One of the concerns that business people have about agreeing to resolve potential international disputes in arbitration is their sense that they are not quite sure what they are getting into. This perception can be said to be based on the reality that arbitrators chosen to hear disputes may not share the assumptions and expectations of either, or perhaps even both, of the parties with respect to the way in which the arbitration process will be carried out. Different cultures have different expectations, with the result that proceedings differ – most prominently with respect to the nature and extent of pre-hearing disclosure and the way in which hearings are conducted.

Pre-hearing disclosure (or discovery, a word frequently regarded as anathema by European arbitrators) is an important bone of contention because it can be very expensive and time-consuming and because the presence or absence of it can be extremely disappointing to parties that assume that it will be afforded or not afforded (or afforded only to a limited extent). Thus, an American party agreeing to arbitrate a dispute in Zurich may find itself having to present a claim or defend itself before a Swiss arbitrator whose operating assumption is that no discovery of any kind should be allowed. On the other hand, a Swiss party may find itself before an American arbitration tribunal chairman whose operating assumption is that the parties, at a minimum, will engage in an extensive exchange of documents. Not only can these attitudes come as surprises, but they can also have important consequences for the outcome of the arbitration.

Of course, both parties can agree on the scope of discovery after the dispute arises. But one party may often see it to his or her advantage to take a position in opposition to that of the other party. One party may have documents that it is unhappy about disclosing and is willing to forgo a peek into the other’s side’s files in order to avoid having to expose its own records to scrutiny. The other party may want discovery because it has little to reveal but hopes it will troubling documents in the other side’s files. Before they are able to see the arbitrator and learn what his or her predilections are, the parties may not know what sort of discovery regimen they will be operating under. And when they entered into their agreement containing an arbitration clause they may well not have had a realistic understanding of how prehearing disclosure in their case would be dealt with.