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American Review of International Arbitration - ARIA - Vol. 21 No. 1-4  

American Review of International Arbitration - ARIA - (U.S. Price)
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 ARIA - Vol. 21 No. 1

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Evidence, its weight and the procedures for its disclosure or discovery, play a
crucial role in the resolution of any disputes by an adjudicative process. In
international arbitration, a party is required to prove facts necessary to establish its
claim or defense. Adequate evidence in a party’s possession is often decisive to
the outcome of the case. In situations where a party believes the other party has
documents helpful to its case, can that party expect discovery or disclosure of
evidence and to what extent? Documents in possession of the other party or even
a third party can be expected to be disclosed in an international arbitration
proceeding under certain conditions. However, the prospect of a document
production request being granted or a form of discovery taking place remains
somewhat uncertain at the outset of the arbitration proceeding.
Published commentaries by Anglo-American counsel recognize this
uncertainty. They commonly warn clients against the “risk of losing the
protection of their law” which means the right to discovery of documents and
other evidence by agreeing to arbitrate a claim.1 They also recognize that the
current arbitration practice on the taking of evidence in international arbitration
can be unfavorable to Anglo-American parties where the opponent has access to
the assistance of U.S. or U.K. courts by means of discovery2 while corresponding