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Young ICCA, Skills Training Workshop, Discovery in International Arbitration


Post Event Report

DISCOVERY IN INTERNATIONAL ARBITRATION

by Katharine Menéndez de la Cuesta Lamas [1] - Camilla Gambarini [2]

On 7 October 2013, Young ICCA organised an arbitration skills training workshop in Boston for young legal practitioners and students on “Discovery in International Arbitration”. McDermott Will & Emery hosted the workshop and seven panelists conducted the discussion. 

The first panel, composed of two speakers and moderated by a prominent arbitrator, discussed the main characteristics of the discovery (or document production) phase in international arbitration.  The second panel, constituted by two attorneys, analysed the process of gathering documents from clients and disclosing them to the opposing party.  Finally, two attorneys explained the procedure usually followed to prepare and draft a document production request in international arbitration, providing the attendants with examples of Redfern Schedules.

 

1.        Discovery Obligations - Main characteristics of the document production phase in international arbitration.

The first panel discussion was opened with an important remark. Although the term ‘discovery’ is sometimes used to refer to the document production phase in international arbitration, the latter clearly differentiates from the common law distinctive procedural piece.  In a nutshell, under US law, discovery can involve any material reasonably calculated to lead to admissible evidence (i.e. that may be relevant for a case that is still to be set and presented), while parties to international arbitration must carefully justify why the document requested is relevant for their case which is already configured and presented by that phase.

On this basis, the panel emphasised that participants in international arbitration proceedings, both arbitrators and counsel, have previous legal training, i.e. they carry on a ‘legal DNA’ received in their home jurisdictions.  That previous experience inevitably affects the performance and strategy that they follow in international arbitration cases. While common law lawyers typically focus on the fact-finding process, civil lawyers particularly worry about the legal theories applicable to the case. As a natural consequence, this different view may impact the expectations and behaviour of both arbitrators and counsel regarding the discovery (or production) of documents. To avoid potential clashes and reach a common understanding on this stage’s goal and features, arbitrators commonly discuss this topic with parties in the early stage of the proceedings. 

The panel also discussed the moment in which discovery usually takes place in arbitration proceedings. It commonly occurs after the submission of the first round of memorials (statement of claim and statement of defence.) On occasion, US parties (or law firms) propose to bring it forward, probably acting under the influence of US civil procedural rules on discovery practice.

Thus, it is common in international arbitration that parties file their initial submissions along with the documents supporting their claims or allegations. Accompanying documents must set the case in full, i.e. by this early time of the proceedings (prior to any production of documents), parties are expected to have entirely designed and presented their case, articulated the corresponding legal theories and be able to provide supporting evidence. In this regard, the arbitral tribunal may make it clear since the beginning that they expect that claimant clearly states its petitions from the outset and that respondent explains its defence on the first possible occasion.

It follows from the above that, for succeeding in the proceedings, it is crucial that each party understands early both the case it is making and the proof available to support it and avoids sudden swerves in the middle of the arbitration. Lawyers must decide as soon as possible the legal theory applicable to the case in order to prevail.  To that end, involving clients and in house lawyers in this process may be useful, especially to find and comprehend the available evidence.

The panel also warned the attendants of some practices (involving documents) to be avoided in international arbitration. First, tribunals prefer truly explanatory and supporting documents, rather than exhibits which hardly ‘flavour’ the parties’ allegations.  Second, it may be annoying for an arbitrator to find exhibits not referred to in the memorials.  Parties may be tempted to do so with the purpose of surprising one of the witnesses at the hearing (i.e. by examining her on the basis of a document not properly addressed in the submissions). Arbitrators usually dislike this practice.  Third, the inclusion of partial misleading quotes in the written submissions should be avoided, i.e. those that when entirely read in the original exhibit prove to have a completely different meaning (even harming the case as originally presented). 

Both attorneys also explained the nature of the requests for production of documents.  Tribunals are ordinarily reluctant to allow extensive requests (i.e. fishing expeditions).  Parties are rather asked to base their petitions on narrowly defined categories of documents and to explain (i) why the documents requested are relevant and material to their case; and (ii) why the opposing party would have control over them. On occasions, a hearing to deal with the document production phase takes place and may last one entire day.

