The phenomenology commands adjustment to bridge the gap between essence and phenomenon, what is and what is seen. Careful analysis establishes that discovery and the underlying tenets configuring the system commonly referred to as the Federal Rules of Civil Procedure, while conceptually and doctrinally distant from the civil code and the continental system, are close to arbitration and the underlying policies that sustain and define it as distinct from judicial proceedings because of its foundation rooted in party-autonomy. The “classical conception” of the civil code or continental system, however, is materially and significantly distant conceptually and doctrinally from arbitration generally and the precept of party-autonomy that is so endemic to the configuration of arbitration and arbitral proceedings. Accordingly, discovery as framed, formed, and defined by the Federal Rules of Civil Procedure clearly comports with the nature of arbitration, and it is only because of the misperception arising from want of familiarity on the part of practitioners from other non-common law jurisdictions, and adherence to platitudes of discovery abuses by common law practitioners, judges, and commentators, that the affinity between discovery and arbitration has been obscured.

Before having engaged in a schematic and rather skeletal analysis of Fed.R.Civ.P. 3 and 27, with reference to the discovery standard enunciated in Fed.R.Civ.P. 26 so as to dispel notions of “unbridled scope” and a boundless license to engage in a fishing expedition, the following proposition was posed: If it is assumed that a defining precept of arbitration is the principle of party-autonomy, and more generally so, the principles of predictive value, transparency of standard, and certainty, then it is less than clear that the incorporation of U.S. common law style discovery into arbitration proceedings consonant with the Section 1782 rubric and Fed.R.Civ.P. 26, undermines the policy objectives that arbitration fervently seeks to promote.