Non-Party Discovery - Chapter 28 - Handbook on International Commercial Arbitration

Author(s):

Peter Ashford

Page Count:

8 pages

Media Description:

PDF from "Handbook on International Commercial Arbitration"

Published:

October, 2009

Jurisdictions:

International

Practice Areas:

Commercial Disputes,

Judicial Assistance in Procedural Matters,

Third Parties in Arbitral Proceedings,

Practice & Procedure,

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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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 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 timeconsuming. The need to have some remedy is recognised by the IBA Rules that provide in Article 3(8) that a party may ask the Arbitral Tribunal to take whatever steps are available to obtain the documents sought. A similar provision exists as Article 4(10), whereby a party may ask the Arbitral Tribunal to take whatever steps are available to obtain the testimony of any witness. Additionally, in accordance with Article 4(11), the Arbitral Tribunal can order a party to provide or use its best endeavours to provide, a witness for testimony. However, instances of a Tribunal itself taking steps to obtain documents are rare.

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.