One of the most interesting issues addressed by the panel dealt with the parties’ reaction to an order to produce documents:

(1)   On a general basis, speakers suggested that the party who is requested to produce documents should adopt a cooperative position towards the requesting party. For instance, if the requested document’s name is incorrectly spelled but the requested party recognises it and in fact has the document, a denial to produce it on this basis would be unreasonable. This attitude may have serious consequences for the denying party before the tribunal; in particular, it may entail losing the arbitrators’ trust. Thus, we as lawyers must act honestly and in such case contact the opposing counsel and ask for clarifications. 

(2)   When a party fails to produce a document, the tribunal may draw adverse inferences from such behaviour (i.e. the Arbitral Tribunal may infer that such document would be adverse to the interests of that Party, as established in Article 9.5 of the IBA Rules on the Taking of Evidence in International Arbitration).

(3)   Besides, in certain circumstances, national courts may be asked to issue an interim order[3] to enforce the document production.  However, the recourse to court proceedings may trigger an uncomfortable situation for the arbitrators. 

(4)   Parties’ response and production may also be affected by their own legal cultures and, in particular, by local considerations on communications subject to privilege. For example, the European Union Court of Justice and the European Commission have determined that communications between a party and in–house counsel are not subject to privilege. However, this is not the usual consideration in international arbitration. Attorney-client communications may be included in this same group. (As a matter of example, under English law, attorney-client communications – when related to the dispute – are indeed subject to privilege).

Finally, the attorneys involved in this first panel referred to the International Bar Association (IBA) meetings on the rules of evidence, where those differences between legal cultures on the document production topic were made patent.  Some members of the Working Party opposed to the existence of a document production phase in international arbitration. Others proposed to allow this procedural stage on a case-by-case basis. Despite the intense debate arising out of this topic, the IBA thoroughly worked on the issue with the goal of harmonising the meaning, goals and features of this phase of international arbitration proceedings. This extensive work resulted in the 2010 IBA Rules on the Taking of Evidence in International Arbitration (2010 IBA rules). With regards to privilege, Article 9.2(b) of 2010 IBA rules provides protection for documents and other evidence that may be subject to privileges under the appropriate applicable law, such as the attorney-client privilege, professional secrecy or prejudice privilege. In doing so, the Working Party considered the significance of recognising such privileges in international arbitration.

The panellists concluded their discussion underlying the importance of knowing the Tribunal and being aware of the legal backgrounds of the actors playing a role in the arbitration proceedings.

 

2.         Disclosure of Documents: Gathering documents from clients and disclosing them to the opposing party.

The second panel, guided the participants through the practical process that lawyers are expected to carry out when requesting documents from clients, reviewing those received or disclosing documentation to the opposing party.

Generally speaking, in international arbitration documents are preferred over witnesses. When asked, the latter may avoid some important factual elements or confuse aspects relevant to the dispute.

Because clients and witnesses’ memory may get clouded, counsel should focus on getting a complete file (including all the documents relevant to the case) as soon as the case arrives to her desk. To that end, the revision and search of documents should start as soon as possible and clients should be accessible to answer questions in connection with missing or incomplete documents. Some practical tips in this regard discussed during the workshop may be summarised as follows:

(1)   Preparing a chronological list of the documents received, summarising its content and why they are relevant for the case may be useful;

(2)   As counsel, we will have to revert to clients to request missing documentation (usually referred to in explanatory meetings or in the documents already received). In doing so, the more specific our description of the sought document is (and the identity of possible custodians), the easier it is for the client to find it;

(3)    Once the list of documents needed is sent to the client, it may take some time to hear back or to receive the documents requested. On occasions, clients face serious difficulties in finding documents. For example, original custodians may have left the company, or documents may be in the hands of directors or managers who are reluctant to allow access to their computers or files; in these cases, it is advisable to emphasise to the client the document’s relevance to the case in order to boost the search efforts;

(4)   Sometimes counsel may be required to directly search in the client’s archives, moving to the client’s premises. Attorneys involved in this process should be fluent in the client and documents’ language (which will not necessarily match or be the same as the arbitration language). In the panels’ view, it is worthwhile to involve in this stage attorneys working on the case (rather than translators hired for this purpose). The practice has revealed that when individuals not entirely involved in the case carry out this research or revision task, they may overlook essential documents or information relevant to the dispute.

