The White Paper does not propose abolishing document production altogether. Instead, it offers practical considerations and targeted recommendations to help avoid or limit document production in a sensible, proportionate way. It includes illustrative examples and a "toolbox" of measures for contracting parties, arbitral tribunals and institutions.

Following practical guidance on how to interpret and apply the criteria of "relevance and materiality" under the IBA Rules of Evidence, the White Paper sets out the following recommendations:

Recommended measures to be taken upfront

The White Paper includes recommendations that parties may wish to take upfront when negotiating and drafting the arbitration clause.

First, parties may wish to consider excluding document production altogether, thereby agreeing to rely, in a potential arbitration, solely on the documents and information available to them. This option simplifies and shortens the arbitral process considerably and it avoids fishing expeditions. Parties will, however, have to consider the risks involved, including whether they expect being able to prove their case without document production (e.g., under applicable law, considering burden of proof) and whether the expected gains in time and cost outweigh the risks of losing a particular, or a few cases.

Second, the parties may wish to consider limiting document production in one ore more of the following ways:

• Limit production to material documents only, with interpretation guidance as to what "material" means.
• Limit production to specific documents only and/or to external documents.
• Limit production to documents shown by the requesting party to be required to discharge its burden of proof.
• Limit production to documents which parties have invoked in their submissions.
• Limit the number of document production requests a party may submit.
• Forego a separate document production phase and instead integrate document production requests into written submissions.
• Agree on cost implications related to document production to discourage excessive (numbers of) requests.

Recommended measures to be taken by arbitral tribunals

Once an arbitration is underway, it is the responsibility of the arbitrators to ensure that document production is conducted as efficiently as possible. The White Paper contains the following recommended measures to be taken by arbitral tribunals:

• Where the parties have not addressed document production in their arbitration clause, tribunals should evaluate whether any of the measures set out above merit discussion with the parties and implementation in the procedural rules.
• Tribunals should carefully consider, based on the circumstances of the specific case, whether to raise the issue of document production proactively in the initial case management conference.
• In the case management conference, the tribunal may expressly emphasize that it expects the parties to show restraint in seeking documents and highlight possible cost consequences over excessive or overly broad production requests.
• The procedural timetable should, subject to the parties' agreement and with a view to their expectations, provide appropriate limitations on the phases and timelines of production.
• If not yet agreed by the parties, the tribunal may require the parties to integrate requests for production into their submissions, ensuring that each of them is invoked in support of a specific allegation. The requesting party will thus be forced to establish a clear connection between a factual allegation, its materiality, and the document sought.
• To prevent excessive or unfocused requests, the tribunal may impose limits on the number of production requests or set word or page limits on requests and on corresponding objections.
• To streamline the process, the tribunal might limit the scope of replies to objections only, encouraging requesting parties to argue the general requirements (e.g., of relevance and materiality) fully in their original application.

Technical solutions

Although technological progress, particularly the rapid development of AI, might not allow us simply to abandon document production, it may well assist in making it more efficient – be it in narrowing down and assessing production requests or in dealing with documents upon production. While the earlier shift to electronic communications and data storage led to a sharp rise in the volume of data, the AI revolution is expected to o­ffer improved organizational capabilities.

For example, AI can support e-discovery by applying keywords, date ranges, and data sources. It can identify privileged or confidential data, remove duplicates, and cluster documents. Technology-Assisted Review (TAR) allows AI to learn from legal teams’ samples and apply review criteria across datasets, cutting time and cost. Tribunals, however, must ensure transparency and supervise TAR's use.

In addition, AI can analyze production requests for overbreadth or lack of specificity, trained on past arbitration patterns. It could also assess relevance and materiality, generating scores that help parties and tribunals prioritize. AI drafting tools may then aid in crafting precise requests and in evaluating their sufficiency.

Considerations for arbitral tribunals and stakeholder organizations

While this White Paper emphasizes practical recommendations, it also highlights broader policy issues for arbitral institutions and organizations. To stay legitimate and competitive, arbitration must be effective and efficient.

Institutions should therefore promote a streamlined approach, encouraging parties to set priorities and arbitrators to take a firmer hand in case management. Expedited procedures already show that dispensing with full document production can speed up cases without undermining outcomes.

According to the White Paper, reforms for document production could include:

• embedding limitations into model clauses, guidelines, and procedural orders, possibly disallowing production altogether except in exceptional cases;
• expanding expedited procedures, where document production is usually excluded or at least very limited;
• empowering tribunals to permit production only when circumstances demand, or to deny it outright (as under the ICC and SIAC Rules);
• shifting to a frontloaded but flexible system integrated into submissions, with a clear cut-off date, to link requests more closely to alleged facts and allow later review if needed.

Conclusion

Context matters, and what works well for some arbitrations may not scale in others. Differences in cultural and legal traditions also play a role, as expectations can vary significantly. For instance, parties from a common law discovery background, even with strict materiality standards, may be less inclined to accept limitations on document production.

The ASA White Paper on Document Production is a welcome contribution to the discussion on document production in international arbitration that contains some innovative ideas, and a major step forward. If the recommended measures are adopted (sensibly), arbitration can become more predictable, less expensive, speedier, and therefore more attractive – without sacrificing fairness or the integrity of the process.