arbitration involving parties from different systems can be problematic particularly when it involves issues related to evidence. This article addresses some of the issues which arise.
?MEALEY?S International Arbitration Report Discovery And Civil Law Systems by Calvin Hamilton and Eva M. Vázquez Monereo, Meyer & Marinel-lo Madrid, Spain A commentary article reprinted from the October 2006 issue of Mealey?s International Arbitration Report MEALEY?S International Arbitration Report Vol. 21, #10 October 2006 Commentary Discovery And Civil Law Systems By Calvin Hamilton and Eva M. Vázquez such as certain aspects of advanced examination [Editor?s Note: Calvin A. Hamilton is a partner with of evidence and witnesses in special circumstances the firm Monereo, Meyer & Marinel-lo, Madrid and head (?prueba anticipada?) or other procedures, such s the arbitration department. He is admitted to as pretrial evidentiary proceedings (?diligencias the New York and the Madrid Bars. Eva M. Vázquez preliminares?). is an associate with the firm of Monereo, Meyer & Marinel-lo and practices in the arbitration depart- men The difficulties of applying these discovery techniques t. She is admitted to the Madrid Bar. Copyright 2006 to areas other than those in which they originated by the authors. Replies to this commentary are we and have since been developed to the full, will also be lcome.] targeted for discussion. 1. Aim Of The Article This ar So, without further ado, let us embark upon an exam-ticle seeks to examine the purpose and use of discovery ination of the topics outlined above and a comparison in dispute resolution proceedings in general, and between these Common-Law-derived mechanisms in international arbitrations in particular, where and their reduced or limited impact on Spanish Civil it has rapidly gained in popularity and is becoming Law. increasingly used. A 2. Concept Of Discovery And further area singled out for examination will be the use of discovery The Development Of E-Discoveryin international arbitration, in juxta- position Discovery may be defined as a formal investigation to its limited use in litigation in the ordinary lying at the core of judicial proceedings, conducted law courts of non-Common Law systems. prior to trial to ascertain facts pertaining to the case. A By virtue of this device, one party compels the other ttention will also be drawn to the way in which dis- covery has come down to produce certain documents or furnish any other to us from the English-speak- physical evidence. ing world, chiefly from systems that apply Common Law. In countries with the Civil Law system, in con- One major purpose of discovery is to assess the trast, this institution is almost completely unknown. The scope of application of discovery will strength or weakness of an opponent?s case, with the therefore be compared idea of opening settlement talks. Another is to gather from the standpoints of both Common 1 and Civil Law information to use at trial.. Similarly, a review will be The theory of broad rights of discovery implies that conducted of Spanish all the parties will come to the trial with all possible legal provisions governing certain institutions knowledge of the case, and that, save for the Consti- that possibly display similar features to discovery, 1 Vol. 21, #10 October 2006 MEALEY?S International Arbitration Report tutional right not to incriminate oneself, no party will failure by the witness to comply will be deemed be allowed to keep information secret. to constitute contempt of court. It can truly be said that, in any judicial proceeding, ? Subpoena duces tecum, a court order instructing the fiercest phase of the battle usually takes place at a witness to deliver up certain documents to a the discovery stage, before the actual trial itself. specific person or bring them to a scheduled deposition. Once again, disobedience can give In the United States, the use of discovery has assumed rise to an order for contempt of court. crucial importance. Within US jurisdiction, where this mechanism has enjoyed extensive development, Viewed in this light, the scope of discovery is very the rules embodying permissible methods of discov- wide and enables a broad spectrum of documents to ery have been laid down by Congress (for Federal be obtained, a spectrum not restricted to what may courts) and State legislatures (for State courts). be used in the trial. The criterion is usually to allow the parties to ascertain any information which may 2 The most common forms of discovery are: reasonably lead to the unearthing of evidence that is both relevant and admissible. It is a considerably ? Depositions, which involve an in-person ses- wide-ranging criterion, and parties normally disagree sion at which one party to a lawsuit has the as to which information ought to be exchanged and opportunity to ask oral questions of the other which ought to be kept confidential. Disputes on party or his/her witnesses under oath, while a these matters are normally settled by discovery mo- written transcript is