Discovery in Commercial Arbitration: How Arbitrators Think - Chapter 9 - AAA Handbook on Commercial Arbitration, Third Edition
Charles J. Moxley, Jr. is an experienced litigator, arbitrator and mediator. He is Of Counsel to Kaplan Fox & Kilsheimer LLP, an Adjunct Professor of Law at Fordham Law School, and the Distinguished ADR Practitioner in Residence at Benjamin N. Cardozo School of Law. He has been a member of arbitration panels of the American Arbitration Association for over 30 years and has presided over more than 200 arbitrations and mediations. A Fellow of the College of Commercial Arbitrators and of the Chartered Institute of Arbitrators, Mr. Moxley is Chair Elect of the Dispute Resolution Section of the New York State Bar Association and Co-Chair of the Legislation Committee of the Section.
DISCOVERY IN COMMERCIAL ARBITRATION: HOW ARBITRATORS THINK
Charles J. Moxley, Jr.
When a case has been filed in federal or state court, litigators generally have a good idea of what discovery will be allowed. Federal and state rules of civil procedure set forth the standards for discovery in litigation, and a large body of case law elaborates on these standards.
Do we have anything similar in arbitration? Can counsel and the parties know with reasonable certainty how much discovery will be allowed in their commercial arbitration? What kind of discovery is typically permitted? Are the answers to these questions entirely within the discretion of the arbitrator? Is there a governing standard?
Given the confidentiality of arbitration, there are generally no published arbitral decisions on discovery questions in arbitration. So in this chapter I set forth some tentative answers to these questions in the context of domestic commercial arbitration based on my personal experience as an arbitrator in over 175 commercial cases and the varied experience of arbitrators with whom I have served. I also discuss the relevant rules of the American Arbitration Association (AAA) and other arbitration institutions, as well as the treatment of discovery in the Revised Uniform Arbitration Act (RUAA).