The author supports V.A. Musin's concept, that a full-fledged discovery of evidence has to be introduced in the Russian arbitration procedure law. This would ensure the compliance with the procedural rights of the parties to dispute, improve the stability and predictability of justice and prevent the forgery of evidence. The author analyses all possible sanctions for untimely discovery of evidence and concludes that the most effective one is considering such evidence impermissible and returning it to the party of the dispute. The author also shares his personal memories of Valeriy Abramovich Musin.
In the article through recourse to behavioral economics is analyzed the admissibility of the institute of discovery in international commercial arbitration. Studies in behavioral economics show that parties to a dispute tend to overestimate the benefits («egocentric bias») from obtaining evidence and at the same time underestimate the potential costs of discovery. To solve the problem approaches for regulation of discovery in arbitration are indicated (opt-in, opt-out strategies are given). In addition, the article describes what principles a procedure for discovery should comply with; how the possibility of satisfying the requirement of demanding evidence depends on who the burden of proof lies with; why it is necessary to establish whether the disclosure requirement is material or procedural.
The Author discourses on the correspondence between the arbitration proceedings and bankruptcy proceedings on 3 examples: 1) the bankruptcy procedure is introduced when the arbitration proceedings are not complete; 2) the bankruptcy procedure is introduced during the proceedings on issuance of a writ of execution; 3) the application to the cancelation of an arbitration decision is filed after the introduction of a bankruptcy procedure. It is assumed in the article that in exceptional cases the arbitration proceedings can continue after a bankruptcy procedure is introduced.