Documentary evidence is at the heart of the arbitral process. In international arbitration, the right to be heard implies not only the production of documents, butalso the possibility of accessing evidence held by other parties or third entities. Statecourt intervention may then complicate the tribunal’s task. Arbitral tribunals may haveto decide which rules apply to issues such as the evidentiary value of documents ortheir admissibility. Arbitrators are increasingly confronted with new challenges, such asthe growing volume of documentary productions and requests for E-Discovery, as wellas ever more frequent objections to confidentiality and privilege. Document productions may also confront arbitrators with difficult issues of fraud and forgery.

The practice of documentary evidence is changing as international arbitrators lookfor transnational solutions capable of striking a proper balance between efficiency andfairness. Transnational instruments such as the IBA Rules on the Taking of Evidence in International Commercial Arbitration may need to evolve to accommodate newapproaches and solutions. Dossier VI of the ICC Institute, Written Evidence andDiscovery in International Arbitration, seeks to encourage reflection on future practice in relation to documentary evidence in international arbitration.

The contributors to this Dossier include:Amy F. Cohen Laurence ShoreBernard Hanotiau Michael E. Schneider David J. Howell Guido Santiago TawilJulian D.M. Lew Vera van HoutteLoretta Malintoppi V.V. VeederCarole Malinvaud Markus H. WirthLucy F. Reed

With the publication of Dossier VI, Written Evidence and Discovery inInternational Arbitration, the ICC Institute of World Business Law fulfils its dual mission: training and acting as a think-tank for the International Chamber ofCommerce particularly in the field of arbitration.

This Dossier is published under the auspices of the ICC Institute of WorldBusiness Law, chaired by Serge Lazareff, distinguished Member of the Paris Bar.

The International Chamber of Commerce, the World Business Organization, based in Paris, is theglobal leader in the development of standards, rules and reference guides for international trade.

Written Evidence and Discovery in International Arbitration

Dossiers VI

Written Evidence and Discovery in International

ArbitrationEdited by Teresa Giovannini and Alexis Mourre

D O S S I E R SICC Institute of World Business Law

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ICC Publication No. 698 ISBN: 978-92-842-0062-7

Dossier VI:Written Evid... 06/10/09 11:30 Page1

Written Evidence and

Discovery in International

ArbitrationNew Issues and Tendencies

Edited by Teresa Giovannini and Alexis Mourre

D O S S I E R SICC Institute of World Business Law

1

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the text and no legal resposibility is accepted for any errors, omissions

or misleading statements caused by negligence or otherwise.

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CoNTENTs

FOREWORD ...................................................................................................................5by serge Lazareff

INTRODUCTION..............................................................................................................7 Written Evidence and Discovery in International Arbitration

by Teresa Giovannini, Co-Editor

1. Julian D.M. Lew ............................................................................................11DOCUMENT DISCLOSURE, EVIDENTIARy VALUE OF DOCUMENTS AND BURDEN OF EVIDENCE

2. Guido santiago Tawil & Ignacio J. Mirorini Lima ..............................29PRIVILEGE-RELATED ISSUES IN INTERNATIONAL ARBITRATION

3. Laurence shore ...........................................................................................57STATE COURTS AND DOCUMENT PRODUCTION

ANNExEs

NBC V BEAR STEARNS ....................................................................................73INTEL CORP V ADVANCED MICRO DEVICES, INC .................................................83ROz TRADING LTD ......................................................................................117BABCOCk BORSIG.......................................................................................141LIFE RECEIVABLES TRUST..............................................................................161

4. Markus Wirth ..............................................................................................177 PRODUCTION OF DOCUMENTS AND FRAUD IN INTERNATIONAL ARBITRATION

5. Vera van Houtte .........................................................................................195ADVERSE INFERENCES IN INTERNATIONAL ARBITRATION

ANNExEs

TRIBUNAL FéDéRAL SUISSE, jANUARy 9th, 2008..............................................221ICC AWARD IN CASE N°8694...................................................................... 225ONTARIO SUPERIOR COURT OF jUSTICE ........................................................229COURT OF APPEAL FOR ONTARIO.................................................................247DONGWOO MANN + HUMMEL CO LTD V MANN+HUMMEL GMBH ..............265DEHLI HIGH COURT...................................................................................315

6. V.V. Veeder .....................................................................................................321 ARE THE IBA RULES PERFECTIBLE ?

