- 01-Nov-2025
- public international law
Discovery, as it is understood in national litigation, refers to the legal process by which one party requests documents or evidence from the opposing party. In many common law jurisdictions, discovery is a broad and essential part of litigation. However, in international arbitration, the process is generally more limited, and the scope of document production is controlled by the arbitral tribunal. While discovery can be ordered, the process is typically more focused and constrained compared to national litigation, with an emphasis on efficiency and procedural fairness.
In international arbitration, discovery is not as expansive as it is in national court systems. The ability of an arbitral tribunal to order discovery is generally limited to specific documents and evidence that are deemed relevant to the dispute.
The tribunal has significant discretion in determining the scope of discovery, and typically, discovery is ordered only for documents that are necessary to resolve the issues in dispute. Arbitrators often emphasize a balance between obtaining relevant evidence and avoiding unnecessary delays or costs.
Example: In a commercial arbitration, if one party requests specific sales documents to support its claims, the tribunal may order the other party to disclose these documents, but it will generally avoid sweeping or burdensome requests.
Unlike national court systems where discovery can be broad (including depositions, interrogatories, and extensive document requests), arbitration focuses more on document production and witness testimony. Arbitrators tend to limit discovery to specific documents that are material to the dispute.
The tribunal will typically only order document production if the requesting party can demonstrate that the documents are relevant to the resolution of the case.
Example: In a dispute over the performance of a contract, if one party claims that the other failed to meet delivery timelines, they may request emails and correspondence related to the delivery schedule, which the tribunal may order to be disclosed.
The International Bar Association (IBA) has developed the IBA Rules on the Taking of Evidence in International Arbitration, which are widely adopted as guidelines for discovery and document production in arbitration.
These rules provide a framework for document requests, witness testimony, and expert evidence, but they explicitly discourage fishing expeditions, meaning overly broad or general requests for documents.
Example: The IBA rules may limit a party’s request for documents to those that are directly relevant to the dispute, rather than allowing a broad and general search for all documents that might relate to the case.
In arbitration, parties may request the production of documents from the opposing side. These requests must be specific and relate directly to the claims or defenses raised in the case.
A party seeking document production must generally show that the documents are relevant, material, and not already in their possession.
The tribunal has the power to enforce or deny these requests based on relevance and the principle of proportionality.
Example: A claimant in an investment arbitration may request documents related to financial transactions that underpin the alleged breach, but if the tribunal deems these requests too broad or irrelevant, they may be denied.
One of the key principles in international arbitration is proportionality. Discovery is not meant to be a fishing expedition, and tribunals will typically prevent overly broad or burdensome discovery requests that could cause unnecessary delays or escalate costs.
Tribunals will often assess whether the requested documents or information are proportionate to the issues in dispute and the value of the case. If discovery is deemed excessive, the tribunal may reject the request or narrow its scope.
Example: In an arbitration involving a contractual dispute, the tribunal may allow the production of documents only if the requesting party can show a direct link between the documents and the claim being made, avoiding any unnecessary or speculative requests.
Different arbitral institutions (such as the ICC, LCIA, SIAC, etc.) may have their own rules regarding document production. However, they generally adhere to the principles of efficiency, proportionality, and relevance.
Most institutional rules allow for the submission of evidence and document production, but they are typically more restrictive than national court systems.
Example: Under the ICC Rules, document production is generally restricted to documents that are relevant and material to the outcome of the case, and parties must justify the need for the production of specific documents.
National courts, especially in common law jurisdictions like the United States, can order broad discovery (including depositions, interrogatories, and requests for all documents that might be relevant).
International arbitration, by contrast, is typically more focused on specific documents or evidence directly related to the issues in dispute, with an emphasis on cost-efficiency and expedited procedures.
In national litigation, discovery often includes not only documents but also the opportunity for oral depositions and written interrogatories. These tools are not typically available in arbitration, where the process is designed to be more streamlined.
Example: In a commercial arbitration, while a party may request documents, it would not be allowed to conduct oral depositions of witnesses or ask lengthy written interrogatories unless specifically agreed upon by the parties or ordered by the tribunal.
In national litigation, discovery requests can sometimes be extensive and serve as a means of gathering as much evidence as possible, even if it is only indirectly related to the dispute.
In arbitration, tribunals are vigilant in ensuring that discovery requests do not become a fishing expedition (i.e., searching for documents that might help the requesting party’s case, without clear relevance to the dispute).
In a dispute between TechCo Ltd. (claimant) and Innovate Corp. (respondent) over alleged patent infringement, TechCo requests the production of all internal documents related to the development and commercialization of a similar product by Innovate Corp.
TechCo submits a request for discovery of all documents from Innovate Corp. related to the alleged infringement.
The tribunal assesses whether these documents are relevant and material to the issues at hand. Given the broad nature of the request, the tribunal may order only the production of specific documents related to the alleged infringement and may reject overly broad requests.
Innovate Corp. may be required to produce design files, emails, and other documents directly linked to the patent in question, but requests for general company communications unrelated to the patent infringement would likely be denied.
Discovery can be ordered in arbitration, but it is typically narrower and more targeted than in national litigation. The tribunal has broad discretion to determine the scope of document production and must balance the need for relevant evidence with the principles of efficiency and proportionality. Arbitral institutions and rules, such as the IBA Rules, help guide the process, ensuring that document requests are reasonable and focused on resolving the issues in dispute without unnecessary delays or costs.
Answer By Law4u Team
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