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Discovery in Commercial Arbitration: How Arbitrators Think - Chapter 33 - AAA Handbook on Arbitration Practice - Second Edition

Author(s): 
Charles J. Moxley Jr.
Page Count: 
12 pages
Media Description: 
1 PDF Download
Published: 
December, 2015
Author Detail: 

Charles J. Moxley, Jr., the principal in MoxleyADR LLC, has been an arbitrator on
panels of the American Arbitration Association (AAA) for over 35 years, presiding over
more than 250 cases, many of them large and complex involving multiple parties,
substantial issues and high stakes. He trains arbitrators for the Dispute Resolution (DR)
Section of the New York State Bar Association (NYSBA), teaches arbitration law at
Fordham Law School, and serves as Distinguished ADR Practitioner in Residence at the
Benjamin N. Cardozo School of law. He was recently selected by the AAA to provide
training in effective arbitration practices in AAA training programs. This article is
adapted from a presentation he made at the American Arbitration Association in New
York in June 2005 on the process of selecting an arbitrator. Mr. Moxley welcomes
comments from readers about their experiences with arbitrator selection.

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Originally from:

AAA Handbook on Arbitration Practice - Second Edition

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CHAPTER 33

DISCOVERY IN COMMERCIAL ARBITRATION:
HOW ARBITRATORS THINK

Charles J. Moxley, Jr.

I. Introduction

When a case has been filed in federal or state court, litigators
generally have a good idea of what discovery will be allowed. Federal
and state rules of civil procedure set forth the standards for discovery in
litigation, and a large body of case law elaborates on these standards.

Do we have anything similar in arbitration? Can counsel and the
parties know with reasonable certainty how much discovery will be
allowed in their commercial arbitration? What kind of discovery is
typically permitted? Are the answers to these questions entirely within
the discretion of the arbitrator? Is there a governing standard?

Given the confidentiality of arbitration, there are generally no
published arbitral decisions on discovery questions in arbitration. So in
this article I set forth some tentative answers to these questions in the
context of domestic commercial arbitration based on my personal
experience as an arbitrator in over 125 commercial cases, the varied
experience of arbitrators with whom I have served. I also discuss the
relevant rules of the American Arbitration Association (AAA) and other
arbitration institutions, as well as the treatment of discovery in the
Revised Uniform Arbitration Act (RUAA).

II. Rationale for Discovery in Arbitration

Arbitrators generally have three primary objectives in deciding
discovery disputes in a commercial case: (1) a speedier disposition than in
litigation; (2) a less expensive process than litigation; and (3) a fair
opportunity for both sides to prepare and try the case. Satisfying each of
these objectives depends in large measure on the amount of discovery
allowed in the arbitration. To obtain a speedier and less costly disposition,
discovery, which consumes the bulk of time and attorney fees in litigation,
needs to be more limited than in litigation. Yet the parties must have the
discovery they need for a fair hearing.