One of the big selling points for arbitration has been discovery is supposed to be cheaper and less formal. Many in practice would disagree, concluding instead that discovery has either become sloppy and incomplete or every bit as contentious, prolonged and expensive as the system its supposed to be an alternative to. In an effort to explore the problems and potential solutions, the National Association of Securities Dealers has announced a two year voluntary pilot project designed to deal with discovery in securities arbitrations.
Many who arbitrate in venues other than the NASD would argue “it ain’t the only discovery system that’s broken!” Let’s hope the NASD lead in looking at the issues (regardless of the process they have proposed) will spur the AAA, ICC, NAF, WIPO, JAMS and others to look critically at their own rules and get proactive in updating them.
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