The Institute was again privileged to have Mr Michael Hwang, SC (Michael Hwang Chambers LLC) share with us on the use of interrogatories to focus the process of document production in arbitration.
Mr Hwang noted that requests for document production were often overly sweeping in their scope for documents requested, often brought about by a counsel's lack of knowledge as to what documents existed and were in the hands of the other party.
Such broad-ranging requests would often fail the test set out in the IBA Rules of Evidence on the Taking of Evidence in International Commercial Arbitration 2010 (“IBA Rules"), which is a guideline for document production frequently adopted by parties or referred to by arbitrators as a persuasive standard.
Interrogatories would play a useful role in clarifying the issues and facts in dispute and to act as a preliminary step for parties to elicit the necessary details to draft a proper document production request. It would essentially enhance the production of documents ahead of the hearing, where a witness might be cross-examined about the existence of certain documents, to which he might admit their existence and produce the same. Instead of having documents being produced at the point of the hearing, interrogatories give counsel an opportunity to query the other party on the existence of documents prior to the hearing, enabling parties to better prepare their case.
Another issue raised was whether document requests which were relevant to an issue which it was the opposing party's burden to prove should be granted. On a broad reading, such documents were relevant and material, but to an issue that the opposing party would have had to prove. Mr Hwang raised the question of why the requesting party should help the opposing party improve his case by requesting documents which supported the opposing party's case, if the opposing party had failed to introduce sufficient documentary evidence in support of its case.
Of all the questions explored, the most interesting was the one dealing with the extent to which a party may be forced to do a better job of proving its own case. One view was that this could test the strength of a party’s evidence at an early stage. Another view was that it would result in an opposing party also producing related adverse documents which it has chosen not to rely upon.
The session was chaired by the Institute’s President, Mr Chan Leng Sun, SC who concluded the evening with a lively question and answer session. The seminar certainly raised thought-provoking issues in relation to document production and was an interesting session to all who participated.
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