“Obtaining Documents from Adverse Parties in International Arbitration” Vol. 17 No. 1 Arbitration International (2001)

There is a growing consensus as to procedure in international arbitration. As set out in the IBA Rules of Evidence, documentary requests in international arbitration should be much more limited and identified than in an American or English court discovery proceedings and it is the tribunal and not the parties who should decide on the scope of such documentary production. By eliminating the ‘wild card’ of section 1782 discovery, it is submitted that the National Broadcasting case is helpful for international arbitration. But that decision did remove one of the few ways of obtaining documents in cross-border situations. The Publicis case shows the usefulness and the limits of the New York Convention in obtaining documents and provides an avenue to a more creative approach to enforcing the right to obtain documents. This route should be available where there is a substantive right under the contract to such documents, provided that the right is asserted in timely fashion. Moreover, if the documents are key, a party should be able to use Publicis to obtain a partial award that would be enforceable under the New York Convention. In court proceedings, a party can generally enforce its right to obtain documents from the other party. The same should be true for arbitration. There may or may not have been a golden age when parties voluntarily complied with arbitral awards and arbitral procedural orders, although some attribute compliance more to the New York Convention than a spirit of co­operation. However, as international arbitration expands – and its relationship with the courts becomes more established  there is a greater need to go beyond persuasion and inference and rely, like courts, on enforcement.