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“Taming the Beast” – A Whitepaper on Document Production
In recent years, many companies and users generally have been dissatisfied with the practice of document production in international arbitration. Experienced in-house counsel in the ASA User Council have therefore started an initiative aimed at curbing excesses and restoring the practice to its original intended limits. Their recommendations are presented in a Whitepaper available for download at the link below. Against the backdrop of diverse procedural traditions, existing instruments, and the arbitral community’s collective experience over the last 25+ years, the Whitepaper proposes significant adjustments to current practice and makes a number of practical recommendations to this effect: measures to be implemented at the contract drafting stage or during an arbitration, and designed for the parties themselves, the arbitrators, as well as the arbitral institutions. While the initiative is not calling for abolishing document production altogether, substantial adjustments appear necessary for arbitration to remain attractive.
Maria Irene Perruccio, WeBuild Group, Paris FR
“This ASA Whitepaper makes an outstanding contribution to international arbitration practice by tackling one of its most widely criticized aspects: the burdensome, costly, and often inefficient process of document production. It offers a thorough and thoughtful analysis of procedural developments across legal traditions, equipping practitioners with a deeper understanding of how inefficiencies have emerged and how they could be addressed. The paper’s clear articulation of the standards of ‘relevance’ and ‘materiality’ under the IBA Rules on the Taking of Evidence provides much-needed clarity, offering tribunals, in-house counsel and external counsel concrete guidance for applying these principles in a disciplined manner. Its practical recommendations – ranging from model clauses and procedural innovations to strategic use of technology – make it an invaluable tool for parties, arbitrators, and institutions alike. By combining scholarly depth with actionable practical solutions, this paper serves as a very welcomed and authoritative roadmap for restoring efficiency, proportionality, and rigor to the arbitration process.”
Tom Sikora, Exxon Mobile, Spring USA
“Document production, an innovation introduced by the IBA Arbitration Committee at the end of the last century, has over time turned from a desired feature to a customary burden incommensurate with the potential benefit. The ASA Whitepaper, a product of the ASA User Council, represents an attempt by the user community to bring document production back into the balance consistent with its original promise.”
Faris Nasrallah, Crescent Petroleum, Sharjah UAE
“The ASA User Council’s Whitepaper on Document Production offers a timely and concise distillation of arbitral user insights on the function and practice of document production in international arbitration. Recognizing the common user experience as ‘burdensome and costly’, and that AI tools have not, to date, significantly reduced the time and cost of document production, the Whitepaper summarises existing hard and soft law approaches, while taking account of the impact of different civil and common legal traditions and national legal practices. Section IV of the Whitepaper proposes several discrete recommendations aimed at practical engagement and implementation at all stages of document production processes, offering a rich panoply of party perspectives to counsel and arbitrators. It is a credit to ASA that its User Council had the opportunity to draw together their diverse collective experiences, and it is hoped these insights will be useful for practitioners and stakeholders of all stripes.”