Requesting and Resisting Document Production in International Arbitration: A Practical Guide

The Redfern schedule arrives as a 63-page spreadsheet at 11:58 p.m. London time, two minutes before the deadline. It contains 71 requests. Request 14 asks for "all documents and communications relating to the termination of the Distribution Agreement." Request 52 asks for "the minutes of every board meeting of Respondent since 2019." Request 60, buried between them, asks for "the emails between Mr. Tomas Hrubý and Pellham Industrial LLC dated 1 January to 30 April 2025 concerning a North American distribution arrangement for the Series K actuators," cites paragraph 38 of the statement of claim, and names the email account. Respondent's counsel has fourteen days to object. Which of these requests will the tribunal grant? Almost certainly Request 60, and almost certainly not the other two. The rest of this guide explains why, and what each side should do about it.

Document production in international arbitration is not discovery. It is a limited, tribunal-supervised exchange of specific documents that a party needs to prove its pleaded case and cannot get anywhere else. Counsel who understand that distinction draft better requests, write shorter objections, and win more of both. Those who do not end up with a tribunal that has stopped reading their schedule by row ten.

The short answer

• Your own documents come first. Under Article 3.1 of the IBA Rules on the Taking of Evidence (2020), each party submits the documents it relies on with its pleadings. Production from the other side fills specific gaps; it is not how you build the case.
• Settle the rules in Procedural Order No. 1. Timetable, limits on the number of requests, the Redfern format, the privilege rule, e-document protocols, confidentiality tiers, data protection, and translations should all be agreed or ordered before the first request is served.
• Requests must be narrow, specific, relevant, and material. Article 3.3 requires identification of specific documents or a "narrow and specific requested category" reasonably believed to exist, an explanation of relevance to the case and materiality to its outcome, and statements about possession. Tie every request to a paragraph of the pleadings.
• Objections must be grounded in Article 9. Relevance and materiality, privilege, unreasonable burden, loss or destruction, compelling confidentiality, political sensitivity, and proportionality are the available grounds. Boilerplate objections lose.
• Privilege is a choice-of-law problem. Agree a rule, ideally a most-favored-nation rule applied equally to both parties, before anyone knows which documents matter.
• The tribunal rules once, request by request. Expect terse rulings: granted, denied, or granted as narrowed.
• Non-compliance invites an inference. Article 9.6 lets the tribunal infer that withheld documents would be adverse. Article 9.8 adds costs consequences for bad faith.
• Nonparty documents are hard to get. 28 U.S.C. § 1782 is unavailable for private arbitration after ZF Automotive US, Inc. v. Luxshare, Ltd., 596 U.S. 619 (2022). In a U.S.-seated case, 9 U.S.C. § 7 lets arbitrators compel a nonparty to appear with documents, but most circuits require that it be at a hearing.
• Budget for it. Production is often the most expensive phase before the hearing, and the cost is driven by your own review, not by drafting the schedule.

Before you start: decision points

Answer these questions before the first case management conference.

1. Which rules govern, and how firmly? Read the arbitration clause, the institutional rules, and the law of the seat. ICC Rules article 25 (2021) lets the tribunal establish the facts by all appropriate means; LCIA Rules article 22.1 (2020) gives the tribunal power to order production of documents it decides are relevant; UNCITRAL Rules article 27(3) lets the tribunal require production at any time; ICDR Rules article 24 limits exchanges to documents relevant and material to the outcome. None of these is detailed, so the real question is whether the IBA Rules will bind or merely guide, and whether either side will propose the Prague Rules (2018), whose article 4 encourages tribunals to avoid document production altogether. The doctrinal background is in Evidence in International Arbitration: The IBA Rules, Document Production, Witness Statements, and Expert Evidence.

2. Do you want more production or less? A claimant whose case depends on the respondent's internal knowledge wants a workable request regime. A respondent with enormous document holdings and a strong documentary case of its own may prefer a Prague-style regime. A party that will be the main target of requests should be honest about its own exposure: the side that pushes hardest for broad production often receives the most burdensome requests.

3. Where are the documents, and what law protects them? Map custodians, systems, and jurisdictions. Personal data of EU or UK residents brings the General Data Protection Regulation into play. Documents in some jurisdictions are subject to state secrecy, bank secrecy, or blocking statutes. Communications with in-house counsel may be privileged in one jurisdiction and not another. These facts drive your PO1 proposals.

4. What privilege rule do you want? If your in-house lawyers sit in a jurisdiction with weaker protection than your opponent's, a most-favored-nation rule protects you. If you have the stronger protection, a closest-connection rule may favor you, but equality arguments under Article 9.4(e) of the IBA Rules make it hard to hold that advantage. Most parties do better with predictability than with a marginal edge.

