In arbitration, conduct of proceedings is very much devolved to the parties and the chairperson of the arbitration tribunal. This flexibility extends to the way each side discloses relevant documentation to each other. We’ve looked before at how tribunals approach disclosure. Here we examine Redfern Schedules, often used to categorise documents and assist in the efficient administration of arbitration proceedings.
Redfern Schedules And Document Production
The table below illustrates the usual five sections in a Redfern Schedule.
Document/
Category of Document Requested |
Relevance /
Materiality and Reason for Request |
Objections To Request
|
Response
To Objections |
Decision |
Uncontested Documents
Once the schedule is served, each party indicates whether or not they agree to disclosure of the particular document. If a document is uncontested, it will normally be exchanged between the parties without the need for it to be formally submitted to the tribunal. Such uncontested documents won’t be considered as evidence unless a formal request to enter them into the arbitral record is made.
Contested Documents
Objections to disclosure may be raised on several grounds, including:
- That the document lacks relevance to the proceedings
- Legal privilege
- That producing the document would be unduly onerous
- That the document has been lost
- Commercial sensitivity
- Production would be disproportionate
If an objection is made, it is then up to the party requesting the disputed document to respond to the objection. Where disclosure is still disputed, the tribunal will rule on whether or not to order production. In reaching a decision most tribunals are given a wide discretion to assess whether:
- The document request is sufficiently specific to justify production
- The document is sufficiently relevant or material to the proceedings overall.
Comment
It’s important to note that while document production is usually part of national and international arbitration, it is not in fact a mandatory process. Redfern Schedules are therefore a useful tool for both sides in arbitration proceedings. They are an effective, internationally recognised mechanism to streamline the way documents are produced.
Redfern Schedules also ensure that document production is handled in a proportionate and cost-effective manner. Originally Redfern Schedules were very much seen as a way to limit document production and to avoid the time and expense associated with the full-blown discovery process associated with court-based litigation. Over the years some commentators believe however that Redfern Schedules have started to resemble discovery in terms of the extent of documents included and the consequent cost required dealing with the schedule.
This clearly wasn’t envisaged when these schedules were first introduced.
In our view it will be up to the various arbitration bodies globally to keep the operation of Redfern schedules under review so that they can be limited to their original purpose. Otherwise the cost and time taken up dealing with Redfern Schedules could render them unhelpful to the efficient operation of arbitration proceedings. Precisely the opposite of what they are designed to do. In this respect it’s probably reassuring that arbitral bodies like the LCIA continually review their rules and procedures with the aim of making arbitration more efficient.
CONTACT OUR ARBITRATION AND COMMERCIAL DISPUTE LAWYERS LONDON
We advise businesses on all aspects of commercial arbitration under LCIA and other arbitral organisation rules. We can also assist companies in developing their own ad hoc arbitration procedures where appropriate. Please contact Nath Solicitors on 020 8138 9373 or contact the firm online.
