Document Production In International Commercial Arbitration

International commercial arbitration has become an important means to solve international commercial disputes.The issue of evidence is the core of the arbitration procedure and directly affects the arbitration results.Among many kinds of evidence,documentary evidence is the first choice to prove the facts of a case because of its directness,objectivity and reliability.However,due to the differences of legal cultures,document disclosure in common law system and no relevant systems in civil law system,makes it difficult for the parties from different legal systems to reach an agreement on the production of documentary evidence in international commercial arbitration,or the arbitration is delayed due to a large amount of time spent in negotiation.In order to coordinate the conflict of legal culture,international organizations and various international arbitration institutions have formulated arbitration rules and special evidence rules,which are more or less related to the submission procedure of documentary evidence,and together constitute the rules of evidence in international commercial arbitration.These rules are not only a summary of general practice,but also influenced by legal system and value.They have their own characteristics,reflecting the diversity of rules of evidence on the basis of coordination in international commercial arbitration.In 2010,the IBA Rules on the Taking of Evidence in International Arbitration(hereinafter referred to as IBA Rules)were generally recognized as the best choice to apply to international commercialarbitration cases,but also criticized for being biased towards the common law system and lacking efficiency.In December 2018,experts from the civil law system formulated Rules on the Efficient Conduct of Proceedings in International Arbitration(hereinafter referred to as Prague Rules),and the rules on the production of document are significantly different from the IBA Rules.The number of international arbitration cases received by international arbitration institutions in China is ranked the highest in the world,but evidence production in China differs from international arbitration.In China,the evidence production in international arbitration has been criticized by many scholars for their "litigation" and "localization",not in line with international practice,which may result in the parties' unwillingness to arbitrate in China,thus affect the promotion of the competitiveness of China's International Commercial Arbitration.In order to solve this problem,it is necessary to analyze and find out the consensus and difference of many document evidence production rules in international arbitration,find out the most common practice in international commercial arbitration.Comparing with the most common practice,documentary evidence production in China's international arbitration has many differences,such as the absence of the system of parties' request for evidence production and court's assistance in evidence collection;the imperfection of the rules of case management meeting;the evidence production in arbitration dependents on civil procedural law rather than the international arbitration evidence rules.Aiming at these problems,this thesis puts forward some suggestions.This paper mainly compares the document production clauses in the arbitration rules,analyzes the common understanding and characteristics of the documentary evidence production in international commercial arbitration,finds out the deficiencies and gaps of document production in China's international commercial arbitration,and puts forward suggestions based on them.The first chapter makes a general analysis of the development of the rule of documentary evidence production.Firstly,it defines the documentary evidence and its characteristics.In international commercial arbitration,documentary evidence is anyreadable evidence material in the form of paper,including electronic data and audio-visual materials.Documentary evidence is formed before the dispute and is not easy to be tampered with,making it objective and stable,so it becomes the best evidence for arbitration.Secondly,it explains the trend that the rule of document production is gradually coordinated from the conflict of legal system under the promotion of international organizations,and diversified development in coordination.The extensive system of disclosure or disclosure in common law system and the limited evidence presentation in civil law system draw lessons from each other,which makes the document production of international commercial arbitration documents have the basis of coordination,but coordination does not mean the same,and there are still differences in the rules of document production.In particular,IBA rules of evidence and the Prague rules of evidence show different value biases in document production.In the second chapter,the paper makes a comparison between the arbitration rules and the document production clauses,and analyzes their common points and differences.In order to improve the efficiency of arbitration,most rules establish the case management conference and procedural timetable,and the parties actively produce the documentary evidence they rely on,which has become a common consensus.However,each rule has different attitudes towards the parties' being required to produce documentary evidence: the IBA rules of evidence does not exclude the request to produce evidence because of its reference and integration with the common law,while the Prague evidence rule encourages the parties and the arbitral tribunal to avoid the production of documentary evidence because of its continental law and efficiency.In addition,the IBA rules of evidence also specify the conditions for the parties to request the other party to produce evidence and the reasons for the requested Party's refusal.Most of the other rules only show that the parties' opinions and the evidence required by the arbitration tribunal should meet the conditions of "relevance and importance".When the parties refuse to present the order,the arbitral tribunal may draw adverse inference or request the court to assist in obtaining evidence for arbitration.Most countries confirm to provide assistance forinternational arbitration in their own countries according to Article 27 of the UNCITRAL Model law.The third chapter based on the common practice in international arbitration which analyzed in the second chapter,points out the problems and puts forward some suggestions of document production in China's international commercial arbitration.Compared with the international common practice,the document production in arbitration in China tend to refer to the civil procedural rules;compared with other countries,Arbitration Law in China lacks the system of each party requesting other parties to produce evidence and the court assistance in obtaining evidence;the arbitrators know the rules of evidence in international arbitration not well.In this regard,the arbitration law and the arbitration rules in China should be amended accordingly,emphasizing the difference between arbitration rules and litigation rules;adding the system of each party requesting other parties to produce evidence and the court's assistance in obtaining evidence;perfecting the case management meeting and schedule;and improving the ability of the arbitration practitioners to use the arbitration evidence rules.