ICDR Awards and Commentaries, Volume 1
edited by Grant Hanessian
Link provided by Google search

Arbitration Advocacy in Changing Times
edited by A. J. van den Berg
Link provided by Google search

AAA Handbook on International Arbitration Practice
By American Arbitration Association
Link provided by Google search

Many thanks to the editors and publishers.

Yes! E-Discovery and E-Disclosure or Information Exchange or handling electronic data or digital evidence are getting their footprints at the beautiful Peace Palace in the Hague. Thumbs up to the organisers ! I will be going. I have been to the Peace Palace (invited by a lawyer friend who gave a lecture there couple of years ago) and look forward to seeing the place again.

For my own reference, here are some of the topics spread over two days.

• E-Discovery: A Look Behind the Curtain—Tools and Techniques
• The Present and Future of Electronic Disclosure in International Arbitration
• Evolving Principles of Information Exchange:Consensus and Divergence
• Cross-Cultural Problems Involving Exchange of Information
• Privilege and Ethical Obligations Involving Production and Protection of Evidence
• Expert Evidence in International Arbitration:Are Standards Needed?
• Privilege and Ethical Obligations Involving Expert Evidence in International Arbitration: Are Standards Needed?

What are your views on the arbitrator’s order for disclosure of data residing on backup tapes?

Data is contagious and any attempt to categorise or organise ‘data’ may please someone and/or upset someone somewhere from the legal to IT to the end user. All things digital makes life interesting and/or complicated and I can safely say ediscovery/edisclosure is no different. So I will just say ‘all things e-‘ for ediscovery/edisclosure related stuff from protocols, guidelines, standards, process, models, framework etc. With ‘all things e-‘ coming from the various bodies and institutions, the following list is just a starting point for further add-ons.

~Guidelines ~
The International Center for Dispute Resolution (ICDR) published ‘Guidelines For Arbitrators Concerning Exchanges of Information’ available in pdf. An extract from the Guidelines “The purpose of these guidelines is to make it clear to arbitrators that they have the authority, the responsibility and, in certain jurisdictions, the mandatory duty to manage arbitration proceedings so as to achieve the goal of providing a simpler, less expensive, and more expeditious process. Unless the parties agree otherwise in writing, these guidelines will become effective in all international cases administered by the ICDR commenced after May 31, 2008, and may be adopted at the discretion of the tribunal in pending cases. They will be reflected in amendments incorporated into the next revision of the International Arbitration Rules. They may be adopted in arbitration clauses or by agreement at any time in any other arbitration administered by the AAA.”

The Chartered Institute of Arbitrators (CIArb) published ‘Protocol for E-disclosure in Arbitration’ again available in pdf. The protocols covered every possible steps including “The Tribunal may, after discussion with the parties, obtain technical guidance on e-disclosure issues” (Paragraph 5 (13). Seems that there are ‘e-disclosure issues’ that are not covered by the Protocol. Well it is a Protocol and not a detailed list of e-disclosure issues. So I’m rather surprised to read in Paragraph 7, which states “The primary source of disclosure of electronic documents should be reasonably accessible data; namely, active data, near-line data or offline data on disks”. This categorising of data can be confusing especially as nowadays other expressions are also used to denote the ‘state’ of the data e.g. data-in-motion, data-at-rest, data-in-use. The state and storage of the data should not be confused when stating the ‘primary source of disclosure…’ .What happens if the active data is stored in ‘archives’ and with changes in technology, these ‘archives’ will be reasonably accessible? This is already taking shape in MoReq2.
The Protocol strives to be comprehensive and cautious with the declaration that “The Protocol is for use in those cases (not all) in which potentially disclosable documents are in electronic form and in which the time and cost for giving disclosure may be an issue”.

The following are some ‘nuts and bolts’ from various UK/European industry bodies.

~Standards~

On the BSI website the BS 10008 Legal admissibility and evidential weight of information stored electronically is available to purchase. I reported on this here.

Under the auspices of The Document Lifecycle Management (DLM) Forum and its Model Requirements for the Management of Electronic Records (MoReq) Working Group, MoReq2 is now out. For further details check out at The AIIM. MoReq2 is also driven at the EU level and may become a pan-European standard (although it’s a model/framework with standard for testing the model).
Stock, an EU co-funded project, is a framework for European electronic ID interoperability. According to the blurbs published on the website, Stock aims at implementing an EU wide interoperable system for recognition of eID and authentication that will enable businesses, citizens and government employees to use their national electronic identities in any Member State.

I came across a ARMA Baltimore, 2007 which gives a list of standards etc.

To be continued…

In the litigation arena, I have found that there are many more blogs on various aspects of ediscovery coming from the US and still hardly any blogs from elsewhere. Worldwide searching/linking is still lopsided when it comes to online knowledge and information distribution. Perhaps the very concept of knowledge or data or information divides the technology ‘haves and haves not’. For a survey of the ‘haves’ check out what others have compiled at Guide to E-Discovery Resources on the Web.

