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34 Int'l L. News 1 (2005)

handle is hein.journals/inrnlwnw34 and id is 1 raw text is: VOL. 34 NO. 1 [AL - J Stacks WWW.ABANET.ORG/INTLAW Received on: 02-24-05 The International law news. SPECIAL FOCUS I155 DISCOVERY IN INTERNATIONAL ARBITRATION By Grant Hanessian he amount of discovery in international arbitration is increasing as ever-larger numbers of U.S. parties, counsel, and arbitrators participate in the process. Nevertheless, avail- ability of discovery remains a major difference between international arbitration and lit- igation in U.S. courts. Many U.S. parties are surprised-and not happily-when they learn that the international arbitration rules to which they have agreed do not require prehearing exchange of infornation, or the arbitration law in the country where they agreed to arbitrate does not provide for the enforcement of discovery orders against third parties. The nature and extent of discovery available in international arbitration continues to vary widely from case to case, depending on the terms of the parties' agreement, including the rules and arbitration situs chosen by the parties. The nationality of the arbitrators and of the parties' counsel also may play a decisive role in determining the amount of discovery parties may obtain in an international case. This article surveys discovery law and practice in international arbitration and discusses circumstances where parties may wish to provide for discovery in their international arbitra- tion clauses. International Arbitration Rules The rules of the principal arbitration institutions vary with respect to discovery. The rules of the International Chamber of Commerce (ICC) do not address discovery at all, beyond requiring that a party provide the tribunal and adverse party with the documents upon which it intends to rely in support of its claim or defense. The only ICC rule relevant to discovery of other materials is Article 20(1), which gives arbitrators the authority to establish the facts of the case by all appropriate means. The rules of other institutions are somewhat more generous to parties seeking discovery. The International Arbitration Rules of the American Arbitration Association's International Center for Dispute Resolution (ICDR) provide that the arbitrators may order parties to pro- duce documents, exhibits or other evidence it deems necessary or appropriate. ICDR International Arbitration Rules, Art. 19(3). Similarly, the Rules of the London Court of International Arbitration (LCIA) provide that, unless the parties have agreed otherwise, the tribunal has the authority to order any party to make any property, site or thing under its control available for inspection by the other party and to order any party to produce ... any documents or classes of documents in their possession, custody or power which the Arbitral Tribunal determines to be relevant. LCIA Rules, 22(1)(d), (e). The United Nations Commission on International Trade Law (UNCI- TRAL) Rules, which are widely used in ad hoc arbitrations, provide, at Article 24(3): At any continued on page 8 ZU l--- a- U, m - a L

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