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Third party subpoenas for the production of documents in support of arbitration

10 October 2013
In The Lao People's Democratic Republic v Sanum Investments Ltd and another and another matter [2013] SGHC 183, the Singapore High Court issued subpoenas against a partner at Ernst & Young (E&Y) to produce E&Y's internal documents and working papers in support of two related bilateral investment treaty arbitrations.

A central issue in the arbitration proceedings was an allegation that an audit, in which E&Y had participated, had been improperly conducted.  All three parties to the arbitrations agreed that E&Y's internal documents and working papers were relevant and material to this allegation, and requested E&Y to provide them.  When E&Y refused, the Lao PDR applied to the Singapore High Court for a subpoena against a partner at E&Y, Mr Lawrance Lai, to produce the documents under section 13(1) of the International Arbitration Act (Cap 143A, 2002 Rev Ed).

In spite of Mr Lai's objections, the court issued the subpoenas on the basis that the documents were necessary, relevant and material to the arbitrations.  The court was influenced by the fact that all the parties to the arbitrations considered this to be the case.

The court distinguished between the purpose of a subpoena to produce documents and a discovery application, noting that the test for the former is generally more stringent.  The court noted the breadth of the subpoenas, but held that the subpoenas were sufficiently precise not to be an application for discovery in disguise.

The case highlights that auditors and other third party professional advisers may, in certain circumstances, be required to divulge their own internal working papers to an arbitral tribunal where this is considered necessary for the proceedings.

*A version of this article was originally published by Practical Law Arbitration http://uk.practicallaw.com/country/arbitration

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