Originally from Between East and West: Essays in Honour of Ulf Franke

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I. INTRODUCTION

Complex commercial disputes are often referred to arbitration. The alternative, the national courts, is deemed to be too slow and inflexible for such disputes. However, various trends in arbitration today may negatively impact arbitration as the preferred dispute resolution mechanism.

One such trend, which will not be discussed here, is the cost of arbitration. Another is the tendency to introduce complex and lengthy requests for document production in arbitral proceedings. Practitioners in international commercial arbitration have observed that the number and extent of requests for production of documents have consistently and significantly increased over the past twenty years. In the worst-case scenario, document production requests may seriously harm one of the major advantages of arbitration: speed.

In the world of business today it is simply not acceptable to wait for years for a dispute to be resolved. That may, however, happen if it takes a year to address and resolve document production issues. In order to maintain the advantage of speed it is necessary to see to it that document production does not develop into a dispute within a dispute, with numerous submissions.

Notwithstanding the aforesaid, efficiency and timely conduct of the arbitration can not be pushed to its extreme as that might negatively impact the opportunity for a party to fairly present its case. Documentary evidence is of primary importance in commercial arbitration and great reliance is placed on documents. Consequently, a party should not be allowed to withhold a document that is relevant and necessary for the other party to prove its allegations in the case unless there are valid reasons to refuse disclosure, such as confidentiality or privilege. After all, arbitration does not allow you more than one shot. There is no appeal.