Soft Law Guides Parties on Procedures in International Arbitration - Part 5, Chapter 46 - Practice of International Litigation - 2nd Edition
Lawrence W. Newman
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Lawrence W. Newman has been a Partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of four works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
Arbitration, both international and domestic, compared to proceedings in courts, both in the United States and elsewhere in the world, is almost free of procedural rules. Much is left to the parties—the vaunted “party autonomy”—and the arbitrators to determine how arbitration proceedings are conducted. In recent years, however, there has been increasing criticism that this state of relative anarchy has often opened the way for proceedings that bear too great a resemblance to U.S. court cases— with extensive discovery and attendant costs and delays. To the extent that this charge is an accurate reflection of reality, international arbitrations have lost some of the benefits of economy and efficiency they once had.
The criticisms have focused, to a great extent, on the ways in which arbitral proceedings have been conducted—particularly with respect to the production of documents and other aspects of discovery, especially disclosure of electronic information. But the rules of the institutions and the statutes and international agreements that govern arbitration say little, if anything, about these issues. Thus, the Federal Arbitration Act says little concerning how arbitrations are to be conducted, doing no more than providing for the summoning of witnesses by arbitrators to testify at hearings. Similarly, New York state law, primarily Article 75 of the CPLR, authorizes the summoning of witnesses1 and the issuance of provisional remedies in connection with an arbitration.2