, or the arbitral tribunal may decide to exclude the document through its own motion. Accordingly, if the requested documents fall within one of these categories, the document production request will be unsuccessful.

Even though the grounds for objection will not be examined in detail in this article,2 in practice, the arbitral tribunals are compelled by following reasons: legal impediment of privilege, unreasonable burden to produce the requested document, and grounds of commercial or technical confidentiality. Accordingly, the IBA Rules aim to balance the interests of the parties, and even though there are some documents that may fall within the scope of the IBA Rules, they may be excluded from evidence based on these concerns.

As an example, the following scenario may be contemplated: The parties to an arbitration case have disputes based on a shareholders' agreement. During the document production request phase, the respondent requests from the claimant a report prepared by a third party, upon the instructions of the claimant. The report gives some details about the valuation of the shares; therefore, it is relevant to the case and material to its outcome. The claimant objects to this request, with the argument that the report contains commercially confidential information. When the arbitral tribunal has to rule on this objection, it orders that the report should be submitted; however, subject to some limitations, such as limitations as per the audience to whom the report should be submitted, and exclusion and editing of some parts of the report that may contain commercially confidential information. Later on, the arbitral tribunal takes this report into consideration in the calculation of damages.

This limited submission may later give rise to allegations that the respondent could not be informed about a report that was quite consequential to the case and, accordingly, to the allegation that the right to due process was infringed upon, especially if the respondent is the losing party.

Limited Document Production and Enforcement Proceedings

In the event that the objections to document production are successful, the arbitral tribunal will order a limited document production, or the request will be denied in its entirety. Even though the IBA Rules, as explained above, permit this limited document production, this limitation may give rise to some challenges during set-aside and enforcement proceedings. Accordingly, the party whose document production request has not been granted may bring this forward during set-aside or enforcement proceedings3.

As far as the enforcement proceedings are concerned, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) ("New York Convention") is applied worldwide, with 157 contracting states.4 As a very successful international instrument, it is quite probable that the enforcement of an arbitral award would be conducted pursuant to the New York Convention.

Under the New York Convention, the grounds for refusal of recognition and enforcement are set forth under Art. 5. The grounds that may give rise to enforcement concerns based on a limited document production may vary depending on the specifics of each case; however, amongst these grounds, two of them stand as the usual suspects: Art. 5/1(b), which sets forth that the party against whom the award is invoked was unable to present his case may challenge enforcement, and Art. 5/2(b), pertaining to contrariety to the public policy of the country in which enforcement is sought.

When it comes to public policy concerns, public policy is interpreted as "international public policy," and it is not accepted that challenges to an arbitral award would be successful if the award fails to conform simply to a domestic law requirement. Accordingly, this concept is confined to the violation of truly fundamental concepts of the legal order of the country concerned.5 In line with this requirement, it would be safe to say that the right to due process would be considered within the scope of international public policy.

As per set-aside proceedings, most national laws provide that arbitral awards may be subject to set-aside proceedings at the arbitral seat. It should be noted that a limited document production might give rise to set-aside proceedings, as well. The set-aside regime depends on the legislation of the seat of arbitration. As far as Turkish law is concerned, the grounds to set-aside are set forth under International Arbitration Law numbered 4686. It should be emphasized that the reasons to set-aside are similar to the grounds giving rise to refusal of recognition and enforcement of an arbitral award under the New York Convention. Therefore, our explanations, above, concerning the New York Convention are applicable for set-aside proceedings to be initiated in Turkey. As a general remark, it may be concluded that most states restrict the set-aside challenges to excess of jurisdiction and lack of due process, which reflect the policies behind those grounds6.

Conclusion

Limitations on document production requests aim to find the right balance between the parties' rights and various concerns. Having this in mind, the IBA Rules set forth the grounds for objection to document production requests, which may lead to the limited production of a document, or to non-production. These limitations may be challenged during set-aside or enforcement proceedings, by a party who could not obtain the desired result in its arbitration proceedings, and may cause that the arbitral award is rendered useless for the winning party. These challenges should be carefully reviewed and analyzed by the courts, in order not to permit abuse of the right to due process.

Footnotes

[1] Foreword of the IBA Rules.

Source:http://www.ibanet.org/Document/Default.aspx?DocumentUid=68336C49-4106-46BF-A1C6-A8F0880444DC.

[2] The grounds for objection to document production requests under the IBA Rules have been analyzed in our newsletter article entitled, "Document Production Requests pursuant to IBA Rules on the Taking of Evidence in International Arbitration-II." Source: http://www.erdem-erdem.av.tr/publications/law-post/document-production-requests-pursuant-to-iba-rules-on-the-taking-of-evidence-in-international-arbitration--ii/.

[3] As the reasons to set-aside an arbitral award depend on the law of the seat of arbitration, only Turkish law shall be analyzed in this article.

[4] Recently, Angola is in the process of ratification of the New York Convention. Source: http://www.newyorkconvention.org/news/angola+accedes+to+the+new+york+convention.

[5] Nigel Blackaby, Constantine Partasides, et al., Redfern and Hunter on International Arbitration, 6th edition (Kluwer Law International; Oxford University Press 2015), §10.85, §10.87. ("Redfern and Hunter on International Arbitration.")

[6] Redfern and Hunter on International Arbitration, §10.88.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions