Originally from the Leading Arbitrators' Guide to International Arbitration - Fourth Edition

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I. INTRODUCTION

The principal purpose of discovery of evidence in international arbitration necessarily is the same as it is in relation to civil trials at common law: to enable parties to ascertain the existence, whereabouts and details of facts relevant to their claims and defenses.  Parties cannot prosecute or defend against claims on the basis of pleadings alone; they need evidence to prove their cases and to challenge the factual bases of their adversaries’ contentions, and that evidence often is found only in the files of the adverse party.

Common law courts therefore require parties, early in the proceedings, to disclose the existence of all potentially relevant, non privileged documents, whether those documents bolster or undermine their own positions. The parties themselves may then elicit additional evidence from other parties, and even from non-parties with discoverable information. The common law judge merely serves as the litigants’ umpire, adjudicating discovery disputes and imposing sanctions for any non-compliance with discovery orders. Party-driven discovery thus is seen as an indispensable prerequisite for a fair trial at common law, promoting justice by enabling the parties to bring the most relevant evidence to light and by preventing surprises at trial. 

The darker side of common law discovery, however, especially as practiced in United States courts, is well known. Excessive or unnecessary discovery inflates trial costs, wastes time, invades privacy and withers parties’ resolve to pursue legitimate claims and defenses. In the worst cases, the trial on the merits is preceded by a perhaps even more expensive and time-consuming “trial” over discovery, with endless squabbles over relevance, scope, privilege and compliance.