7. Lucy F. Reed & Ginger Hancock ............................................................339 US-STyLE DISCOVERy: GOOD OR EVIL ?ANNEx

ICDR GUIDELINES....................................................................................354

8. Bernard Hanotiau .....................................................................................357MASSIVE PRODUCTIONS OF DOCUMENTS AND DEMONSTRATIVE ExHIBITS

9. Michael schneider......................................................................................365THE PAPER TSUNAMI IN INTERNATIONAL ARBITRATION: PROBLEMS, RISkS FOR THE

ARBITRATORS’ DECISION MAkING AND POSSIBLE SOLUTIONS

10. Carole Malinvaud ......................................................................................373WILL ELECTRONIC EVIDENCE AND E-DISCOVERy CHANGE THE FACE OF ARBITRATION ?

11. David Howell...............................................................................................395ELECTRONIC DISCLOSURE IN INTERNATIONAL ARBITRATION: THE CIARB. PROTOCOL

FOR E-DISCLOSURE IN ARBITRATION

12. Loretta Malintoppi ...................................................................................415THE ICC TASk FORCE ON THE PRODUCTION OF ELECTRONIC DOCUMENTS IN

ARBITRATION–AN OVERVIEW

13. Amy F. Cohen...............................................................................................423 OPTIONS FOR APPROACHING EVIDENTIARy PRIVILEGE IN INTERNATIONAL ARBITRATION

CONCLUDING REMARkS ..........................................................................................447by Alexis Mourre, Co-Editor

INDExES.......................................................................................................................453IBA RULES ON THE TAkING OF EVIDENCE IN INTERNATIONAL COMMERCIAL ARBITRATION .......455CIARB PROTOCOL FOR E-DISCLOSURE IN ARBITRATION ...............................................475

kEy-WORDS INDEx.....................................................................................................481

TABLE OF CASES..........................................................................................................497

SELECTED BIBLIOGRAPHy ........................................................................................499

ABOUT THE AUTHORS...............................................................................................503

CONTRIBUTORS..........................................................................................................505

ICC AT A GLANCE........................................................................................................510

WRITTEN EVIDENCE AND DISCOVERy IN INTERNATIONAL ARBITRATION

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FoREWoRD

sERGE LAzAREFF *

In 2003, the ICC Institute’s Annual Meeting was devoted to arbitration andoral evidence.1 It is therefore quite normal that we should now have turnedto written evidence and discovery.

Whether the world is globalized or not, international arbitration has inrecent years followed a similar pattern throughout the world. On the merits,there are very few areas where a notable difference can be found betweencivil law and common law. However, in the field of procedure and, inparticular, evidence, there were profound differences, but these seem tohave been largely ironed out today. In real life, it is exceedingly rare for theprocedure of an international arbitration to be governed by the rules ofprocedure of a national law.

Such a tendency to unification must respect certain basic constraints.There seems to be a dominant practice whereby awards are increasinglybased almost exclusively on documentary evidence rather than oral evidence.It is also generally recognized that the submission of documents, particularlythrough discovery, should be limited and controlled by the tribunal. Indeed,the time of unlimited costs is no more. The arbitrators, the parties and theinstitutions want to reduce the costs of arbitral procedures. Gone is the timeof “fishing expeditions”. Today, it is agreed that if some level of documentdiscovery is appropriate in international litigation, this level should bereduced as much as possible.

The excellent articles that appear in this new ICC Institute Dossier addressall aspects of the submission of written evidence in international arbitration.

