Title Document production in international arbitration / ICC International Court of Arbitration Bulletin. Attorney advertising. The parties may agree on production of documents in an arbitration agreement or in the process of arbitration. But it can also be used, unjustifiably and abusively, as a shield to hide evidence which is adverse to and perhaps even determinative of the other . The principle of equal treatment or 'equality of arms' is often a key concern in document production in investment arbitration cases and an issue to be aware of when the IBA . Rules on the Taking of Evidence in International Arbitration (2010) (IBA Rules).2 2. Dispute Management. This will of course be different if the request for arbitration/statement of claim or . Originally from Handbook on International Commercial Arbitration - Second Edition Preview Page In common law jurisdictions discovery is widely recognised as a "continuing obligation." The same would apply in civil law jurisdictions: if a document that came to light post-discovery is perceived to be relevant and a party wanted to rely upon it, it would and should be produced and entered . The parties may determine, for instance, whether and to what extent document production requests or cross-examination will be allowed. We considered the IBA Rules on the Taking of Evidence in International Arbitration (the "IBA Rules") in a previous post. The requirements and procedure are best addressed already at the Case Management Conference. The IBA Rules set a middle ground between the two traditions by introducing a limited . explaining the purpose or use of these documents in the party's line of evidence. Dispute Management. Because the arbitration agreement specified that the DIS—that is, the German Arbitration Institute-would provide the panel to arbitrate the issues between . The International Bar Association's ( hereinafter , IBA) Rules, for instance, address this problem stipulating the production of "narrow and specific " documents and providing suitable safeguards from a . What document production is required in a complex construction case might be quite different from a case seeking to determine the meaning of a word in a commercial agreement. Put briefly, the starting position for disclosure/production under them is that parties will adduce the documents on which they intend to rely, and have a right to request the production of documents/classes of documents from adversaries (bounded by limiting criteria like relevance and materiality). This article focuses on the possible routes arbitrators may follow in the presence of different legal systems' approaches to privilege when it comes to document production in international arbitration. The Director will notify parties of the location of the FINRA Discovery Guide and Document Production Lists on FINRA's Web site, but will provide a copy to the parties upon request. The IBA Rules are the best known example. This article was first published on Kluwer Arbitration Blog.----- The IBA Rules. Practical tips for efficient document production. The same documents can also be viewed by clicking on the relevant subject in the Topic box on the Practical Law Arbitration homepage and then selecting the "Standard documents" tab. If used properly, it can be a decisive tool to win your case. The essential […] This is the inherent advantage of the arbitration: being able . Practically speaking, the adherence to due process by ordering extensive document production in the second arbitration was costly and time consuming. This is the inherent advantage of the arbitration: being able . (1) The arbitral tribunal shall not be bound by . Put briefly, the starting position for disclosure/production under them is that parties will adduce the documents on which they intend to rely, and have a right to request the production of documents/classes of documents from adversaries (bounded by limiting criteria like relevance and materiality). There is no standard "one size fits all" application of document production in international arbitration. Some practitioners consider the document production as "an essential element of justice", whereas some others consider it as "a waste of time and money". Nevertheless, in recent decades, it has become standard practice in arbitration to include a document production phase regardless of the parties' background, and the scope of document production has grown ever larger. Hughes Hubbard & Reed LLP • A New York Limited Liability Partnership. . 1 (Redfern Schedule), Canada requests that . By Pelin Baysal and Bilge Kağan Çevik. Civ. Accordingly, the civil court must not order the production of documents merely aiming at retrieving information (BGH NJW 2007, 2989, para. Document Production under the LCIA Rules. The author examines the relevant discretion of arbitral tribunals under US, English, Swiss, German, and . A: Production of documents is generally subject to the parties' agreements and the arbitral tribunal's discretion. What document production is required in a complex construction case might be quite different from a case seeking to determine the meaning of a word in a commercial agreement. The author examines the relevant discretion of arbitral tribunals under US, English, Swiss, German, and Austrian . In 1999, FINRA adopted the Discovery Guide (Guide), which includes Document Production Lists (Lists), for use in customer arbitration proceedings. 