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Documentary evidence is at the heart of the arbitral process. In international arbitration, the right to be heard does not only imply the possibility of producing documents, but also in certain situations of having access to evidence detained by other parties or third entities. State court intervention might then complicate the tribunal’s task. Arbitral Tribunals may have to decide on which rules apply to issues such as the evidentiary value of documents or their admissibility. International Arbitrators are also increasingly faced with new challenges, such as ever more voluminous documentary productions or E-Discovery requests. Tribunals are almost systematically confronted with issues of confidentiality and privilege. Finally, document productions can face arbitrators with difficult issues of fraud or forgery.
The practice of documentary evidence is currently changing, as international arbitrators look for transnational solutions to strike a proper balance between efficiency and fairness. Transnational instruments such as the IBA Rules on the taking of evidence may have to evolve in a context where new approaches and solutions are needed. This conference, the 28th Annual Meeting of the ICC Institute of World Business Law, aims at fostering reflexion on the future of the practice of documentary evidence in international arbitration
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