International commercial arbitration is frequently used for the resolution of disputes concerning substantial amounts of money. Arbitrations often involve long-term relationships, such as distributorships, construction or supply projects and contracts for the delivery of goods, frequently raw materials, over many years. The more significant the matter is, the more concern the parties and their lawyers are likely to have that as much information as possible, relevant to the issues in the case, be made available to them for presentation to the arbitrators or to assist in preparation of the case.

The process of gathering this information is, of course, well known in court proceedings as discovery or disclosure. The concept of discovery—as the production of information that can be demanded by one party from the other without application to a tribunal—is, however, not one that is well recognized in international arbitration. The availability of information about a case for use in preparation for arbitration is highly dependent on the attitudes of the parties involved, their counsel and, most important, the arbitrators.

The concept of discovery as known in U.S. procedure is less distinct in international arbitration because evidence is often not presented in a single set of hearings, as it ordinarily is in court. Rather, documents may be offered to the arbitral tribunal through numerous written submissions or in hearings held at irregular intervals over a period of many months or even years. Through this process, much information that might be produced in the course of discovery in civil procedure may be brought out in the series of factual presentations. What is disclosed is, however, only what each side chooses to produce, not what the other side wishes to have revealed to it.

There is, however, awkwardness, inefficiency and lack of thoroughness in using multiple evidentiary hearings for discovery. As the existence of possible new evidence is discovered through cross-examination of witnesses in hearings, requests must be made through the arbitrators for the documents whose existence is revealed. If the request is granted, time must be then taken for additional documents or witnesses to be produced in later hearings, and the process of uncovering still more documents and witnesses may even continue in those subsequent proceedings. Of course, cross-examining witnesses to obtain discovery is also time-consuming, not necessarily useful for the arbitrators and presents pitfalls for cross-examiners of eliciting unwanted testimony. These kinds of problems may be avoided if the parties make arrangements, in the early stages of the arbitration, for the exchange of documents and perhaps also for the taking of depositions. If, however, one of the parties wishes advance disclosure and the other does not, a conflict arises that must be resolved.