Once the documents are collected, they may be organised either in electronic indexes or in hard binders. Some law firms use specific software to store documents, although panellists had different views on the efficacy and utility of these computer tools.

As a final remark, it may be the case that during this documentation review, attorneys find one or more documents detrimental to the client’s position. The disclosure of these documents may be advisable, particularly if we suspect that the opposing party likely has them. In doing so, we allow ourselves to present first the document to the tribunal along with a proper explanation. As it is evident, lying to the tribunal is not recommended and avoiding surprises related to documents at the hearing is prudent.  Therefore, the speakers deem it preferable to deal with such ‘harmful’ documents in the written phase when counsel may plead around and moderate (or even circumvent) the detrimental effect on its client’s case.

 

3.         Discovery of Documents. The drafting and preparation of a document production request: a practical perspective.

During the last part of the workshop, two experienced attorneys addressed the topic of the drafting and preparation of a document production request in international arbitration, providing written examples of Redfern Schedules (the document most commonly used by attorneys to that end). 

In the panel’s view, when drafting a document request, attorneys must consider several elements, such as the profile of the arbitrators, their legal tradition, which party bears the burden of proof or which facts are to be proven.

As the 2012 Queen Mary International Arbitration Survey concludes, the document most commonly used in international arbitration to request the production of documents is the so-called Redfern Schedule.  In this document the parties detail (1) the category of documents requested; (2) why the requested document or category of documents are relevant to the case and material to its outcome; and (3) why the opposing party likely has control over the document. During the workshop, participants were provided with examples of this chart, and the specific petitions contained therein were discussed.

It is recommendable to draft the requests as detailed and specific as possible, including the type of document requested, where it may be located or who may actually have it. It is also preferable to make reference to specific excerpts or arguments raised in the memorials to highlight why the document is relevant to the case or material to its outcome.

In any event, arbitrators will usually encourage the parties to reach an agreement on the documents to be produced. Alternatively, the tribunal will issue a decision ordering the parties to produce certain documentation, considering their allegations and objections in this regard. As explained before, if a party fails to produce the documents ordered by the tribunal, the requesting party may file a petition for assistance before domestic courts.

On occasions, lawyers realise – once the document production phase has taken place – that additional documents are needed to support their case (or that these documents existed but the opposing party failed to produce them). In that case, counsel should assess whether submitting a new petition for documents to the tribunal is reasonable.  It may be wise to contact opposing counsel prior to do so.  If the conversation proves to be ineffective, arbitrators might order a second round of production of documents should a meritorious application be made.

 

4.         Final Remarks

The document production phase in international arbitration proceedings allows the exchange of certain documents between the parties and usually takes place after the first submission of briefs. Thus, claimant is expected to design its strategy and prove its case prior to any production of documents.

In preparing the document production request, parties must explain why the documents requested are relevant to the case and material to its outcome.  Failing an agreement of the parties in the documents to be produced, the tribunal will issue an order.

In reviewing the documents received by clients, counsel must be particularly focused on getting a complete file, including all the documents relevant to the case.


[1]  Katharine Menéndez de la Cuesta Lamas is LLM Candidate 2014 at Columbia Law School. She holds degrees in Law (2007) and Economics (2008), both from Universidad Pontificia Comillas (ICADE, Madrid). Before joining Columbia, she worked for five years in the Madrid office of a top Spanish law firm and in the Miami office of a top US law firm, at their respective international arbitration teams.

[2] Camilla Gambarini is LLM Candidate 2014 at Columbia Law School.  She holds a Master in Law from Catholic University of Milan (2009) and a Master in International Law from the Graduate Institute of International and Development Studies in Geneva (2011). 

[3] As explained by the panelists, an interim order is a provisional decision (i.e. an order that may be modified by the Tribunal at a later stage of the proceedings); instead, a partial award is a mandatory partial decision on some of the issues at stake in the dispute.