Objections to Requests for Documents in International Arbitration: Emerging Practices from NAFTA Chapter 11

Abstract

In recent years there has been a growing trend in investment arbitration for more extensive documentary discovery. The exchange of documents can serve an important function by contributing to the tribunal's understanding of the dispute and to its assessment of the parties' factual assertions. However, broad document requests and indiscriminate access to documentary records can result in increasing costs and longer arbitral proceedings and thereby undermine some of the advantages of arbitration as a dispute resolution mechanism. The increased use of document production to obtain evidence raises issues regarding the appropriate scope of requests for documents. Tribunals are frequently tasked to settle disagreements regarding document requests. This article analyses how disputing parties in NAFTA Chapter 11 arbitrations have utilized international rules of evidence, and in particular the IBA Rules on the Taking of Evidence, in objecting to requests for documents. A review of emerging practices of NAFTA tribunals assists in sketching the contours of the grounds for refusing to produce documents. It also provides suggestions on how to deal with a non-producing party. Overall, the analysis provides ample evidence of the critical importance of tribunals adequately weighing the competing interests at stake.