Originally from Handbook on International Commercial Arbitration

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Documentary discovery is part of the process of presenting evidence. Evidence is, of course, essential for any tribunal to make findings of fact. The principal purpose of documentary discovery is to assist the parties in ascertaining the existence of documents, the whereabouts of those documents and, hence, details and facts relevant to the claims and defences in issue in the reference.

In common law jurisdictions (which are essentially adversarial), the judge will seek to ensure that the rules of evidence are adhered to, hear the evidence (which is effectively left to the parties to present as they wish), seek to ensure “fair play” and, thereafter, render a decision or judgment. In contrast civil law jurisdictions are not bound by the strictures of the rules of evidence that common law jurisdictions are. Judges generally take a more active role but, as each civil law jurisdiction has a different procedure, it is unsafe to generalise especially as civil law jurisdictions may have state as well as federal law.

In presenting evidence to a tribunal (whether national court or arbitral tribunal), documentary evidence is often a key part of the overall evidence. As international arbitration is an alternative to litigation in national courts, it follows that the practices of those national courts do not have to be followed in arbitration. It follows that the procedures applicable in the national courts of one or more of the counsel representing the parties or the practices familiar to one or more counsel representing the parties should not be followed unless the Tribunal is satisfied that they are appropriate to the facts of the reference. However, there remains the need to ensure that the parties have had a full and fair opportunity of presenting their case and this is often dependant on proper discovery eliciting key documents. Admittedly the “smoking gun” is rarely found through the process of discovery but some “bullets” or “bombs” are not uncommon. Documents are often perceived as a more accurate guide to the truth and do not have the disadvantage of conflicting oral evidence on to disputed facts. For this very reason cross-examination is not regarded as a reliable route to the truth by civil lawyers. Trial, in large part by documents, can also be less time-consuming than conventional oral hearings as extensive examination and crossexamination are avoided. The absence of oral testimony can likewise be unsatisfactory where there are relevant issues of disputed fact not addressed by documents. The manner in which any trial proceeds has to be managed so as to ensure that the process does justice between the parties.