Most arbitrations are fact-intensive and a majority of cases turn on facts which are often disputed. Therefore, the importance of fact-finding in arbitration can hardly be emphasized enough. In this endeavor, modern tribunals accord much greater worth to contemporaneous documents rather than oral testimony. The principal documents, such as the contract in question and important correspondence, are usually filed by the parties at the earliest stage, usually along with their written pleadings. It is the documents not filed which pose a challenge and are often most crucial for complete fact-finding. A party's right to seek disclosure of documents relevant and material to its own case from the opposite party is one of the most important rights a party to international commercial arbitration (ICA) has. This evidence gathering exercise takes place after the broad facts in issue are nailed down and written submissions completed. The stage of disclosure/discovery of documents, therefore, is one of the most crucial stages in any arbitration.
This article seeks to serve as a brief primer on the dos and don'ts of document disclosure in an ICA, focusing on the practical aspects of handling the document disclosure phase in an ICA. Though there are various procedural frameworks governing discovery or disclosure of documents in ICA, this article concerns itself only with the 2010 IBA Rules on the Taking of Evidence in International Arbitration.