5. Is the seat in the United States? If so, 9 U.S.C. § 7 is available against nonparties, and the award will be reviewed under 9 U.S.C. § 10. If the seat is elsewhere, look to the seat's arbitration law (for example, Model Law article 27 or sections 43 and 44 of the English Arbitration Act 1996) for court assistance.

6. What is the budget? Document review is priced by volume and language. A production involving five custodians in two languages can cost far more than the hearing. Give the client a range now and revisit it after the tribunal rules on requests.

Step 1: Preserve and understand your own documents

What to do. Issue a written hold to every custodian likely to have relevant documents, including personal devices and messaging apps used for business, and suspend auto-deletion. Collect key custodians' email and chat data early. Run an early case assessment: what do your documents say about the issues in dispute, and what would you be required to produce under a reasonable request?

Why. The other side's best requests will target your internal assessments and communications. Under Article 9.2(d) of the IBA Rules, loss or destruction is a ground for non-production only if shown "with reasonable likelihood," and a party that let documents disappear after the dispute arose invites an adverse inference under Article 9.6. Tribunals are not bound by Fed. R. Civ. P. 37(e), which in U.S. courts reserves adverse-inference instructions for lost electronic information to cases of intent to deprive, and an IBA-guided tribunal may draw an inference without any finding of intent.

Authority. IBA Rules arts. 3.1, 9.2(d), 9.6, 9.8; the IBA Guidelines on Party Representation in International Arbitration (2013), whose provisions on document exchange call on representatives to inform clients of the need to preserve documents and not to suppress or conceal documents that have been requested or ordered. For U.S. preservation duties by comparison, see Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003), and Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002).

Pitfalls. Forgetting WhatsApp, WeChat, Signal, and text messages, which are now among the most frequently requested categories; failing to suspend IT migrations; relying on a hold notice without confirming compliance. For preservation and authentication of chat evidence, see Collecting and Authenticating Messaging and Social Media Evidence: A Practical Guide, and for hold mechanics, the Litigation Hold and Evidence Preservation Checklist: A Practical Checklist.

Timing and cost. Before or immediately upon sending or receiving the request for arbitration. Collection of a handful of custodians typically costs low five figures with a vendor; early review of key documents is the best money spent in the case.

Step 2: Shape the production provisions of Procedural Order No. 1

What to do. Come to the first case management conference with a written proposal on each of these points:

Why. Article 2 of the IBA Rules requires the tribunal to consult the parties on evidentiary issues at the earliest appropriate time. PO1 is that consultation's product, and it becomes the rule book that the tribunal will enforce and that a reviewing court will examine if a party later claims it was unable to present its case. In Iran Aircraft Industries v. Avco Corp., 980 F.2d 141 (2d Cir. 1992), the Second Circuit refused enforcement because the tribunal penalized a party for following an evidentiary arrangement approved at a pre-hearing conference; written, clear PO1 provisions protect both sides from that kind of reversal.

Authority. IBA Rules arts. 2, 3; ICC Rules arts. 22, 24 and Appendix IV; LCIA Rules arts. 14, 22; UNCITRAL Rules arts. 17, 27; ICSID Arbitration Rules (2022) Rules 36 and 37. The ICC Commission on Arbitration and ADR's report on managing e-document production is a useful reference for electronic disclosure protocols, and the ICDR Guidelines for Arbitrators Concerning Exchanges of Information discourage U.S.-style depositions, interrogatories, and requests to admit. For model language, see the Arbitration Evidence Toolkit: Redfern Schedules, Witness Statement Templates, and Expert Protocols and the PO1 outline in the International Arbitration Toolkit: Clauses, Procedural Orders, and Enforcement Petitions.

Pitfalls. Accepting a cap on requests before you know what the other side's case looks like; leaving privilege "to be addressed if necessary"; agreeing to a timetable that puts production before the respondent has pleaded its defense. U.S. counsel should resist the temptation to propose a U.S.-style ESI protocol wholesale; tribunals react badly to it. Borrow the useful parts (custodians, date ranges, search terms, formats) from a court protocol such as those discussed in Negotiating an ESI Protocol and Managing E-Discovery Costs and leave the rest.

Timing and cost. The first case management conference is usually held within weeks of the tribunal's constitution. Preparing a PO1 proposal takes a few days of senior lawyer time.

