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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

-     J     Stacks
WWW.ABANET.ORG/INTLAW     Received on: 02-24-05
The International law news.
SPECIAL         FOCUS       I155

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
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