Originally from Handbook on International Commercial Arbitration - Second Edition

Preview Page

The possibility that the tribunal might draw an unspecified inference may be little comfort in the face of (at least a perception of) a wholesale disregard by one party of the tribunal’s procedural order on document production. Such a situation is unlikely to arise in thru context of IBA-style production. As the starting point of the IBA-style production is the production of documents relied upon, it is unlikely that the opposing party will object to documents not being produced: if the opposing party does not wish to rely upon documents that is probably helpful. The second stage of IBA-style document production is a request for specific documents. This will usually be addressed at documents that are perceived to be helpful to the requesting party’s case or adverse to that of the party from whom the documents are requested. Such requests are either agreed to or ruled upon by the tribunal. If the requesting party is aggrieved at the extent of production, it should be relatively easy to enforce compliance by a ‘have another look / search again’ order from the tribunal. If the response is a proper search has been conducted and nothing has been found the tribunal is likely to, at least ultimately, accept that that is the case. This will especially be the case if the party’s counsel confirms or verifies the search.

This chapter is primarily concerned with the situation where a non-IBA-style order has been made—an order somewhat closer to UK or US disclosure or discovery has been made.

If a party is unhappy with the other party’s (non)compliance with orders on document production, the first step for an aggrieved party is to apply back to the tribunal for a further order. It is unlikely that a party will have produced no documents whatsoever; rather, the argument is more likely to be over the limited extent of the documents. Even a simple refusal to produce any documents is unlikely to justify immediate recourse to the national courts by the aggrieved party. Instead, an order for the discovery of specific documents should be sought from the tribunal.