Step 3: Plead the case so that the documents you need become material

What to do. Draft the statement of claim (or defense) with production in mind. Plead the facts you will need the other side's documents to prove, in specific paragraphs, and explain why the information lies in the other side's control. Submit with the pleading every document you rely on.

Why. Article 3.3(b) requires a statement of how requested documents are relevant to the case and material to its outcome. Tribunals assess materiality against the pleaded cases. A fact that has not been pleaded cannot make a document material, and a vague pleading produces a vague request that the tribunal will deny. Article 3.1 also requires production of documents relied on with the submissions, so an unpleaded document you produce later invites an objection that it is late.

Pitfalls. Pleading conclusions rather than facts ("Respondent acted in bad faith"); relying on the expectation that production will supply proof of a claim you cannot otherwise support. Tribunals are alert to fishing.

Timing. The memorial-style process typical of ICC and LCIA cases puts production after the first exchange of full written submissions. If the procedural timetable allows requests before the respondent's defense, ask for a second, narrow round after the defense.

Step 4: Draft the Requests to Produce (requesting party)

What to do. Build each request from four parts, in this order:

1. The fact you need to prove, with a pinpoint reference to the pleading ("Statement of Claim ¶¶ 36-41: Respondent was negotiating with a replacement distributor before it gave notice of termination").
2. The documents that would prove it, described as specifically as you can: a named document ("the 'Project Atlas' presentation to Respondent's board in March 2025, referred to in Exhibit C-17"), or a narrow category defined by author or custodian, recipient, subject matter, and date range.
3. For electronic documents, the search parameters: custodians, date range, and search terms, which Article 3.3(a)(ii) permits and many tribunals require.
4. The possession statement: why you do not have the documents and why you believe the other side does (because the document is referred to in a produced exhibit, a witness statement, or correspondence; because the custodian is the other side's employee).

Then prune. Delete any request you cannot tie to a pleaded fact. Merge overlapping requests. Rank the rest so that, if the tribunal caps requests or signals impatience, you know which ones matter.

Why. Article 3.3 is the test the tribunal will apply. Its three requirements (identification, relevance and materiality, possession) are cumulative. Tribunals typically assess relevance and materiality prima facie and decline to resolve merits disputes at the production stage, so the request should show why the documents would matter if the requester's version of events is right.

Examples.

Authority. IBA Rules art. 3.3; ICDR Rules art. 24 (documents "reasonably believed to exist and to be relevant and material to the outcome"); ICSID Arbitration Rules (2022) Rule 37 (factors including scope, timeliness, relevance and materiality, and burden). U.S. counsel should note how much narrower this is than Fed. R. Civ. P. 26(b)(1) and Rule 34.

Pitfalls. "Including but not limited to"; definitions that turn "document" into every piece of paper in the company; requests for documents already in your possession or publicly available; requests aimed at the respondent's general business rather than the dispute; and requests for documents a witness statement already quotes in full. Each of these teaches the tribunal to read the rest of your schedule skeptically.

Timing and cost. Requests are usually due a few weeks after the second major written submission. Drafting a schedule of 20 to 30 well-built requests typically takes one to two weeks of associate and partner time, depending on the record's size.

Step 5: Respond to the requests (responding party)

What to do. For each request, choose one of four responses:

• Produce voluntarily. If the request is reasonable and the documents are not harmful beyond what the case already shows, produce. Voluntary production builds credibility for the objections you do make, and tribunals notice which side is being reasonable.
• Produce in part, object in part. Offer a narrower version ("Respondent will produce the emails of Mr. Hrubý and Ms. Dvořáková for the period requested; it objects to the inclusion of Mr. Novák, who had no role in the termination").
• Object. State the specific ground under Article 9.2 or 9.3, or the specific Article 3.3 requirement the request fails, and explain it briefly with reference to the pleadings.
• State that no documents exist. If, after a reasonable search, there are none, say so and describe the search. A bare denial invites a follow-up application.

The objection grounds.

Why. Article 3.5 requires objections in writing, within the time ordered, on the stated grounds. A failure to object in time can forfeit the objection, and Article 9.6 allows an inference against a party that fails to produce documents requested without objecting in due time. Specific objections also serve the responding party at the enforcement stage: a party that never made an objection to the tribunal will find it very hard to argue later that a production order denied it a fair hearing.

