Users of international arbitration experience document production as a burdensome, costly, and all too often ineffective exercise. Drawing on an analysis of various legal traditions and existing instruments, a working group of the ASA User Council now takes the initiative to call for a robust readjustment of current procedures and offers concrete recommendations aimed at keeping arbitration efficient and attractive. In this whitepaper, guidance on the key standards defining current practice – relevance and materiality – is thus combined with proposed measures that can be applied by parties, counsel, arbitral tribunals, and institutions.
This whitepaper does not advocate for a blanket abolition of document production, although such proposals have been made and some companies make a deliberate choice to that effect. It rather seeks to recommend a variety of options, with possible measures ranging from numerical limitations to substantive standards and procedural techniques aimed at countering parties’ and counsel’s propensity to “leave no stone unturned.”
Arbitral institutions and other organizations will be well-advised to support parties, counsel, and arbitral tribunals in keeping arbitration as efficient as possible. The current tendency to favour expedited procedures, which seem to be received well by the market and which avoid document production to a large extent, demonstrates that it can be successfully achieved.
ASA Bulletin