Chapter 24 - The Civil Law Approach to Discovery: A Comparative Overview of the Taking of Evidence in the Anglo-American and Continental Arbitration Systems - Leading Arbitrators' Guide to International Arbitration - Third Edition
I. DISCOVERY AS A CRUCIAL ISSUE IN INTERNATIONAL ARBITRATION
Discovery may be said to represent a true test of effectiveness as regards the promotion and profitable use of arbitration as the bestsuited instrument to resolve conflicts associated with multinational litigation.
A preliminary question: may what matters, in a comparative overview, be legitimately included within the scope of a general definition of discovery?1
The answer is not univocal, as it must be shaped in the light of the provisions prevailing under different legal latitudes. Conversely, there exists a common denominator which cannot be underestimated: discovery expresses a basic need of all legal systems inasmuch as it affects the core of a crucial phase characterising both arbitral and judiciary proceedings. Such phase, chronologically isolated and autonomously identified as pre-trial in common law countries, corresponds, in civil law countries, to the process of taking evidence2 viewed in its entirety3