Originally from World Arbitration And Mediation Review (WAMR)

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DOCUMENT PRODUCTION IN INTERNATIONAL

ARBITRATION: WHAT DOES IT HAVE TO DO
WITH DISCOVERY?
Nathalie Voser*

I. INTRODUCTION
This presentation concentrates on one aspect of discovery –
more specifically, on document production. This is not only
because the presentation shall be brief, but also because it is
generally recognized that contemporaneous documents are of
paramount importance as evidence in international commercial
arbitration. Indeed, in “international arbitration, the best
evidence that can be presented in relation to any issue of fact is
almost invariably contained in the documents which came into
existence at the time of the events giving rise to the dispute.”1
The speakers of this conference were asked by its organizers
to focus not on the pathologies but on the reasons for the problem
and how the problem addressed could be resolved. Keeping these
instructions in mind, I will first address, very briefly, the
pathologies (Part II.). I will then focus on the problems and the
underlying reasons (Part III.) and, finally, I will discuss possible
approaches for solutions (Part IV.).
As a preliminary remark, I would like to mention that some of
the statements to which I will refer were submitted in the context
of a highly interesting exchange of professional e-mails: On
September 10, 2008, the Chair of the IBA Rules of Evidence
Subcommittee – which is in charge of revising the IBA Rules on
Evidence of 1999 – sent an e-mail to all members of the IBA
Arbitration Committee.2 The members were requested to