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

Many thanks to the editors and publishers.

CIETAC started the rules revision back in early 2010. During early 2010 I was in CIETAC (as reported in this blog) and had an opportunity to gain valuable insights into the workings of CIETAC, to which I am most grateful to the Director of the International Division. The approach taken on the rules revision was open and thorough via a working group.

As an arbitration institution, established since 1956, CIETAC has vast experience of not only arbitration but also conciliation (or mediation). In the (old) 2005 rules Article 40 allows for the combination of conciliation and arbitration (throughout the arbitration proceeding), a unique feature which the Western world finds rather alien. Alien as the role of a mediator is perceived to be different or separate from an arbitrator, and as such the potential for conflict of interests and/or impartiality issues. The (old) CIETAC rules have served the arbitration community well, and according to CIETAC, 20% to 30% of its annual caseload is resolved through this med-arb process. Furthermore, the new 2012 rules have incorporated additional safeguards (Article 45.8 and 45.10) to strengthen the combination of conciliation and arbitration provision. My guess is that these safeguards are to address and avoid the issues of impartiality, and to prevent a repeat of the case of Gao Haiyan v Keeneye Holdings Limited, whereby a Chinese arbitral award was enforced in Hong Kong after a failed med-arb (due to arbitrator impartiality). Also, Article 45.1 to 45.10 amendments to the old 2005 rules on med-arb are clearer in terms of separation of the role of CIETAC, the parties and the tribunal.

On the subject of ‘service of document’, the new rules have added ‘periods of time’ in Article 8.4 perhaps to clarify the starting (time) or commencement of the arbitration. The efficiency of document (paper intensive) handling and administration as performed by the staff at CIETAC are reflected in the new provision, Article 18 Submissions and Exchange of Arbitration Documents. This is perhaps another unique feature of CIETAC in that document exchange is managed by the Secretariat of CIETAC, unless otherwise agreed by the parties and with the consent of the arbitral tribunal or otherwise decided by the arbitral tribunal (Article 18.2).

For a detailed commentary on the rules changes, Herbert Smith provides a good breakdown.

A new Practice Direction is introduced to regulate the approach practitioners should take when considering material relevant to a case which is stored electronically. In particular it aims to focus the parties on the sources of electronic material and give guidance to those with less experience of dealing which such issues. This will apply to cases that are or likely to be allocated to the multi-track. The rule change supports the new Practice Direction by confirming that the questionnaire may be treated as a disclosed document. Note: Form N150 is amended to support this change.

A typographical error in PD31B (Question 8 in the questionnaire) has been identified.

Please Note: Question 8 in the questionnaire should read:
8.

If the answer to Question 6 or 7 is yes, state whether (a) attachments to e-mails (b) compressed files (c) embedded files and (d) imaged text will respond to your Keyword Searches or other automated search.

For the contents and details of this Practice Direction click here

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?

Go and ask a lawyer to collaborate and see what kind of respond you get. I have done this couple of times and the responses I have received so far are fearful (non-collaborative) responses. Rather than seek collaboration, I am asked questions which are geared towards providing them with information so that they can compete with me or put me in a less favorable position. I have also been challenged in other non-collaborative ways.

Saying so, I have also met some wonderful people who understand the meaning of collaboration and have acted collaboratively, not just saying they want to collaborate. The word collaboration has become a buzzy word in the world of ediscovery. Buzzy word gets attention! Just yesterday (or was it Friday?) I was invited to collaborate on producing a Glossary on ediscovery. I jumped at the idea as it was something I wanted to do when I first started this blog. More to come on this wonderful collaboration….

For me, sharing information takes more courage than talk of collaboration. On the buzzy use or talk of collaboration, read the article ‘Time to Work Together on Electronic Discovery’ posted by Clearwellsystem. I like the video blog: Information Security and eDiscovery.  Why? Mr. Ron Hedges covered confidentiality and privilege which are both non buzzy words but are the hide and seek in ediscovery actions. What is collaboration in ediscovery? Lawyers collaborating with IT people?  Is that it?

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

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.

• Issues and Challenges Facing Young Practitioners
• Establishing Your Case: Key Issues to Consider
• Documentary Evidence
• Document production, IBA Rules, common law and civil law approaches, and best practice
• Expert Evidence: Tribunal or party appointed, number and qualities, witness conferencing, guidance and systems
• Legal Submissions: Oral, written, simultaneous or sequential?
• Fact Evidence: Witness selection, preparation, hearings, cross-examination