made by a court reporter. tions and/or court rulings. ? Interrogatories, consisting of written questions Legal acceptance of discovery in the English-speaking the other party must answer truthfully under world has recently been extended to the possibility penalty of perjury. of requesting information stored in electronic files, which is known as ?e-discovery? and can be defined ? Requests for admissions, whereby one party as follows: asks the other to admit or deny certain facts in the case. Once admitted, such facts do not have ?electronic discovery refers to any pro- to be proven during the proceedings. cess in which electronic data is sought, located, secured, and searched with the ? Request for physical examination, consisting intent of using it as evidence in a civil of a request by one party to the other that he/ or criminal legal case. E-discovery can she undergo a physical examination if his/her be carried out offline on a particular health is at issue. computer or it can be done in a net- work. Court-ordered or government ? Request for production of documents, consist- sanctioned hacking for the purpose of ing of a request by one party to the other that obtaining critical evidence is also a type 3 he/she hand over certain documents. of e-discovery.? ? Request for inspection, consisting of a request As has noted above, the United States already has by one of the parties that certain tangible items specific rules addressing the possibility of discovery. in the possession or under the control of the Recent amendments to these rules are sending shock- other party be examined. Examples of items to waves through the American legal sector. In this be inspected include houses, cars, appliances respect, there are amendments pending to the Fed- and any other tangible item. eral Rules of Civil Procedure addressing discovery of electronically stored information. On April 12, 2006, ? Subpoena, which consists of an order instruct- the Supreme Court of the United States approved ing a witness to appear in court or at a deposi- the entire package of amendments. The amendments tion. Subpoenas are issued by the court, and have been transmitted to Congress and will take effect 2 MEALEY?S International Arbitration Report Vol. 21, #10 October 2006 on December 1, 2006, in the absence of congressional One frequent reason to choose arbitration over con- action to the contrary. The amendments will revamp ventional litigation is to avoid the time and expense existing discovery rules in order to better accommo- required for traditional litigation discovery. Accord- date discovery directed at information generated by ingly, a party?s right to discovery will depend in large 4 computers. part on the terms of the arbitration agreement itself. 3. Discovery In International Arbitration The arbitrators will therefore approach discovery from Versus Litigation the stance of the arbitration clause agreed by the par- Discovery-related issues are resolved in different ways ties, the rules of the arbitral institution, the law appli- in arbitrations and in the ordinary courts of law. The cable to the arbitration, and any pertinent precedents approach to discovery constitutes one of the greatest relating thereto. Only after reviewing these tools, will differences between the arbitral and judicial systems. they have regard to the relevant state legislation. Indeed, the availability of discovery procedures varies widely from one system to another. Discovery issues typically confronting arbitrators are for example: what degree of discovery ought to be ?Whether and to what extent discovery is available in allowed between the parties; what forms of discovery an arbitration remains unsettled, particularly when can be used ? the traditional mechanisms, such as discovery is sought from third parties. One must an- production of documents, interrogatories, deposi- ticipate potential obstacles to discovery requests from tions, exchange of documents, witness lists or produc- the opposing party (or parties) in the arbitration, tion of experts? reports ? or something more limited; from the arbitrators, and from the party from whom and whether the obligation of discovery affects third 5 discovery is sought (the third party).? parties not bound by the arbitration clause. In arbitration there are no specific rules as to discovery Arbitrators will normally attempt to enforce any agree- per se, and matters relating to discovery can usually be ment that the parties have reached. In the absence of decided by agreement between the parties. Should the such an agreement, the scope of discovery will depend parties be unable to come to an agreement, however, on the monetary sum in dispute, the complexity of the the arbitrator enjoys the necessary discretion to take a matters under debate, and the burden entailed by pro- decision in this respect. duction of documents compared to the importance of the information likely to be obtained. The arbitrator ?The extent to which you can obtain discovery will will be guided by the principle that discovery