Document production is the process of providing documentary evidence to prove a case in arbitration. The arbitral institutions have their own rules relating to document production, but the process is designed to be less onerous than that of disclosure in litigation.
Difference between disclosure (in the UK) and document production
The process of disclosure in the UK is governed by Part 31 of the Civil Procedure Rules. While there are now different models of disclosure which can limit the scope of documents provided, parties must still disclose all potentially relevant documents in their possession or control. That includes (i) documents on which they rely, (ii) documents that may adversely affect their own case and (iii) documents that support the other party’s case.
On the other hand, document production in arbitration is narrower in scope. Parties are only required to produce documents on which they intend to rely to prove their case. The opposing party may make targeted requests for particular documents.
Notably, there is no automatic right to see any documents held by an opponent that adversely affect that party’s case.
Document production is managed by way of order from the tribunal, and the tribunal has the power to make any orders it thinks are appropriate. In fact, the tribunal can decide that no document production is necessary at all. There is much more flexibility to the process of document production in arbitration than there is in disclosure in litigation.
The IBA Rules on the Taking of Evidence in International Arbitration
The IBA Rules on the Taking of Evidence in International Arbitration (the IBA Rules) are guidelines for the management of evidence in an arbitration. They are often adopted by parties in arbitration, as they represent accepted best practice for document production in international arbitration.
The IBA issued these Rules as a resource to parties and to arbitrators to provide an efficient, economical and fair process for the taking of evidence in international arbitration.
They are not a replacement for the arbitral institution’s own rules, and instead are designed to be used in conjunction with institutional rules or procedures governing international arbitrations.
The IBA Rules reflect procedures in use in many different legal systems, and they may be particularly useful when the parties come from different legal cultures.
What is a Redfern Schedule?
In arbitration, a tribunal may order that the parties produce their documents in the form of a Redfern Schedule.
A Redfern Schedule is simply a table, which usually has four columns::
- Column (1): documents requested.
- Column (2): reason for each request.
- Column (3): objections to production (or confirmation that production will be provided).
- Column (4): left blank for the decision of the tribunal on each disputed request.
Documents that the tribunal decides should be produced are then disclosed by each party, for inspection by the other.
This is a more targeted approach than standard disclosure in litigation, and helps the parties to manage costs and focus their evidence on the most pertinent issues in the dispute.
The LCIA Rules do not specify that Redfern Schedules must be used in document production. In practice however, Redfern Schedules are frequently adopted by the parties in an LCIA arbitration to streamline the document production exercise.
Rules for document production in the LCIA
The LCIA Rules 2020 contain provisions for document production in an LCIA arbitration.
At the beginning of the arbitration, the claimant in an LCIA arbitration must deliver to the arbitral tribunal and all other parties, its statement of case and all the documents on which the claimant relies (Rule 15.2). The claimant must do this within 28 days of the tribunal’s formation.
The respondent then reciprocates, and delivers its statement of case, together with the documents on which the respondent relies (Rule 15.3).
This means that the documents that are material to each party’s case are disclosed at the outset.
The Tribunal also has the power to order any party to:
- Make any documents under its control available for inspection by the tribunal, or any other party
- Produce to the tribunal and to other parties documents within a party’s possession, custody or power, which the tribunal decides are relevant.
These wide powers are enshrined in Rule 22.1(iv) and 22.1(v).
In an LCIA arbitration, the parties undertake to keep confidential all documents produced by another party (Rule 30.1). Tribunals also have the power to order confidentiality rings for any documents that are particularly sensitive. With a confidentiality ring in place, only named persons (typically lawyers and experts) are able to view the documents, so they cannot be used for a commercial advantage by either party.
Grounds for objection to document production
There are no specific provisions in the LCIA Rules that set out the grounds for objection to document production. However, the IBA Rules (which are frequently adopted) explain that the tribunal can exclude from evidence or production, any document for the following reasons in Article 9(2):
- Lack of sufficient relevant to the case
- Privilege
- Unreasonable burden to produce
- Loss or destruction of the document
- Commercial or technical confidentiality
- Special political or institutional sensitivity
- Procedural economy, proportionality, fairness or equality of the parties
If a party fails to produce the documents requested, then a tribunal can infer that the documents would be adverse to the interests of that party (Article 9(6) IBA Rules), and the tribunal may impose cost penalties.
Comparison with other forums
The LCIA Rules on document production are not dissimilar to other prominent institutions.
For example, the UNCITRAL Arbitration Rules (2010, 2013 and 2021) provide that the tribunal may order a party to produce documents, exhibits or other evidence that it deems necessary or appropriate (article 27.3). T
The ICC Rules 2021 authorise the tribunal to establish the facts of the case by appropriate means (article 25(1)). This includes the power to determine the appropriate scope of document production.
The ICDR International Arbitration Rules 2021 allow the tribunal to manage the exchange of information between the parties. Under those rules, the parties may have input into how much information is to be exchanged but the tribunal retains "final authority". The tribunal can order a party to produce documents that are reasonably believed to exist and that are relevant and material to the outcome of the case (articles 24(1)-(4)).
“Taming the beast”
While rules are in place to make document production less onerous than disclosure, there appears to be general consensus that the current practice in international arbitration is often going too far.
A working group of the Swiss Arbitration Association has released a whitepaper on document production titled “Taming the Beast.” Parties still find the document production exercise burdensome and costly.
The whitepaper recommends that the definition of ‘relevance’ and ‘materiality’ under the IBA Rules is restricted. Relevant documents should relate to a factual allegation on which the legal conclusions are drawn in support of the requesting party’s case.
The standard of materiality should be higher so that a requested document must be necessary to allow a complete consideration of whether or not a factual allegation is proven. The determination of that particular allegation must be necessary for the determination of the case.
Final thoughts
Disclosure in litigation can be an expensive and lengthy process. In contrast, document production in international arbitration is generally more limited and targeted. There are fewer accusations of ‘fishing exercises’ between the parties and the documents that are produced must have material relevance to the party’s case.
That said, there is still a way to go to make all arbitrations as efficient as the parties would like. A balance must be struck between proving a party’s case by reference to necessary documents, and searching for documents that may only have marginal material impact on the tribunal’s decision.
Party’s may want to think about adopting the standards set out in the whitepaper in specific procedural rules at the beginning of an arbitration. This will reduce the burden of the exercise of document production. Similarly, party’s may consider an agreement to use AI in document production, to search for documents using relevant keywords. This can help the parties to draft narrower and more specific document requests.
