How does document discovery work in international arbitration?

Arbitration is a consensual process.  Arbitral procedure, including document discovery, is largely governed by party agreement.  It can also be governed by orders made by the tribunal, against the backdrop of any applicable national laws (typically the law of the arbitration’s seat).  As a general rule, document discovery in international arbitration is more limited than in litigation before U.S. courts. 

Different approaches to document discovery in international arbitration

Document discovery in arbitration has evolved to include elements from both common law and civil law traditions.  In common law jurisdictions, like the U.S., parties are typically required to disclose all relevant documents in response to requests from the other party.  The court is not involved in selecting categories of documents to be produced.  By contrast, in civil law jurisdictions, document discovery is often substantially more limited (if available at all), and courts, rather than parties, determine which documents each party will produce. 

International arbitrations often adopt a middle way.  There is no automatic duty to disclose documents.  And there is no automatic right to request or obtain documents.  Most mid- to high-value international commercial arbitrations, however, do include some form of document discovery.  But as a survey on international arbitration makes clear, many arbitrations include no document discovery at all, whether due to party agreement or tribunal order.

When document discovery and production does occur, the arbitral tribunal decides which categories of documents should be disclosed and at what stage of the case.  Arbitral rules typically grant the tribunal wide discretion regarding the scope of document discovery.  Those rules, however, often instruct tribunals to avoid unnecessary delay or cost.  Tribunals frequently restrict the scope of disclosure substantially more than a U.S. court might.

The International Bar Association (“IBA”) Rules on the Taking of Evidence

Arbitral tribunals often look to the IBA Rules on the Taking of Evidence in International Arbitration for guidance on document discovery.  They generally require each party to produce – at a minimum – the documents it will rely on to prove its case at the arbitration hearing.

Following IBA Rules, document requests are typically made in a document called a “Redfern schedule.”  The initial request must identify a narrow and specific category of documents that the requesting party believes to exist.  And it must include a statement of why those documents are relevant and material to the arbitration’s outcome. 

The requesting party must also explain why it believes the other party possesses the requested documents and why it cannot obtain those documents elsewhere.  Thus, unlike in U.S. court, the party requesting documents in international arbitrations must, in its initial requests, justify their relevance and necessity.

Once each party makes its initial requests, the opposing party may object to some or all of them.  Following IBA Rules, potential objections include relevance, privilege, burden, confidentiality, and considerations of procedural economy, proportionality, fairness, or equality of the parties.  The requesting party typically gets to respond to any objection.  Finally, the tribunal resolves all of the objections at once and rules which documents must be produced.

Although the IBA Rules aim to facilitate efficient and economical document discovery, many in the international arbitration community have complained that arbitration is becoming too expensive.  A new set of rules – called the Prague Rules – has emerged in response.

Prague Rules on the Taking of Evidence

The Prague Rules on the Taking of Evidence, launched in December 2018, favor the civil law tradition’s inquisitorial approach over the common law tradition’s adversarial approach.  The drafters of the Prague Rules believe they will help parties and tribunals reduce the time and costs of arbitrations.

The Prague Rules, however, are a relatively new development.  It is not yet clear to what extent these rules will be adopted in mid- to high-value international commercial arbitrations – and especially in arbitrations in the U.S., where practitioners are not as familiar with the inquisitorial approach to document discovery.  International arbitration practitioners should at least be aware of the Prague Rules and consider whether they might be a better fit for a particular dispute than the IBA Rules. 

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