Document Production/Disclosure Sample Clauses

Document Production/Disclosure. ‌ The disclosure of documentary evidence is an important feature in the pre-hearing stage of the arbitral proceedings. The evidence produced in the disclosure stage will depend on the jurisdiction and includes documents such as correspondence, emails, drawings and other information. The extent of disclosure will vary depending upon the rules and on the national law of the seat of arbitration. For example, the US courts permit disclosure of an extremely broad variety of documents, which often results in a costly and time consuming process creating a burden on the party to satisfy those requirements. Contracting parties may agree on the procedure of disclosure and include detailed provisions in the arbitration agreement on the availability, scope and timing of disclosure. They may agree to limit or expand the extent of disclosure by specifically agreeing to disclosure procedures in the arbitration agreement or on commencement of the proceedings. Depending on the parties’ views on document production, the Model DR Agreement provides for two additional alternative and completely different approaches to the disclosure of documents. Alternative IV.H.3 provides for no disclosure of documents, with a number of variations and clarifications. Alternative IV.H.4 provides for expanded document disclosure (akin to a U.S. style discovery process). Unless these issues are addressed in the dispute resolution clause, the arbitral tribunal has broad authority to take and evaluate evidence to ensure the development of legal and factual issues. This is subject to respecting party equality and procedural fairness. Usually, the arbitral tribunal will issue a procedural order setting out a timetable for the proceedings that includes document disclosure. Generally, disclosure requests must be sufficiently detailed to identify specific types of evidence. The IBA Evidence Rules adopt a formal approach in respect to requests for production of documents. Under the IBA Evidence Rules the parties may use a Xxxxxxx Schedule for the exchange of requests for documentary evidence and responses between the parties in arbitration. The party’s counsel will only submit the documents relevant to the issues as evidence in the proceedings. In civil law jurisdictions, the arbitral tribunal conducts the proceedings in an inquisitorial way by assessing the documentary evidence submitted to the tribunal. Generally, there is limited time allocated for disclosure, since the parties are not obligated to...