The Production of Documents in International Arbitration – A Commentary on Article 3 of the New IBA Rules of Evidence

Abstract

THE NEW IBA Rules on the Taking of Evidence in International Commercial Arbitration (the ‘IBA Rules’) were adopted by the IBA Council in June 1999. They were prepared by a working group, the members of which represented major legal systems mainly from the Anglo-American and Continental law cultures.1 Its drafts were discussed at the IBA conferences in Vancouver, Canada, 1998 and Barcelona, Spain, 1999. The main topic of these discussions was if and how the production of documents should be dealt with in international arbitration. On both occasions, comments by eminent international arbitrators like Professor Karl-Heinz Bockstiegel led to major improvements of the then existing drafts. Article 3 of the IBA Rules deals with documents which the parties wish to introduce as evidence into the arbitral proceedings. In civil law countries at least, documents are regarded as the most reliable type of evidence in arbitration.2 The IBA Rules refer to three classes of documents which procedurally are to be treated differently. The first class pertains to documents which are at the party's own disposal so that it can introduce these documents as evidence into the arbitral proceedings without any problem (Art. 3, s. 1). The second class – regulated in Article 3, sections 2–8 – relates to documents which the party wants to use as evidence for its submissions but cannot produce on its own because they are in the possession of either the other party of the arbitral proceedings or a third party outside the arbitration. The third class refers to documents which neither party has introduced or wants to introduce as evidence, but which are seen as relevant and material by the arbitral tribunal because of the pleadings of the parties. The arbitral tribunal itself can then order one of the parties to produce these documents …