20). Document Production in International Arbitration in International Arbitration (the "Rules").4 These Rules provide for parties to produce documents relied upon.5 The Rules also permit a limited and defined request for the production of documents or class of documents that is relevant A YIAG seminar on document production. section 1 of the AAA International Arbitration Rules. In the Anglo-Saxon world, it is - in varying degrees - normal to have a document production (or discovery) stage at some point in most . Consider whether it is appropriate to deal with document production in the arbitration clause, for example by agreeing that there will be no document production (e . ICC statistics show that 82 per cent of the costs involved in ICC arbitrations are incurred by the parties in document production and unnecessary evidentiary measures.9 It is recognised under modern arbitration laws that expansive document discovery is generally Sample 1. Make Document Production Categories More Granular. . This chapter discusses applying legal privilege to document production in international commercial arbitration. There is no standard "one size fits all" application of document production in international arbitration. The Tribunal has discretion to decide on the relevance and admissibility of the evidence adduced by the parties, and can exercise the power to summon further evidence at any stage of the case (Articles 40 and 41 of the Arbitration (Additional Facility) Rules). One Battery Park Plaza • New York, New York 10004-1482 • +1 (212) 837-6000. This event will be held at the offices of White & Case in Moscow. Document Production Lists 1 and 2 describe the documents that are presumed to be discoverable in all arbitrations between a customer and a member or associated person. National laws. Parties can request documents from each other, and exchange documents even before the written pleadings are filed. 3. Format; BibTeX: View Download: MARC: View . Under Article 15 of LCIA Rules [1], parties only need to submit essential documents, which means identified documents that are relevant to the case and material to its outcome. Introduction Discovery is an essential part of the procedural framework in the United States and other common law countries. The article discusses what the authors call "the power and primacy of contemporaneous documents" and looks at cases where the protocols for submission of document requests in arbitration are abused by a party to the arbitration, focusing on tribunals' need for alternatives to having an adverse inference in respect of abuse as the "adequate sole or exclusive remedy." in this arbitration. . 2 The Guide provides direction on which documents parties should exchange without arbitrator or staff intervention, and the Lists specifically indentify the documents parties should exchange before the hearing, depending on . 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. Article 33.2 (b) FAI Rules grants the arbitral tribunal the power to order any party, at any time during the proceedings, to produce any documents or other evidence "that the arbitral tribunal may consider relevant to the outcome of the case". Document production is very often the single most time and cost-intensive phase of a dispute process. Download for offline reading, highlight, bookmark or take notes while you read Document Production in International Arbitration. In General. § 2031.280(a). Effective Management of Arbitration: A Guide for In-House Counsel and Other Party RepresentativesTopic Sheet 6: Document Production [Case management] [In-house counsel] English; . Often, the most painful part of any arbitration is the document production process - partly because of a lack of detail in institutional rules, the International Bar Association Rules, and Chartered Institute of Arbitrators and International Chamber of Commerce guidelines on e-disclosure. This is the inherent advantage of the arbitration: being able . Sole Arbitrator's decision on document production request. The ICC Arbitration procedure is very flexible. ICC, Techniques for Managing Electronic Document Production When It Is Permitted or Required in International Arbitration¶ 3.12 (2012); See alsoJ. Manager shall, upon City's written request from time to time, submit copies of any contract, bill, license, agreement or any other document relating to the Property or to this Agreement in Manager's possession to City. Formats. The Document Production Order provided that each disputing party shall submit to the Tribunal and the other disputing party, together with its written submissions, all documents available to it on which it relies, including public . ICC Arbitration Commission Report on Managing E-Document Production Get the document. 