Obtaining Documents from Adverse Parties in International Arbitration

Abstract

COURTS ALMOST invariably provide a party with an effective mechanism for obtaining key relevant documents from the other party. The systems and scope in the civil and common law courts are different, but there is no real doubt that the right is enforceable. The same is not yet true for international arbitration, where there are real doubts as to enforceability of cross-border documentary orders. The issue is whether that has to be the case in situations where the documents are key to the arbitration proceedings. There are two basic grounds for obtaining documents from an adverse party in international arbitration. First, a party may have a contractual or substantive right to the documents. A significant element of many international contracts is the exchange of information between the parties. Parties negotiate with care the nature of the documents that they require and that they are willing to produce under contracts. That information is relevant for the performance of the contract and for remedies if the contract is breached. Second, in arbitration proceedings, as with litigation in general, a party has under certain circumstances a procedural right to obtain documents from the other side. The documents may be highly relevant to the proceedings and therefore, in the interests of justice, subject to disclosure. This right may be more limited than the contractual right, but it is just as important as it relates to the issues in dispute. In using these two grounds, counsel and the tribunal have to weigh the importance of the documents sought, the enforceability of the rights and the timing of the requests in light of the overall goal of cost-effective dispute resolution. Where documents are important, the use of these substantive and procedural grounds could and should be improved in international arbitration. However, prior to discussing how, we …