ought depend on your arbitration agreement, any appli- to give prior access to sufficient information to enable cable arbitration rules, and the temperament of your the parties to prepare and present a case that is both arbitrators. When seeking third-party discovery, your cogent and complete. The arbitrators will also bear in fortunes will also depend on the jurisdiction in which mind that most of the parties who opt for arbitration your arbitration is held and in which the third party wish to avoid the charges and costs traditionally asso- 6 is located.? ciated with the sweeping type of discovery that could be set in motion in court proceedings. In default of In jurisdictions where there are legal provisions agreement by the parties, many arbitrators thus tend regulating discovery in the context of the courts, such to lean towards the low costs, swiftness and effective- rules are not automatically applicable to arbitration. ness of limited discovery. Hence, one cannot formulate a request for discovery from the same untrammelled point of view as a party In important cases, experienced arbitrators often give may have under his/her own legislation. Instead, leave for fairly wide-ranging discovery procedures. one would have to look at what the parties have spe- Even in these cases, however, it is normal for the arbi- cifically agreed in this respect. In the absence of any trators to impose limits on the amount or duration of provision addressing the issue, many arbitrators tend the discovery procedures, and rarely will they consent to hold that, in deciding to submit to arbitration, to as wide a scope of interrogatory or depositionas the parties were precisely seeking to avoid the type of that typically associated with court proceedings. open-ended discovery permitted in the courts. What arbitrators usually tend to do is to heed the 3 Vol. 21, #10 October 2006 MEALEY?S International Arbitration Report terms agreed by the parties as regards implementation produce . . . any documents or classes of documents of interrogatories or depositions. In default of agree- in their possession, custody or power which the Ar- ment, they tend to be fairly cautious and prudent, so bitral Tribunal determines to be relevant? (Article as to avoid being overly permissive insofar as the rules 22(1)(d) and (e)). on discovery are concerned. Article 24(3) of the Rules of the United Nations Com- In general, both the nature and the scope of discovery missionon International Trade Law (UNCITRAL), available in international arbitrations tend to vary which are widely used in ad hoc arbitrations, provides widely from one case to another, depending on the that, ?At any time during the arbitral proceedings the terms of the agreement between the parties, the iden- arbitral tribunal may require the parties to produce tity of the parties or the arbitrators, the arbitration documents, exhibits or other evidence . . . .? rules, and the seat at which the arbitration is sched- uled to take place. The Rules of the International Centre for Settlement of Investment Disputes (ICSID), which settles dis- 4. Provisions Governing Discovery putes between governments and private investors, lay Contained In The Arbitration Rules down that, ?The Tribunal may . . . : (a) call upon the Of The Leading Arbitral Institutions parties to produce documents, witnesses and experts; And In The Arbitration Clauses and (b) visit any place connected with the dispute or Agreed By The Parties conduct inquiries there.? (Article 34(2)). The rules of the leading international arbitration insti- 7 tutions vary as regards discovery. In 1999, the International Bar Association adopted the Rules on the Taking of Evidence in International The Rules of the International Chamber of Com- Commercial Arbitration (IBA Rules), which envis- merce (ICC) contain no provisions whatsoever as to age the exchange of documents before the arbitral discovery, save the stipulation that the parties must hearing. These rules are increasingly used in interna- produce to the tribunal and to the opposing side those tional cases by agreement between the parties, either documents on which they base their claim or defence. prior to or at the time of the preliminary hearing. There are two provisions, however, that might be rel- The IBA Rules permit the parties to make applica- evant for the purposes of discovery, viz., Article 20(1) tion for ?a narrow and specific requested category and (5) which vest the arbitrators with the power of documents that are reasonably believed to exist? to ?establish the facts of the case by all appropriate (Article 3.3(a)(ii)). means? and ?summon any party to provide additional evidence,? respectively. Even where there is no agreement by the parties to apply the IBA Rules, when one party makes a reason- The rules of other institutions are somewhat more able request for production of certain documents or indulgent towards parties who wish to use discovery classes of documents material to the settlement of the mechanisms. The Rules of International Arbitration