Akin Gump Litigators Author Article on Abuse of Document Production in Int’l Arbitration

“Abuse of Document Production in International Arbitration: Remedies When the Adverse Inference Falls Short,” an article by Akin Gump partner Hamish Lal, counsel Brendan Casey and associates Josephine Kaiding and Léa Defranchi has been published by International Journal of Arbitration, Mediation and Dispute Management.

The article discusses what the authors call “the power and primacy of contemporaneous documents” and looks at cases where the protocols for submission of document requests in arbitration are abused by a party to the arbitration, focusing on tribunals’ need for alternatives to having an adverse inference in respect of abuse as the “adequate sole or exclusive remedy.”

The authors discuss tribunals and their lack of power to force production of “relevant and material documentary evidence,” noting that “In the view of the non-complying party, the possibility that a tribunal may draw an adverse inference in its final award is a preferred outcome to disclosing the ‘bad documents’.” They suggest, “Enhanced consequences, controls or ‘sanctions’ for non-production to supplement the adverse inference proposition would ameliorate the situation. By increasing the range and severity of consequences for non-production and breach of a tribunal’s orders…would cure issues at any early stage thus saving costs and increasing efficiency.”

The article explains how various institutional rules and the International Bar Association (IBA) Rules on the Taking of Evidence allow for abuse or misuse of the document production process, and examines how and in which situations adverse inference works.

The authors close by stating, “The deliberate shielding of ‘bad documents’ in exchange for adverse inferences that may be drawn at the end of the proceedings needs to [be] addressed. The Authors advocate that the adverse inference proposition be supplemented such that institutional rules and the IBA Rules ought to be adjusted to expressly allow costs orders and strike out in circumstances where document production procedures are abused and/or the tribunal’s orders blithely ignored. The powers of a tribunal to better manage the document production process need to be enhanced. Tribunals must have discretion to mitigate the abuse of the document production process. The utility of contemporaneous documents is manifest as is the need for a strategic re-think.”