Globalised trade and consequentially, disputes spanning multiple jurisdictions mean that parties come to arbitration from different cultures and legal backgrounds. Arbitration is designed to provide a middle line between the different legal backgrounds as well as a cost effective way of resolving disputes. One of the key differences between arbitration and litigation in the Courts of England and Wales is the disclosure of documents.
Disclosure in England & Wales
The Courts of England and Wales require an “all cards on the table approach” meaning that documents on which a party relies, adversely affects their own or support their own case must be disclosed under standard disclosure. Whilst the objective of such broad disclosure is to enable both sides to have all the information early on in the dispute and thereby facilitating the possibility of settlement, and new data platforms can significantly reduce the time spent sourcing, organising and filtering documents; disclosure is often a time consuming and expensive process particularly in globalised corporates. Whilst the Courts have the ability to limit documents disclosed, the limiting process (if undertaken at all) simply erodes the mass of standard disclosure.
Document production in Arbitration
A particular attraction with using arbitration is that broadly speaking the disclosure of documents takes the opposite approach.
For example under the most recent ICC Rules parties may annex such documents that they deem appropriate or contributing to the efficient resolution of the dispute to their pleadings. It tends to be the case that documents relied upon, and those generally helpful are provided at this stage. If further documents are requested, the tribunal first receive submissions from the parties and then make an order for the production of documents it deems necessary.
Similarly, under the most recent LCIA Rules parties must supply copies of all essential documents relied on in their pleadings (thereby making the exchange of essential documents compulsory earlier in proceedings) and again, further down the line the tribunal can order the production of documents where it’s decided they are relevant.
Aside from arbitration generally being a quicker pathway to resolve disputes the fact that the arbitrator(s) will often be familiar with the specific business area or even type of product in question increases the possibilities of having a pragmatic way through the document production process.
Document production strategy
Cost savings from avoiding standard disclosure when litigating in the courts aside, a further benefit to be obtained from document production in arbitration is the ability to create a strategy. Where allegations are floated but not relevant to the case or material to the outcome, a party can heavily oppose the need to produce documents of this nature and re-focus attention on the issues to be resolved. In addition to objecting to the production of documents because they are not material to the outcome, document production can be resisted due to legal privilege or it being an unreasonable burden.
Compiling a list of issues to be determined can assist with focussing the parties’ minds on the documents needed and broad or unspecified requests for documents should be met with requests for further reasons as to their relevance, or rejection.
The process of determining what documents are produced is most often conducted through a schedule detailing the documents requested along with the reasons, objections to production and then space for the tribunal to reach a decision.
Where a party fails to comply with an order to produce a document then the tribunal is entitled to infer that the contents would have been adverse to the interests of that party.