Eugen Sarbu, Managing Partner
I recently had the great pleasure of participating in the debate entitled The document production procedure in arbitration: surgical strike or fishing expedition?
For me, commercial arbitration is about harmonising trends in commercial disputes and creating a space of predictability, efficiency, and protection of traders’ interests. In this context, I welcome the concern of the Romanian legal community for promoting modern tools for managing commercial arbitration, such as the document production procedure.
The Document Production Procedure in Romanian Arbitration
Requests for document production are a widely used means of proving claims in international commercial arbitration proceedings. In commercial arbitration proceedings in Romania, since 2014, the Rules of Procedure of the CCIR Court of Arbitration have allowed the use of the IBA Rules on the Taking of Evidence in International Arbitration, which are a set of modern and flexible rules that have become established in international practice as the most reliable and effective rules for the administration of evidence in arbitration.
The request for documents from the other party is also recognised in the Romanian Code of Civil Procedure, through Article 293 (Obligation of the opposing party to submit the document). Regardless of whether we refer to a set of arbitration rules or to the IBA Rules on the Taking of Evidence in International Arbitration, the conditions for admitting such a request are relatively similar: i) indication of the requested documents or the category of documents requested in as narrow a manner as possible, based on the information held by the applicant; ii) the requested documents must exist and be in the possession of the other party; iii) the administration of this evidence must not be disproportionately burdensome (in terms of time and cost) in relation to its relevance in proving the facts.
Document Production, Confidentiality, and Trade Secrets
Another common feature of this procedure in commercial arbitration is the rejection of requests for document production that violate confidentiality, and in my practice as a lawyer specializing in arbitration in Romania, I have had situations where requests for documents from other contracts in the chain of contracts were rightly rejected, with priority given to the protection of trade and professional secrets, especially in a context where the party had other means of evidence available to prove the facts in dispute. This is a sensitive issue when contracts or invoices issued by the opposing party in relation to its suppliers, subcontractors, or associates are requested, as well as when documents are requested that would reveal working technologies or other data that differentiate the party in the relevant market. Of course, arbitral tribunals often use the possibility of requiring the submission of documents with the anonymisation of confidential parties, and there is a commendable tendency in arbitration to administer as flexibly as possible the evidence that the parties consider relevant to proving their claims.
Part of a Complex Strategy for the Administration of Evidence in Arbitration
From my experience in several arbitrations, both international and in Romania, in which I have acted as a lawyer and used the document production procedure, my recommendation is that it should be integrated into a more complex evidence strategy, in which the party does not rely exclusively on the documents requested from the other party, but rather proposes multiple pieces of evidence for those evidentiary arguments, which intertwine, explain, and support each other. Why? Because this is how credibility is built before the tribunal, not by “running away” from evidence, and because it is far too risky to rely on a single means of evidence when the world of commercial arbitration offers multiple possibilities, especially when you have the chance to be judged by a court anchored in the most modern international practices.
Sarbu Partners’ Expertise in International Commercial Arbitration
With over 20 years of combined experience in domestic and international arbitration proceedings, the Sarbu Partners team has successfully represented clients in over 30 international commercial arbitration cases with a total value of over €240 million in various industries.
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