dispute, it is unlikely that the tribunal will deny it, or of the American Arbitration Association?s Interna- that the other party will be able to refuse to comply tional Center for Dispute Resolution (ICDR) provide with the requested production, for fear that the ar- that ?At any time during the proceedings, the tribunal bitrators might construe such refusal as elusive and may order parties to produce other documents, exhib- suspicious, hinting at concealment of information 8 its or other evidence it deems necessary or appropri- prejudicial to said party?s interests. ate? (Art. 19(3)). Whatever the case, however, when it comes to weigh- The Rules of the London Court of International ing up such evidence the nationality of the arbitrators Arbitration (LCIA) envisage that, unless the parties may play a relevant role, as will be seen below. have agreed otherwise, the tribunal shall have the power ?to order any party to make any property, site The wisest course for parties who submit to interna- or thing under its control . . . available for inspection tional arbitration would be to make express inclusion by the . . . other party . . .? and ?to order any party to or exclusion of the possibility of discovery in their 4 MEALEY?S International Arbitration Report Vol. 21, #10 October 2006 arbitration clauses, as outlined above. Agreements Despite the growing globalisation now at work in can expressly provide that there is to be no exchange international legal practice, it is nonetheless still pos- of information whatsoever or, alternatively, that re- sible to detect a wide range of matters where the pur- course may be had to the existing wide range of pos- ported convergence is not yet in evidence, or where sibilities of discovery, e.g., in the U.S. Federal Rules the points in common are more apparent than real. of Civil Procedure. Similarly, parties can opt for an One such matter is discovery. The approach typical of intermediate mechanism, such as exchange of only Common Law, founded on the premise of allowing those documents that prove relevant, as provided for ample leeway in the obtaining of evidence in advance by the IBA Rules. of the trial, stands in sharp contrast to the limited scope of pretrial discovery envisaged by the Civil Law The typical case is that parties in international arbi- tradition. trations are not unduly interested in recourse being had to far-reaching possibilities of discovery. In turn, As will be seen below, it is true to say that, in this re- arbitrators who do not come from jurisdictions where gard, there are irreconcilable differences between the discovery enjoys popularity tend to be wary of a concepts of the respective systems. policy of extensive application of such methods. As will be seen below, a US party who agrees to submit For most countries that trace their legal heritage to to arbitration with a foreign-based body in a Civil the Civil Law tradition, discovery as understood by Law jurisdiction, where the arbitral tribunal is in all the English-speaking world is inconceivable. It is con- likelihood going to be presided over by an arbitrator strued as being an intrusive, unnecessary and unjust with a Civil Law background, ought to give careful device. consideration to the advisability of having or not hav- ing certain stipulations regarding discovery included In international arbitration, which shares procedural in the arbitration clause. aspects with both Civil and Common Law traditions, discovery is not countenanced to a degree comparable The fact that one party may have benefited from or to what is seen as commonplace in American legal been prejudiced by the use of discovery depends on practice. the type and nature of the contract, as well as the par- ticular claims or defence pleas submitted in the arbi- As seen above, for attorneys from a legal background tration. For instance, take the case of a manufacturer in which discovery is widely used and permitted, it who enters into a distribution agreement with a dis- can be something of a nightmare to find themselves tributor in a third country. Were such a manufacturer immersed in a legal setting where discovery might be to suspect that the distributor might be in breach of refused or where its application is hampered by every his non-competition clause, the manufacturer would possible type of constraint and obstacle. For their want a right of recourse to broad-based discovery part, however, attorneys from a Civil Law context will mechanisms, since he would need to obtain informa- tend to view the use of discovery tactics as a dangerous tion on any possible sales made by the distributor of tool vis-à-vis the rights of the parties and the smooth- 9 products belonging to the competition. On the other working of commerce and business concerns. hand, were the distributor to sue the manufacturer, pleading that the manufacturer?s products did not The philosophy of common law discovery is that, comply with the agreed terms and conditions, it is prior to the trial, any party to a civil action is entitled likely that the latter would have an interest in restrict- to request that the other produce all relevant informa- ing any information that he might have to furnish in tion in possession of any person, unless such informa- this regard. tion be confidential. 