Introduction to the Redfern Schedule
International Arbitration (“IA”) is a cross-border dispute resolution mechanism, often serving as a quicker and less expensive alternative to traditional legal remedies. However, document disclosure in an IA has always been a question of debate due to multiple reasons, like differences between civil and common law systems, increased costs and time due to voluminous document production, and unnecessary delays through procedural abuse.
To address the aforementioned issues, the Redfern Schedule was introduced by Alan Redfern, a renowned international arbitrator. It is essentially a table that organize and streamlines document production requests made in an IA. In 2000, Redfern was serving on an arbitral tribunal and found himself overwhelmed with constant back-and-forth correspondence about document disclosure requests between the parties. Consequently, he proposed that parties should express their requests, along with justifications for such requests, in a structured format. This standardized the process for requesting documents and ultimately forced the requests to be specific and relevant to the dispute, thereby minimizing time, costs and delays.
Alignment with the IBA Rules Taking of Evidence
The Redfern Schedule’s practical strength is enhanced by its alignment with the International Bar Association Rules on the Taking of Evidence, 2020 (“IBA Rules”). The IBA Rules provide a framework for producing evidence in an IA. These rules govern an IA if the parties to the agreement agree to use them or the tribunal decides to do so, unless they conflict with mandatory laws.[1]
Requesting the Documents
When requesting the production of documents, there are some specific requirements that a request must fulfil.[2] A valid request must:
- Clearly describe each document with its subject matter. For electronic documents, this may include search terms, files, individuals, or other efficient search methods.
- Explain how the requested documents are relevant to the case at hand & material to its outcome.
- State that the documents are not in the possession of the requesting party (or why producing them would be unreasonably burdensome).
- Give reasons why the requesting party believes the documents are in the possession or control of the other party.
Objections to the Request
If the party receiving a request does not have any objection, it would produce the documents in its possession, within the time stipulated by the arbitral tribunal.[3] However, the party receiving a request may object to producing certain documents[4], but only on specific grounds[5]. These grounds include:
- The documents are not sufficiently relevant to the case or outcome.
- The documents are protected by legal impediment or privilege (e.g., attorney-client privilege, settlement negotiations, etc.).
- Document production is unreasonably burdensome.
- The document no longer exists, with reasonable proof.
- The documents are protected by commercial or technical confidentiality, and the Arbitral Tribunal finds this compelling.
- The documents are protected by special political or institutional sensitivity (e.g., classified government information)
- Document disclosure undermines proportionality, fairness, equality, or efficiency.
In addition to these grounds, the Tribunal is also empowered to exclude evidence acquired illegally, either on its own motion or upon the request of a party.[6] It is important to note that if a party fails to produce documents or evidence without justification, the Tribunal may infer that the evidence would be adverse to the interests of that party.[7]
Response to the Objections & Tribunal’s Decision
When an objection to document production is raised, the Arbitral Tribunal may first invite the parties to consult and attempt resolution. If unresolved, either party may request the Tribunal to rule on the objection. The Tribunal will then decide whether to order production by assessing:
- The relevance and materiality of the documents.
- Whether any aforementioned grounds for objection apply.
- Whether the request meets the aforementioned requirements.[8]
In exceptional cases where an objection can only be assessed by reviewing the document itself, the Tribunal may refrain from doing so directly and instead appoint an independent, confidential expert to review and report. If the objection is upheld, the expert must not disclose the document’s content.[9]
Where documents are sought from non-parties, a requesting party may ask the Tribunal to take steps available under law or to authorize the party itself to do so. The Tribunal will grant such requests if the documents are relevant and material, the requirements of a valid request are met, and no grounds for objection apply.[10]
Finally, if the Tribunal orders a party to produce some or all of the requested documents, then such party notwithstanding its objection, shall produce the concerned documents. This entire procedure is captured in an organized manner by the Redfern Schedule given below:
| Sr. No. | Document Requests | Rationale | Objections | Reply | Tribunal Decision |
| — | Specific documents/ categories of documents requested | Relevance & materiality justification for the documents requested | Opposing party’s specific objections to document requests | Requesting party’s response to objections | Arbitral tribunal’s final ruling on each request |
Modern Challenges and Criticism
Redfern Schedule is often described as a tool to limit document disclosure. However, in practice, it only serves as a disclosure management framework. It operates on the Responsive model, and structures how one party requests documents, how the other responds, and how the tribunal ultimately decides. Therefore, essentially, it improves document organization and transparency rather than actually reducing the volume or cost of disclosure. Even if only limited documents are produced in the end, parties must still identify, preserve, and review a vast universe of potentially relevant documents before deciding what is actually required. Hence, the preparatory process is resource-intensive, thereby expensive, regardless of whether the Redfern Schedule is used.
Redfern-governed document production has, in many cases, evolved into something resembling U.S.-style discovery (Jan Paulsson, Reinventing the Redfern). This shift undermines arbitration’s core advantage as a faster and more cost-effective alternative to litigation. Furthermore, the Redfern Schedule does not address the exponential growth in potentially relevant digital information. Modern business executives and construction workers use text messaging, cloud services, and video conferencing. This creates additional categories of potentially discoverable documents that must be reviewed regardless of the final disclosure.
In practice, the Redfern Schedule’s utility varies with the scale of the dispute. In smaller cases, the effort required to prepare detailed schedules may be disproportionate, while in larger or more complex disputes, parties often overload them with excessive or unfocused requests, turning the process into a fishing expedition.
Conclusion
The Redfern Schedule has significantly improved the document disclosure process in IA. By providing structure and transparency, it has streamlined the otherwise lengthy procedure, and eliminated procedural delays. Furthermore, it also aligns with the IBA Rules. However, challenges still remain. The preparatory process of Redfern Schedule can still be quite resource-intensive, resulting in expending great deal of time and money. Additionally, the rapid growth of digital data has introduced new complexities, even pushing the Redfern Schedule to resemble U.S.-style discovery.
Therefore, the path forward lies in adapting the Redfern Schedule to the present needs of document disclosure. Stricter proportionality requirements are necessary to align document production with the value of the case. The Schedule must also be modified to address the electronic discovery or e-discovery, by possibly adding sub-columns for metadata and specific privilege claims, and proactively addressing data protection concerns. Furthermore, alternative formats like Armesto Schedule could also be explored for certain cases. Hence, the Redfern Schedule is indeed a crucial tool, but its evolution is essential for maintaining efficiency and cost-effectiveness while dealing with increasingly digital and complex IA cases.
[1] Article 1.1 of the IBA Rules
[2] Article 3.3 of the IBA Rules
[3] Article 3.4 of the IBA Rules
[4] Article 3.5 of the IBA Rules
[5] Article 9.2 & 9.3 of the IBA Rules
[6] Article 9.3 of the IBA Rules
[7] Article 9.6 of the IBA Rules
[8] Article 3.9 of the IBA Rules
[9] Article 3.8 of the IBA Rules
[10] Article 3.9 of the IBA Rules