Originally from Inside the Black Box: How Arbitral Tribunals Operate and Reach Their Decisions - ASA Special Series No. 42

HANS VAN HOUTTE:

Ladies and gentlemen, dear organisers, thank you for inviting me to take the floor. I could have said a lot about dissenting opinions because the Iran-US Clams Tribunal is the champion of dissenting opinions but that is not my topic. I will briefly discuss two types of persons, who can assist the arbitrators in the arbitration process, and who I described in more detail in a paper.1

The first person is the “document production master.” Document production has become a substantial element in arbitration. Even in arbitration between exclusively continental European parties with continental European arbitrators, document production has become quite important. However, document production sometimes substantially complicates the arbitration process. The IBA Rules on evidence allude to the problems which may arise. Of course, there is the danger of fishing expeditions, which can easily be blocked by the arbitrators. More delicate is the question whether documents are relevant or whether the production of documents constitutes an unreasonable burden, when the arbitrators are not familiar with the documents. And what to do with confidential or privileged documents: should they be excluded from production or edited and sanitised?