Originally from Handbook on International Commercial Arbitration - Second Edition

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Rule 26 of the Federal Rules of Civil Procedure permits a party to withhold documents to be used solely for impeachment. This is a peculiar feature of U.S. discovery and is not replicated in, for example, English disclosure. The prevailing view is that it has no place in international commercial arbitration.

Arbitration should be conducted in an efficient and economical manner with the parties treated with equality and being entitled to know the evidence that other parties intend to rely upon. The concept of documentary ambush is repugnant to these ideals. Certainly, the English courts have recognised this. In 1988, it was thought permissible to retain documents for impeachment purposes,1 however, this practice changed in 1994 in favour of the “cards on the table” approach in favour of requiring discovery even where there was reason to believe that the evidence would be adjusted to take account of the impeachment evidence.

None of the institutional rules permit withholding of impeachment documents and, on the contrary, the rules invariably have the reference expressly or impliedly to “all” or “any” documents either relied upon or relevant being produced and usually with pleadings. This “cards-on-the-table” approach is also consistent with Preamble 3 to the IBA Rules: “The taking of evidence shall be conducted on the principles that each Party shall act in good faith and be entitled to know, reasonably in advance of any Evidentiary Hearing ..., the evidence on which the other Parties rely.” It is difficult to see how withholding documents for impeachment accords with that principle.

In the event that a party suspects that another party is withholding impeachment documents, it would be wise to flush this out with a request to produce any documents intended to be relied upon for impeachment purposes. The requested party must either produce them or withhold them (if the tribunal permits), but the argument as to whether the tribunal should permit withholding may indicate the nature of the documents intended to be used.