Electronic Documents in International Arbitration Daniel
Schimmel Kelley Drye & Warren LLP UIA Congress October 31,
2014
Slide 2
Introduction Disclosure of electronic documents in the common
law and civil law tradition Electronic documents in international
arbitration 1
Slide 3
Structure of a Civil Action: Common Law (U.S.) 2 Trial
Complaint Answer or Motion to Dismiss (1st dismissal opportunity
pre-trial) Discovery Fact Expert Motion for Summary Judgment (2nd
dismissal opportunity)
Slide 4
Discovery (U.S.) II.Discovery A.Purpose of Discovery Establish
the facts and develop a theory of the case Crystallize the
testimony of witnesses at an early stage Undermine Credibility
3
Slide 5
Discovery (U.S.) B.Discovery Standards are Very Liberal Produce
all relevant documents and document that may lead to admissible
evidence [D]iscovery accounts for as much as 90 percent of
litigation costs when discovery is actively employed. Large
organizations receive, on average, 250 to 300 million e- mails per
month 4
Slide 6
Discovery (U.S.) C.Requests for Documents are Broad 5
Slide 7
Discovery (U.S.) C.Requests for Documents are Broad 6
Slide 8
Discovery (U.S.) Bill Gates 7 D.The Importance of
credibility
Slide 9
Structure of a Civil Action: Civil Law (France) 8 Art. 145
Pre-action disclosure Assignation Rfr Mise en tat Rapport du juge
Audience Expertise Criminal Action
Slide 10
Production of Electronic Documents (International Arbitration)
I.The IBA Rules A. Reflect a Compromise Between Civil Law and
Common Law 9
Slide 11
2010 amendments to the IBA Rules [I]n the case of Documents
maintained in electronic form, the requesting Party may, or the
Arbitral Tribunal may order that it shall be required to, identify
specific files, search terms, individuals or other means of
searching for such Documents in an efficient and economical manner.
10 Production of Electronic Documents (IA)
Slide 12
B.Document Disclosure in Practice: Depends on the legal
tradition of arbitrators and the place of arbitration International
arbitral tribunals in the U.S. frequently order the production of
significant amounts of electronic documents Arbitration
organizations have developed rules to address the concerns of
companies 11 Production of Electronic Documents (IA)
Slide 13
ICDR International Dispute Resolution Procedures (Effective
June 1, 2014) The parties shall exchange all documents upon which
each intends to rely on a schedule set by the tribunal. In
addition, the tribunal may, upon application, require a party to
make available to another party documents in that partys possession
not otherwise available to the party seeking the documents, that
are reasonably believed to exist and to be relevant and material to
the outcome of the case. 12
Slide 14
Arbitral tribunals are expected to exercise greater scrutiny
with respect to e-documents. When documents to be exchanged are
maintained in electronic form, the party in possession of such
documents may make them available in the form (which may be paper
copies) most convenient and economical for it, unless the tribunal
determines, on application, that there is a compelling need for
access to the documents in a different form. Requests for documents
maintained in electronic form should be narrowly focused and
structured to make searching for them as economical as possible. 13
ICDR Procedures (2014)
Slide 15
The Tribunal may require and facilitate such discovery as it
deems it appropriate in the circumstances, taking into account the
needs of the parties and the desirability of making discovery
expeditious and cost- effective. Initial pre-hearing conference
scheduled promptly after the constitution of the Tribunal. CPR
Protocol on Disclosure of Documents. 14 International Institute for
Conflict Prevention and Resolution (Effective July 1, 2013)
Slide 16
International Chamber of Commerce ICC Task Force Established in
June 2008 at the suggestion of the U.S. National Committee of the
ICC (USCIB) Approximately 80 members from 23 countries
Practitioners on both sides of the Atlantic have very different
views about e-documents 15
Slide 17
International Chamber of Commerce Arbitration Rules (Effective
January 1, 2012) Article 24 - Case Management Conference [T]he
arbitral tribunal shall convene a case management conference to
consult the parties on procedural measures that may be adopted
pursuant to Article 22(2). Such measures may include one or more of
the case management techniques described in Appendix IV. 16
Slide 18
Article 25.1 - Establishing the Facts of the Case The arbitral
tribunal shall proceed within as short a time as possible to
establish the facts of the case by all appropriate means. 17
International Chamber of Commerce
Slide 19
Appendix IV - Case Management Techniques: Identifying cases to
be decided solely on the basis of documents Request for production
limited to documents that are relevant and material to the outcome
of the case Using a Redfern Schedule These are well-known
techniques in international arbitration 18 International Chamber of
Commerce
Slide 20
Document disclosure in international arbitration has undergone
major changes because of e-documents Legal fees depend in part on
the scope of e-disclosure Having a well drafted arbitration clause
will have a significant impact on the costs and duration of an
arbitration 19 Conclusion
Slide 21
Production of Documents (International Arbitration) DOCUMENTS
REQUESTED IN RESPONDENTS REQUEST TO PRODUCE DOCUMENTS SPECIFIC
FACTUAL ALLEGATIONS CLAIMANTS OBJECTIONS RESPONDENTS REPLY
CONTENTIONS TRIBUNALS DECISION 20 I.The IBA Rules A.Reflect a
Compromise Between Civil Law and Common Law Redfern Schedule