Privilege in particular. Identify the governing rule under PO1. If there is none, argue for one, and be consistent: a party that invokes the broad U.S. doctrine of Upjohn Co. v. United States, 449 U.S. 383 (1981), and in-house protection recognized since United States v. United Shoe Machinery Corp., 89 F. Supp. 357 (D. Mass. 1950), cannot easily argue for a narrow rule when the other side claims privilege. Work product protection under Hickman v. Taylor, 329 U.S. 495 (1947), and for internal investigations under In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014), has close analogs (litigation privilege) in English law but not in every civil-law system. U.S. courts confronting foreign privilege questions use a "touch base" or comity analysis, as in Golden Trade, S.r.L. v. Lee Apparel Co., 143 F.R.D. 514 (S.D.N.Y. 1992), which can be cited to a tribunal as persuasive reasoning on the closest-connection approach. Remember that in the EU, Akzo Nobel Chemicals Ltd v. European Commission (CJEU, Case C-550/07 P, 2010) denied privilege to in-house counsel's communications in Commission competition investigations; that decision does not bind an arbitral tribunal, but it will be cited against a European party claiming in-house privilege. The U.S. doctrine is explained in Attorney-Client Privilege and Work Product for Businesses: Upjohn, In-House Counsel, and the Common Interest.

Data protection. The GDPR rarely justifies refusing production outright, but it supports redaction of irrelevant personal data, pseudonymization, limited custodians, and secure transfer. Raise these points as conditions on production rather than as objections to it; tribunals respond better to a party that proposes how to produce lawfully than to one that claims it cannot produce at all. On transfer rules, see International Data Transfers After Schrems II: Standard Contractual Clauses and Transfer Impact Assessments. U.S. courts treat foreign data-protection and blocking statutes as factors in a comity analysis, not as absolute bars (Société Nationale Industrielle Aérospatiale v. U.S. District Court, 482 U.S. 522 (1987)), and tribunals often take a similar practical view.

Pitfalls. Objecting to everything; copying the same paragraph into every row; making a confidentiality objection without proposing protective measures; claiming burden without numbers; asserting privilege without saying which law. The tribunal will grant the reasonable requests regardless, and blanket objections cost credibility you need for the requests that matter.

Timing and cost. Objections are usually due 14 to 21 days after the requests. Plan for an intense two weeks: the responding team must check every request against the documents, not just the pleadings.

Step 6: Reply, consult, and obtain the tribunal's ruling

What to do. The requesting party replies to each objection in the Redfern schedule, concisely. Where the objection has merit, narrow the request rather than defending it. Where it does not, explain why in two or three sentences, with pleading references. Both sides should use the consultation contemplated by Article 3.6 (and often required by PO1) to settle as many rows as possible before the tribunal rules. Then submit the schedule in the agreed editable format.

What the tribunal does. Under Article 3.7, the tribunal may order production of documents for which it determines that the issues the requesting party wishes to prove are relevant to the case and material to its outcome, that no Article 9.2 or 9.3 objection applies, and that the Article 3.3 requirements are satisfied. Article 3.8 lets the tribunal review a document itself to assess an objection, or appoint an independent and impartial expert, bound to confidentiality, to review it and report. Rulings are usually entered in the final column of the schedule, often in a few words, and sometimes with a short reasoned order on recurring issues such as privilege.

Why. The reply is the requester's last chance to save a request. The tribunal reads the schedule row by row and often decides each request on the strength of the reply alone.

Pitfalls. Replies that repeat the request; introducing new requests in the reply column (tribunals disallow them); refusing to narrow a request that is plainly too broad. On the responding side, the common failure is not participating in good faith in the consultation, which tribunals notice when they read the schedule.

Timing and cost. Replies are usually due 7 to 10 days after objections. The ruling typically follows within two to four weeks. Some tribunals hold a short hearing on disputed requests, often by video.

Step 7: Search, review, and produce (responding party)

What to do. Run the searches the order requires, on the custodians and date ranges it specifies. Review for responsiveness, privilege, confidentiality tier, and personal data. Prepare a privilege log for documents withheld. Produce in the agreed format, with a cover letter that identifies, request by request, what is produced, what is withheld and why, and what searches were run. Translate where PO1 requires.

Why. Article 3.12 requires that copies conform to originals and that electronic documents be produced in the form most convenient or economical to the producing party that is reasonably usable by the recipient, unless the parties agree or the tribunal decides otherwise. A clear cover letter protects the producing party from later allegations that it hid documents, and it is the factual record a tribunal will look at if an adverse inference is sought.

The privilege log. Unless PO1 says otherwise, a useful log lists for each withheld document: a control number, date, author, recipients, document type, a description sufficient to assess the claim without revealing privileged content, the privilege claimed, the governing law under the PO1 rule, and whether a redacted version is produced. Tribunals generally do not require U.S.-style logs for every email in a privileged chain, but they expect enough detail to test the claim. For log practice, see Preparing a Privilege Log: A Practical Checklist. A clawback clause in PO1, similar in function to Fed. R. Evid. 502, protects against waiver by inadvertent production.

