Dossier VI - Written Evidence and Discovery in International Arbitration

Documentary evidence is at the heart of the arbitral process. Arbitrators are increasingly confronted with new challenges, such as requests for E-Discovery, as well as ever more frequent objections to confidentiality and privilege.

Document production may also confront arbitrators with difficult issues of fraud and forgery. Further, Arbitral tribunals may have to decide which rules apply to issues such as the evidentiary value of documents or their admissibility.

The practice of documentary evidence is changing as international arbitrators look for transnational solutions capable of striking a proper balance between efficiency and fairness. Transnational instruments such as the IBA Rules on the Taking of Evidence in International Commercial Arbitration may need to evolve to accommodate new approaches and solutions.

This latest Dossier of the ICC Institute of World Business Law seeks to encourage reflection on future practice in relation to documentary evidence in international arbitration. With the publication of Dossier VI, Written Evidence and Discovery in International Arbitration, the ICC Institute of World Business Law fulfils its dual mission: training and acting as a think-tank for the International Chamber of Commerce particularly in the field of arbitration.


More Dossiers available in the Institute of World Business Law Section. 

Table of Contents 

FOREWORD
by Serge Lazareff

INTRODUCTION
Written evidence and discovery in international arbitration
by Teresa Giovannini, Co-Editor

1 Julian D.M. Lew: Document disclosure, evidentiary value of documents and burden of evidence

2. Guido Santiago Tawil & Ignacio J. Mirorini Lima: Privilege-related issues in international arbitration

3. Laurence Shore: State Courts and document production

4. Markus Wirth: Production of documents and fraud in international arbitration

5. Vera van Houtte: Adverse inferences in international arbitration

6. V.V. Veeder: Are the IBA Rules  perfectible ?

7. Lucy F. Reed & Ginger Hancock:  US-style discovery: Good or evil ?

8. Bernard Hanotiau: Document production in international arbitration: A tentative definition of  ‘best practices’

9. Michael Schneider: The paper tsunami in international arbitration: problems, risks for the arbitrators’ decision making and possible solutions

10. Carole Malinvaud: Will electronic evidence and e-discovery change the face of arbitration ?

11. David Howell: Electronic disclosure in international arbitration: The CIArb. Protocol for E-disclosure in Arbitration

12. Loretta Malintoppi: The ICC Task Force on the production of electronic documents in arbitration – An overview

13. Amy F. Cohen: Options for approaching evidentiary privilege in international arbitration

CONCLUDING REMARKS by Alexis Mourre, Co-Editor