Lloyd's Maritime and Commercial Law Quarterly
DISCOVERY IN THE USA FOR ARBITRATION ELSEWHERE
Martin Davies*
Arbitrators generally have very broad powers to regulate the conduct of proceedings before them, including, in particular, the power to order parties to produce documents in their possession. For example, the Singapore International Arbitration Centre (SIAC) Rules confer on the tribunal the power to order parties “to produce to the Tribunal and to the other parties for inspection, and to supply copies of, any document in their possession or control which the Tribunal considers relevant to the case and material to its outcome”.1 The London Maritime Arbitrators Association (LMAA) Terms are rather more cautious in defining the scope of the tribunal’s power; although they impose an obligation on the parties to disclose any documents “which either support or affect the other party’s case”, they also note that parties will generally not be required to provide broader disclosure than is required by English courts.2
Because arbitrators lack the coercive powers that courts have, they cannot enforce any order requiring a party to produce documents. Obviously, an arbitral tribunal is free to draw adverse inferences if one of the parties refuses to produce a document, and may make adverse orders against that party when it comes to assessing costs,3 but nothing can be done by the arbitrators themselves to compel production. And, because the arbitrators’ power to order production of documents stems only from the parties’ agreement, it does not include the power to order non-parties to produce documents, even if those documents would be highly relevant to the proceedings.
If the documents in question are in the United States, it may be possible to compel their production, even from non-parties. This is so even if the documents would not be discoverable under the law of the seat of the arbitration or under the law of the United States.
Section 1782 of Title 28 of the United States Code (28 USC, s.1782) provides that a federal district court may order “a person” to give testimony “or to produce a document or other thing for use in a proceeding in a foreign or international tribunal”. There is a long-standing controversy about whether the words “foreign or international tribunal” extend to private arbitral tribunals. Federal circuit courts of appeals have come to diametrically
* Admiralty Law Institute Professor of Maritime Law, Tulane University Law School, New Orleans; Director, Tulane Maritime Law Center.
1. Singapore International Arbitration Centre Rules 2016 (hereafter “SIAC Rules”), Rule 27(f), available at www.siac.org.sg/our-rules/rules/siac-rules-2016).
2. London Maritime Arbitration Association Terms 2017 (hereafter “LMAA Terms”), Second Schedule, para.9, available at: www.lmaa.org.uk/uploads/documents/THE%20LMAA%20TERMS%202017%20Clean.pdf.
3. For example, the LMAA Terms, Second Schedule, para.19(b) entitles the tribunal to “take account of unreasonable or inefficient conduct by a party” in exercising its discretion in assessing costs.
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