Discovery and document production are important stages in international arbitration for a party to adduce evidence that it intends to rely on in support of its case, and to request for production of documents that are in the possession, custody or control of the other party that it requires so as to establish its case. Waincymer, Procedure and Evidence in International Arbitration865(2012); ("A tribunal will need to balance relevance and materiality on the one hand with the possible burdensome nature of the . Download PDF. Dispute Management. The importance of Document Production at an early stage was canvassed in Abuse of Document Production in International Arbitration: Remedies When the Adverse Inference Falls Short.3 . The Tribunal has discretion to decide on the relevance and admissibility of the evidence adduced by the parties, and can exercise the power to summon further evidence at any stage of the case (Articles 40 and 41 of the Arbitration (Additional Facility) Rules). The article discusses what the authors call "the power and primacy of contemporaneous documents" and looks at cases where the protocols for submission of document requests in arbitration are abused by a party to the arbitration, focusing on tribunals' need for alternatives to having an adverse inference in respect of abuse as the "adequate sole or exclusive remedy." (1) The arbitral tribunal shall not be bound by . This makes document production such a great example of an efficiency tool: If mishandled, document production is an expensive, lengthy process without much of a result. 2 The Guide provides direction on which documents parties should exchange without arbitrator or staff intervention, and the Lists specifically indentify the documents parties should exchange before the hearing, depending on . in this arbitration. This concept is common in international arbitration, but differs from English common law . . Court involvement. This Report describes the key features of electronic documents and how they may be managed, which is facilitated by a co-operative approach by the parties, by a focus on avoiding steps that will occasion unnecessary cost or delay, and by active case management by the arbitral tribunal. 1 (Redfern Schedule), Canada requests that . Document Production - An Overview of Swiss Court and Arbitration Practice. This book's analysis focuses on whether there exist legal principles on which arbitrators should establish rules of document production in both civil law and common law countries, and shows how international arbitration is affected. Document production is one of the most important and controversial topics in international arbitration. Document production nearly always features in international arbitration processes and, as is the case in England and Wales, it is common for national laws to afford tribunals wide discretion as to .
9 Use and confidentiality of documents. In ICC International Court of Arbitration Bulletin: 2006 Special Supplement: Document Production in International Arbitration, p. 21-32. The author examines the relevant discretion of arbitral tribunals under US, English, Swiss, German, and . Put briefly, the starting position for disclosure/production under them is that parties will adduce the documents on which they intend to rely, and have a right to request the production of documents/classes of documents from adversaries (bounded by limiting criteria like relevance and materiality). Document Production in International Arbitration, Moscow - Wednesday 7 June 2017. This section does not give any specific provision giving the powers to the arbitral tribunal to order for discovery and production of the documents. The International Bar Association's ( hereinafter , IBA) Rules, for instance, address this problem stipulating the production of "narrow and specific " documents and providing suitable safeguards from a . Institutional Rules. Legal privilege may justify keeping confidential information, evidence, or documents out of the record, even before a court or tribunal. Rules on the Taking of Evidence in International Arbitration (2010) (IBA Rules).2 2. 23.3.2016. This article focuses on the possible routes arbitrators may follow in the presence of different legal systems' approaches to privilege when it comes to document production in international arbitration. However, document production proceedings can be a costly and time-consuming exercise, and arbitral awards in particular are often challenged on grounds that relate to document production orders. But, if handled properly, it will indeed improve the chances to win the arbitration.
