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Documents are crucial to proving a case in international arbitration. Arbitrators usually rely primarily on contemporaneous documents in reaching their ultimate decision and rendering their award. International arbitration practice has developed a specific procedure of "document production" (narrower than the common law discovery) by which each party (claimant or respondent) may force the other party to produce documents in its possession which are relevant to the outcome of their dispute. Document production has become a frequent feature of international arbitration. Parties must be prepared for it: When mastered, "document production" can be a powerful tool to strengthen a party's case; however, it can be of limited value, or even counter-productive, if not used properly.

The Procedural Framework: the IBA Rules
In international arbitration, the parties and arbitrators can agree on procedural matters, including the method for document production. The 1999 IBA Rules on the Taking of Evidence in International Commercial Arbitration have become the standard reference for document production.¹ The IBA Rules have achieved an effective balance between the US or common law-style discovery (often seen as excessive) and civil law systems (with a very restrictive approach to document production) and are, in that sense, truly international. This balance has been maintained in the new IBA Rules on the Taking of Evidence in International Arbitration, which were adopted by the IBA Council on 29 May 2010.²

The procedure for document production is usually determined at the outset of the arbitration when the arbitrators and parties agree on the overall timetable. The new IBA Rules impose an obligation on the arbitral tribunal to consult the parties at the earliest appropriate time with a view to agreeing on an efficient, economical and fair process for taking evidence, and includes a nonexhaustive list of matters which such a consultation should address.³

Document production typically takes place following the parties’ first detailed written submissions, with each party submitting a request to produce documents to the other party. Under both the 1999 and 2010 IBA Rules, such requests should contain:

• A description of a document or a narrow and specific category of documents which the party wants to obtain⁴;
• A description of how these documents are relevant and material to the outcome of the case;
• Confirmation that these documents are not in the "possession, custody or control" of the requesting party, and of the reason why that party assumes such documents to be in the "possession, custody or control" of the other party.

Requests for production can cover a wide variety of documents (in electronic or paper form), such as letters, e-mails, memoranda, minutes of meetings or any other documentary evidence.

A party can either produce the documents requested or object to the production. Reasons for objections under the IBA Rules include: (a) lack of relevance or materiality; (b) legal impediment or privilege under applicable legal or ethical rules; (c) unreasonable burden to produce the requested evidence; (d) reasonable loss or destruction of the document; (e) compelling commercial or technical confidentiality; (f) compelling special political or institutional sensitivity (including evidence that has been classified as secret by a government or a public international institution); or (g) compelling considerations of fairness or equality of the parties.

In case of objections, the tribunal will rule on the issue and either agree to the objections or order the production of documents.

In practice, requests for production, objections and the tribunal’s decision are frequently presented together in a table called a "Redfern Schedule" (named after the prominent British arbitrator, Alan Redfern).

Advantages and Pitfalls of Document Production
The main advantage of document production is getting documents from the other party to strengthen your case. Obtaining such documents can be critical. To illustrate, in a construction dispute, we succeeded in obtaining the production of internal cost documents from the other party which evidenced that the amount of its claim had been significantly inflated. Or, in a dispute related to the abrupt termination of certain negotiations, we obtained internal board minutes from the other side showing, contrary to what it alleged, that its board had in fact decided months earlier than it claimed, without informing our client, not to proceed with the acquisition. In both cases, document production had a decisive impact on the outcome of the dispute.

However, document production can have pitfalls if not approached or understood properly. It may indeed backfire and be prejudicial to a party's position. A party's (and its counsel's) understanding and approach to document production may vary greatly depending on its legal background. Thus, a party from a civil law system, where document production is virtually nonexistent, may be inclined to object in principle to the production of documents. This approach is likely to be counterproductive and may antagonize the tribunal. Objections without justification are unlikely to succeed, but likely to be seen as obstructive. On the other hand, a party from a common law system, with broad discovery, may be led into producing more documents than it was required to disclose and thus, overexpose itself.

Practical Tips
If used carefully, with a good understanding of the rules, practice and goals, document production can be a useful tool to make a party's case. Here are a few practical tips:

• Know your case and your documents from the outset: it is essential to identify "good" documents; "bad" documents, which may become an issue in document production; and "missing" documents, which may be requested from the other party;
• The later a party produces a "damaging" document, the stronger the resulting damage, especially if the party is ordered to do so by the tribunal; thus, often it is preferable to produce such documents before being forced to do so; this ensures better "damage control" and allows such documents to be presented in the most favorable light;
• Be cooperative, straightforward and responsive to document production requests, unless there are justified grounds for objections: it strengthens credibility vis-à-vis the tribunal.

Document production should be taken seriously from the outset of the arbitration and approached with experience, caution and preparation. If used properly, it can be a decisive tool to win your case.

1 - Document production is covered in Article 3 of the IBA Rules. International Bar Association, IBA Rules on the Taking of Evidence in International Commercial Arbitration, Article 3 (June 1, 1999), available at http://www.int-bar.org/images/downloads/IBA%20rules%20on%20the%20taking%20of%-20Evidence.pdf.  
2 - International Bar Association, IBA Rules on the Taking of Evidence in International Arbitration (May 29, 2010), available at http://www.ibanet.org/Document/Default.aspx?DocumentUid=68336C49-4106-46BF-A1C6-A8F0880444DC [hereinafter 2010 IBA Rules]. 
3 - Id. Article 2.
4 - The 2010 IBA Rules also specifically address the case of documents maintained in electronic form.

The White & Case International Disputes Quarterly is prepared for the general information of our clients and other interested persons. It should not be acted upon in any specific situation without appropriate legal advice.

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