Common Law v Civil Law Approach to Disclosure in International Arbitration

In any dispute resolution process evidence is a key factor, with contemporaneous documentation often being the most cogent form of evidence (“documentation” to be understood as encompassing anything in which data is stored, including hard copy written documents, emails, text messages, WhatsApp messages etc.).

Relevant documents may be in the possession of both parties but in many disputes they are only in the possession of one side. As such, both national legal systems and private dispute resolution forums (i.e. arbitration) have developed laws and procedural rules to impose obligations on disputing parties to produce such documentation (often referred to as “disclosure”, “document production” or “discovery”).

Those laws and rules differ significantly between common law and civil law jurisdictions. In this article we explore these differences, how international arbitration attempts to bridge them, and some of the challenges involved.

The common law and civil law approaches to disclosure

The difference between the two approaches derives primarily from the fundamental way common law and civil law jurisdictions perceive justice and the parties’ right to present their cases. Common law jurisdictions use an adversarial approach, with the two parties arguing a case against each other before a judge acting as umpire and decision maker. This approach, in which the parties are expected to investigate the issues themselves and present their best case, is supported by a form of document disclosure aimed at giving both parties the opportunity to discover relevant documents in the sole possession of the other side. Common law systems therefore allow for substantial disclosure of documents which can result in a time-consuming, costly and invasive end-to-end process for the parties. However it results in a process where ‘all the cards face up on the table’ (Naylor v Preston Area Health Authority [1987] 1 W.L.R. 858), with fewer surprises at trial and the parties having a good idea of the evidential strength of their opponents case in advance of a trial, enhancing the chances of settlement. As was stated by the English Court of Appeal in Davies v Eli Lilly [1987] 1 W.L.R. 428, ‘litigation is not a war or even a game. It is designed to do real justice between opposing parties and, if the court does not have all the relevant information, it cannot achieve this object’.

Civil law jurisdictions use an inquisitorial approach to dispute resolution, in which the parties’ role is to support a more interventionist judge tasked with investigating the issues, with less regard to how the parties themselves have put their cases. Therefore, the approach to disclosure is more limited, as the purpose is not so much to aid the parties in discovering material to support their positions, but to assist the judge in the judge’s mission to determine the issues. The dynamic for disclosure is therefore more judge-led than party-led.

So, for example, in England (a common law jurisdiction) a party to court litigation cannot simply choose which documents to disclose based on its own priorities but must rather comply with whichever standard of disclosure is ordered from the options set out in the Civil Procedure Rules (the ‘CPR’) and the court enjoys a wide degree of discretion in this regard. "Standard disclosure" is the most commonly ordered level of disclosure in England and involves parties disclosing not only the documents on which they rely, but also documents that are adverse to their case and support their opponent’s case. Parties also have to list documents that they used to have, and also those that they have a right to access (even if they are not in their actual possession). The obligation is ongoing, so if material is found later during the process, it must also be disclosed.

In the US the scope of disclosure required under Federal Rules of Civil Procedure (as supplemented by State-level procedural rules) is even broader and includes having to disclose the identity and location of persons having knowledge of any discoverable matter, as well as oral disclosure by deposition.

Whilst the approach adopted in civil law jurisdictions is fundamentally different that does not mean that requests for document production are inadmissible or impossible. For example, in the United Arab Emirates (a civil law jurisdiction), there is no disclosure stage in the trial process. When filing statements of case and other submissions parties attach the documents on which they rely, with no duty to disclose documents adverse to their case. The court will almost always appoint an expert to investigate the issues and that expert will request documents from the parties (as well as third parties, such as banks). Under the Federal Law of Evidence No. 35 of 2022 (article 35) parties can ask the judge to order the opposing party to produce a document relevant to the case. However, this is rarely used since the expert holds consultations with the parties and document requests are essentially channelled through the expert as during these consultations parties will highlight to the expert what relevant evidence they believe the opposing party has in its possession or control. Client-lawyer communications can be withheld on grounds of privilege, but otherwise all other documents must be provided to the expert if requested (including ‘without prejudice’ communications between the parties).

The civil law approach is quicker and cheaper and avoids “fishing expeditions” whereby one party casts their disclosure net very wide in the hope of discovering information which might assist their case, which can lead to a longer process and increased costs, sometimes disproportionate to the size and value of the case. However, since the civil law approach does not oblige parties to search for and disclose documents it holds relevant to the issues, the court may not have all the relevant evidence when deciding the issues, and the high level of precision expected when identifying documents for disclosure can be viewed as presenting an unwelcome barrier to justice (at least to the common law mind).