Confidentiality. Under Article 3.13, documents produced are confidential and may be used only in connection with the arbitration, but most cases need more: a designation system, counsel-only tiers, and rules for experts' access. The structure of a U.S. protective order is a useful model; see Confidentiality Toolkit: Protective Orders, Designation Challenges, and Sealing Motions.

Pitfalls. Producing a mass of loosely responsive documents to bury the important ones (tribunals react badly, and Article 3.12 does not require a party to produce multiple copies of essentially identical documents unless the tribunal decides otherwise); missing native-format metadata the order required; producing untranslated documents when translations were ordered; and failing to update production when additional documents surface.

Timing and cost. Production is usually ordered within four to six weeks of the ruling. Review cost scales with the data: technology-assisted review and early culling are as useful here as in U.S. litigation, and tribunals rarely object to their use if the producing party is transparent.

Step 8: Police compliance and seek consequences (requesting party)

What to do. Review the production promptly against each granted request. If it is incomplete, write to the producing party identifying specific gaps (a missing date range, a custodian with no documents, a referenced attachment not produced). If the gap is not cured, apply to the tribunal for an order compelling production, for an explanation of the search, or, as a last step, for an adverse inference.

Why. Tribunals cannot hold a party in contempt. Their tools are an order to produce, a supplementary explanation, an inference, and costs. Article 9.6 allows the tribunal to infer that a document would be adverse to a party that fails without satisfactory explanation to produce a document ordered, or requested without timely objection; Article 9.7 extends the principle to other evidence; Article 9.8 lets the tribunal take bad faith into account in allocating costs. U.S. courts have upheld arbitral costs sanctions for bad-faith conduct under broad arbitration clauses (ReliaStar Life Insurance Co. of New York v. EMC National Life Co., 564 F.3d 81 (2d Cir. 2009)).

Making the inference application. Tribunals look for: a clear order or an unobjected request; the requester's own corroborating evidence; documents within the other party's control; an inference that is reasonable and closely tied to the likely content of the missing documents; and notice to the other party, with an opportunity to explain. Ask for a specific inference ("that the Respondent's management had decided to terminate the Distribution Agreement before 15 March 2025"), not a general finding that the respondent's case is unreliable. Propose it at the right time: in the pre-hearing brief, after the production record is complete, and again in closing submissions.

Pitfalls. Seeking an inference without first asking for the missing documents; asking for an inference broader than the missing documents could support; and relying on the inference as the only proof of an essential fact. The comparison with U.S. motions to compel and sanctions is instructive; see Bringing or Opposing a Motion to Compel Discovery: A Practical Guide and, for deficiency letters that translate well to arbitration, the Discovery Enforcement Toolkit: Deficiency Letters, Meet-and-Confer Records, and Rule 37 Motions.

Timing and cost. Deficiency correspondence within two weeks of production; any application promptly thereafter, and in any event well before witness statements and expert reports are due, so that late documents can be used.

Step 9: Get documents from nonparties

What to do. First, ask whether the documents are within a party's "possession, custody or control" (the IBA phrase): documents held by a subsidiary, agent, or former employee under a cooperation obligation may be. Second, ask the nonparty voluntarily, offering confidentiality and costs. Third, use the tribunal's power under Article 3.9 to request whatever steps are legally available, which means court assistance at the seat or where the nonparty is found.

In a U.S.-seated arbitration. Ask the tribunal to issue a summons under 9 U.S.C. § 7. Most circuits hold that section 7 does not permit pre-hearing document discovery from nonparties: Hay Group, Inc. v. E.B.S. Acquisition Corp., 360 F.3d 404 (3d Cir. 2004); Life Receivables Trust v. Syndicate 102 at Lloyd's of London, 549 F.3d 210 (2d Cir. 2008); CVS Health Corp. v. Vividus, LLC, 878 F.3d 703 (9th Cir. 2017); Managed Care Advisory Group, LLC v. CIGNA Healthcare, Inc., 939 F.3d 1145 (11th Cir. 2019). The Second Circuit permits a summons to appear with documents at a hearing before the arbitrators that is not the final merits hearing (Stolt-Nielsen SA v. Celanese AG, 430 F.3d 567 (2d Cir. 2005)). The Fourth Circuit left room for pre-hearing production on a showing of special need (COMSAT Corp. v. National Science Foundation, 190 F.3d 269 (4th Cir. 1999)), and the Eighth Circuit has allowed it (In re Security Life Insurance Co. of America, 228 F.3d 865 (8th Cir. 2000)). Enforcement lies in the district where the arbitrators sit, and the FAA does not authorize nationwide service (Dynegy Midstream Services, LP v. Trammochem, 451 F.3d 89 (2d Cir. 2006)), so the territorial limits of Fed. R. Civ. P. 45 matter. The practical solution is a short evidentiary hearing near the nonparty, at which it appears with the documents.