10 5. Discovery Under Common Law And Civil The US Supreme Court has stated that the deposi- Law Systems, Difficulties Of Application tion-discovery process has ?. . . a vital role in the prep- The wide gap that exists between the concepts of dis- aration for trial. The various instruments of discovery covery in the context of Common Law and Civil Law now serve as a device . . . to narrow and clarify the has already been noted. basic issues between the parties, and as a device for as- 5 Vol. 21, #10 October 2006 MEALEY?S International Arbitration Report certaining the facts, or information as to the existence procedure. There now follows a comparison between or whereabouts of facts, relative to those issues.? advance examination of evidence and witnesses (prueba anticipada) or pretrial evidentiary proceed- Such descriptions are extraordinarily wide. The reason ings (diligencias preliminares) under the Spanish 12 for this is that the guiding principles underlying civil Civil Procedure Act (Ley de Enjuiciamiento Civil) proceedings in the USA are full disclosure, equality of on the one hand, and Common Law discovery on information between the parties, and the avoidance of the other, though not without first introducing the surprises at the time of the trial. Spanish legal context, i.e., the basic features of court procedure in Spain. In contrast, Civil Law systems lay emphasis on the principle that each party has the burden of proving Evidence Under Spanish Law his/her own case and that the other party cannot be Spanish civil court procedure is characterised, above 11 compelled to incriminate him/herself. all, by the principio dispositivo, the principle of freedom of choice, whereby parties may proceed as Indeed, the insurmountable difficulties lying in the they please, and the principle of aportación de parte, way of uniform application of discovery methods whereby parties may adduce whatever facts they see lead to the conclusion that one of the most important fit. Moreover, Spanish procedural legislation abounds practical problems confronting parties in interna- in formalisms, though there are continuing efforts to tional arbitration is the obtaining of the necessary overcome these ?rites? which historically form part of documentary evidence for establishing the grounds Spanish law. on which to argue the case. The procedure for examination or sifting of evidence As has been seen above, Arbitration Rules are gener- (práctica de la prueba) in Spanish civil procedural law ally silent on the point, or leave it to the discretion obeys a series of general rules, as well as a series of for- of the arbitrators to decide upon the degree to which mal requirements of a procedural nature, regardless of recourse may be had to discovery in order to compel the special nature of the respective means of proof. parties to disclose information or produce documents involuntarily. Accordingly, this brings us to what could be called the guarantees of probative activity or guideline prin- The IBA Rules of Evidence can be a useful tool for ciples of examination of evidence, namely: filling this gap, where parties agree on their use or the tribunal decides to adopt them. Outside the confines ? Unity (unidad de acto), that is to say, all the of arbitral proceedings, there are diverse procedures means of evidence must be examined at the 13 in the various Civil Law jurisdictions and within time of the hearing or oral proceedings. the?Anglo-Saxon? context, which permit documents to be obtained from the other side and from third ? Immediacy (inmediación). The judge that persons who are not a party to the lawsuit. Such dif- delivers judgement must have examined the ferences can be avoided in arbitral proceedings, where evidence, or alternatively, said evidence must a uniform procedure may be agreed, if the above have been examined in his presence. premises are respected. ? Dissent (contradicción). This is the cornerstone 6. Discovery Under Spanish Law of the process. All evidence is to be examined Spanish law and, as more fully described above, Civil with dissent and full intervention by the parties. Law systems in general do not recognise discovery mechanisms as such. ? Publicity (publicidad). Each and every item of evidence is to be examined with total publicity, Having due regard to the purpose and ultimate goal at a public hearing. of this institution, as analysed above, some of the juridical-procedural concepts existing in Spanish law Yet, despite the existence and imperative and com- may be likened to what could be viewed as a discovery pulsory nature of these principles in all proceedings, 6 MEALEY?S International Arbitration Report Vol. 21, #10 October 2006 the reality is that the rules themselves allow for excep- ? Request for production by the person to whom