1. BACKGROUND – issues regarding document production 

Most modern arbitration rules, such as the Swiss Rules of International Arbitration (Swiss Rules), the ICC Arbitration Rules, the DIS Arbitration Rules, the Swedish Arbitration Rules (SCC Rules), the ICSID Arbitration Rules etc. include a provision on document production. Document production is a standard procedure in international arbitration. Interestingly enough, this seems to conflict with the user’s expectations: According to the Whitepaper, the Queen Mary / White & Case International Arbitration Survey of 2021 found that arbitration users would be most willing to give up document productions to make arbitration more efficient. According to the 2025 edition of the survey, users often prefer expedited arbitration because it does (usually) not include a phase of document production. 

Users may indeed often have the impression that document production has become overly broad, costly, and inefficient. Nevertheless, when confronting complex cases, parties often submit sweeping, fishing‑style (although not allowed) requests, and arbitral tribunals struggle with objections, debates over privilege, relevance, materiality and proportionality of the requests. According to the Whitepaper, because of new means and greater volumes of communications, costs have not only increased but have also become more difficult to predict, making cost-benefit-analyses more difficult for small and medium-sized arbitration, not least because of the impact of the duration of the arbitration. 

Given the importance of document production in international arbitration, it is interesting to note that only few international standards or guidelines deal with this issue in some detail. The IBA Rules on Taking of Evidence in International Arbitration are certainly a useful tool if applied correctly, but they rather deal with the procedure on how document production can be implemented. Given the broad views on document production (see below), the possession, relevance and materiality test only provides for basic guiding principles on when document production requests should be accepted. Furthermore, the original scope of the IBA Rules has given way to a rather expansive practice because in practice the relevance and materiality standard is often applied too loosely, thus diluting its effectiveness. As to the Prague Rules, which also deal with document production, they do not solve the problem, although they «encourage» the parties and the arbitral tribunal to avoid any form of document production. The only difference to the IBA Rules, however, is that The Prague Rules exclude the request of categories of documents and request the parties to ask for the production of specific documents (sect. 4.5). Furthermore, it is questionable whether requesting categories of documents should be generally excluded or whether such exclusion may, in some cases, undermine the legitimate interest in document production in the first place. 

The different views on document production in arbitration rules and recommendations goes back to the fundamental difference document production is applied in civil and common law jurisdictions: Although in civil law jurisdictions, parties may have a contractual right to information (see for instance Article 400(1) of the Swiss Code of Obligations where the principal in a mandate agreement may request information regarding the execution of the mandate), the approach towards document production is a restrictive one, and the withholding of information by a party is rather viewed as a question of how the evidence is assessed (e.g., an arbitral tribunal may draw negative inference thereof) rather than a document production issue. In contrast, common law jurisdictions consider discovery as essential to achieving transparency and a level playing field. 

Furthermore, the approach to document production also depends on an intersection of business culture, industry culture, as well as national legal cultures. 
 

II. ASA USer council’s recommendations – main takeaways
 

           A. Core conceptual clarification – relevance vs materiality 
 

           Given the complexity of document production, the Whitepaper does not give recommendations as to how document production should be conducted                  but rather offers a basis for informed decisions on document production and a toolbox on how to deal with it in a given case.
 

           For this purpose, the first Whitepaper first gives an overview on document production in international arbitration and then provides detailed clarifications            regarding the “relevance and materiality test” under the IBA Rules to avoid wasteful skirmishes on undisputed issues and requests of documents, which                have no impact on the tribunal’s determination on a fact. 
 

           Among others, the Whitepaper proposes to understand the standard of relevance as follows:
 

The requested document relates to a factual allegation on which legal conclusions are drawn in support of the requesting party’s case. 
 

           As to materiality, the Whitepaper suggests the following standard: 
 

The requested document is necessary to allow a complete consideration of whether a factual consideration is proven or not, which allegation must be necessary for the determination of a legal conclusion drawn, which must in turn be necessary for a determination of the case. 
 

According to the Whitepaper, a document must meet the following criteria to be relevant to the case and material to its outcome: 
 

1. Does the document relate to a factual allegation on which legal conclusions are drawn in support of the requesting party’s case?
    
