Document Production in Arbitration: A Civil Law Viewpoint - Chapter 7 - Search for Truth in Arbitration: Is Finding the Truth what Dispute Resolution is About? - ASA Special Series No. 35
Pierre Tercier, Emeritus Professor at the University of Fribourg (Switzerland), Honorary Chairman of the ICC Court of Arbitration (Paris).
Tetiana Bersheda, Dr. iur., LL.M. (Cambridge), Founding Partner, Bersheda Avocats (Geneva).
There is a consensus among legal scholars that arbitrators have the power to order production of documents which are in the possession or control of a party. In general, the purpose of the document production procedure is to enable a party to establish the facts on which the party relies or to contest the facts underpinning the other party’s case. Document production as a means of proving the facts of a dispute is available in most national legal systems. However, the legal rules vary from one jurisdiction to another depending on the social and legal traditions of each country. The dichotomy of the document production or discovery in common law and civil law countries is limited to the extent to which discovery should be allowed and how the procedure should be managed. This article addresses the topic of document production or discovery in international arbitration from the “civil law” standpoint.
Arbitration has become a common method of settlement of international commercial disputes, increasingly supplanting court litigation. Arbitration follows its own procedural rules which may be different from the national rules of civil procedure and are partly defined on a case-by-case basis in order to accommodate the parties’ specific needs. Arbitral proceedings are in general governed by the mandatory rules of the law on international arbitration applicable at the place of the arbitration, the rules of an arbitral institution if the arbitration is conducted under the auspices of such institution, and the procedural rules issued by the arbitral tribunal, usually after consultation with the parties. In spite of the existence of a set of procedural rules applicable to international arbitration, the arbitral proceedings are still influenced by the procedural culture of the home jurisdiction of the parties and their counsel.3
I. The Foundations: The Right to Production of Documents
II. The Need for a Reasonable Solution