In cross-border arbitration cases all players must be aware of the cultural and legal differences that arise due to the diversity of parties, arbitrators, and counsel.
In the Anglo-Saxon world, it is – in varying degrees – normal to have a document production (or discovery) stage at some point in most formalised disputes (whether litigation or arbitration). In civil law jurisdictions, this is not so.
Over the past decades, a convergent, hybrid path has emerged in international arbitration: The international arbitration community has accepted discovery as a feature of international arbitration. Despite it being an element originally exclusive to common law jurisdictions, discovery in cross-border arbitral procedures is now regularly accepted even by parties coming from civil law traditions.
The IBA Rules on Taking of Evidence in international Arbitration, are a non-binding set of rules aiming to provide for an efficient, economical and fair process for the taking of evidence. The IBA Rules set out mechanisms for, inter alia, presenting documents, making requests for production, submitting witness statements, and submitting expert reports. The rules are also efficient in preventing so-called “fishing expeditions”, as it establishes requirements for requests for document production.
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