Chapter 32 - Non-Party Document Production - Handbook on International Commercial Arbitration - Second Edition
It will sometimes be the case that the documents in the hands of the parties may not tell the whole story and one or other party seeks documents belonging to another entity, which is not a party to the arbitration. Arbitration derives from an agreement between parties to submit disputes to the decision of arbitrators. By the very nature of seeking discovery from non-parties, they are not parties to the agreement to arbitrate and the authority to compel them to produce documents must derive from outside of the arbitration agreement.
The difficulty in securing documentary evidence from reluctant overseas witnesses is well known in international arbitrations. The 1970 Hague Convention is not directly applicable to arbitrations but might be invoked indirectly as discussed below. Parties that wish to obtain evidence located overseas must invoke the judicial procedures available in the national courts—a process that can be expensive and time-consuming. The need to have some remedy is recognised by the IBA Rules that provide in Article 3(9) that a party may ask the tribunal to take whatever steps are available to obtain the documents sought. A similar provision exists as Article 4(9), whereby a party may ask the tribunal to take whatever steps are available to obtain the testimony of any witness. Additionally, in accordance with Articles 3(10) and 4(10), the tribunal can order a party to provide or use its best endeavors to provide, documents or a witness for testimony respectively. However, instances of a tribunal itself taking the initiative to obtain documents or testimony are rare.
A. The United States of America
The most accommodating jurisdiction for non-party discovery is, perhaps unsurprisingly, the U.S. Pursuant to 28 U.S.C. §1782, a court may grant discovery if: i) the target of the discovery “resides or is found” within the district; ii) the requesting party is a foreign or international tribunal or an “interested person” in the foreign proceeding, and; iii) the discovery is requested “for use in a proceeding in a foreign or international tribunal.” It can thus be seen that the tribunal itself, whilst capable of making the application, need not do so as any party is competent to make the application itself. Indeed, it seems almost inconceivable that the tribunal would make the application in these circumstances.