- From Parties
- There is no automatic right in international arbitration to “discovery” (as that term is understood by most common law lawyers). Instead, to the extent potential evidence is shared between the parties prior to the arbitral hearing, it is usually limited to those materials that are relevant to the issues in dispute and necessary for the resolution of those issues, including materials prepared by or relied upon experts (see, e.g., ICC Article 20(5), AAA Article 19, LCIA Article 22.1, WIPO Article 48(b)). This practice is akin to civil law practice where each party produces documents upon which it will rely to present its case and, to a rather limited extent, any documents or information that it believes to be in the possession of the opposing party.
- Nonetheless, particularly in complex disputes, the parties can be expected to send each other long lists of requests for documents or other information. And the parties can also be expected to dispute the totality of the documents produced by the other side.
- There are a number of ways in which arbitrators deal with such disputes. A common approach is for an arbitral tribunal (or a representative of the tribunal) to hold a conference with the parties during which the parties’ “discovery” disputes are resolved. But again, the focus should be on those materials that are relevant and necessary.
- Ancillary Discovery from Non-Parties
- Just as a non-party generally cannot be compelled to arbitrate a dispute, an arbitrator or arbitral tribunal cannot compel a non-party to attend a hearing or to produce documents (although, of course, aside from possible confidentiality concerns, there generally is nothing that would preclude a non-party from appearing at a hearing or producing documents voluntarily).
- Standing alone, arbitrators simply lack the power to compel non-parties. But that is only where arbitrators have no other recourse. To illustrate, in some countries, courts will compel a non-party by subpoena to attend a hearing before arbitrators. For example, in the United States, Section 7 of the Federal Arbitration Act provides that arbitrators may summon a person to attend before them and to produce documents.
Ch. 20 Stages of the Arbitral Process
PETER SHERWIN, KENNETH E. ALDOUS