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

• 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

Mandatory provisions may vary from country to country, e.g. under the Arbitration Act 1996 of England, Section 3 and Section 4, the mandatory provisions cannot be fully superseded or contracted out by the parties if England is chosen as the seat of arbitration for the procedural framework.

So far as the English Arbitration Act 1996 is concerned, no specific definition is given for discovery or disclosure. However disclosure is provided under section 34(2)(d).

Whether it is electronic disclosure or not, party autonomy and arbitral authority are still subject to the mandatory rules provision of the law of the place of arbitration. For example, under the English Arbitration Act 1996, arbitrators have a mandatory duty to ‘adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined’.

Under the English law, a tribunal will face the dilemma of fulfilling its mandatory duty in an area, – inefficient court proceedings/procedures, which leads to the rules reforms observed in the UK and the US. With the procedural demands from electronic disclosure, the stakes for not meeting its mandatory duty is higher than a non-electronic disclosure case, as electronic disclosure is a fairly new phenomenon in the US and also in the UK. Potentially, a tribunal could face ‘manifest disregard of the law’ under the English law.

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?