My first event was ‘Resolving Business Disputes in Today’s China’ in New York City (organised by the JurisConference). It was a great event, great lunch and interesting lunch debate. Although the event has nothing to do with edisclosure/ediscovery, one of the speaker/panellist did say ‘we avoid ediscovery’. Maybe resolving disputes in today’s China are being viewed as ‘resolving disputes being the same as doing businesses’. Doing businesses in these parts of the world are still steep in the traditional ways of using and/or maintaining ‘face’ or ‘guanxi’. If you have guanxi, then ethical (like arbitrator’s biases or impartiality or independence) or trust issues just do not surface or are naturally imposed in the guanxi relationships. (Hence, Med-Arb is a natural way for resolving disputes in the Far East).

However, there’s more than one party in a dispute and if one of them is not accustomed to guanxi then the game of ‘where to go or which seat or which institution or who has the leverage/assets/ power to turn the table?’ provides the dispute drama. The game is not whether we can find the evidence or whether we need the evidence. It is not a ‘truth seeking’ game. Is that why edisclosure/ediscovery is avoided?

So, my next hob nobbing (for want of a better term?) event is at The Hague. The event was ‘Weighing the Facts: Information Exchange and Presentation of Evidence in International Commercial and Investment Arbitration’.
Note that ‘edisclosure’ was not in the title but there was a topic ‘The Present and Future of Electronic Disclosure in International Arbitration. It was a great pity that only a handful of people were at the second day (half day session only). On the second day, there was a detailed ediscovery presentation. It would have been a great finishing highlight if all the speakers/panellists could gather together (collaboratively?) and share their consensus or divergence views or experiences.
In case anyone is wondering what about the IBA Rules of Evidence? What about it? From what I’ve heard – No changes required now and also in the foreseeable future. Nah! No e-evidence rules required.

Instead, it seems that privilege and ethical issues will become increasingly problematic in information exchange or disclosure in international arbitration. No amount of notes/guidelines/protocols/rules/laws will help cement or create a smooth level playing field for the international players and parties.

What have we got left then? Hob nobbing and/or guanxi? We all know what is hot tubbing. Hob nobbing may potentially create more conflicts of interests (ethical issues) unlike guanxi relationships whereby ‘beneficial rather than conflicting’ interests are at play. More food for exploration!

Well…the wheels of justice chuckle along crankily with or without ediscovery/edisclosure. Maybe the good old fashion hob nobbing and/or guanxi are the new unwritten protocols/rules/laws for e-evidence. Only time will tell…

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?

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.