An event at the School of International Arbitration of Queen Mary University of London looked at document production from both civil law and common law perspectives and featured insights from Alan Redfern, the inadvertent developer of the Redfern Schedule.
The insightful co-curricular seminar on 15 February featured panellists Monique Sasson and Lawrence Teh, representing the civil law and common law perspectives, respectively, with the school's founder Julian Lew KC and Mary Mitsi, lecturer in commercial law, as moderators.
Teh, who is the Singapore-based global co-head of Dentons' international arbitration practice, gave a historical account describing the development of document production in the common law context and highlighted the progressive delimitation of the scope of application of this tool.
As Teh explained, the common law rule in the Peruvian Guano case of 1882, allowing the disclosure of any document that could be reasonably supposed to be relevant, was naturally adopted by counsel and arbitrators in international cases.
With the first edition of the IBA Rules on the Taking of Evidence in 1999, the scope of document production in international arbitration started to narrow down and, since then, counsel and arbitrators have tried to properly delimitate the scope of the disclosure, using mechanisms such as the Redfern Schedule.
From the common law perspective, he said the production of documents is broad, general, and justified by the aim of reaching the truth as an element of an adversarial approach.
Sasson, of counsel at D|R Litigation & Arbitration in Milan and a member of Arbitra, commented that the pursuit of truth, while relevant, may not always justify a broad disclosure of documents in civil law systems.
The civil law tradition with its inquisitorial approach aims to determine the relevant legal issues, as shown in the ICC’s terms of reference (article 23(1) of the ICC Arbitration Rules); to ascertain the facts that must be proven; and to allocate the burden of proof, she said.
When requesting the production of documents, civil law counsel bear in mind the burden of proof and focus on requesting only specific documents. This mindset is embedded in article 4 of the Rules on the Efficient Conduct of Proceedings in International Arbitration – the Prague Rules – which provides that every relevant document should be presented from the beginning of the proceedings, that document production should be avoided in general terms, and, if needed, the request should be motivated and specific.
Furthermore, it is not unusual in practice that parties from civil law jurisdictions agree on limiting or excluding document production. Thus, from the civil law perspective, document production is narrow and exceptional, which may explain why issues such as privilege and rules of exclusion are not as regulated and detailed in civil law systems as they are in common law jurisdictions.
The key discussion points of the seminar were whether document production is and should be an essential component of the international arbitration process; how document production should be determined; and the effect and application of the IBA Rules on the Taking of Evidence as well as the Prague Rules.
It was noted that most institutional arbitration rules do not cover the issue of document production so every tribunal must determine – on the basis of the parties’ origins and expectations, the nature of the case and the parties’ arguments – whether document production should be ordered and its extent.
At the end of the event, Redfern, a former head of litigation at Freshfields Bruckhaus Deringer and arbitrator at One Essex Court, took the floor to share his anecdotes and views on document production. He told how 20 years ago, he proposed asking the parties in a case to explain in one document their specific reasons for requesting or objecting to the production of each document.
Years later, Redfern said he learned that his simple suggestion had given rise to the "Redfern Schedule", now known to every arbitration practitioner in the world.
The seminar concluded with questions and reflections on how the civil law and common law approaches may clash in some cases but also nurture each other. Together they have influenced arbitration practice to the point that the further development of approaches to document production, encouraged by the use of artificial intelligence for example, will need to consider both perspectives to satisfy the expectations of the arbitration users.
The School of International Arbitration organises five or six co-curricular seminars every year, focused on practical topics which are of interest to both students on the school’s international dispute resolution courses but also to lawyers involved with international arbitration.
These seminars are presented on a comparative law basis, which is of course the nature of almost every international arbitration. The last co-curricular seminar before this took place in November 2022, looking at the application of substantive law in international commercial arbitration. It was moderated by the School's Director Norah Gallagher, with Beata Gessel, founder and senior partner of Gessel in Warsaw, and Steven Finizio, partner at WilmerHale in London, as speakers.
The next co-curricular seminar will be on advocacy, moderated by Loukas Mistelis, a partner at Clyde & Co in London and professor and director at the school.
The school is part of QMUL's Centre for Commercial Law Studies, based in east London.
Report by Daniel Quintero Boteroi