WRITTEN EVIDENCE AND DISCOVERy IN INTERNATIONAL ARBITRATION

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They will show you the limits of discovery; the complementarities betweenburden of proof and adverse inferences; the rule of the supporting judge,which depending on the attitude of the state courts is either a tremendoushelp or a real hindrance; and the limits of discovery, particularly when one isfaced with privilege-related issues. you will read about the necessary limitson the massive submission of evidence - massive to the extent that thearbitrators are not physically able to read every document with which theyhave been flooded. you will find out whether the IBA Rules have become ausage in the same sense as the ICC Rules. and, since the Institute alwayslooks to the future - or at least aims to do so - you will be granted an insideview into the problems raised by electronic evidence and e-discovery.

ICC Institute Dossier VI is thus meant to complement Dossier II on Oral

Evidence and to give our readers an up-to-date picture of this essentialaspect of international arbitration.

On behalf of all readers, I wish to thank the co-editors of this volumemost sincerely for their time and dedication, not forgetting the contributorsfor the quality of their work.

* Avocat, France; Chairman, ICC Institute of World Business Law.1

ICC Institute Dossier II: Arbitration and Oral Evidence, ICC Publication No. 689

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INTRoDUCTIoN

By TEREsA GIoVANNINI

Co-EDIToR

“Upon this first, and in one sense this sole, rule of reason, that in

order to learn, you must desire to learn, and in so desiring not be

satisfied with what you already incline to think, there follows one

corollary which itself deserves to be inscribed upon every wall of the

city of philosophy: Do not block the way of inquiry.”

Charles sanders Peirce, “F.R.L.” [First Rule of Logic] (1899)

The general rule of actori incumbit probatio looks simple. Each party putsforward the evidence at its disposal that it considers apt to support its case,and the judge or the tribunal freely determines the relevance and weight ofthe evidence thus adduced.

In the present practice of international arbitration, the game is muchmore complex. Beyond the traditional difference between the inquisitorialand adversarial systems, the arbitral tribunal is now faced with the essentialquestion of the search for truth, as opposed to a “mere” evaluation andweighing of the evidence freely and willingly submitted by the parties to theproceedings. Today, the overwhelming trend is clearly that an arbitral tribunalascertains the facts in such a way that all elements of facts are put on thetable by the parties, regardless of whether these elements are favourable orharmful to their own case. As known, this approach, which stems fromEnglish legal culture, has been regarded for decades “with the greatestastonishment by the continental, and even American lawyers, who find theidea of someone being forced to disclose a document prejudicial to his owncase a quaint English idiosyncracy.”1

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Discovery involves a series of accompanying questions, some of whichmake it very difficult for the tribunal to know with certainty how to handlethe fact-finding process.

Indeed, the problem of massive production of documents now seems tohave produced a consensus, which is reflected in some arbitration rules, tothe effect that only limited document discovery should be allowed as opposedto the full-fledged US-style discovery. (Even US practitioners now hold that ininternational arbitration “tribunal-controlled … document production is“good” or even “great”.) However, the question how to identify such limiteddiscovery remains difficult. The answer will obviously depend in the firstplace on the tribunal’s evaluation and judgment of the evidentiary value ofdocuments and the burden of evidence.

Within the same concept of discovery, other issues confront the arbitralcommunity, such as the recent decisions taken in the United States under 28U.S.C. 1782 and in the United kingdom under Section 44(2)(a) of ArbitrationAct 1996 with respect to the direct support - or interference - of the courts inobtaining or compelling the evidence. Should these recent approaches beextended to other or all jurisdictions?

In addition, the discovery process triggers complex issues that still find nounanimous concurrence within the arbitration community.

In the first place, the process raises the delicate problem of confidentialityand privilege-related issues, as well as various related questions concerningthe applicable law and the most or least favoured rule approach. Is itdesirable, for instance, that such issues may become the subject matter of aruling or that they are contained in guidelines such as the IBA Rules on theTaking of Evidence in International Arbitration, which might thus be perfectible?

Secondly, when the process of the identification of the limited discoveryis achieved, the questions of confidentiality are resolved and the parties havesubmitted and/or refused to adduce the documentary evidence requestedand/or ordered, the first question that the tribunal must address is clearly theadverse inferences that can or should be drawn from the failure to produce.This question requires clear criteria on the conditions for adverse inferencesand the kind of adverse inferences a tribunal can draw in law.