Determining the Extent of Discovery and Dealing with Requests for Discovery: Perspectives from the Common Law - Chapter 14
Charles Brower has served since 1983 as a Judge of the Iran-United States Claims Tribunal in The Hague. He is a Member of 20 Essex Street Chambers (London) and a retired Partner of White & Case, LLP. He co-founded White & Case’s Washington, DC office, where his practice came to be comprised almost exclusively of international arbitrations. Judge Brower also serves as Judge Ad Hoc of the Inter-American Court of Human Rights, as a member of the Register of Experts of the United Nations Compensation Commission in Geneva (UNCC) and as a member of the Panels of Conciliators and Arbitrators of the International Centre for Settlement of Investment Disputes (ICSID). He has represented various governments in proceedings before the International Court of Justice and is a member of the panels of arbitrators of a number of arbitral institutions around the world. He has published and spoken around the world on international law and international dispute resolution.
Jeremy Sharpe is Attorney-Adviser in the U.S. State Department's Office of the Legal Adviser, where he represents the United States in international claims and investment disputes. Previously, he practiced international arbitration with White & Case LLP in Washington, D.C., and served as Legal Assistant to Judge Charles N. Brower at the Iran-United States Claims Tribunal in The Hague.
“Discovery,” in the sense of pre-trial or pre-hearing disclosures, is uniquely American. It is by no means endemic in common law jurisdictions generally. Nonetheless, due in particular to the growing presence of American lawyers in the field of international arbitration, it inevitably is addressed in that context.
The principal purpose of discovery of evidence in international arbitration necessarily is the same as it is in relation to civil trials at common law: to enable parties to ascertain the existence, whereabouts and details of facts relevant to their claims and defenses. Parties cannot prosecute or defend against claims on the basis of pleadings alone; they need evidence to prove their cases and to challenge the factual bases of their adversaries’ contentions, and that evidence often is found only in the files of the adverse party.
Common law courts therefore require parties, early in the proceedings, to disclose the existence of all relevant (or potentially relevant), non-privileged documents, whether those documents bolster or undermine their own positions. The parties themselves may then elicit additional evidence from other parties, and even from non-parties with discoverable information. The common law judge merely serves as the litigants’ umpire, adjudicating discovery disputes and imposing sanctions for any non-compliance with discovery orders. Party-driven discovery thus is seen as an indispensable prerequisite for a fair trial at common law, promoting justice by enabling the parties to bring the most relevant evidence to light and by preventing surprises at trial.
The darker side of common law discovery, however, especially as practiced in United States courts, is well known. Excessive or unnecessary discovery inflates trial costs, wastes time, invades privacy and withers parties’ resolve to pursue legitimate claims and defenses. In the worst cases, the trial on the merits is preceded by a perhaps even more expensive and time-consuming “trial” over discovery, with endless squabbles over relevance, scope, privilege and compliance.