Disclosure of Documents in Construction and Engineering Arbitrations: Theory, Practice and Strategy

The differing legal backgrounds of the parties and the tribunal in international arbitrations are often most exposed in their approach to handling documentary evidence.This is particularly the case when it comes to the process of requesting and producing documents where there may be significantly contrasting expectations. Most international arbitration regimes deal with evidence in broad terms, and give the tribunal wide discretion to determine evidentiary matters with no reference to particular laws or traditions. The IBA Rules on the Taking of Evidence in International Arbitration (the ‘IBA Rules’) have become a widely-adopted means of filling the gaps. Nonetheless, document production remains a potentially expensive, time-consuming and often controversial part of international arbitration procedure.This article gives an overview of the IBA Rules and suggests further ways in which tribunals and parties can seek to anticipate difficulties in the document disclosure process before they arise.