Disputes on the Extent of Discovery Given - Chapter 18 - Handbook on International Commercial Arbitration

Author(s):

Peter Ashford

Page Count:

6 pages

Media Description:

PDF from "Handbook on International Commercial Arbitration"

Published:

October, 2009

Jurisdictions:

International

Practice Areas:

Commercial Disputes,

Practice & Procedure,

Discovery

Author Detail:

Peter Ashford is Solicitor of the Supreme Court and a Partner at Cripps Harries Hall LLP and is Head of the firm's Commercial Peter Ashford is a Partner and Head of commercial dispute resolution in the leading United Kingdom Firm of Cripps Harries Hall LLP, Tunbridge Wells, United Kingdom. Mr. Ashford advises on a wide range of commercial disputes with a particular emphasis on substantial commercial contract disputes, especially those involving an international aspect, partnership and LLP disputes, professional issues for solicitors and professional negligence. He is particularly experienced in complex, high value claims and acts for many international clients. He handles disputes in court, arbitration, mediation and disputes without any formal process. Mr. Ashford received his training in London and qualified in 1986. He joined Cripps Harries Hall LLP in 1987 and became a partner in 1991.

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Description:

Originally from Handbook on International Commercial Arbitration

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Whatever discovery is given, and however carefully the Arbitral Tribunal is in the formulation of the order for discovery, one or more of the parties is often dissatisfied with the discovery given by the other. The Arbitral Tribunal will generally encourage parties to resolve these disputes between themselves in accordance with the party autonomy principle. If the parties are unable to agree, the Arbitral Tribunal will have to assist. The upshot of this will be a procedural order but Tribunals will often convene a meeting or hearing at which indications and express statements of principle may be given to guide the parties, allowing them to break and see if detailed points can be resolved. If agreements or stipulations can be reached, then they can be recorded in a procedural order by consent. The Tribunal can adjudicate any remaining issues with, hopefully, the issues at the very least clarified by the parties’ attempts to agree.

If determination is required a so-called “Redfern Schedule” can be used. This is a variation on a Scott Schedule and is simply a convenient method of setting out the dispute. The Schedule can be adapted to suit the circumstances of the case but will generally have, in the first column, the document or category sought; in the second, the justification for the request; in the third, the requested party’s reasons for refusing the request, and a final column, for the Tribunal to record its decision. Clearly, additional columns can be inserted between the third and final column to record rebuttal contentions.

Appendix 18 is a sample procedural order that an Arbitral Tribunal might make either at the outset with a general order for discovery or when specific issues become apparent. It uses the tabular form approach.

The full Tribunal usually resolves disputes on discovery as one or more of the parties may perceive that the discovery issues will have an important impact on the resolution of the dispute. In some cases, for example, where there is a legally qualified Chairman with the other members from a technical or industry background, it might be preferable that the Chairman decide discovery issues alone. A composite sample of an order is at Appendix 19.