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Document Production in International Arbitration in France – a smoking gun or puff of smoke?

  • Market Insight 19 mai 2022 19 mai 2022
  • Arbitrage international

This is the second article in Clyde & Co’s international arbitration series covering document production in international arbitration. In this piece, jurist Dilara Khamitova from our Paris office provides the French law perspective.

Even though document production is becoming a common feature of international arbitrations, the issues related to this procedure are still hotly debated at both the theoretical and practical level. Numerous factors provoke such debates, ranging from a variety of procedural laws and rules which may apply to specific aspects of document production to the different cultural and legal backgrounds of arbitrators and counsel, which can influence their reasoning and strategies in the proceedings.

There is no uniform standard applicable to document production in all arbitrations, even when seated in a particular jurisdiction. The form it takes will largely depend on the parties’ agreement regarding rules governing various aspects of arbitration proceedings, as well as the nature and complexity of a particular case. In the absence of the parties’ agreement on such applicable rules, an arbitral tribunal will be guided by the national procedural law of the arbitral seat.

What would be the key features of document production when the seat of an international arbitration is in France?

In France, production of evidence is primarily governed by Articles 1467, 1469 and 1470 of the Code of Civil Procedure (CCP) which apply to international arbitration by virtue of Article 1506. In principle, each party must prove the facts it relies on in making its submissions. Even though proof may be achieved by any means, French law emphasises the value of documentary evidence. Therefore, document production can play a crucial role in the fact-finding process.

However, as a civil law country, France does not provide for pre-trial disclosure and discovery procedures – parties have no duty to produce all the documents in their possession, for instance, even those which might be relevant but harmful to their case.

Nevertheless, there are certain exceptions under French law to this approach. For example, Article 1467 of the CCP empowers arbitrators to compel a party to produce evidence at the request of the opposing party, and failure to do so may lead to the imposition of penalties.[1] That said, the requesting party must identify narrowly and specifically the evidence it is seeking and not engage in any potential “fishing expeditions”.

Furthermore, when a document or other type of evidence is in possession of a third party to the arbitration, an arbitral tribunal seated in France is authorized under Article 1469 of the CCP to invite parties to request the president of the French court of the first instance to order production of this evidence. Such a document production order against a third party is administered under the expedited procedure.

It should be noted that parties in international arbitrations, including those seated in France, often refer to the IBA Rules on the Taking of Evidence in International Arbitration, which not only combine different elements of the common law and civil law systems but also provide ethical guidance in some delicate situations. The application of the IBA Rules can facilitate resolution of certain issues of document production which are not regulated in detail in French law – for example, when parties and arbitrators have to address the admissibility of the documents which might be covered by a certain type of privilege. Whereas most communications between a client and a French advocate are protected under the professional secrecy principle (like attorney-client privilege), advice provided in France by in-house counsel is not generally recognized as privileged under French law.[2]

In practice, parties (or rather their counsel) in “global” international arbitrations seated in France are sometimes required to solve complex legal conundrums. These often arise where the parties, their businesses and counsel are located in various parts of the world, each with its own legal traditions. Counsel on both sides must consider carefully their requests and objections to document production, as such demands will in principle be addressed by an arbitral tribunal, first, in relation to the rules governing the specific aspects of document production, and second, by reference to the adversarial principle, the principle of equality of arms, and due process. If the tribunal does not take all these factors into account when granting or denying a request for documents, this might eventually be examined as a ground for annulment of an arbitral award.[3]

In conclusion, the document production process in international arbitrations seated in France is equipped with a solid toolkit which can facilitate the fact-finding process. That said, counsel and arbitrators are expected to consider carefully and ethically the use of those tools in light of all the circumstances of a particular case. It is essential to ensure that document production does not simply result in a waste of time and money, but becomes a crucial element of justice.

This series will continue next week with the Spanish perspective on document production in international arbitration.

 

[1] Article 1467 CCP: “Si une partie détient un élément de preuve, le tribunal arbitral peut lui enjoindre de le produire selon les modalités qu'il détermine et au besoin à peine d'astreinte”. See also Société Otor c. Carlyle Holdings, Cour d'appel de Paris, 7 octobre 2004.

[2] Roman Mikhailovich Khodykin, Carol Mulcahy , et al., A Guide to the IBA Rules on the Taking of Evidence in International Arbitration, Commentary on the IBA Rules on Evidence, Article 9 [Admissibility and Assessment of Evidence] (Oxford University Press 2019), 12.130.

[3]Société Golden Power International Creation Limited c. SAS Airbus Helicopters, Cour d'appel de Paris, n° 20/01980, 2 novembre 2021; Société Lebanese Media Holding Limited c. Société Lebanese Broadcasting Corporation International SA, Cour d'appel de Paris, n° 18/16891, 2 mars 2021.

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