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Bridging Common and Civil Law Disclosure in International Arbitration: IBA and Prague Rules, Privilege, Proportionality and e‑Disclosure/TAR

Published on: 04 September 2024

Published by a LexisNexis Arbitration expert

Legal News

Article summary

In any dispute resolution process, evidence is central, with contemporaneous documentation frequently the most compelling proof of all (here, ‘documentation’ is to be understood as covering any medium in which data is retained, such as hard copy records, emails, text messages, WhatsApp chats, and so on). Although relevant documents may sit with both sides, in many matters they are held solely by one party. Accordingly, both domestic legal systems and private dispute resolution fora (ie arbitration) have fashioned laws and procedural mechanisms that oblige disputing parties to produce such material (commonly termed ‘disclosure’, ‘document production’ or ‘discovery’). Those frameworks differ markedly between common law and civil law jurisdictions. In this piece we consider these divergences, the manner in which international arbitration seeks to bridge them, and some of the practical challenges encountered.

The common law and civil law approaches to disclosure

The divergence springs mainly from the foundational conceptions within common law and civil law of justice and of each party’s entitlement to advance its case...

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