Document Production in International Arbitration
International Arbitration Law Library Series Volume 33
Because document production can discover written evidence that would otherwise not be available, it is often the key to winning a case. However, document production proceedings can be a costly and time-consuming exercise, and arbitral awards in particular are often challenged on grounds that relate to document production orders. The task of balancing the conflicting interests of the parties in this context is a major responsibility of arbitral tribunals. This book’s analysis focuses on whether there exist legal principles on which arbitrators should establish rules of document production in both civil law and common law countries, and shows how international arbitration is affected. The author examines the relevant discretion of arbitral tribunals under US, English, Swiss, German, and Austrian law, and under nine of the most important sets of institutional rules, including the ICC Rules, the LCIA Rules, and the Swiss Rules. The presentation mines case law and legal literature for concepts based on the common expectations of the parties, the legitimate expectations of a party, the duty to balance different procedural expectations of the parties, the presumed intent of the parties, the underlying hypothetical bargain, implied terms, and the arbitrators’ discretion. Among the topics and issues investigated are the following:
- how arbitral tribunals can modify the IBA Rules on a case-by-case basis;
- discretion granted by legislation in each country covered;
- electronic document production;
- how to deal with privilege and confidentiality objections;
- how to formulate or answer document production requests;
- effective sanctions in case of non-compliance with procedural orders of the arbitral tribunal;
- what grounds for annulment and non-enforcement a losing party can raise in what countries.
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List of Abbreviations.
CHAPTER 1 Introduction.
CHAPTER 2 Definition of Document Production and Distinction from Other Terms.
CHAPTER 3 Purpose of Document Production.
CHAPTER 4 Arbitral Tribunals’ Broad Discretion.
CHAPTER 5 Interpretation of the IBA Rules.
CHAPTER 6 Document Production Strategies.
CHAPTER 8 Model Clauses.
CHAPTER 9 Sanctions.
CHAPTER 10 Document Production Orders and Annulment and Enforcement of the Award.
CHAPTER 11 Conclusion.
Table of Legislation.