Author: Laurent Vercauteren**
Published: December 2012
Undoubtedly, one of the key issues of modern litigation and arbitration is the manner in and the extent to which evidence is gathered and presented to the court or arbitral tribunal. Facts are often seen as invariable and not really being in dispute. However, in practice, parties will try to interpret the facts in a way that supports their case and contention. As each party argues its case, the story may change. And because parties will often try to base their case on facts which will be tactically determined by them, this may hamper the task of the court or arbitral tribunal which, as fact-finders, must try to find the real truth behind the facts presented to them and reach a decision.
One way in which evidence can be presented to the court or arbitral tribunal is by disclosure or discovery (both refer to tribunal or court-ordered production of materials, but the former is used in English and the latter in U.S court litigation and arbitration1 – for clarity’s sake, “disclosure” will be used throughout the text to indicate both). However, in many international arbitration cases (in contrast with domestic arbitration and court proceedings), confusion often remains about the question whether disclosure of evidentiary materials should be an element of the arbitration proceedings or the extent to which this should be allowed. When should disclosure be allowed in the arbitration process? What kind of disclosure should be permitted and to what extent? Is it possible to know in advance and with reasonable certainty if and to what extent disclosure will be needed in a particular case? If parties have conflicting views on these questions, how should they be resolved? What about the scope of non-party disclosure and e-disclosure? The above-mentioned questions are not answered consistently throughout the arbitration world. Different legal systems have divergent views on this issue. Parties from different legal backgrounds have different expectations as to how an evidence-gathering process should be conducted. The first part of this article discusses the different aspects of disclosure: it will analyze the differences that may remain between proceedings in common-law and in civil-law systems. The main focus will be on U.S., English and Belgian law (Belgium being used throughout the text as an example of a civil-law country). Where relevant, some …
*Notes and Comments
**Attorney at the Brussels Bar, Eversheds Brussels.