Disclosure Requests in International Commercial Arbitration: Finding a Balance Not Only Between Legal Traditions but also Between the Parties’ Rights - ARIA - Vol. 22 No. 1 2011

Author(s):

Dominique D'Allaire

Prof. Dr. Rolf Trittmann

Page Count:

16 pages

Published:

July, 2011

PDF163.66 KB

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Description:

Originally from American Review of International Arbitration - ARIA

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Evidence, its weight and the procedures for its disclosure or discovery, play a

crucial role in the resolution of any disputes by an adjudicative process. In

international arbitration, a party is required to prove facts necessary to establish its

claim or defense. Adequate evidence in a party’s possession is often decisive to

the outcome of the case. In situations where a party believes the other party has

documents helpful to its case, can that party expect discovery or disclosure of

evidence and to what extent? Documents in possession of the other party or even

a third party can be expected to be disclosed in an international arbitration

proceeding under certain conditions. However, the prospect of a document

production request being granted or a form of discovery taking place remains

somewhat uncertain at the outset of the arbitration proceeding.

Published commentaries by Anglo-American counsel recognize this

uncertainty. They commonly warn clients against the “risk of losing the

protection of their law” which means the right to discovery of documents and

other evidence by agreeing to arbitrate a claim.1 They also recognize that the

current arbitration practice on the taking of evidence in international arbitration

can be unfavorable to Anglo-American parties where the opponent has access to
the assistance of U.S. or U.K. courts by means of discovery2 while corresponding