2. Is the document necessary to allow a complete consideration of whether a factual allegation is proven or not?
    
3. Is the factual allegation to which the document relates necessary for a determination of the legal conclusion drawn?
    

4. Is that legal conclusion necessary for the determination of the case? 
    

   B. Recommendations before the arbitration starts - limit or define document production in the arbitration agreement
    

   The Whitepaper proposes a “toolbox” of options parties may adopt upfront, when negotiating the contract. Parties may indeed agree upfront one of the following options: 
    

• Exclude document production entirely, subject to a “safety valve” in exceptional cases.
   
• Limit the number of document production requests a party may submit.
   
• Limit production only to “material documents”, with interpretation guidance. 
   
• Limit production to specific documents, rather than general categories, and/or to external documents. 
   
• Restrict production requests to documents needed to discharge a party’s burden of proof.
   
• Limit production to documents that are actually invoked in submissions.
   
• Eliminate a separate “document production phase”; instead integrate requests into written submissions.
   

• Agree cost consequences (e.g. adverse cost allocation) to discourage overreaching requests.
   

  C. Recommendations during the arbitration - proactive case management and guardrails
   

           Once arbitration is underway, the Whitepaper suggests that tribunals should take an active role in limiting excesses:
 

• If parties have not pre-agreed limits, the tribunal should invite discussion or adopt one or more limited modalities.
   
• In the Case Management Conference, tribunals should signal expectations (proportionality, consequence on costs) and encourage restraint. 
   
• Tribunals may hold a separate Case Management Conference on requests and objections filed. 
   
• Tribunal may set limits on scope and volume. 
   

• Tribunals may request separate reasoning for each request and limit replies to objections. 
   

  D. Technology solutions 
   

The Whitepaper further explains that IA can help narrow down and analyze requests for document production and be trained to assess relevance and materiality of documents requested. In addition, AI could assist in identifying and filtering out privileged, confidential, and private data. Tools like clustering, deduplication, filtering, predictive coding / Technology Assisted Review (TAR) can reduce volume and speed up review.
 

           E. Recommendations for arbitral institutions and stakeholder organizations
 

The Whitepaper also includes some recommendations for arbitral institutions and stakeholder organizations: 
 

• Arbitral institutions should adopt model clauses, procedural guidelines, or rules embedding limitations on document production.
   
• More cases might be conducted under expedited procedures, which often exclude or heavily limit document production.
   
• Institutions should encourage tribunal appointment criteria that favor arbitrators with process management experience.
   
• The Whitepaper calls for a shift in mindset in the arbitration community: from “more documents = safer” to a leaner, more purposive approach.
   

III. Comments 
 

The Whitepaper provides for a detailed overview on document and offers a refreshing starting point to rethink document production in international arbitration. However, it does not – and is not pretending to – give a “one-size-fits-all solution”. Whether and how to include a phase of document production in arbitration proceedings ultimately depends on each case, on the parties’ expectations and sophistication, on counsel’s experience with document production, and on the arbitrators’ legal background and exposure to international arbitration. 
 

Document production is often necessary and warranted for strategic considerations. When correctly and efficiently used, it can be a powerful tool for a party to discharge its burden of proof, either by obtaining relevant and material evidence from the opposing party, or by drawing negative inferences. Experienced counsel will be able to smartly use document production as an additional opportunity in the procedure to present its client’s case, without overdoing and without shifting the burden of proof. 
 

To prevent abuses and overcostly phases of document production, parties and experienced counsel should know their case from the outset prior to commencing the arbitration and determine what kind of evidence they need to present their case and convince the arbitral tribunal to rule on their favor. Experienced counsel should recommend their clients to exclude document production if not necessary to discharge the burden of proof. And tribunals should proactively address document production at the Case Management Conference to determine the parties’ expectations and clearly explain to the parties that unwarranted requests of document production will be rejected or at least taken into consideration when deciding on the allocation of costs. 
 

At the end of the day, the devil is the details. Parties’ autonomy and flexibility allow for a tailor-made approach to avoid overwhelming and useless phases of document production. 
 

At Bratschi, experienced lawyers in international arbitration are at your disposal to help you determine the best option for each case.