Documents discussing Section Canada repeats the Canada repeats the reasons in Line 1, 8 of the LFA, including the references . What document production is required in a complex construction case might be quite different from a case seeking to determine the meaning of a word in a commercial agreement. Manager shall, upon City's written request from time to time, submit copies of any contract, bill, license, agreement or any other document relating to the Property or to this Agreement in Manager's possession to City. The IBA Rules. Civ. The essential []
The Singapore case of Dongwoo Mann+Hummel Co Ltd v Mann+Hummel GmbH [2008] 3 SLR(R) 871; [2008] SGHC 67 demonstrates how a tribunal may approach the issue of document production and withholding of such documents as well as the manner in which the Singapore court would . Pursuant to Canada's Motion for Targeted Document Production, and the format for document requests laid out by the Tribunal in Procedural Order No. In ENMAX Energy Corporation v.TransAlta Generation Partnership et al, 2022 ABCA 206, the Alberta Court of Appeal (Paperny, Rowbotham, and Strekaf, JJA) upheld the chambers justice's decision to refuse to set aside an arbitral award (the "Award") under section 45(1)(f) of the Alberta Arbitration Act, RSA 2000, c A-43 (the "Act"). There is no standard " one size fits all " application of document production in international arbitration. 20). 8 Dealing with late disclosure of documents. A YIAG seminar on document production. Added Corporate Author International Chamber of Commerce. Hosted by: Co-sponsored by:
3, S. 1) . . explaining the purpose or use of these documents in the party's line of evidence. What document production is required in a complex construction case might be quite different from a case seeking to determine the meaning of a word in a commercial agreement. Document Production Lists 1 and 2 describe the documents that are presumed to be discoverable in all arbitrations between a customer and a member or associated person. Some practitioners consider the document production as "an essential element of justice", whereas some others consider it as "a waste of time and money". As with most aspects of arbitration, document production is also agreed by the parties. In 1999, FINRA adopted the Discovery Guide (Guide), which includes Document Production Lists (Lists), for use in customer arbitration proceedings. Report of the ICC Commission on Arbitration Task Force on the Production of Electronic Documents in International Arbitration . Most respondents appeared to have an open mind on possible new approaches for managing document production. Bridging the Common Law Civil Law Divide in Arbitration. . Unless otherwise agreed, the 2020 IBA Rules will apply to all arbitrations in which the parties agree to apply the IBA . The Requested Documents, as defined below, are relevant to the case and material to its . This is the inherent advantage of the arbitration: being able . Read this book using Google Play Books app on your PC, android, iOS devices. Put briefly, the starting position for disclosure/production under them is that parties will adduce the documents on which they intend to rely, and have a right to request the production of documents/classes of documents from adversaries (bounded by limiting criteria like relevance and materiality). This will of course be different if the request for arbitration/statement of claim or . The fact that this was a 'disclosable circumstance' triggered concerns of apparent bias in the non-appointing . In General. On 17 December 2020, the International Bar Association ("IBA") adopted a revised third edition of its Rules on the Taking of Evidence in International Arbitration (the "2020 IBA Rules"), which supersede the 2010 version currently in force (the "2010 IBA Rules"). Consider whether it is appropriate to deal with document production in the arbitration clause, for example by agreeing that there will be no document production (e . This book's analysis focuses on whether there exist legal principles on which arbitrators should establish rules of document production in both civil law and common law countries, and shows how international arbitration is affected. Under Article 15 of LCIA Rules [1], parties only need to submit essential documents, which means identified documents that are relevant to the case and material to its outcome. Title Document production in international arbitration / ICC International Court of Arbitration Bulletin. Document Production in International Arbitration in International Arbitration (the "Rules").4 These Rules provide for parties to produce documents relied upon.5 The Rules also permit a limited and defined request for the production of documents or class of documents that is relevant It also triggered the arbitrator's duty to disclose in the first arbitration. Document production in international arbitration / Reto Marghitola. section 1 of the AAA International Arbitration Rules. Introduction Discovery is an essential part of the procedural framework in the United States and other common law countries. The standard documents with drafting notes that are currently on Practical Law Arbitration are listed below under the relevant topic. laid down by Article 15 of the UNCITRAL Arbitration Rules governing these Sample 1. Sample 2. For example, they may prohibit or restrict production of documents, or agree to produce the documents as per a . document production, many arbitral tribunals implement document production processes which are expressly or implicitly influenced by the IBA Rules on the Taking of Evidence in International Arbitration (IBA Rules). This event will be held at the offices of White & Case in Moscow. We also address document production issues that are specific to investor-state disputes. Article 24 (3) specifies that a tribunal may, at any time during the proceedings, require the parties to . What document production is required in a complex construction case might be quite different from a case seeking to determine the meaning of a word in a commercial agreement. It encompasses document production but, in the United States, it also includes depositions, interrogatories, admissions, and much more. The essential [] 1999) ("the FAA's provision authorizing an arbitrator to compel the production of documents from third parties for purposes of an arbitration hearing has been held to implicitly include the authority to compel the production of documents for inspection by a party prior to a hearing."); The article discusses what the authors call "the power and primacy of contemporaneous documents" and looks at cases where the protocols for submission of document requests in arbitration are abused by a party to the arbitration, focusing on tribunals' need for alternatives to having an adverse inference in respect of abuse as the "adequate sole or exclusive remedy." By Pelin Baysal and Bilge Kaan evik. Effective Management of Arbitration: A Guide for In-House Counsel and Other Party RepresentativesTopic Sheet 6: Document Production [Case management] [In-house counsel] English; .
