Originally from:
Search for Truth in Arbitration: Is Finding the Truth what Dispute Resolution is About - ASA Special Series No. 35 - Hardcover
Search for Truth in Arbitration: Is Finding the Truth what Dispute Resolution is About - ASA Special Series No. 35 - Electronic
Preview Page
Chapter 8
Document Production in International
Arbitration--How Much Is Too Much?
Observations from a Common-Law Perspective
Tyler B. Robinson*
International arbitration is often an attractive alternative to
litigation in the domestic courts of the United States, in no small part,
because of the absence of American-style “discovery”. But to equate
that fairly obvious proposition with a rejection of document
production in international arbitration (or its banishment from all but
exceptional cases) is a mistake, one that denies international arbitration
the procedural flexibility that is perhaps its most universally
recognized advantage. International arbitration is a mixing pot of
procedural techniques, a marketplace for new combinations and
permutations borrowed from different legal cultures around the world,
tailored to the needs and wants of the parties and arbitrators in the
circumstances of a particular dispute. The following suggests some of
the benefits of document production from a common-law perspective,
and responds to some of the principal criticisms of its employment in
international arbitration. Of course, every case is different and above
all, document production, powerful but costly tool that it can be,
should be measured and proportional to the dispute in which it is
employed. Document production is but one of many tools that parties
and arbitral tribunals can adapt and combine for the resolution of a
particular dispute.
I have rarely encountered a case, in any context, in which the
ability to obtain documents relevant and material to the dispute that
are in the possession of one party, but not the other, did not
dramatically and materially inform the outcome of the dispute.
A case example: On September 11, 2001 terrorists destroyed the
World Trade Center. An insurance dispute ensued in which the
insured leaseholder of the WTC claimed that Swiss Reinsurance
Company of Zurich owed two “occurrences” or policy limits of
coverage because two airplanes hit two towers. Swiss Re claimed that
Tyler B. Robinson, Simpson Thacher & Bartlett LLP.
