The Civil Law Approach to Discovery: A Comparative Overview of the Taking of Evidence in the Anglo-American and Continental Arbitration Systems - Chapter 13
Giorgio Bernini was formerly a Full Professor holding the Chairs of Commercial Law and of Arbitration Law at the University of Bologna. He was a Member of the Italian Parliament, Minister of Foreign Trade, President of the Italian Railways System Company (R.F.I.) S.p.A., Giorgio Bernini is now a special counsel to Studio Bernini - Studio Professionale Associato/Baker & McKenzie in Bologna. Professor Bernini has held a number of prestigious public office positions including acting as the Italian representative to the United Nations Commission on International Trade Law (UNCITRAL) and was currently the Honorary President of the International Council for Commercial Arbitration (ICCA), of which he was the President from 1986 to 1994.
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: what matters, in a comparative overview, may be legitimately included within the scope of a general definition of discovery?
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 evidence viewed in its entirety. This diversity brings about the first and more noticeable consequence: in the light of the common law oriented systems the parties are allowed to discover and exchange evidence before the hearing. This creates a break of continuity in the logical and chronological sequence of the arbitral proceedings, thus giving rise to one of the most critical issues in the domain of comparative procedural law.
This issue is indeed a complex one, branching out into a number of sub-issues which may vary to a considerable extent in the light of the different legal systems. In analysing the overall situation one should preliminarily draw the appropriate distinction between a dogmatic-systematical approach based on the law on the books and a pragmatic approach, drawing its vital lymph from the everyday practice of arbitration, especially international arbitration, where more often than not serious challenges are bound to arise from the inevitable confrontation of different legal traditions conditioning the behaviour of the parties and their attorneys and ultimately of the arbitrators themselves.
This unique situation creates the need for a cultural compromise apt to bring about the basic conditions for a minimum ceiling of procedural practicability, to be deemed as a prerequisite to arbitral justice.