Originally from Handbook on International Commercial Arbitration - Second Edition

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All of the work that goes into document production or disclosure may be wasted if the relevant material cannot be presented carefully and logically to the tribunal. It is suggested that documents should not normally be presented to the tribunal at the time they are produced. By doing so, a party runs the risk that the tribunal, will be overcome with an enormous quantity of material, cannot sensibly consider it all, and spend time and money in considering material which might subsequently be found irrelevant—or incur costs when the case might settle. Very considerable cost might be incurred without benefit to the parties. It is preferable for the parties to exchange material and decide what ought to be presented to the tribunal as a “common bundle” suitably before any evidentiary hearing.

Clearly in cases of very modest amounts of material, simultaneous transmission to the tribunal might be efficient but the practice of annexing significant documents to the memorials, pleadings, or statements of case will give the tribunal an insight into the key documents and their relevance to the issues in dispute.

Considerable skill goes into the agreement of “common bundles” and the content, organisation, pagination, and production of bundles—especially those that avoid duplication. A tribunal functions far more effectively—and perhaps can only function properly—if members of the tribunal, counsel, and witnesses all have good common bundles. The content of bundles can often be controversial. Ideally, there should be some process of considering whether a document is really of sufficient relevance to be included but the fear is that if only a selection of the documents produced are put in the bundle it makes clear the cross-examination tactics of a party. If document production has been conducted under the IBA Rules it is perhaps less likely that there will be unnecessary documents but if there has been UK-style disclosure or, worse, US-style discovery some slimming down may well be required.