Litigation and Alternative Dispute Resolution

The International Bar Association (“IBA”) Rules on the Taking of Evidence in International Arbitration (“IBA Rules” or, “Rules”) are, without any doubt, a point of reference in the taking of evidence in international arbitrations. The IBA Rules serve as a harmonization tool as well, especially when parties and arbitrators come from different legal systems.

The general framework and principles of the provisions of the IBA Rules on document production requests have been analyzed in our January, 2016 article. In this article, the procedure and the grounds for objection to document production requests under Art. 9.2, by means of reference made by Art. 3.5 of the Rules, shall be analyzed.

In General

Objections to document production requests under the IBA Rules are regulated under Art. 3.5 - Art. 3.7 of the Rules. Accordingly, pursuant to Art. 3.5 of the IBA Rules, if the party to whom the request to produce is addressed has an objection to some or all of the documents requested, it shall state the objection in writing to the arbitral tribunal and the other parties within the time ordered by the arbitral tribunal. The reasons for such objection shall be any of those set forth in Art. 9.2, or a failure to satisfy any of the requirements of Art. 3.3.

These reasons for objection under Art. 9.2 shall be analyzed, below.

Admissibility and Assessment of Evidence under the IBA Rules

The admissibility and assessment of evidence is regulated under Art. 9 of the IBA Rules. This article is of great importance, since it pertains to preservation of the lines of distinction between the rights of the parties and the authority of the arbitral tribunal[1]. The general rule is that the arbitral tribunal shall have discretion to make determinations pertaining to admissibility, relevance, materiality and weight of evidence.

As stated above, Art. 9.2 of the Rules is applied by reference of Art. 3.5, with regard to objections to document production requests.

Objections to Document Production Requests

In the event that the party to whom the document production request is addressed has objections, it should state these objections in writing to the arbitral tribunal and the other parties.

Pursuant to Art. 3.6 of the Rules, the arbitral tribunal, upon receipt of such objection, may invite the relevant parties to consult with each other with a view to resolving the objection. Accordingly, the said article shall be applied if the arbitral tribunal deems that party-to-party consultations may be more effective in order to resolve the objections. This may be the case concerning objections that are based on insufficient descriptions, and other deficiencies in the form of the request to produce[2].

Grounds for Objection under Art. 9.2

The grounds for objection to document production requests are set forth under Art. 9.2 of the IBA Rules. It should be emphasized that the arbitral tribunal may also exclude any document, statement, oral testimony, or inspection on its own motion.

Pursuant to this provision, the grounds for objection are as follows:

          Lack of sufficient relevance or materiality,

          Legal impediment or privilege,

          Unreasonable burden to produce the requested evidence,

          Loss or destruction of the document,

          Commercial or technical confidentiality that the arbitral tribunal determines to be compelling,

          Special political or institutional sensitivity,

          Considerations or procedural economy, proportionality, fairness or equality of the parties that the arbitral tribunal determines to be compelling.

Pursuant to Art. 9.4 of the Rules, if the arbitral tribunal deems it appropriate, it may make the necessary arrangements to permit evidence to be presented or considered, subject to suitable confidentiality protection. This would give the parties the opportunity to have access to the relevant documents, while taking confidentiality concerns into account for the counterparty.

Arbitral Tribunal’s Document Production Order

In the event that the parties cannot resolve the objection, either party may request the arbitral tribunal to rule on the objection. The arbitral tribunal shall, in consultation with the parties, consider the document production request and the objection thereto. Pursuant to Art. 3.7, the arbitral tribunal may order production of the documents sought in the request to produce only if it is convinced that (i) the issues that the requesting party wishes to prove are relevant to the case and material to its outcome, (ii) none of the reasons for objection set forth in Article 9.2 applies, and (iii) the requirements of Article 3.3 have been satisfied[3].

Document Production Requests from a Person or an Organization not Party to the Arbitration

The foregoing applies when one of the parties relies on the documents in possession, control or custody of the other party, and who is a party to the arbitration. In some cases, a party may rely on documents that are in the possession of a person or an organization not party to the arbitration, and from whom the party cannot obtain the documents on its own. In this case, the party may ask the arbitral tribunal to take whatever steps are legally available to obtain the requested documents, or seek leave from the arbitral tribunal to take such steps. The arbitral tribunal shall decide on this request and shall take, authorize the requesting party to take, or order any other party to take, such steps it considers appropriate, if it determines that the conditions for document production are met (Art. 3.9 of the Rules).

Consequences of Failure to Produce the Requested Documents

It may be the case that the party to whom the document production request is addressed, without making the necessary objections in due time, fails to produce the requested documents, without satisfactory explanation. In such a case, under Art. 9.6, the arbitral tribunal may infer that such evidence would be adverse to the interests of the party failing to produce the requested evidence.

Additionally, pursuant to Art. 9.7 of the IBA Rules, if the Arbitral Tribunal determines that a party failed to conduct itself in good faith in the taking of evidence, this may be taken into account in the assignment of the costs of the arbitration, including those arising out of or in connection with the taking of the evidence. It is clear that these two provisions give rise to adverse inferences where a party has failed to produce a document, or to make available other evidence required by the arbitral tribunal.

Conclusion

Provisions of the IBA Rules on admissibility and assessment of evidence aim to draw the lines of distinction between the right of the parties and the authority of the arbitral tribunal. The arbitral tribunal shall determine the admissibility, relevance, materiality and weight of evidence on its own discretion, but within the principles laid down under the IBA Rules. Accordingly, the tribunal may exclude the documents in its own motion, or upon the request of a party, if the grounds for objection under Art. 9.2 are applicable. If these grounds are not applicable, and the party to whom the document production request is addressed abstains from producing the requested documents, then the arbitral tribunal may order document production. If the relevant party does not comply with this order, the arbitral tribunal may draw adverse inferences to the detriment of this party.