The need to control disclosure of documents in modern commercial arbitration: a South African perspective by Professor David Butler*
Introduction
The abuse of the process for disclosure of documents has long been identified as one of the causes of excessive delay and unnecessary expense in arbitration proceedings, particularly in countries like South Africa with a “common-law” procedural tradition.[1] Notwithstanding the fact that arbitration rules for many years have imposed a duty on arbitral tribunals to conduct arbitrations without unnecessary delay and expense, this remains a problem today. As recently as 2015, a survey of users of international arbitration identified the need for opposing counsel to cooperate in order to reduce excessive requests for disclosure of documents and for arbitrators to be more proactive in curbing this trend.[2]
* The writer is Emeritus Professor in Mercantile Law at Stellenbosch University and a Life Fellow of the Association of Arbitrators (Southern Africa) NPC.
[1] See Butler 1994 SA Merc LJ 251 254-255.
[2] See QMUL and White and Case Survey 2015 30-31.