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Written Evidence and Discovery in International Arbitration

Edited by Teresa Giovannini, Alexis Mourre


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ICC Dossiers Volume 6

Documentary evidence is at the heart of the arbitral process. In international arbitration, the right to be heard implies not only the production of documents, but also the possibility of accessing evidence held by other parties or third entities. State court intervention may then complicate the tribunal's task. Arbitral tribunals may have to decide which rules apply to issues such as the evidentiary value of documents or their admissibility. Arbitrators are increasingly confronted with new challenges, such as the growing volume of documentary productions and requests for E-Discovery, as well as ever more frequent objections to confidentiality and privilege. Document productions may also confront arbitrators with difficult issues of fraud and forgery.

The practice of documentary evidence is changing as international arbitrators look for transnational solutions capable of striking a proper balance between efficiency and fairness. Transnational instruments such as the IBA Rules on the Taking of Evidence in International Commercial Arbitration may need to evolve to accommodate new approaches and solutions. Dossier VI of the ICC Institute, Written Evidence and Discovery in International Arbitration, seeks to encourage reflection on future practice in relation to documentary evidence in international arbitration.

The contributors to this Dossier include:

  • Amy F. Cohen
  • Bernard Hanotiau
  • David J. Howell
  • Julian D.M. Lew
  • Loretta Malintoppi
  • Carole Malinvaud
  • Lucy F. Reed
  • Laurence Shore
  • Michael E. Schneider
  • Guido Santiago Tawil
  • Vera van Houtte
  • V.V. Veeder
  • Markus H. Wirth

The ICC Institute of World Business Law brings together the finest legal minds to strengthen links between international business practitioners and the legal profession. The Institute’s ‘Dossiers’ is a series that has gained international prestige. These Dossiers are the outcome of the Institute’s annual meetings, where experts from around the globe come together to discuss salient issues of international commercial law and arbitration.

An ICC Services publication, distributed by Kluwer Law International.

Last Updated 08/01/2009
Update Frequency As Needed
Product Line Kluwer Law International
ISBN 9789041131836
SKU 10059627-0001
Table of Contents

Foreword by Serge Lazareff

Introduction by Teresa Giovannini

Chapter 1. Document Disclosure, Evidentiary Value of Documents and Burden of Evidence by Julian D.M. Lew

Chapter 2. Privilege-Related Issues in International Arbitration by Guido Santiago Tawil and Ignacio J. Mirorini Lima

Chapter 3. State Courts and Document Production by Laurence Shore

Chapter 4. Production of Documents and Fraud in International Arbitration by Markus Wirth

Chapter 5. Adverse Inferences in International Arbitration by Vera van Houtte

Chapter 6. Are the IBA Rules “Perfectible”? by V.V. Veeder

Chapter 7. US-Style Discovery: Good or Evil ? by Lucy Reed and Ginger Hancock

Chapter 8. Massive Productions of Documents and Demonstrative Exhibits by Bernard Hanotiau

Chapter 9. The Paper Tsunami in International Arbitration: Problems, Risks for the Arbitrators’ Decision Making and Possible Solutions by Michael E. Schneider

Chapter 10. Will Electronic Evidence and e-discovery Change The Face of Arbitration ? by Carole Malinvaud

Chapter 11. Electronic Disclosure in International Arbitration: The CIArb. Protocol for e-disclosure in Arbitration by David Howell

Chapter 12. The ICC Task Force on the Production of Electronic Documents in Arbitration–An Overview by Loretta Malintoppi

Chapter 13. Options for Approaching Evidentiary Privilege in International Arbitration by Amy F. Cohen

Concluding Remarks by Alexis Mourre