International Commercial Arbitration: Reflections at the Crossroads of the Common Law and Civil Law Traditions

The practice of international commercial arbitration, as its name suggests, involves the resolution of disputes between parties located in different countries and, in many cases, who come from vastly different cultures. As one might expect, counsel to parties in international arbitrations and members of these arbitral tribunals alike are commonly from different countries. Invariably, such cases also bring together attorneys trained in the different legal traditions of the common law and civil law. International arbitration has existed for centuries as a form of dispute resolution, but has increased dramatically since the passage of the 1958 New York Convention on the Recognition and Enforcement of International Arbitral Awards.1 Until the past two decades, international arbitration was more wellknown in civil law countries, with less acceptance in the United States until after the US ratification of the New York Convention in 1970. As parties and counsel from the United States and United Kingdom have increasingly participated in the international arbitral system, the system has evolved to incorporate elements of both the civil and common law traditions. As explained below, the rules and procedures that commonly apply today in international arbitration reflect a mixture of common law and civil law norms; the system also appears to be evolving more in a common law direction that tends to favor counsel trained in the adversarial process. This essay is meant to highlight just a few examples of this trend, each of which reflects a unique intersection of these traditions. I. DISCOVERY It is difficult to overstate the horror with which parties and counsel outside the United States view the prospect of American-style discovery, with parties able to serve upon one another sweeping requests for production of documents and other information relevant to the litigation, and to obtain oral deposition testimony of witnesses in advance of trial. In civil law countries, such discovery is rarely permitted, and is viewed by many as an affront to the expectations of privacy and confidentiality that private parties have in their business information. Foreign parties doing business in the United States often insist on arbitration clauses in their agreements precisely to avoid the prospect of discovery and the other risks of litigation in the United States. It should come as no surprise, then, that the topic of discovery is frequently debated in international arbitral proceedings. Even ten years ago, discovery (or "disclosure," as it is often termed in international arbitration), was relatively uncommon in international arbitration. Today, however, a limited amount of discovery is typically available, albeit under the strict control and discretion of the arbitral tribunal. Under the rules of most international arbitral institutions, such as the International Court of Arbitration of the International Chamber of Commerce ("ICC"), the London Court of International Arbitration ("LCIA"), and the American Arbitration Association ("AAA"), the arbitral tribunal is given the broad power to determine whether, and to what extent, discovery will be permitted. For instance, the ICC Rules give the tribunal authority to "establish the facts of the case by all appropriate means," and "may summon any party to provide additional evidence."2 Likewise, the LCIA and AAA Rules explicitly authorize the arbitral tribunal to order the pre-hearing production of documents.3 Although discovery is thus permitted to a certain extent, the scope of such discovery is generally far more limited than would otherwise be available in the United States, and more akin to the discovery process in the United Kingdom. In the UK, parties may only seek disclosure of documents that can be identified with particularity and which the requesting party already has reason to believe exist, thus avoiding the sorts of "fishing expeditions" commonly associated with US-style discovery. …