John E. Beerbower has been a litigation partner at Cravath, Swaine & Moore LLP since 1980. He has served as lead counsel in a wide range of commercial litigations in federal and state courts and in several s ignificant international arbitrations. Cravath associates Gina M. Magel and Nicholas P. Lingard assisted in the preparation of this article .
A practitioner explains why U.S.-style discovery would not produce better or more just results in international commercial arbitration.
As more American counsel and parties have participated in international commercial arbitration, there have been fears expressed that the American addiction to “common law discovery,” as opposed to “civil law disclosure,”1 will undermine the effectiveness of “the arbitration process.”2 I personally do not think that discovery is a significant reason for whatever difficulties the arbitration community has experienced in delivering the fast and efficient dispute resolution that users want; however, it is clear that a greater use of U.S. discovery practices would result in longer proceedings at greater costs.