Disclosure or discovery?

The terminology used for document production varies depending on the jurisdiction. In the United States (US) and some other US-influenced or common law jurisdictions, the term “discovery” of documents is often used, which is one of several discovery devices to obtain information before the trial. Discovery in the US includes depositions, interrogatories and requests for admissions.

In contrast, the term “disclosure” is used in England and Wales. In English and Welsh court procedures, a party must disclose a list of all documents on which it relies, which adversely affect its own or another party’s case or support another party’s case. That approach of “disclosure” is followed in litigation in most other common law jurisdictions.

However, document production in international arbitration generally differs from that wide, common law disclosure. Generally, as will be seen below, the approach in arbitration seeks to strike a balance between common law and civil law expectations (the former one of wide disclosure, the latter with no notion of discovery/disclosure) and to create what might be seen as a hybrid approach, where production of specifically requested documents, or categories of documents, is the norm (where the request can be justified), rather than an obligation to disclose automatically a list of all documents of certain relevance at the outset of the case. Additionally, it should be borne in mind that the common law distinction between disclosure and inspection does not exist in international arbitration.

As a cautionary note, it is a reality that the presence of US law firms and trial attorneys in international arbitration practice has seen more and instances of parties seeking wide, common law disclosure and, sometimes, such an approach not being withstood by the arbitral tribunal, with the result of much-increased cost, time delays and additional or longer hearings.