Promoting Efficient Discovery in Arbitration: the ICDR Guidelines Concerning Exchanges of Information

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Countries with different legal traditions have vastly dissimilar approaches to discovery and the exchange of information. Whereas common law countries (and the U.S. in particular) favor broad discovery and the production of vast amounts of documents, European and Latin American countries generally disfavor that approach and seek to limit document production. Because of these differences, disputes as to the scope of discovery in international arbitration can be contentious, expensive, and very time-consuming.

Fortunately, the international arbitration community is aware of this tension and many international arbitration organizations are promoting practices that seek to limit discovery. By way of example, the International Centre for Dispute Resolution encourages the use of its ICDR Guidelines for Arbitrators Concerning Exchanges of Information. These Guidelines will be incorporated into the next revision of the International Arbitration Rules. As such, a working familiarity with these Guidelines is necessary for practitioners who regularly appear in ICDR-administered arbitrations.

As a threshold matter, the purpose of these Guidelines is to "avoid unnecessary delay and expense" and to maintain "efficiency and economy" during the life of the arbitration. After all, companies forego litigation in favor of arbitration partly because of these precise goals. To accomplish that, the Guidelines disfavor depositions and the issuance of interrogatories and requests for admissions. The Guidelines also put the burden on the party requesting the documents to show why it needs those documents. By contrast, rules of procedure in the United States frequently place the burden on the opposing party to show that the petitioning party is not entitled to requested documents. By shifting the burden, the Guidelines naturally operate to reduce the amount of documents that are sought by a petitioning party.

It should be noted that, in accordance with the goal of promoting flexibility, these Guidelines still provide the arbitrators with ample discretion in managing the case and administrating justice. That said, and as the above examples illustrate, the chief aim of the Guidelines is to expedite the discovery process and promote the efficiency of the international arbitration process.

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