tions to each of them. Among such exceptions is the the complaint is addressed of a chose or thing case of pretrial evidentiary proceedings, which, to a to which the trial may have to refer. certain extent and with many subtle differences, share some of the features of discovery and can be viewed ? Production, by whomsoever has in his/her as mechanisms that come close to this institution, an power, of the last will and testament of the tes- institution that in principle is unknown in Spanish tator of the inheritance or legacy, at the request law. of the alleged heir, joint heir or legatee. Advanced Examination Of ? Production of documents and accounts of a Evidence And Witnesses company or joint enterprise, at the request of a As stated above, the general rule is that evidence is to member or co-owner. be examined at the time of the trial or hearing. Nev- ertheless, it can be examined at an earlier stage under ? Production of insurance policy, by whomso- certain circumstances. ever has in his/her power, at the request of any person who considers him/herself to have be Accordingly, such advance examination consists of injured or harmed by an event that might be- perusal of the evidence, at the request of the party covered by civil liability insurance. seeking to initiate the proceedings or of any of the parties during the course thereof, at a point in time ? Whoever should seek to bring an action for preceding the officially appointed date (either prior defence of the collective interests of consumers to commencement of proceedings or once these have and end-users shall be entitled to request speci- begun, before the holding of the hearing or trial), fication of the members of the affected group. provided that there are well-founded fears that it would otherwise be impossible for such procedures ? Any such contingencies as are contained in to be conducted on the date appointed in the court the special Acts for the protection of specific calendar, whether due to human agency or to the state rights. of affairs. The designated purpose of pretrial evidentiary pro- Whereas pretrial evidentiary proceedings are actions ceedings is to prepare the suit by gathering such targeted at preparing the proceedings by obtaining information as is required by the Plaintiff to be able specific information, advancing the evidentiary stage, to conduct the case against the Defendant. Although on the other hand, consists of examining the evidence this would be the overriding purpose, such proceed- at a time prior to the officially scheduled date, owing ings would also serve as a means of eliciting evidence- to the danger of such evidence being lost in the in- were any of the cases envisaged by the Act to be met. terim if the parties waited until said date fell due. Differences As Against Discovery Pretrial evidentiary proceedings are preparatory pro- Now that the two institutions have been defined cedures in the lower and higher courts, the purpose of and discussed, certain similarities with discovery will which is to obtain data and information needed for be seen, the most outstanding of which is the fact presentation of the action or complaint. The various that in advance examination and pretrial evidentiary instances are laid down in the Civil Procedure Act and proceedings as well as in discovery, the time of imple- are as follows: mentation is prior to the commencement of the trial, with certain fine differences that will be elaborated ? Request for a sworn statement from the upon below. person to whom the complaint is addressed, concerning some fact relating to his/her capac- Yet in spite of having points in common, major dif- ity, representation or legitimation, without ferences are nonetheless manifest; and the most glar- knowledge of which the lawsuit would not be ing of these is the ultimate purpose of each of these feasible. mechanisms. 7 Vol. 21, #10 October 2006 MEALEY?S International Arbitration Report It should just be recalled here that, in broad terms, the Another difference resides in the need for leave of purpose of discovery is to assess the strength or the the pertinent court in the cases of advance exami- weakness of the other side?s case, with the aim of com- nation of evidence and pretrial evidentiary proceed- piling sufficient information to form an opinion as to ings. Application for either of these two procedures whether or not it would be advisable to continue with must thus be well grounded and, provided it fits any the lawsuit. In the case of advance examination, howev- of the cases weighted by the Act, leave will be given er, the purpose is to scrutinise the evidence beforehand, by the court having jurisdiction in the matter. In due to the impossibility of examining it at the statuto- contrast, discovery does not, in principle, require rily appointed time. With respect to pretrial evidentiary any such prior formality of authorisation since, as proceedings, their purpose consists of gathering the has been pointed out above, it constitutes a stage necessary data and information for