Originially from: World Arbitration and Mediation Review (WAMR)

SCOPE OF DOCUMENTARY DISCOVERY IN U.S.
AND INTERNATIONAL ARBITRATION
By Michael F. Hoellering, General Counsel, American Arbitration Association. ©
1991, American Arbitration Association
I. INTRODUCTION
Discovery is a much-used—many would say an overused—device in litigation
in the United States. Its purpose is to obtain documents, disclosure of facts and
other information in a party’s possession that the opponent considers necessary to
its case or to prevent undue prejudice or surprise. Although broadly available in
U.S. litigation, it is generally unavailable in arbitration.
Some consider the absence of discovery a drawback of arbitration, while others
view the limits on expensive, time-consuming discovery practice to be one of
arbitration’s advantages. In fact, as this article will show, the arbitral process
allows considerable opportunities to engage in the discovery of documents,
records, books, and papers. The general rule requiring the parties to show
arbitrators their need for the documents keeps discovery in arbitration within
proper bounds.
Documentary discovery in arbitration may occur in several ways—voluntarily
through the cooperation of the parties; by direction of the arbitrators pursuant to
arbitration procedures; or pursuant to specific provisions in the arbitration
agreement. The various procedures of the American Arbitration Association,
including its recently promulgated International Arbitration Rules, as well as U.S.
statutory and case law, provide ample arbitral authority to direct and oversee
documentary discovery.
II. U.S. STATUTES AND CASES
A. Federal Law
In arbitrations governed by the Federal Arbitration Act, such as arbitrations
under interstate contracts or international contracts covered by the New York
Convention, parties may ask the arbitrators to issue subpoenas for needed
documents.
The Federal Arbitration Act (FAA) (9 U.S.C. 1 et seq.) provides that arbitrators
may issue subpoenas to cause a person to attend as a witness or present any book,
record, document, or paper which may be deemed material as evidence in the
arbitral proceeding, and that a court order may be obtained to enforce the