edisclosure myth or reality? » Best Practice

Improving Procedures for Discovery and Documentary Evidence

Thu, 24 Jan 2008 22:09:52 +0000

improving-procedures-for-discovery.htm, Andrew Rogers, Source: BOOK: ICCA Congress series no. 7 (1996), pp. 131 – 144

Late addition – UNCITRAL Notes

Mon, 21 Jan 2008 01:11:43 +0000

UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE
LAW (UNCITRAL) Notes on Organizing Arbitral Proceedings – pdf

A need for an ‘express guide on electronic documents’?

Fri, 18 Jan 2008 21:17:42 +0000

Two statements in the Electronic Discovery In International Arbitration article grabbed my attention;
‘parties are disclosing electronic information both voluntarily and when compelled to do so during discovery’ and also‘that parties to international arbitration are probably treating e-mail and other electronic information like paper documents, with no attention to the implications that the electronic nature of this information may have on discovery’.

Express hotel for me, should be fun!… for the Juris Conferences event, I’ll be staying at the Holiday Inn Express
NEW YORK CITY FIFTH AVENUE
15 WEST 45TH STREET
NEW YORK CITY, NY 10036 UNITED STATES
Hotel Front Desk: 1-212-3029088 | Hotel Fax: 1-212-3023088

Questions raised in my research

Thu, 10 Jan 2008 23:58:43 +0000

To what extent are the IBA Rules of Evidence and the IBA Guidelines on Conflicts of Interest still sufficient and or fulfil the needs of the parties in complex disputes in areas such as re-insurance, financial markets and banking? In these sectors, computer technologies are deployed extensively and the nature of business transactions are not only heavily regulated by a burgeoning patchwork of rules and laws but also tend to cross borders. Irrespective of whether litigation or arbitration best serve such disputes, it is an inescapable fact that the world is now digital and with it the attendant legal and digital challenges otherwise known as the ‘myriad of issues’.

Perhaps more importantly, can the international commercial arbitration regime escape or be totally immune from these ‘myriad of issues’ and continue to attract international businesses and play a dominant judicial role in the globalised, digital world of commerce with the fundamental concept of party autonomy and autonomy in arbitration procedure?

The ‘myriad of issues’ are the e-discovery issues raised by the Sedona Conference Working Group on Best Practices for Electronic Document & Production.

Controlling Costs in Arbitration

Thu, 10 Jan 2008 20:57:11 +0000

Techniques for Controlling Time and Costs in Arbitration
A Report from the ICC Commission on Arbitration

In the ICC Publication 843 -Techniques for Controlling Time and Costs in Arbitration, no specific mention on ‘electronic document production’ or ‘electronically stored information’, although ‘Úse of IT’ is discussed. The Redfern Schedule is mentioned for managing requests for document production.
Case management is also mentioned, however no specific mention on how to determine the scope of the document production, which in a document (paper-based & electronic) intensive dispute can be unmanageable even with the use of IT.
The article pointed out that ‘special emphasis needs to be placed on steps aimed at reducing the costs connected with the parties’ presentation of their cases and that such costs are often caused by unnecessarily long and complicated proceedings with unfocused requests for disclosure of documents …’.

Evidence Disclosure in Chinese International Arbitration

Thu, 10 Jan 2008 16:17:50 +0000

What can we glimpse (& learn?) from the Chinese where Alternative Dispute Resolution has been the way of resolving disputes from the Confucian era to current digital era?
For a glimpse on Chinese international arbitration, check out the pdf article: Tipping the Scale to Bring a Balanced Approach: Evidence Disclosure in Chinese International Arbitration. By Bryant Yuan Fu Yang and Diane Chen Dai

Now this is what I consider really interesting…the article is also ‘meant as a guide for foreign investors and companies who seek to have an uncooperative opposing party or nonparty disclose evidence.’

WHERE NEITHER THE IBA RULES NOR U.S. LITIGATION PRINCIPLES ARE ENOUGH

Wed, 09 Jan 2008 18:07:35 +0000

…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.