Counsel Behavior That Causes Inefficiencies in the Arbitration Proceedings - Chapter 5 - The Dark Side of Arbitration
Originally from The Dark Side of Arbitration
I. Inappropriate or Inefficient Handling by Counsel of the Document Production and Redfern Schedule Processes
A. Assessing the Need for Document Production in Arbitration
One of the main causes of inefficiency in international arbitrations is counsel’s improper or inefficient handling of the document production process either in general or in the specific context of the Redfern Schedule process, when the latter is contemplated. Users generally lament and are frustrated by the way these processes are administered in international arbitrations.
At the very outset, I wish to observe that, in absolute terms, document production is not a mandatory process in international arbitration and the parties are not per se entitled to request that their opponent produce certain documents in its possession.
Document production becomes a mandatory process, with the parties acquiring a related right, only if the parties agree to it or the arbitral tribunal uses its discretionary power in determining the applicable procedural rules to that effect.
Consequently, responsible counsel, faced with the costs involved in a document production process, should first consider whether document production is desirable and, if so, how much document production there should be.
Document production is regarded as an indispensable procedural instrument in common law litigation. This finds its reason in the oral nature of common law proceedings and in the legitimate wish of both parties to avoid unpleasant surprises in the arguments of the other party at the jury trial. Indeed, there is usually no need to allege evidentiary facts in the pleadings exchanged prior to the trial. The pleadings typically contain only a statement of the ultimate facts constituting each cause of action or of defense. The evidentiary facts are not presented until the trial, when the witnesses are questioned. Hence, the need for document production in common law litigation.