The Taking of Documentary Evidence in International Arbitration - ARIA - Vol. 23 No. 2 2012
Laurent Vercauteren, Attorney at the Brussels Bar, Eversheds Brussels.
Originally from American Review of International Arbitration - ARIA
Undoubtedly, one of the key issues of modern litigation and arbitration is the
manner in and the extent to which evidence is gathered and presented to the court
or arbitral tribunal. Facts are often seen as invariable and not really being in
dispute. However, in practice, parties will try to interpret the facts in a way that
supports their case and contention. As each party argues its case, the story may
change. And because parties will often try to base their case on facts which will be
tactically determined by them, this may hamper the task of the court or arbitral
tribunal which, as fact-finders, must try to find the real truth behind the facts
presented to them and reach a decision.
One way in which evidence can be presented to the court or arbitral tribunal is
by disclosure or discovery (both refer to tribunal or court-ordered production of
materials, but the former is used in English and the latter in U.S court litigation
and arbitration1 – for clarity’s sake, “disclosure” will be used throughout the text
to indicate both). However, in many international arbitration cases (in contrast
with domestic arbitration and court proceedings), confusion often remains about
the question whether disclosure of evidentiary materials should be an element of
the arbitration proceedings or the extent to which this should be allowed. When
should disclosure be allowed in the arbitration process? What kind of disclosure
should be permitted and to what extent? Is it possible to know in advance and with
reasonable certainty if and to what extent disclosure will be needed in a particular
case? If parties have conflicting views on these questions, how should they be
resolved? What about the scope of non-party disclosure and e-disclosure?
The above-mentioned questions are not answered consistently throughout the
arbitration world. Different legal systems have divergent views on this issue.
Parties from different legal backgrounds have different expectations as to how an
evidence-gathering process should be conducted. The first part of this article
discusses the different aspects of disclosure: it will analyze the differences that
may remain between proceedings in common-law and in civil-law systems. The
main focus will be on U.S., English and Belgian law (Belgium being used
throughout the text as an example of a civil-law country). Where relevant, some