Document Production in International Arbitration in Germany – a smoking gun or puff of smoke?
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This is the third article in Clyde & Co’s international arbitration series covering document production in international arbitration. In this piece, associate Cristina Perez from our Madrid office provides the Spanish law perspective.
Within the Spanish civil legal system, the idea of a party demanding that an opponent produce a document, which could even be harmful, is simply inconceivable. The parties mainly rely on the evidence at their own disposal and they are not normally obliged to produce any document they might hold if they are not willing to do so.
That said, under Spanish Civil Law there are only two legal procedures which are vaguely similar to document production. These are known as the anticipated evidence (Art. 293 et seq. Spanish Civil Procedure Act) and preliminary proceedings (Art. 256 Spanish Civil Procedure Act). However, these procedures are extraordinary and used only in specific circumstances.
In relation to anticipated evidence, documents are requested only where there is a concern that they cannot be produced later. In relation to preliminary proceedings, on the other hand, the typical scenario is that the Claimant requests a document evidencing the capacity, representation or title to be sued, so the lawsuit can begin (e.g. an insurance policy).
When it comes to performing a document production procedure within an international arbitration, subject to Spanish Law or to be enforced in the Spanish jurisdiction, there is no specific regulation to rely on.
In practice, this issue is normally remedied by the Rules of the Arbitral Institution in case of an administered arbitration and/or by the supplementary application of the IBA Rules on the Taking of Evidence (whether it is an ad hoc arbitration or an administered one).
What the Spanish legal system does expressly endorse is the granting of powers to the arbitrators, so that they are empowered to request a party to produce documents and to take evidence in accordance with the rules of the relevant arbitral institution or the IBA rules.
Further, under Art. 8.2 Spanish Arbitration Act, the arbitrators are allowed to request the assistance from the Spanish courts. But as already noted, such assistance is inevitably limited, given that the courts cannot order a party directly to provide a document in civil proceedings.
In practice, when a party fails to provide a document requested by the arbitral tribunal and/or by the Spanish court in ancillary proceedings,and is unable to give any substantial reason for the omission, the normal outcome would be for the arbitral tribunal to reject or negatively interpret the statements made by the party failing to produce the missing document. Although this is common sense, it is not set out in the Spanish court rules, and so certain Spanish Arbitration Rules, such as the Madrid Court of Arbitration Rules, expressly stipulate it. However, no sanctions are imposed in case of a failure to comply with an arbitral tribunal’s document production orders within the Spanish legal system.
A further point to note is that if an award is issued without taking such a failure into account, a party could allege that its right to effective judicial protection has been violate, and on that basis ask for the award to be annulled (Art. 41 of Spanish Arbitration Act).
Despite of the fact that there is now a legal basis for a proper document production procedure in the Spanish Arbitration Act and rules of certain arbitral institutions, there is still a long way to go before document production is fully recognised and supported in the Spanish legal system.
For the time being, the success of this procedure still depends on the goodwill of the parties and the consequences of the failure to comply with it are limited to the potential impact it might have within the Award itself and on any attempt to enforce it.
This series will continue next week with the German perspective on document production in international arbitration.
 Art. 293 et seq. of Spanish Civil Procedure Act: “Prior to the commencement of any proceedings, the person who intends to initiate the proceedings, or any party during the course of the proceedings, may apply to the court for an anticipated taking of evidence, where there is a well-founded fear that, owing to persons or the state of affairs, such evidence could not be taken at the time generally provided for in the proceedings.”
 Art. 256.1.1 of Spanish Civil Procedure Act: “By request that the person to whom the claim is addressed should declare, under oath or promise to tell the truth, any fact relating to their capacity, representation or title to be sued, knowledge of which is necessary for the lawsuit, or produce the documents in which such capacity, representation or titled to be sued is evidenced.”
 Article 8.2 of the Spanish Arbitration Act: “For legal assistance in the taking of evidence, the First Instance Court of the place of arbitration or of the place where the assistance is to be given shall have jurisdiction.”
 Article 30.8 of the Madrid Court of Arbitration Rules: “If evidence is in the possession or under the control of a party and the party unreasonably refuses to produce or give access to it, the arbitrators may draw from that conduct such conclusions on the facts in evidence as they deem appropriate”