Published: July 2011
Description: Evidence, its weight and the procedures for its disclosure or discovery, play a crucial role in the resolution of any disputes by an adjudicative process. In international arbitration, a party is required to prove facts necessary to establish its claim or defense. Adequate evidence in a party’s possession is often decisive to the outcome of the case. In situations where a party believes the other party has documents helpful to its case, can that party expect discovery or disclosure of evidence and to what extent? Documents in possession of the other party or even a third party can be expected to be disclosed in an international arbitration proceeding under certain conditions. However, the prospect of a document production request being granted or a form of discovery taking place remains somewhat uncertain at the outset of the arbitration proceeding.
Published commentaries by Anglo-American counsel recognize this uncertainty. They commonly warn clients against the “risk of losing the protection of their law” which means the right to discovery of documents and other evidence by agreeing to arbitrate a claim. They also recognize that the current arbitration practice on the taking of evidence in international arbitration can be unfavorable to Anglo-American parties where the opponent has access to the assistance of U.S. or U.K. courts by means of discovery2 while corresponding …
*Dominique D’Allaire is counsel at Justice Canada, Ottawa and Rolf Trittmann is a partner at Freshfields Bruckhaus Deringer LLP, Frankfurt. The authors wish to thank Maximilian Reichert for his assistance in conducting research for this article. The views expressed herein are those of the author and do not necessarily represent the position of their clients or employers.