…electronic discovery is already happening also– to a limited extent–in international arbitration and neither the IBA Rules nor US litigation principles are enough.
According to a featured international article‘, ‘ELECTRONIC DISCOVERY IN INTERNATIONAL ARBITRATION: WHERE NEITHER THE IBA RULES NOR U.S. LITIGATION PRINCIPLES ARE ENOUGH ‘by Jonathan L. Frank, Julie Bédard, Dispute Resolution Journal, November, 2007-January, 2008 :
‘E-discovery will no doubt become an increasingly important aspect of international arbitration. Different legal cultures–all of which usefully nurture international arbitration–may approach discovery of ESI very differently. Although the IBA Rules provide useful guidance to arbitrators and litigants, it may be difficult to rely heavily on them since they were written before e-discovery became an issue. While U.S. case law deals with ediscovery, it does so primarily in the context of allocating costs and against a backdrop of broad discovery rights that are alien to international arbitration. Thus, the cases may not be all that helpful to arbitrators who must decide the scope of allowable e-discovery. Further analysis of e-discovery issues must be undertaken in order to uncover useful principles that arbitrators could apply. In this connection, we invite practitioners and arbitrators to discuss the issues identified in this article. In any event, practitioners should anticipate the necessity for compromise with respect to discovery procedures and look to their shared experience in assessing the risks and costs involved’.
Full article provided by Mr Ken Withers for my research is available in pdf.
One Comment
In the conclusion, the authors invite practitioners and arbitrators to discuss the issues ..and to look to their shared experience in assessing the risks and costs involved.
What I want to know is how (i.e.interactive peer groups or courses ) and where (closed forum or open community type) such ‘shared experience’ could be effectively shared.
Now, how do I connect up with the authors or other practitioners interested in making this happen?
One Trackback
[...] The other article (which was referenced in my dissertation) was posted here under the title: WHERE NEITHER THE IBA RULES NOR U.S. LITIGATION PRINCIPLES ARE ENOUGH [...]