This article was first published on Kluwer Arbitration Blog.----- This article was originally written for and featured in the Loyola University, Chicago International Law Review. The parties may agree on production of documents in an arbitration agreement or in the process of arbitration. With Vividus, the split in the circuits now favors no third-party document discovery under the FAA by a 3 to 2 margin.
Imprint Paris, France : ICC Pub., 2006. document production The Law on Evidence for Foreign Arbitrations Returns to the Supreme Court. An extensive run on document production has the tendency to delay proceedings for months at stretch thus increasing costs of arbitration.
First, it discusses the similarities and differences between various privilege regimes in North and South America, Europe, Australia, and Asia. The Document Production phase is important . National laws. Nevertheless, in recent decades, it has become standard practice in arbitration to include a document production phase regardless of the parties' background, and the scope of document production has grown ever larger. This chapter discusses applying legal privilege to document production in international commercial arbitration. This is the inherent advantage of the arbitration: being able . Contd. Document Production in International Arbitration by Reto Marghitola, 9789041151599, available at Book Depository with free delivery worldwide. October 22, 2021 October 22, 2021 / CPR Staff / Leave a comment. In setting out the standards expected of parties, the Tribunal sought to reduce the burden of the document production process on the parties and the Tribunal, and to prevent it from becoming prolonged and . Parties can request documents from each other, and exchange documents even before the written pleadings are filed. Definition of document production and distinction from other terms Purpose of document production Arbitral tribunals' broad discretion
We hope that our analysis of the issues will provide some helpful insight into the ways in which such processes are best managed.
Document Production in International Arbitration - Ebook written by Reto Marghitola. More than two-thirds of respondents thought that cost shifting might be a good In cross-border arbitration cases all players must be aware of the cultural and legal differences that arise due to the diversity of parties, arbitrators, and counsel. Document production is very often the single most time and cost-intensive phase of a dispute process. This volume summarizes the regimes applicable to litigation in the United Arab Emirates (UAE) for document production (both onshore One Battery Park Plaza New York, New York 10004-1482 +1 (212) 837-6000. procedure for document production in their arbitration clauses. Formats. Document production should be taken seriously from the outset of the arbitration and approached with experience, caution and preparation. Sole Arbitrator's decision on document production request. . It encompasses document production but, in the United States, it also includes depositions, interrogatories, admissions, and much more. of documents requested references to submission document production objections to (Tribunal) (requesting Party) (requesting Party) request document (objecting Party . ICC Arbitration Commission Report on Managing E-Document Production Get the document. ICC statistics show that 82 per cent of the costs involved in ICC arbitrations are incurred by the parties in document production and unnecessary evidentiary measures.9 It is recognised under modern arbitration laws that expansive document discovery is generally sent to City, promptly upon execution thereof.
The link between document production requests and concerns of right to due process shall be analyzed in this article. K2400 .M365 2015 Available at Stacks. National norms regarding document production differ sometimes significantly in civil law and common law systems. . Steps available to the tribunal. "Abuse of Document Production in International Arbitration: Remedies When the Adverse Inference Falls Short," an article by Akin Gump partner Hamish Lal, counsel Brendan Casey and associates Josephine Kaiding and La Defranchi has been published by International Journal of Arbitration, Mediation and Dispute Management. The seminar will feature two panel discussions and a debate.
Format; BibTeX: View Download: MARC: View . Marghitola, Reto, author. Often, the most painful part of any arbitration is the document production process - partly because of a lack of detail in institutional rules, the International Bar Association Rules, and Chartered Institute of Arbitrators and International Chamber of Commerce guidelines on e-disclosure. 3. The author examines the relevant discretion of arbitral tribunals under US, English, Swiss, German, and Austrian . 10. The other provision of the Act of 1996 which gives power to the arbitral tribunal is Section 19. Despite the notable differences between the common law and civil law approaches to document production, there is a general consensus among practitioners from both sides that some level of document production is appropriate in an international arbitration. A: Production of documents is generally subject to the parties' agreements and the arbitral tribunal's discretion. Some practitioners consider the document production as "an essential element of justice", whereas some others consider it as "a waste of time and money". The ICC Arbitration procedure is very flexible. Production of Documents Available to one Party (Art. Effective Management of Arbitration: A Guide for In-House Counsel and Other Party RepresentativesTopic Sheet 6: Document Production [Case management] [In-house counsel] English; . Hughes Hubbard & Reed LLP A New York Limited Liability Partnership. The IBA Rules set a middle ground between the two traditions by introducing a limited . Article 33.2 (b) FAI Rules grants the arbitral tribunal the power to order any party, at any time during the proceedings, to produce any documents or other evidence "that the arbitral tribunal may consider relevant to the outcome of the case". What document production is required in a complex construction case might be quite different from a case seeking to determine the meaning of a word in a commercial agreement. If used properly, it can be a decisive tool to win your case. ICC, Techniques for Managing Electronic Document Production When It Is Permitted or Required in International Arbitration 3.12 (2012); See alsoJ.
