This article proposes a “civil law approach” to document production in international arbitration. The discussion begins with a description of the 1983 IBA Evidence Rules and the drafters’ attempt to place tight boundaries on the common law view of disclosure by limiting document production requests to, e.g., specific documents rather than categories of documents. However, the document production provisions in 1999 IBA Rules, confirmed in the 2010 and 2020 versions, showed that the common law view of broad discovery had prevailed not only in the IBA Rules but, above all, in international arbitral practice. Intended restrictions on the scope of document production, both in the IBA Rules and in practice, have not prevented the proliferation of massive and ever-growing “Redfern Schedules.”
Concepts deriving from civil law perspectives on evidence-gathering may nonetheless provide useful correctives to the most serious excesses of the common law document production model, without seeking to jettison the model entirely (the Prague Rules position) or perpetuate a greatly unbalanced civil lawcommon law “harmonization” (which the IBA Rules unintentionally established). One corrective, albeit highly unlikely to be adopted, would be for the parties in a particular case to agree to exclude the arbitral tribunal’s authority to order document disclosure. The key corrective, however, would assume the existence of a document production procedure, but with three independent elements to confine and clarify the scope of disclosure: (i) document production would be strictly limited to the specific documents (rather than categories of documents) that a party demonstrates it needs to carry its burden of proof; (ii) a party’s document search obligations would be consistent with its document retention policy (if it has such a policy), with “litigation holds” being limited to documents retained by the direct participants in the disputed issues of the transaction; and (iii) the only privilege to be recognized for protection of documents (or parts of documents) from disclosure, absent an agreement otherwise by the parties, would be the legal advice privilege as reflected in Article 9(3)(a) of the 2020 IBA Rules. Article 9 (3)(a) refers to communications made in connection with and for the purpose of providing or obtaining legal advice. Further, privilege logs — now becoming a common feature of the “Redfern phase” in international arbitration — would not be permitted absent a demonstration that a party was acting improperly in asserting privilege.
If the above civil law-inspired measures are adopted, the document production process will still primarily be a common law variant, though substantially tempered by a civil law sensibility. In short, a civil law approach to document production in international arbitration is in fact cognizable, and its use should be recommended to all participants — arbitrators, counsel, and parties.
Arbitration: The International Journal of Arbitration, Mediation and Dispute Management