Section 1782. After ZF Automotive, 28 U.S.C. § 1782 does not reach private commercial arbitral tribunals or ad hoc treaty tribunals lacking governmental authority. It remains available for proceedings in foreign courts, including courts supervising or assisting the arbitration, subject to the discretionary factors in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), and to the reach discussed in In re del Valle Ruiz, 939 F.3d 520 (2d Cir. 2019). The application process is in Seeking or Opposing Section 1782 Discovery: A Practical Guide.

Outside the United States. Under Model Law article 27, the tribunal or a party with its approval may request court assistance. Under the English Arbitration Act 1996, section 43 lets a party use court procedures to secure a witness's attendance in the United Kingdom to produce documents, with the tribunal's permission or the parties' agreement, and section 44 gives the court supporting powers (the 2025 amendments confirm that section 44 orders can be made against third parties; check current English case law on scope). Other seats have their own mechanisms. For forms, see the Nonparty Discovery Toolkit: Subpoenas, Third-Party Records, and Privilege and the Cross-Border Discovery Toolkit: 1782 Applications, Hague Requests, and Blocking Statute Analyses.

Pitfalls. Serving a section 7 summons for pre-hearing production in a majority-rule circuit; filing a section 1782 application in aid of a private arbitration; overlooking that the documents are already within a party's control.

Step 10: Use what you get

What to do. Index produced documents immediately, identify the important ones, and plan how to put them into the record: as exhibits to the next written submission, in reply witness statements under IBA Rules art. 4.6, or in expert reports. Article 3.11 lets a party submit additional documents relevant to issues raised in produced documents, within the time ordered by the tribunal.

Why. Produced documents are not automatically part of the evidentiary record. Most PO1s require a party to exhibit any document it wants the tribunal to consider. A document produced late but not exhibited may never reach the tribunal.

Pitfalls. Discovering a key document after the last written round and then being refused permission to add it. If a late document is critical, apply promptly, explain why it could not have been submitted earlier, and propose a cure (a short responsive submission for the other side). Tribunals rarely refuse a properly framed application, because refusing it could create a due-process risk.

Step 11: Preserve objections for annulment and enforcement

What to do. Make every procedural objection to the tribunal promptly and on the record. If a production ruling is fundamentally unfair, say so, explain the prejudice, and ask for a specific cure. Keep the record of what the tribunal ordered, what was produced, and what the tribunal relied on.

Why. Courts review arbitral evidentiary rulings deferentially. At a U.S. seat, 9 U.S.C. § 10(a)(3) allows vacatur for misconduct "in refusing to hear evidence pertinent and material to the controversy," and courts apply it to fundamentally unfair rulings, as in Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16 (2d Cir. 1997). Awards rendered in the United States in international cases are subject to those domestic vacatur grounds (Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys "R" Us, Inc., 126 F.3d 15 (2d Cir. 1997)), which are exclusive (Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008)). At the enforcement stage, Article V(1)(b) of the New York Convention, implemented through 9 U.S.C. § 207, applies only when a party was genuinely unable to present its case: denial of discovery did not meet that standard in Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274 (5th Cir. 2004), and a tribunal's procedural limits were upheld in Generica Ltd. v. Pharmaceutical Basics, Inc., 125 F.3d 1123 (7th Cir. 1997). A party that never objected will usually be held to have waived the point. For post-award process, see Challenging or Enforcing an Arbitration Award: A Practical Guide and the Arbitration Award Challenge Checklist: A Practical Checklist.

Timeline and cost table

The figures below are typical ranges for a mid-sized commercial arbitration (claims in the tens of millions of dollars, three arbitrators, two languages), not quotations; actual cost depends on data volume, languages, and rates.

Worked example: Corvane v. Ostrava

Facts. Corvane Robotics Inc., a California company, was the exclusive North American distributor of Series K precision actuators made by Ostrava Precision s.r.o., a Czech manufacturer. The distribution agreement provided for termination only for material breach after a 60-day cure period, contained an LCIA arbitration clause seated in London, and was governed by English law. On 15 May 2025, Ostrava terminated for alleged failure to meet minimum purchase targets. Six weeks later, Pellham Industrial LLC of Chicago announced that it had become Ostrava's North American distributor. Corvane claims wrongful termination and lost profits of USD 22 million. It believes Ostrava was negotiating with Pellham months earlier and manufactured the purchase-target breach.