In my conclusion I stated ‘Whether the benchmarks set by the Sedona Principles will further be incorporated into IBA Rules or modified by the various international organisations such as the ICC, LCIA, IBA, UNCITRAL and the American Arbitration Association, to meet the expectations of the international businesses will be an event worth earmarking.‘.

With the lopsided information world and even with search engines allowing me to specify whatever I want to seach, I have to say there is so far no such event worth earmarking. Instead, these organisations have gone their own separate ways and with others (e.g. CIArb) joining in the bandwagon to come up with protocols/standards/models etc. So…expect more to come.

It’s nearly a year since I wrote my conclusion and this year I have attended most of the momentous ediscovery/edisclosure events hosted in the UK. One notable observation in all the events I’ve attended is that the international arbitration arena is also lopsided in that the participants are invited by the organisers’ arrangement/selection of the topics/themes. Hence the participants are driven by the (commercially driven) organisers’ goals instead of a truly opening forum for a wider participation by the end users or people/businesses who are the primary ‘stick’ when it comes to ediscovery/edisclosure related matters. Personally, I find the ‘carrot & stick’ (this idiom or expression conveys the way I feel about these seminars/events) approach rather limiting especially in areas whereby technology, law and other social sciences are involved i.e. like in ediscovery/edisclosure. Heh! I’m not blaming the organisers, in fact without them the ‘ediscovery’ industry will be less exciting (as I will have less to compare and contrast!).

I’m sure in due course there will be open forum(s) on ediscovery/edisclosure whereby there will be protocols/guidelines/procedures/standards etc designed/developed with participation from the wider businesses/communities rather than a select few or lone individual. I guess with the nature of the international arbitration arena whereby not a lot of cases are widely publicised, the ‘one size fits all’ stuff for edisclosure will remain elusive and challenging.

I do not know why the ICC specifically use the term ‘Production’. Why not just a Task Force for electronic disclosure or electronic documents?

I fear that by having a Task Force for ‘Production of electronic documents’ and with a mandate specifying two streams (i.e. disclosure and production) signal the potential to focus on disclosure and production with the outcome to report on ‘production of electronic documents’.

The ICC has great world class reports and publications and also a great institution in many ways.

I do hope this new Task Force will break convention and not just focus on the production aspects of e-disclosure.

When I started on my research back in October 2007, ediscovery/edisclosure was not a term recognised in the IT corporate environment in London. I know this for a fact as my colleague and friends said ‘what is that?’ when I told them my subject matter for my dissertation.

I came across ediscovery only because I was looking for a topic for my dissertation. As I was involved in a Document Management implementation project (with many challenges!) last year, I decided to explore various IT and legal issues related to document management. So, I too have no clue what is ediscovery until I started my research. The research subsequently led me to start this blog and also opened up a vast area of ‘unknown or ‘mysteries’ to explore further. So far, I have met several interesting folks from various fields.

Right now, I am looking for ways to pursue a PhD and will welcome any suggestions as to where to get funding and/or sponsors. I am told three years full time will costs a ‘lot’ of £££££. It will be worth more than £££££ as I know what I want to research will be stuff worth writing about.

For my IT friends and those in the IT corporate world and also the IT community in general, ediscovery/edisclosure may still be a mystery or simply another ‘e-something-fad’ and if you think you can avoid or rebel, think again and share your views here. Even the storage people (or IT storage stewards) have shared their views, read what was reported in Users rebel against e-Discovery liabilities by Beth Pariseau, June 19th, 2008

Electronic discovery/disclosure is an evolving field and has already raised and heightens multiple legal, security, and personal privacy issues, many of which have yet to be resolved. In the digital era, the future is never certain but what is foreseeable is that the pace of change in technology is arresting, and the reality is that the discovery/disclosure of electronically stored information is already here.

The problems in the litigation world raised by the electronic rules have already stirred debates in the international arbitration camps and the outcomes are still in the making. Notwithstanding, international arbitration is not only different from litigation, but with electronic disclosure, the cultural and legal differences pertaining to procedures will be amplified due to the inherent nature of technology to transcend across boundaries, breaking rules/laws as seen in other aspects of law/rules governing e-commerce. Unlike in litigation, where the electronic rules are set, the nature of arbitration being a flexible creature and with long traditions from the procedural lex mercatoria, a variety of approaches and procedures can be adopted to meet the circumstances required by the international business communities. With the demands of electronic disclosures, rules are rigid for dealing with changing technology. Arbitration practices with the traditional approaches of the application of non-codified procedures in international arbitration and in particular on limiting disclosure to what matters and are relevant to the case rather than what rules describe the matters, will serve the international audience in addressing electronic disclosure issues now and into the future.

