Documents for Impeachment - Chapter 24 - Handbook on International Commercial Arbitration

Author(s):

Peter Ashford

Page Count:

2 pages

Media Description:

PDF from "Handbook on International Commercial Arbitration"

Published:

October, 2009

Jurisdictions:

International

Practice Areas:

Commercial Disputes,

Practice & Procedure

Author Detail:

Peter Ashford is Solicitor of the Supreme Court and a Partner at Cripps Harries Hall LLP and is Head of the firm's Commercial Peter Ashford is a Partner and Head of commercial dispute resolution in the leading United Kingdom Firm of Cripps Harries Hall LLP, Tunbridge Wells, United Kingdom. Mr. Ashford advises on a wide range of commercial disputes with a particular emphasis on substantial commercial contract disputes, especially those involving an international aspect, partnership and LLP disputes, professional issues for solicitors and professional negligence. He is particularly experienced in complex, high value claims and acts for many international clients. He handles disputes in court, arbitration, mediation and disputes without any formal process. Mr. Ashford received his training in London and qualified in 1986. He joined Cripps Harries Hall LLP in 1987 and became a partner in 1991.

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Description:

Originally from Handbook on International Commercial Arbitration

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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 discovery. 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, 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. This “cards-on-the-table” approach is also consistent with Preamble 4 to the IBA Rules: “The taking of evidence shall be conducted on the principle that each Party shall 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 discover them or withhold them (if the Arbitral Tribunal permits), but the argument as to whether the Arbitral Tribunal should permit withholding may indicate the nature of the documents intended to be used.