Document Production: New Findings on an Old Issue

Abstract

The current framework for evidentiary proceedings in international arbitration is marked by one set of rules, the IBA Rules, and conflicting interpretations of these rules. Contrary to the views of many commentaries, there is no abstract rule of what is sufficient to identify a document or a category of documents. Similarly, no technical rules exist for drawing adverse inferences. A successful document production strategy requires an early analysis which allows parties accurately to select its party-appointed arbitrator and to influence the establishment of the procedural rules. For this purpose, the suggested model clause for arbitration proceedings between parties expecting civil law proceedings may be used.