19/06/2016 by Aceris Law LLC. Arbitration document production is a "process by which a party can request the production of documents that are in another party's possession". Added Corporate Author International Chamber of Commerce. Download PDF. "Determination of rules of procedure.-. The Singapore case of Dongwoo Mann+Hummel Co Ltd v Mann+Hummel GmbH [2008] 3 SLR(R) 871; [2008] SGHC 67 demonstrates how a tribunal may approach the issue of document production and withholding of such documents as well as the manner in which the Singapore court would . There is no automatic duty to disclose documents, or right to request or obtain document production, in international arbitration, and the advent of electronic documents should not lead to any expansion of the traditional and prevailing approach to document production. As with most aspects of arbitration, document production is also agreed by the parties. It agreed that the ("Tribunal") document disclosure . Background & Discussion. Document production nearly always features in international arbitration processes and, as is the case in England and Wales, it is common for national laws to afford tribunals wide discretion as to . Production of Documents Available to one Party (Art. Introduction Discovery is an essential part of the procedural framework in the United States and other common law countries. First, it discusses the similarities and differences between various privilege regimes in North and South America, Europe, Australia, and Asia. What document production is required in a complex construction case might be quite different from a case seeking to determine the meaning of a word in a commercial agreement. What document production is required in a complex construction case might be quite different from a case seeking to determine the meaning of a word in a commercial agreement. It also triggered the arbitrator's duty to disclose in the first arbitration. There is no standard " one size fits all " application of document production in international arbitration. National norms regarding document production differ sometimes significantly in civil law and common law systems. The fact that this was a 'disclosable circumstance' triggered concerns of apparent bias in the non-appointing . Arbitration: Document Production. For example, they may prohibit or restrict production of documents, or agree to produce the documents as per a . Description 119 pages ; 30 cm. K2400 .M365 2015 Available at Stacks. Sample 2. The essential […] This is the inherent advantage of the arbitration: being able . There is no standard " one size fits all " application of document production in international arbitration. The California Code of Civil Procedure now requires "[a]ny documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond." Cal. Legal privilege may justify keeping confidential information, evidence, or documents out of the record, even before a court or tribunal. There is no standard "one size fits all" application of document production in international arbitration. . Steps available to the tribunal. 9 Use and confidentiality of documents. Marieke Van Hooijdonk and Yves Herinkckx4 explain that the process: Report of the ICC Commission on Arbitration Task Force on the Production of Electronic Documents in International Arbitration . In ENMAX Energy Corporation v.TransAlta Generation Partnership et al, 2022 ABCA 206, the Alberta Court of Appeal (Paperny, Rowbotham, and Strekaf, JJA) upheld the chambers justice's decision to refuse to set aside an arbitral award (the "Award") under section 45(1)(f) of the Alberta Arbitration Act, RSA 2000, c A-43 (the "Act"). procedure for document production in their arbitration clauses. Production in FINRA arbitration claims is governed by the FINRA Code of Arbitration Procedure which allows for propounding parties to request documents and for responding parties to agree to produce or to object. Document production in international arbitration / Reto Marghitola. Document production is one of the most important and controversial topics in international arbitration. More than two-thirds of respondents thought that cost shifting might be a good Documents discussing Section Canada repeats the Canada repeats the reasons in Line 1, 8 of the LFA, including the references . Definition of document production and distinction from other terms Purpose of document production Arbitral tribunals' broad discretion Production of Documents. The UNCITRAL Arbitration Rules address document production in a similarly limited fashion. Article 24 (3) specifies that a tribunal may, at any time during the proceedings, require the parties to . Effective Management of Arbitration: A Guide for In-House Counsel and Other Party RepresentativesTopic Sheet 6: Document Production [Case management] [In-house counsel] English; . Document production serves as an important opportunity for parties to gather relevant documents that may be in the other party's possession, custody or control. The link between document production requests and concerns of right to due process shall be analyzed in this article. In ICC International Court of Arbitration Bulletin: 2006 Special Supplement: Document Production in International Arbitration, p. 21-32. On 17 December 2020, the International Bar Association ("IBA") adopted a revised third edition of its Rules on the Taking of Evidence in International Arbitration (the "2020 IBA Rules"), which supersede the 2010 version currently in force (the "2010 IBA Rules"). WJBK-TV, 164 F.3d 1004, 1009 (6th Cir. The Document Production phase is important . . The article discusses what the authors call "the power and primacy of contemporaneous documents" and looks at cases where the protocols for submission of document requests in arbitration are abused by a party to the arbitration, focusing on tribunals' need for alternatives to having an adverse inference in respect of abuse as the "adequate sole or exclusive remedy." 