Originally from Asian Leading Arbitrators' Guide to International Arbitration

“In court proceedings in most common law countries, the initiative as regards evidence is almost wholly in the hands of the parties. The judge acts as a kind of referee to administer the rules of evidence, and to give a decision at the end on who has “won” the argument in the combative sense. The judge listens to the evidence and may himself question the witness; on the whole however he leaves it to the parties to present their respective cases and forms a judgment on the basis of what they tell him. Thus, the function of the court system in the common law countries is, as it were, to provide for the resolution of civil disputes by combat, and to enforce the ultimate result.” 1

This description of the way in which proceedings are conducted in a common law court in general shape the manner in which a practitioner trained or practising in a common law jurisdiction in Asia obtains evidence and discovery, with particular emphasis placed on rules of admissibility with regard to evidence and the obligation imposed on a party to give discovery of documents which not only support the party’s case but also adversely affect it.