proper submission in the judicial proceedings, in which the parties of the complaint or obtaining specific evidence in those are ? within certain limits ? free to ascertain all cases where it is formally codified. the facts pertinent to the case. In other words, it is a procedure to which the parties can have recourse In no case will an indiscriminate ?fishing expedition? whenever they wish or whenever they deem neces- be permitted, not even with the leeway typical of dis- sary or advisable, and the possibility of it being covery techniques. When it came to defining the legal conducted is not left to the discretion of the court, catalogue of cases where recourse could be had to such though the court does rule on motions for discovery proceedings, the aim of the legislature was to limit the when so requested. exceptional situations in which it was possible to stray from the basic probative principles of Spanish law. Hence, though these institutions may at first sight exhibit certain similarities, they respond to different Aside from their respective purposes, there are other needs and have a considerable number of differences. procedural differences between the institutions dis- cussed, as will be seen below. Difficulties Entailed In Implementation Of Discovery In Spanish Law There is the timing of the procedures: in the case of As has been seen, Spanish law is rife with formalities, advance examination of evidence, two possible points despite repeated attempts to overcome these. In the can be identified, namely, (1) prior to commence- field of evidence, the entire procedure (submission, ment of proceedings, or (2) once the proceedings have examination and weighing-up) is governed by the been set in motion but before the holding of the trial Act, leaving the parties little margin for manoeuvre. or hearing. In all cases, pretrial evidentiary proceed- It is thus clear that even the exceptions described ings are heard prior to the main action. Lastly, insofar ? advance examination of evidence and pretrial as discovery is concerned, this also always precedes evidentiary proceedings ? are extremely limited, re- the trial, though it constitutes a stage of the main ferring to very specific cases in which the parties can proceedings. contribute little. There are many forms of discovery and, though the Why are there so many obstacles lying in the way of precise methods are laid down by Congress or the the possibility of extending the parties freedom of legislative body in question, the freedom enjoyed by action? Implementation of discovery in Spanish law the parties is extremely wide. In contrast, the par- would be extremely difficult; the reasons are many ties? margin of action is exceedingly narrow in the and of different types, beginning with the historical case of advance examination of evidence or pretrial tradition of Spanish law, which, as explained above, evidentiary proceedings. In advance examination of abounds in ?rites.? evidence, such leeway is only allowed where there is a certain danger of loss of evidence if this were to These difficulties are justified by and founded on be examined at the normally appointed time, and in the underlying principles of evidence, set out above. pretrial evidentiary proceedings, the cases in which The impact had by each of these on the difficulty of these can be requested are, as has been seen above, importing a concept such as discovery, is analysed weighted by law. below. 8 MEALEY?S International Arbitration Report Vol. 21, #10 October 2006 The principle of unity is geared to ensuring that all prior to the trial would be very complicated, because means of proof are examined at the trial or hearing, its staff could plead trade-secret privilege and thereby something that is directly linked to the principle of block the release of the information sought. oral argument. Although there are exceptions to the principle ? evidence examined abroad, evidence The same thing would occur in the case of certain data examined outside the tribunal?s designated area of ju- or information on private individuals being requested risdiction, etc. ? the general rule is that of unity. This from third parties. In such circumstances, the Person- unity hinders implementation of discovery which, al Data Protection Act (Ley Orgánica de Protecciónde save in the case of repeating the production and ex- Datos de Carácter Personal) is intended to guarantee amination of evidence in court, would lack validity and safeguard the public freedoms and fundamental under Spanish law. Discovery, under such a premise, rights of natural persons insofar as the handling of would be senseless. personal data is concerned. Furthermore, the Act itself imposes a duty of non-disclosure upon anyone The need for evidence to be examined in court, the who takes part in any phase involving the handling result of the need for immediacy under Spanish law, is of such data. Hence, there is a series of details of a a huge stumbling block to implementation of discov- personal nature that enjoy special protection, with