Whatever document production is given, and however carefully the tribunal is in the formulation of the order for the production of documents, one or more of the parties is often dissatisfied with the documents not produced by the other.
The process for determining these disputes can vary but the most common route is under the IBA Rules. Article 3(2) provides that any party may submit a “Request to Produce”. The Request must contain:
(a) a description of the document requested sufficient to identify it or a “narrow and specific” category of documents; (b) a statement as to the document is “relevant to the case and material to its outcome”; (c) a statement that the document sought is not in the possession of the party seeking production (or why producing it itself would be unduly burdensome); and (d) reasons why it is believed the document is held by the party from whom it is sought.
If no objection is taken to some or all of the Request the documents should be produced.1 Any objection should be set out.2
The tribunal will generally encourage parties to resolve these disputes between themselves in accordance with the party autonomy principle. If the parties are unable to agree, the tribunal will have to assist. The upshot of this will be a procedural order but tribunals will often convene a meeting or hearing at which indications and express statements of principle may be given to guide the parties, allowing them to break and see if detailed points can be resolved. If agreements or stipulations can be reached, then they can be recorded in a procedural order by consent. The tribunal can adjudicate any remaining issues with, hopefully, the issues at the very least clarified by the parties’ attempts to agree.