Originally from Electronic Disclosure in International Arbitration

The common law world, and especially the U.S., faces serious problems in the document production process in litigation when dealing with electronically stored information (ESI). The vast amount of material that is subject to discovery, and its diversity, have required new litigation rules concerning e-discovery in the U.S. and the disclosure of electronic documents in England. The rules concern, in particular, the search for electronically stored information, including deleted information, and the obligations in these jurisdictions to preserve relevant documents.

It has been suggested that these issues should also be considered in international arbitration, and that rules and practices concerning the production of ESI in international arbitration should be adapted to take account of these developments.

The present author does not share this concern. The problems with ESI in the common law world are linked to a particular paradigm in the conduct of civil litigation, in particular, the joint responsibility of the parties for the assembly of the documents related to the dispute at a time before the parties have fully developed their respective cases. This paradigm does not prevail in international arbitration where the parties first present in detail their full case in writing, accompanied by the available evidence, and may then request the production of specific documents.

In international arbitration, the preoccupation with e-discovery and the proposals inspired by new rules on e-discovery constitute a danger which risks eroding the progress made in the past towards a model inspired by civil law procedure, with restrictive and focused document production. This erosion must be resisted.

The preoccupation with the discovery aspects of ESI in international arbitration is also misguided because it distracts from the great advantages which information technologies offer for the efficient conduct of arbitration proceedings and from certain difficult questions and risks which these technologies raise. These aspects should be given increased attention.