the ery. If the information gathered as a result of discov- result that access to these is truly complicated. This ery has to be repeated or examined before the court protection guaranteed by the Act would restrict the that is to hand down judgement, the initial phase of possibilities of application of the institution of discov- discovery would be devoid of all logic, as the data or ery, since there would be certain data that would be information obtained would have to be submitted as difficult to access without the owner?s consent. evidence, which would then have to be accepted and scrutinised. It would be a complete waste of time. It is thus plain that companies as well as private indi- viduals enjoy special protection with respect to a series By virtue of the principles of dissent and publicity, all of data or information, and this would serve to ham- submission of evidence has to be open to challenge by per practical application of discovery under Spanish the parties, at a public hearing. These two principles law, by narrowing the options available. limit the possibility of discovery. Under Spanish law, these principles constitute the cornerstone of the pro- In conclusion, while there are many different kinds cess, and any laxity in their application would more of barriers to the introduction of discovery, the main than probably entail the nullity of the procedures on obstacle which underlies all others, is the purpose the grounds of a breach of the right of defence and fulfilled by discovery, one that is unlikely to be in con- effective judicial protection. sonance with the designated purpose of examination of evidence under Spanish law. Whereas the aim of The very principles of examination of evidence en- discovery is to enable one party to assess the strength shrined in Spanish law restrict and hinder implemen- or weakness of the other, examination of evidence in tation of discovery in Spain. Spanish law could be defined as the desire to achieve certainty on the part of the court, based on facts fur- Reference could also be made here to a further type nished by the parties. of restriction in our system, i.e., trade secrets. Case law defines trade secrets, in a broad sense, as any knowledge or know-how not in the public domain- and essential for the manufacture or marketing of a product, performance of a service, or organisation Endnotes of a corporate unit or department. Trade secrets are protected by the Unfair Trade Practices Act (Ley de- 1. Glossary of terms at www.nolo.com. Competencia Desleal), even in the case where access, though legitimate, entails a duty of non-disclosure. 2. Breakdown of procedures to be found in The ?Lec- Hence, obtaining the type of information described- tric Law Library?s Lexicon On Discovery (http:// from any given business undertaking at any time www.lectlaw.com/def/d058.htm). 9 Vol. 21, #10 October 2006 MEALEY?S International Arbitration Report 3. ?Proposed E-Discovery Rules Near Enactment,? by 9. ?Transnational Litigation and International Arbitra- Henry R. Chalmers. Litigation News, American Bar tion: Cross-cultural Reflections,? By Cliff Hendel. Association. March 2006. International Law News. American Bar Association. Winter 2006. 4. Excerpts from the September 2005 Report of the Committee on Rules of Practice & Procedure and 10. Decision of the Supreme Court in Hickman v. Tay- the May 2005 Report of the Civil Rules Advisory lor, Justice Frank Murphy, January 13, 1947. Committee.? Available at www.legalpub.com. 11. ?Managing discovery in international arbitra- 5. Business Law Today. March/April 2001. tion,? Bernardo Cremades. Dispute Resolution Journal. 6. Business Law Today. March/April 2001. 12. There exist provisions regarding certain evidence 7. ?Discovery in International Arbitration.? James D. gathering conducted off the court premises. ac- Miller, Esq. & John D. Shakow, Esq. King & Spalding. cordingly, we will only refer to the Spanish law International Arbitration Program. October 17, 2000. provisions regarding the pretrial time of preparatory proceedings directed to the obtaining of evidence 8. ?Discovery in International Arbitration.? By Grant for the case. Hanessian. International Law News. American Bar Association. Winter 2005. 13. Vide supra. N 10 Arbitration And The Fisc: NAFTA?s ?Tax Veto? by William W. (Rusty) Park Professor of Law at Boston University Vice President, London Court of International Arbitration Arbitrator, Claims Resolution Tribunal for Dormant Accounts in Switzerland A case of note reprinted from the May 2001 issue of Mealey's International Arbitration Report. © Copyright 2001 Mealey Publications. All rights reserved. Reproduction strictly prohibited without written permission. MEALEY'S INTERNATIONAL ARBITRATION REPORT edited by Edie Scott The Report is produced monthly by 1018 West Ninth Avenue, 3rd Floor, King of Prussia Pa 19406, USA Telephone: (610) 768-7800 1-800-MEALEYS (1-800-632-5397) Fax: (610) 962-4991 Email: firstname.lastname@example.org Web site: http://www.lexisnexis/mealeys ISSN 1089-2397