Originally from International Arbitration Checklists - 3rd Edition

At the arbitration hearing, the parties marshal the available facts in order to support their respective positions.  Each party generally will have certain witnesses and documents within its own possession and control that can be used to support its own position and to defend against the opponent’s claims.  However, the opposing party and/or third parties may have highly relevant evidence that is completely outside the other party’s possession and control.  This chapter will discuss the discovery procedures that may be available in order to obtain evidence from the opposing party and/or third parties.

Types of Discovery

Discovery can be generally defined as mandatory procedural rules that permit a party to a dispute to obtain evidence in advance of trial from another party or a third party.  National court systems vary greatly with respect to the amount of discovery, if any, that is permitted.  The court rules of the United States provide for far-reaching discovery procedures.  U.S. lawyers and their clients generally believe that discovery is invaluable not only to the effective preparation of their claims and defenses, but also to an early evaluation of the dispute for settlement purposes.  Most other common law jurisdictions permit some discovery, but not with the same breadth as is sanctioned in the United States.  The civil law jurisdictions generally provide litigants with few, if any, available discovery procedures. 

Because the discovery procedures available under the U.S. Federal Rules of Civil Procedure (“FRCP”) and similar U.S. state procedural systems set the standard for far-reaching discovery, a brief explanation of these procedures will provide a benchmark against which the discovery procedures of other jurisdictions can be compared.  Very briefly summarized, discovery under U.S. procedure involves the following:

• Scope of Discovery.  Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party.  Relevant information need not be admissible at the trial if discovery appears reasonably calculated to lead to the discovery of admissible evidence.   The broad scope of discovery has led to its characterization in some circumstances as a “fishing expedition.” Effective December 1, 2015 an additional requirement was added that discovery must be proportional to the needs of the case, e.g., the importance of the issues; the amount in controversy; the parties’ relative access to the information; the importance of the discovery in resolving the issues: and whether the burden and expense outweigh the benefit.  It remains to be seen to what extent this additional requirement will curb perceived discovery abuses.