Document Production in International Arbitration - How Much Is Too Much? A Common-Law Perspective - Chapter 8 - Search for Truth in Arbitration: Is Finding the Truth what Dispute Resolution is About? - ASA Special Series No. 35
Tyler B. Robinson, Simpson Thacher & Bartlett LLP.
International arbitration is often an attractive alternative to litigation in the domestic courts of the United States, in no small part, because of the absence of American-style “discovery”. But to equate that fairly obvious proposition with a rejection of document production in international arbitration (or its banishment from all but exceptional cases) is a mistake, one that denies international arbitration the procedural flexibility that is perhaps its most universally recognized advantage. International arbitration is a mixing pot of procedural techniques, a marketplace for new combinations and permutations borrowed from different legal cultures around the world, tailored to the needs and wants of the parties and arbitrators in the circumstances of a particular dispute. The following suggests some of the benefits of document production from a common-law perspective, and responds to some of the principal criticisms of its employment in international arbitration. Of course, every case is different and above all, document production, powerful but costly tool that it can be, should be measured and proportional to the dispute in which it is employed. Document production is but one of many tools that parties and arbitral tribunals can adapt and combine for the resolution of a particular dispute.
I have rarely encountered a case, in any context, in which the ability to obtain documents relevant and material to the dispute that are in the possession of one party, but not the other, did not dramatically and materially inform the outcome of the dispute.
A case example: On September 11, 2001 terrorists destroyed the World Trade Center. An insurance dispute ensued in which the insured leaseholder of the WTC claimed that Swiss Reinsurance Company of Zurich owed two “occurrences” or policy limits of coverage because two airplanes hit two towers. Swiss Re claimed that one terrorist attack sealed the destruction of a single insured location in a span of minutes, constituting one "occurrence" and entitling the leaseholder to one policy limit of coverage. The dispute came down to the application terms of contract - the definition of an "occurrence". Though the WTC insurance case ended up in a U.S. federal court, with a staggering $7 billion at stake, at root it was a contract construction dispute of the kind that arbitrators resolve every day. In the case of the WTC, as it happened, no final insurance policy had been agreed and executed as of September 11, and so the parties had a dispute about which of several potential draft forms of policy, containing different definitions of "occurrence", applied to the coverage. One of the policies in circulation contained a definition that left no question that the terrorist attack was one occurrence. Another policy in circulation did not.