edisclosure myth or reality?

“Electronic discovery is a tool to help resolve a dispute and should not be viewed as a strategic weapon to coerce unjust, delayed, or expensive results.” – From the Sedona Conference

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?