Article
Source: Transnational Dispute Management
Article
04.25.16
Document production in international arbitration has been the subject of much debate since the adoption of the original IBA Rules in 1983. Although it is firmly established that the IBA Rules allow for production of documents, the scope of production continues to divide scholars and practitioners alike. Given the import of document production, it is no surprise that the parties have a vested interest in challenging the other side's requests. But lawyers in arbitration proceedings, unlike other litigation, typically hail from different legal traditions, bringing their respective local legal norms and preconceptions to the proceedings. Thus, what my be par for the course in terms of document production in an English national court may well be outrageously intrusive in Germany. Indeed, legal literature is rife with references to the apparent overreach of respective national approaches--whether real or informed by popular stereotypes.
Contributing to this debate, Yves Derains, a former Secretary of the International Court of Arbitration, in a 2006 article advocated for what he termed "greater efficiency" in document production under the 1999 IBA Rules (1999 Rules). Advocating from a distinctly continental perspective by his own admission, Derains suggested that the requesting party must bear the burden of proof as to any issue for which that party seeks document production from the opposing side. In other words, whenever a party does not bear the burden of proof on the issue as to which it seeks documents, the tribunal is at liberty to deny the request. This approach is necessary, according to Derains, to forestall an "avalanche"-like infusion of documents into the arbitral proceedings. Though Derains implicitly acknowledged that the IBA Rules do no spell out his blanket rule in so many works, Derains concluded that the Rules' relevancy and materiality requirement should lead arbitrators to adopt his solution. Lack of textual support aside, Derains' blanket rule quickly garnered support. And while the rule also received criticism, its theoretical underpinnings largely eluded scrutiny. Such scrutiny is particularly opposite today, given the lack of official commentary on the Derains' blanket rule in connection with the 2010 codification of the IBA Rules (the "2010 Rules") or in the Subcommittees' accompanying Commentary.
Download: Burden of Proof as a Prerequisite to Document Production Under the 2010 IBA Rules: An Obituary