23.3.2016. Unless otherwise agreed, the 2020 IBA Rules will apply to all arbitrations in which the parties agree to apply the IBA . Consider whether it is appropriate to deal with document production in the arbitration clause, for example by agreeing that there will be no document production (e . 1999) ("…the FAA's provision authorizing an arbitrator to compel the production of documents from third parties for purposes of an arbitration hearing has been held to implicitly include the authority to compel the production of documents for inspection by a party prior to a hearing."); Sample 1. In setting out the standards expected of parties, the Tribunal sought to reduce the burden of the document production process on the parties and the Tribunal, and to prevent it from becoming prolonged and . Pro. Hosted by: Co-sponsored by: This makes document production such a great example of an efficiency tool: If mishandled, document production is an expensive, lengthy process without much of a result. We hope that our analysis of the issues will provide some helpful insight into the ways in which such processes are best managed. By Bryanna Rainwater. Pursuant to Canada's Motion for Targeted Document Production, and the format for document requests laid out by the Tribunal in Procedural Order No. . This section does not give any specific provision giving the powers to the arbitral tribunal to order for discovery and production of the documents. 7 Dealing with a failure to produce documents. International Court of Arbitration. laid down by Article 15 of the UNCITRAL Arbitration Rules governing these 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. View All Results >. The seminar will feature two panel discussions and a debate. The Ninth Circuit joined two other Circuits in concluding that under the FAA an arbitrator has no power to compel production of documents from a third party prior to an actual arbitration hearing. 14. The PO contains useful reminders of general principles and best practice during the document production phase of international arbitration. It encompasses document production but, in the United States, it also includes depositions, interrogatories, admissions, and much more. Waincymer, Procedure and Evidence in International Arbitration865(2012); ("A tribunal will need to balance relevance and materiality on the one hand with the possible burdensome nature of the . This article was originally written for and featured in the Loyola University, Chicago International Law Review. This concept is common in international arbitration, but differs from English common law . document production, many arbitral tribunals implement document production processes which are expressly or implicitly influenced by the IBA Rules on the Taking of Evidence in International Arbitration (IBA Rules). In ENMAX Energy Corporation v.TransAlta Generation Partnership et al, 2022 ABCA 206, the Alberta Court of Appeal (Paperny, Rowbotham, and Strekaf, JJA) upheld the chambers justice's decision to refuse to set aside an arbitral award (the "Award") under section 45(1)(f) of the Alberta Arbitration Act, RSA 2000, c A-43 (the "Act"). 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. "Abuse of Document Production in International Arbitration: Remedies When the Adverse Inference Falls Short," an article by Akin Gump partner Hamish Lal, counsel Brendan Casey and associates Josephine Kaiding and Léa Defranchi has been published by International Journal of Arbitration, Mediation and Dispute Management. It agreed that the ("Tribunal") document disclosure . Discovery and document production are important stages in international arbitration for a party to adduce evidence that it intends to rely on in support of its case, and to request for production of documents that are in the possession, custody or control of the other party that it requires so as to establish its case. Most respondents appeared to have an open mind on possible new approaches for managing document production. In international arbitration, document production requests are usually conducted pursuant to IBA Rules on the Taking of Evidence in International Arbitration ("IBA Rules" or "Rules"). Despite the notable differences between the common law and civil law approaches to document production, there is a general consensus among practitioners from both sides that some level of document production is appropriate in an international arbitration.
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