International Arbitration and the IBA Rules 

In international arbitration parties are often diverse and from different cultural backgrounds and geographic locations. Thus, differences in approach are commonplace and conflicting understandings, expectations and beliefs must regularly be managed by tribunals to achieve a compromise between the parties. There is no universally mandated set of procedural rules and cases are decided on a case-by-case basis, according to the needs and requirements of the parties, and the factual and legal peculiarities of the case. This procedural flexibility is often acknowledged as one of the strengths of international arbitration as a means of dispute resolution.

The issue of document production often forms a key part of the parties’ negotiation of the procedural matters at the outset of an arbitration. The use of the International Bar Association’s Rules on the Taking of Evidence in International Arbitration (the “IBA Rules”) is now widely accepted and applied by parties as a form of best practice within arbitration.

Originally issued in 1999 and most recently updated in 2020, they provide guidelines as to the taking of evidence which attempts to bridge the gap between parties of different legal traditions. The process is less intensive than the discovery process in common law litigation because the parties are not expected to produce a list of all the documents they possess that are relevant to the case (including those adverse to their position). Instead, parties, as they do in the civil law tradition, simply have to produce those documents on which they rely. Parties can then file a Request to Produce, listing documents they believe their opponent has and why those documents are relevant and should be disclosed. The opponent can then either produce the documents or file objections to their production, and the rules set out what those objections can be (lack of relevance, disproportionality, loss or destruction, privilege etc). The tribunal will then make a decision on which requests to uphold.

Whilst adoption of the principles of the IBA Rules regarding document production is commonplace and is now even somewhat expected, a civil law-minded party might feel aggrieved that a more wide-ranging level of document disclosure is expected when that is not something they are accustomed to nor something specifically agreed to when contracting with the counterparty. In such a scenario it is open to that party to make submissions to the tribunal regarding the appropriate scope of disclosure, including points regarding time and cost proportionality, invasiveness, privilege, issues of commercial sensitivity and so forth, which should go some distance in mitigating any unfairness felt.

In 2018 a group of civil law practitioners issued the ‘Rules on the Efficient Conduct of Proceedings in International Arbitration’ (known as the ‘Prague Rules’), which attempted to be a civil law version of the IBA Rules. Under the Prague Rules the tribunal and parties are ‘encouraged to avoid any form of document production, including e-discovery’, but it stops short of forbidding disclosure completely. Whilst the emphasis is different, the disclosure framework in both the IBA Rules and the Prague Rules is largely the same in that the parties must disclose the documents they rely on and can request disclosure from their opponent of documents that are relevant. This is less onerous than in common law courts but can still be extensive.

Unfortunately, the procedural negotiation process itself can be both costly and time-consuming and of course, in making its decision (if matters cannot be amicably agreed between the parties), the tribunal members will be influenced by their own legal backgrounds, which is a matter to be considered when appointing the members of the tribunal at the outset.

Technology-aided review of documents

The extent of disclosure in common law jurisdictions has necessitated the development of technologies and third-party support industries to help parties with the substantial burden of searching for and reviewing documents, and these are also now commonly used in large international arbitrations. Technologies such as TAR (technology-assisted review) can non-manually review huge data sets according to inputs and search parameters as agreed between the parties. De-duplication, email threading and word and concept identification methodologies can all be applied to lessen the burden of extensive document review. The technology is expensive but should result in a more efficient process. Documents have to be reviewed before disclosure because although relevant there may be reasons why the party is not obliged to provide a copy to the opposing party. This would be the case where the document is covered by ‘privilege’, such as legal advice privilege (which protects a party’s right to seek legal advice by shielding the advice from later disclosure). The concept of “privilege” and the right to withhold documents is a complex area which can be difficult to navigate.

The use of technology (e-discovery) has altered the traditional procedural timeline of litigation in common law jurisdictions, with the increasing expectation being that the parties will engage at a very early stage with the relevant document set and begin sharing information in order to flush out and narrow issues. Whilst this does necessitate a greater amount of expenditure by the parties up-front, it can also lead to earlier settlement.

Conclusion

The ability to compel a party to disclose documents relevant to the disputed issues is an essential part of both common and civil law traditions, but the approaches they take are significantly different. The IBA Rules have gone a long way to standardising the process in international arbitration by creating an off-the-shelf set of rules that allow for disclosure which is narrower than the common law approach, but broader than the civil law approach. The existence of other rules, such as the Prague Rules, shows that the arbitral process is flexible enough to accommodate a wide range of approaches to assist parties in achieving the most efficient process for the resolution of their particular dispute. 

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