Enforcement of Discovery by Assistance from National Courts - Chapter 21 - Handbook on International Commercial Arbitration

Author(s):

Peter Ashford

Page Count:

4 pages

Media Description:

PDF from "Handbook on International Commercial Arbitration"

Published:

October, 2009

Jurisdictions:

International

Practice Areas:

Commercial Disputes,

Judicial Assistance in Procedural Matters,

Discovery

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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The possibility that the Arbitral Tribunal might draw an unspecified inference may be little comfort in the face of (at least a perception of) a wholesale disregard by one party of the Arbitral Tribunal’s procedural order on discovery.

If a party is unhappy with the other party’s (non)compliance with orders on discovery, the first step for an aggrieved party is to apply back to the Arbitral Tribunal for a further order. It is unlikely that a party will have given no discovery whatsoever; rather, the argument is more likely to be over the limited extent of the discovery. A simple refusal to give any discovery is unlikely to justify immediate recourse to the national courts by the aggrieved party. Instead, an order for the discovery of specific documents should be sought from the Tribunal. At some stage, it may be appropriate for the Arbitral Tribunal to make a peremptory order for discovery. A peremptory order is one with a defined time period for compliance and is final in its terms -- although it need not be final in the sense that an award is final, rather it is a final opportunity for a party to comply. It is when that fails to elicit the required documents that the aggrieved party -- or possibly the Arbitral Tribunal -- needs to look elsewhere.

National courts of the seat of the arbitration often act in aid of arbitrations. Article 27 of the UNCITRAL Model Law provides:

The arbitral tribunal or a party with the approval of the arbitral tribunal may request from a competent court of this State assistance in taking evidence. The court may execute this request within its competence and according to its rules on taking evidence.

National laws make specific provision, for example, §42 of the Arbitration Act 1996 permits the English court to make an order requiring a party to comply with a peremptory order of the Arbitral Tribunal. The parties can, however, contract out of the right to seek court enforcement. The jurisdiction under §42 can only be exercised where the court is satisfied that the applicant has exhausted “any available arbitral process” in respect of the failure to comply. Although it could be argued that the drawing of adverse inferences is an “available arbitral process”, that is not a correct understanding of the section.