Before the first conference. Corvane's counsel decide that they need Ostrava's internal and Pellham-facing communications from early 2025, and that Ostrava will want Corvane's sales and margin data to attack the lost-profits claim. They advise Corvane to preserve its CRM data and the WhatsApp messages its sales director exchanged with Ostrava's export manager. Corvane's general counsel is in California; Ostrava's legal department is in Brno. Corvane's counsel expect Ostrava to argue that its in-house lawyer's advice on termination is privileged and want the privilege rule settled now.

PO1. The tribunal will be guided by the IBA Rules. Each side may make up to 30 requests. The parties agree that privilege will be determined by the most protective rule applicable to either party, equally to both. Productions of personal data are limited to named custodians and redacted for irrelevant personal information, transferred over an encrypted platform. Czech-language documents will be produced in the original with English translations of documents a party exhibits.

Requests. Corvane serves 22 requests. Request 6 seeks emails among three named Ostrava managers, January to April 2025, containing "Corvane" and one of "terminate," "notice," or "Pellham," citing statement of claim paragraphs 36 to 41. Request 9 seeks communications between Ostrava and Pellham concerning North American distribution, October 2024 to June 2025. Request 15, for all of Ostrava's internal analyses of Corvane's performance since 2021, is broad.

Objections. Ostrava produces voluntarily for Request 9, which it cannot credibly resist. For Request 6 it objects that one custodian had no role, and offers the other two. For Request 15 it objects on breadth and burden, quantifying 1.4 million documents across nine custodians. It also claims privilege over a memorandum by its in-house counsel advising on the termination notice. Ostrava in turn requests Corvane's customer-level margin data; Corvane objects on commercial confidentiality, but proposes production under a counsel-and-experts-only tier.

Ruling. The tribunal grants Request 6 as narrowed to two custodians plus the third for March 2025 only (because a produced email shows him attending a meeting on "the US question"), denies Request 15 as not narrow and specific, upholds the privilege over the memorandum under the PO1 rule, and orders Corvane's margin data produced under the counsel-and-experts-only tier.

Compliance and inference. Ostrava's production for Request 6 contains no emails from February 2025 for one custodian. Ostrava explains that the custodian's mailbox was "archived under standard retention." Corvane writes a deficiency letter, then applies to the tribunal. The tribunal orders a witness statement from Ostrava's IT manager. It reveals that the archive deletion ran in July 2025, after Corvane's notice of dispute. In the award, the tribunal accepts Corvane's request for a specific inference that Ostrava's managers were discussing Pellham's appointment in February 2025, finding it corroborated by Pellham communications that Ostrava did produce. It awards Corvane a portion of its costs attributable to the production dispute under Article 9.8.

The nonparty. Corvane wanted Pellham's internal documents. With a London seat, section 7 of the FAA was not a practical route, and section 1782 was unavailable after ZF Automotive. Corvane's counsel instead relied on Request 9 (Ostrava's own copies of its Pellham correspondence), which turned out to be enough.

Enforcement. Ostrava challenges the award in the English court on procedural grounds, citing the inference. The challenge fails, and Corvane then seeks recognition in the United States under 9 U.S.C. § 207, where Ostrava's Article V(1)(b) defense fails because it had notice, an opportunity to explain, and a hearing on the point.

Common mistakes

Requesting party.

• Serving the maximum number of requests because the cap allows it.
• Drafting requests from a U.S. template, with definitions and "all documents" language.
• Seeking documents the client already has, or public documents.
• Failing to tie requests to pleaded facts.
• Seeking an inference before asking for the documents.
• Discovering important produced documents after the last opportunity to exhibit them.

Responding party.

• Objecting to every request with the same paragraph.
• Asserting privilege without identifying the governing law.
• Claiming burden without numbers.
• Making confidentiality objections without proposing protective measures.
• Allowing auto-deletion or IT migrations to continue after the dispute arose.
• Producing a mass of marginal documents to obscure important ones.

Both.

• Leaving the privilege rule and electronic-document protocols out of PO1.
• Ignoring data protection until the week of production.
• Failing to make procedural objections on the record.

Frequently asked questions

How many requests should I make? As few as will get the documents you need. Twenty to thirty well-built requests is common in mid-sized cases; tribunals sometimes cap the number. Rank them so you know which to fight for.

Can I request "all documents" on a topic? Not successfully, unless the topic is so narrow and specific, with dates and custodians, that the category is effectively a list.