Make Document Production Categories More Granular. By Pelin Baysal and Bilge Kaan evik. November 11, 2020.
The requirements and procedure are best addressed already at the Case Management Conference. arbitrators may order the parties to present evidence and draw adverse inferences from a party's refusal to deliver a . But it can also be used, unjustifiably and abusively, as a shield to hide evidence which is adverse to and perhaps even determinative of the other . There is no standard " one size fits all " application of document production in international arbitration. This, in particular, as parties do not always see eye to eye when it comes to document production: For one, parties and arbitrators with a common law background are . This is the inherent advantage of the arbitration: being able . Despite the IBA Rules on the Taking of Evidence in International Arbitration to . There is no automatic duty to disclose documents, or right to request or obtain document production, in international arbitration, and the advent of electronic documents should not lead to any expansion of the traditional and prevailing approach to document production. Dispute Management. Attorney advertising. These documents, which are needed to initiate an arbitration proceeding, often contain only very rudimentary information on the dispute. The parties may determine, for instance, whether and to what extent document production requests or cross-examination will be allowed. This is the inherent advantage of the arbitration: being able . Because the arbitration agreement specified that the DISthat is, the German Arbitration Institute-would provide the panel to arbitrate the issues between . Consider whether it is appropriate to deal with document production in the arbitration clause, for example by agreeing that there will be no document production (e .
In the Anglo-Saxon world, it is - in varying degrees - normal to have a document production (or discovery) stage at some point in most . Production of Documents. Sample 1. Practical tips for efficient document production.
The Document Production Order provided that each disputing party shall submit to the Tribunal and the other disputing party, together with its written submissions, all documents available to it on which it relies, including public . International Court of Arbitration. In other words, Section 142 must not be used as a tool to discover new facts. There is no standard "one size fits all" application of document production in international arbitration. Download PDF. Document production is one of the most important and controversial topics in international arbitration. It agreed that the ("Tribunal") document disclosure . In ENMAX Energy Corporation v.TransAlta Generation Partnership et al, 2022 ABCA 206, the Alberta Court of Appeal (Paperny, Rowbotham, and Strekaf, JJA) upheld the chambers justice's decision to refuse to set aside an arbitral award (the "Award") under section 45(1)(f) of the Alberta Arbitration Act, RSA 2000, c A-43 (the "Act"). Introduction Discovery is an essential part of the procedural framework in the United States and other common law countries. WJBK-TV, 164 F.3d 1004, 1009 (6th Cir. The IBA Rules are the best known example. Tribunal's Role in Arbitration Document Production under the ICC Rules. Background & Discussion. "Determination of rules of procedure.-. Accordingly, the civil court must not order the production of documents merely aiming at retrieving information (BGH NJW 2007, 2989, para. Document Production List 1 specifies the presumptively discoverable documents that firms/associated persons are required to . The responses to questions about techniques for controlling costs and delay were more encouraging. 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"). Document Production under the LCIA Rules. The Ninth Circuit joined two other Circuits in concluding that under the FAA an arbitrator has no power to compel production of documents from a third party prior to an actual arbitration hearing. Articles & Press. Arbitration document production is a "process by which a party can request the production of documents that are in another party's possession". Originally from Handbook on International Commercial Arbitration - Second Edition Preview Page In common law jurisdictions discovery is widely recognised as a "continuing obligation." The same would apply in civil law jurisdictions: if a document that came to light post-discovery is perceived to be relevant and a party wanted to rely upon it, it would and should be produced and entered . By Bryanna Rainwater.
2031.280(a). Marieke Van Hooijdonk and Yves Herinkckx4 explain that the process: 3 Document Production in International Arbitration - 2006 Special Supplement ICC International Court of Arbitration Bulletin Contents Foreword p. 5 Trends in Document Production in Egypt and the Arab World By Ahmed S. El-Kosheri and Mohamed S. Abdel Wahab p. 7 Document Production in International Commercial Arbitration: A Latin American . 11/06/2016 by International Arbitration. 7 Dealing with a failure to produce documents.