As explored in my research, electronic disclosure will pose new challenges in international arbitration, touching as it does on the conventional and pervasive problem areas associated with the production and presentation of documentary evidence. Arbitral practice and approaches in proceedings, e.g. the unfettered arbitrator’s discretion in controlling proceedings in the drive to be effective and efficient, may potentially raise challenges on arbitrators’ impartiality and more alleged procedural irregularities. With increasing globalisation and the ubiquity of computers and ever changing technology, international transactions become ever more complicated and involve more parties. Disputes become more entangled with different and conflicting interests requiring protections. The tribunal lacks the coercive powers of the state courts and as most international arbitrations take place under different laws in different countries, with parties and arbitrators from different jurisdictions, the challenges posed by electronic disclosure may create tensions in not only procedural aspects, but also in potentially substantive aspects of international arbitration. Even though the prevailing regime governing setting aside of and enforcement of awards being broadly recognised by many states adhering to the 1958 New York Convention, with electronic rules in the US and UK and in today’s litigious climate, states courts’ support and intervention for arbitration may prove more uncertain in the digital era.

Habits, good and bad, of the courtroom have often been carried over into arbitration, for electronic disclosure, while lessons learnt in the courtrooms in the US and UK should provide sufficient pointers to guide players in international arbitration. Together with the wide procedural powers vested to tribunal and the procedural lex mercatoria, arbitrators may in their discretion utilise the variety of approaches to craft the appropriate procedures for electronic disclosure, subject always to obey the principles of natural justice. Unlike the CPR and FRCP rules on electronic discovery/disclosure, discovery in arbitration has no rigid rules to obey, nor any definitive procedure. The New York Convention, the international arbitration rules, the Model Law and the IBA Rules of Evidence guidelines all provide the framework for the efficacy of international arbitration process. No doubt party autonomy and procedural lex mercatoria will evolve to accommodate electronic disclosure as the objective of arbitration is to afford not simply a speedy, efficient and economic determination but, above all, a fair and just decision.

Electronic disclosure has already raised contentious issues from the confluence of ethics and effectiveness in litigation and the recent interests in electronic disclosure in international arbitration, needless to say, will generate more debates. The issues raised in this essay only touch the ‘tip of the iceberg’. The phenomenon being that international arbitration is a private affair – being conducted ‘in camera’ and under the veil of confidentiality, perhaps further diluted with the emerging and evolving demands of electronic disclosure. Electronic disclosure may place demand on parties to adopt novel collaborative approaches for the collection of the electronically stored information and in some cases, specialist technical knowledge may also be required. The debate is no longer whether electronic disclosure is relevant; more crucially to address the challenges associated with the accessibility and/or collection of electronic evidence from various custodians within and outside the organisations.

A tribunal must not only understand the law, the facts of a dispute, and basic technical skills to handle electronic evidence. It must also understand the relevant technical tools as well as understand the way IT is used in business organisations. Parties and their counsel most likely will also be subjected to greater discipline to meet stricter deadlines and there could also be less tolerance of abuse of proceedings as preliminary hearings in international arbitration become more prevalent.

In international commercial arbitration, irrespective of cultural and legal differences, electronic disclosure, especially the problems arising with metadata, may not only potentially heighten undue burdens and costs associated with the fact-gathering and truth-finding missions, but more likely be viewed as against the unanimous will of the parties. The voluntary nature of international commercial arbitration provides an important safeguard for the parties in arbitration that is not available in the case of the courts. Courts are coercive, not voluntary, and the litigation machinery in the digital era will create more disputes than resolve them as clearly indicated in the electronic discovery headlines news, mostly from across the transatlantic.

Institutional arbitrations rules have been changed to reflect the changing landscape in alternative dispute resolution e.g. fast track arbitration, conciliation and mediation rules. The current IBA Rules of Evidence and the Conflict Guidelines do not provide for electronic disclosure. Whether the benchmarks set by the Sedona Principles will further be incorporated into IBA Rules or modified by the various international organisations such as the ICC, LCIA, IBA, UNCITRAL and the American Arbitration Association, to meet the expectations of the international businesses will be an event worth earmarking.

Finally, in stark contrast to litigation, arbitration proceedings are based on parties’ agreement and are conducted at their expense. Parties may at their convenience and dissatisfaction, may also terminate the proceedings and the tribunal. In closing, Julian D.M. Lew’s remark in ‘Applicable Law in International Commercial Arbitration: A Study in Commercial Arbitration Awards’, 1978 is still relevant in the digital era:

What could be more non-national than the will of the parties?

Just recently my friend, Martin (another ex-student of QM) pointed out another article in the International Journal of Arbitration, Mediation and Dispute Management, Vol 74, Number 1, February 2008 issue, the title; ‘Confronting the Matrix:Do the IBA Rules Require Amendment to Deal with the Challenges Posed by Electronically Stored Information? by Nicholas Tse and Natasha Peter.

As expected, the answer is a simple ‘yes, the IBA Rules require amendment’ (like the 1st article). The solutions though are not so simple. For me, the solutions are not within the IBA Rules. That’s another story.

Although the second article provided guidance from the English and US amendments and strategies for dealing with problems posed by ESI, the challenges posed by ESI for arbitrators and parties are still in the making or rather unconfronted.

Can one confront the Matrix and maintain a ‘flexible’ IBA Rules?