Originally from Asian Leading Arbitrators' Guide to International Arbitration

In common law jurisdictions, the term ‘discovery’ refers to the process of disclosure and inspection of documents from the other party. To civil lawyers, it means the process of document production.1 Discovery or document production has been regarded as a good example of how civil law and common law differs in respect to civil court proceedings. Many commentators have highlighted the major differences between common law discovery and civil law document production. It is generally observed that the common law approach to discovery allows wider scope of taking evidence from the opposing party, whereas the civil law document production is comparatively limited in its scope.2 Discovery in U.S.court proceedings, in particular, are generally regarded as the most extensive in scope.3 This general observation on the difference in common and civil law court proceedings also applies to different approaches used in the context of international arbitration.4

Notwithstanding the dichotomy of civil law and common law in document production procedures, international arbitration specialists generally agree that the best practices for document production in international arbitration should take a good balance between the civil law approach and the common law approach. The International Bar Association Rules on the Taking of Evidence in International commercial Arbitration (“IBA Rules”) is often said to make such a balance.5 Recently, the ICC International Court of Arbitration published a very useful book entitled, Document Production in International Arbitration.6 Most of chapter contributors, who are all leading international arbitration practitioners, generally support the IBA Rules as a well balanced approach to document production.