When deciding which dispute resolution mechanism is best suited to a favorable outcome, discovery is a consideration of paramount importance. Whether one wishes to seek broad, offensive discovery of their adversary or a limited discovery as to their own records, such decisions can influence the choice between U.S. litigation and arbitration. The choice is particularly relevant when one foresees an international, rather than domestic, dispute. In this context, submitting disputes to international arbitration can help avoid the renowned “fishing expeditions” that are otherwise typical of U.S. domestic litigation.
International arbitration, given its transnational nature, typically involves practitioners from both common and civil law systems. Such an environment could create a tension in discovery expectations, with the common law advocate accustomed to broad fact investigations and civil law counsel exhibiting great reticence to such access. The clash of those two systems in practice has made international arbitration procedures to become a “compromise” between the two systems, and that compromise is particularly evident regarding discovery and production of evidence. International arbitration’s “discovery” process marries the ability to utilize important document requests tools to support counsel’s submissions, but refraining from the U.S. expansive access that concerns parties from civil law countries.