Do I have to produce documents that hurt my case? Not unless they are requested and ordered (or requested without timely objection). There is no general duty to disclose adverse documents under the IBA Rules. But the documents you rely on must be produced with your submissions, and a requested category may well include adverse documents.

What if the documents are in another language? PO1 should say who translates. Typically, documents are produced in the original language, and a party that exhibits a document provides a translation.

Can the tribunal look at the documents to decide a privilege claim? Yes. Article 3.8 allows the tribunal to review documents itself or to appoint an independent expert to review them under confidentiality and report.

Can I use documents produced in the arbitration in another case? Generally no. Article 3.13 limits use to the arbitration, and PO1 and the law of the seat may impose further confidentiality duties. Seek the tribunal's permission or the other side's agreement.

What if the other side produces nothing at all? Apply for an order, then for an inference, and preserve the point for costs. Tribunals have no contempt power, but persistent non-compliance tends to shape how a tribunal views a party's case as a whole.

Can document production affect settlement? Often. Granted requests change the risk picture, and many cases settle after production. See Planning and Running a Litigation Settlement Negotiation: A Practical Guide.

Takeaways

• Build your case on your own documents; production fills gaps.
• Win the rules in PO1: timetable, caps, format, privilege, electronic documents, confidentiality, data protection, translations.
• Draft each request around a pleaded fact, a narrow category, a date range, and custodians.
• Object specifically, with numbers and with proposed solutions.
• Agree a privilege rule that treats both sides equally.
• Produce transparently and keep a record of the search.
• Seek inferences carefully, with corroboration, after asking for the documents.
• For nonparties, think control first, then section 7 hearings or seat-court assistance; not section 1782.
• Object on the record; a reviewing court will look for it.

This document is general information, not legal advice for any particular situation; arbitral rules, national law, and tribunal practice vary, and the facts matter.

Related Documents

Related Articles

• Evidence in International Arbitration: The IBA Rules, Document Production, Witness Statements, and Expert Evidence: the doctrine and case law behind each step of this guide.
• International Arbitration and the New York Convention: Enforcing Awards Across Borders: how procedural objections play out at enforcement.
• Section 1782 Discovery in Aid of Foreign Proceedings: Who Can Ask, What They Get, and What ZF Automotive Changed: why section 1782 no longer helps in private arbitration.
• Attorney-Client Privilege and Work Product for Businesses: Upjohn, In-House Counsel, and the Common Interest: U.S. privilege doctrine for the privilege column of the Redfern schedule.
• International Data Transfers After Schrems II: Standard Contractual Clauses and Transfer Impact Assessments: lawful transfer of produced personal data.

Related Guides

• Running an International Arbitration: A Practical Guide: where document production fits in the whole case.
• Seeking or Opposing Section 1782 Discovery: A Practical Guide: U.S. discovery for foreign court proceedings connected to an arbitration.
• Challenging or Enforcing an Arbitration Award: A Practical Guide: the post-award stage at which production rulings are tested.
• Bringing or Opposing a Motion to Compel Discovery: A Practical Guide: the U.S. court analog to a production application.
• Collecting and Authenticating Messaging and Social Media Evidence: A Practical Guide: preserving and producing chat messages.
• Planning and Running a Litigation Settlement Negotiation: A Practical Guide: using the post-production risk picture to settle.

Related Checklists

• Witness and Expert Evidence in International Arbitration Checklist: A Practical Checklist: the next phase after production.
• International Arbitration Checklist: A Practical Checklist: the full case task list.
• Preparing a Privilege Log: A Practical Checklist: building the log for withheld documents.
• Litigation Hold and Evidence Preservation Checklist: A Practical Checklist: preservation before the first request.
• Arbitration Award Challenge Checklist: A Practical Checklist: preserving and raising procedural objections after the award.

Related Toolkits

• Arbitration Evidence Toolkit: Redfern Schedules, Witness Statement Templates, and Expert Protocols: Redfern schedule, request and objection language, privilege log, and PO1 clauses.
• International Arbitration Toolkit: Clauses, Procedural Orders, and Enforcement Petitions: PO1 outline and enforcement forms.
• Nonparty Discovery Toolkit: Subpoenas, Third-Party Records, and Privilege: subpoena practice for nonparty records.
• Confidentiality Toolkit: Protective Orders, Designation Challenges, and Sealing Motions: models for confidentiality tiers.
• Discovery Enforcement Toolkit: Deficiency Letters, Meet-and-Confer Records, and Rule 37 Motions: deficiency letters adaptable to arbitration.