This article was originally written for and featured in the Loyola University, Chicago International Law Review.
Discovery is an essential part of the procedural framework in the United States and other common law countries. It encompasses document production but, in the United States, it also includes depositions, interrogatories, admissions, and much more. The essential feature of it is that it is a prelude to an adversarial contest before a judge whose role it is to see fair play and then determine (either himself or with a jury) the victor. The rationale for discovery proceeds on the premise that the adversarial contest can only be fair if both sides have access, as far as possible, to the same materials. Thus, a party must produce documents not only that it intends to rely upon but also those, which damage its own case. It is perceived that without this advance exchange of materials the fundamental basis of the adversarial fight is undermined.
The position is quite different in civil law jurisdictions. In such arenas, a judge enquires into the facts with the assistance of the parties producing those documents they wish to rely upon (but certainly not anything that would damage their own case).
It cannot be said that either the common law systems or civil law systems produce a better quality of justice. Does United States-style discovery result in a better standard or higher quality of justice? Is American justice better than, say, English or French and, if so, is that due to the discovery process? Is justice to be judged by the volume of paperwork produced or the perceived fairness of the process—the fairness, unbiased nature, impartiality and independence of the determination—and the ability of potential users to have access to that system of justice?
Whilst undoubtedly different both in approach and procedure the fundamentals of each of the common law systems and of the civil law systems have survived the test of time and neither system has any meaningful calls for change, or likelihood of being changed, in their adopted countries. It follows that the users of those systems are seemingly content with the process they adopt. Thus, neither system can be said to be inherently flawed.
It is from this background that the relatively modern concept of international arbitration emerged. It provides an alternative to litigation before domestic courts and is perceived as the forum of choice for international disputes—whether private disputes arising under a contract or public disputes arising under international treaties. Necessarily, these disputes will usually involve parties from different jurisdictions and indeed often with very different legal systems. International arbitration has to accommodate the private expectations of these parties—those expectations often being governed, or at least heavily influenced, by their own experience of domestic litigation in their own country.
How then should discovery be conducted in international arbitration? The simple answer is that it should not be. Discovery itself is an unhelpful term, especially because of the wider connotations it has in the United States and the international perception of the onerous obligations it brings. “Disclosure” is a better term but “document production” is what, in most cases, is truly being discussed and directed and does not carry the pejorative meaning of “discovery” and, to a lesser extent, “disclosure.” Accordingly, this paper will use the term “document production”.
Full article available on request.