Printemps 2011 - ADR Institute of Canada

taining evidence from non-parties to theproceedings or requiring a party to producefor examination at the hearing a witnesswho that party did not intend to call 3 . Althoughprovision is not made in the IBARules for pre-hearing examinations withoutthe attendance of the tribunal, as wouldoccur in depositions or examinations fordiscovery, this limitation is one which affectsthe tactics and cost of seeking disclosuremore than the substance.The arguments that need to be answered inany ongoing debate about discovery in internationalarbitration are as follows:1) If we accept the premise that arbitratorsshould in certain circumstancesorder the exchange of information becausejustice requires that be done,should it make any difference if thatinformation is stored in documents, inhard drives 4 or in the memory of keyemployees of a party? If so, does thedifference relate to whether the informationis provided at all or does it relateto the reasonable means by whichthat information is obtained and provided,so as not to defeat the main benefitsof the arbitration process? I notefor example, that the English ArbitrationAct provides that among otherthings the tribunal may decide:s. 34 (2):(d) whether any and if so whichdocuments or classes of documentsshould be disclosed betweenand produced by he(e)parties and at what stage; [and]whether and if so what questionsshould be put to and answeredby the respective partiesand when and in what form thisshould be done.It seems to me that this recognizes thatdocumentary production may not beenough. Similarly, Article 20 of the ArbitrationRules of the International Chamberof Commerce provides that the tribunalshall: “establish the facts of the case by allappropriate means” and may “summon anyparty to provide additional evidence”.2) Another legitimate issue for debate isthe silence of the IBA Rules of Evidence,and for that matter the rules ofcertain arbitral institutions such as theICC, on broader forms of pre-hearingdisclosure that go beyond documentdisclosure. Each side of the discoverydebate argues that the silence favoursits position. However, each side alsoattempts to adhere to the mantra of arbitrationas a flexible form of disputeresolution. Among those who favourlimiting pre-hearing discovery in arbitrationto document disclosure as explicitlylaid out in the IBA Rules ofEvidence, these positions are reconciledby saying the flexibility on discoverycomes into play not at the stage whenthe arbitrators rule on discovery issuesbut at the stage when the parties enterinto their arbitration agreement. Theargument then proceeds that the failureto provide for any other form of prehearingdiscovery than document disclosurein the arbitration agreementitself means that the right will not exist.This limitation on the advertisedflexibility of arbitration is problematicin a number of respects. It creates apresumptively preclusive effect for theIBA Rules on the Taking of Evidenceand, for example, the ICC Rules, whichthose documents do not claim for themselves.5 It also forces the parties to addressdiscovery issues at a stage whenit is often not known what if any disputewill arise and what their informationneeds might be with respect to thatdispute. (My experience is that attemptsby parties to deal with proceduralissues in pre-dispute arbitrationagreements are generally a disaster.)This approach also ties the hands of thetribunal in terms of doing what it perceivesto be justice in a given case.Finally, it represents a trap for an unwaryparty from a jurisdiction in whichdiscovery, beyond the exchange ofdocuments is available. By contrast, arule which provides flexibility at thestage at which the tribunal decides onthe discovery request does not have anyof these disadvantages. The only advantageof a rule that limits flexibilityon discovery issues to the agreementstage is that it can be used to shut downany discussion among members of a tribunalabout the need to order additionaldiscovery.3) The third and last area on which I willmake a few comments is a discussionabout the relationship between the purposefor which information is sought ina dispute and the scope of permissiblediscovery. It seems to me that this is akey to developing a consensus on theissue. One should not avoid confrontingthe fact that discovery practices canbe reflective of fundamentally differentconceptions of justice between differentlegal cultures. For example, itseems to me that civil law systems tendto judge the performance by a party ofits legal obligations in a more objectivemanner, in some instances goingso far as to exclude self serving evidenceby a party or its employees. Thecommon law system, particularly inNorth America seems to go to the otherextreme and often attempts to judge aparty based on the party’s own subjectiveviews of its own conduct, with particularemphasis on the mostdamnifying comments any party or oneof its employees have made about itsown conduct in any of its internal documents.Most so called “smoking guns”which North American litigators spendso much time and money looking forare documents of this character. Theseare the documents that will be used topersuade courts that a fiduciary duty hasbeen breached, or to persuade juries tooverlook more relevant evidence orupon which to base claims for largesums of money as punitive damages.These are documents which would inmany European countries be found tobe irrelevant to any objective determi-Canadian Arbitration and Mediation Journal28