Author: Peter Ashford*
Published: October 2007
Categories of Disputes
Practice and Procedure
I. INTRODUCTION AND GOVERNING LAWS
Documentary discovery is part of the process of presenting evidence. Evidence is, of course, essential for any tribunal to make findings of fact. The principal purpose of documentary discovery is to assist the parties in ascertaining the existence of documents, the whereabouts of those documents and hence details and facts relevant to the claims and defenses in issue in the reference. Many international commercial contracts contain clauses submitting future disputes to arbitration and by doing so the parties take the resolution of the dispute outside the scope of the national courts and into a private regime of party autonomy in arbitration.
In common-law jurisdictions (which are essentially adversarial) the judge will seek to ensure that the rules of evidence are adhered to, listen to the evidence (which is effectively left to the parties to present as they wish), seek to ensure “fair play” and then render a decision or judgment. In contrast, civil-law jurisdictions are not bound by the strictures of the rules of evidence that commonlaw jurisdictions are. Judges generally take a more active role, but as each civillaw jurisdiction has a different procedure, it is unsafe to generalize, especially as civil-law jurisdictions may have state as well as federal law.
When evidence is presented to whatever tribunal (whether national court or arbitral tribunal), documentary evidence is often a key part. As international arbitration is an alternative to national courts, it follows that the practices of thosenational courts do not have to be followed in arbitration, still less the practices familiar to one or more counsel representing the parties. However, there remains the need to ensure that the parties have had a full and fair opportunity of presenting their case and this is often dependant on proper discovery eliciting key documents. Admittedly the “smoking gun” is rarely found through the process of discovery but some “bullets” or “bombs” are not uncommon. Documents are often perceived as a more accurate guide to the truth and do not have the disadvantage of conflicting oral evidence on disputed facts. This is especially so as crossexamination is not regarded as a reliable route to the truth by civil lawyers. Trial, in large part by documents, can also be less time consuming than conventional oral hearings as extensive examination and cross-examination are avoided.
*Solicitor, Cripps Harries Hall LLP, Tunbridge Wells, England.