Just as there are international conventions guaranteeing recognition of party autonomy, there are mandatory rules (e.g. arbitrability, due process that limit and constraint on the types of issues that can be submitted to arbitration and the effectiveness and enforceability of the arbitral award) overarching the extent of party autonomy.
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e.g. under the Arbitration Act 1996 of England, Section 3 and Section 4, the mandatory provisions cannot be fully superseded or contracted out by the parties if England is chosen as the seat of arbitration for the procedural framework.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.
