Originally from Navigating Maritime Arbitration: The Experts Speak - Second Edition

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Discovery in U.S. maritime arbitration balances the need for information in others’ hands with the principles of economy and speed that characterize arbitration. Thus, discovery  is in proportion to the scope of the proceedings, amount at issue, and relative burdens to the parties, informed by commercial sense rather than legal rules.

Arbitrators use several means of achieving this balance, including cost-shifting and requiring a demonstration of need when it is not apparent that the information sought is material.  Recognizing that parties agree to arbitration in order to avoid the time and cost of going through litigation-style discovery, courts do not second-guess arbitrators’ decisions. 

Most parties and counsel who participate in U.S. maritime arbitrations understand this balance. As a result, discovery disputes are rare, but when they have occurred, maritime arbitrators have resolved them in a manner that weighs the relevance of the information being sought and its importance to reaching a fair resolution against the burdens of its production. 

I. FEDERAL LAW EMPOWERS ARBITRATORS TO ORDER PARTIES AND NONPARTIES TO PRODUCE WITNESSES AND DOCUMENTS

The Federal Arbitration Act (“FAA” or “the Act”)  governs maritime arbitrations in the United States.  Consistent with the Act’s recognition that parties who choose arbitration often do so to avoid the intricacies of litigation, the FAA does not expressly authorize, prescribe, or proscribe discovery in arbitration proceedings. Instead, the FAA empowers arbitrators to summon witnesses and demand that they produce documents  at a hearing.