Originally from Dispute Resolution Journal

American-style discovery brings to mind mountains of documents and hostile exchanges at depositions. Imagine this in a cross-border dispute involving parties and lawyers who come from different cultures and, basically, have little in common except their conflict. In a true-to-life hypothetical, Bernardo Cremades deftly describes the “clash of cultures” that can result when parties from different juristic traditions have different expectations of international arbitration.

In business as in life, crossing a border could mean risks that are largely unforeseen. It is fortunate that in the business world, there is a safety net in the form of arbitration to reduce such risks. Over the years, arbitration has proven to be particularly effective in resolving cross-border disputes, which by definition involve parties and lawyers who speak different languages and who come from different cultures and different juristic traditions. The possibility of mutual misunderstanding, confusion, and cultural clashes are significant, especially where the lawyers for one or both parties are not experienced in international commercial arbitration.

Many lawyers make the assumption that arbitration is just litigation in another forum, and so any firm with an experienced litigation department can represent a client in arbitration. This is a particularly dangerous assumption in international commercial arbitration. A law firm with a large domestic litigation practice but without experience in international commercial arbitration is likely to conduct the arbitration as if it were litigation and this might have a significant negative impact both on the procedural development of the arbitration and on its substantive outcome.

The areas where international commercial arbitration practice might differ substantially from domestic litigation, particularly common law litigation, include the style and content of pleadings, the probative value of documents versus oral testimony, disclosure of documents, the development of proof and arguments through sequential written submissions rather than at an oral hearing, the relevance of rules of evidence, and the relationship and mutual expectations of counsel and the arbitral tribunal.

Accordingly, it is not enough for a corporate counsel in a major international commercial arbitration to gather a legal team with a proven track record in domestic litigation. The legal team must include experienced practitioners in international commercial arbitration and preferably should be led by a practitioner who is well-versed in the subtleties and dynamics of international arbitration practice and professionally familiar with the group of practitioners from which the arbitral tribunal is likely to be drawn.

This article will focus on the parties’ expectations regarding discovery in international arbitration. It will show a cultural clash between practitioners from the common law and civil law traditions, which, unfortunately, could lead to delays and increased tension during the arbitration, and in an extreme case, even cause a loss of faith in the arbitral process.