The "Arbitration Hold" in International Arbitration: Holding On to What We've Got? - ARIA - Vol. 28, No. 2
Originally from American Review of International Arbitration - ARIA
American lawyers are familiar with the duty to preserve documents in anticipation of, and during, litigation. As soon as litigation is reasonably expected, they rush to implement a litigation hold. In international arbitration, however, it is unclear if there is such an obligation.
In this contribution, I inquire into the obligation to preserve documents in international arbitration, and whether arbitration lawyers have a duty to implement “arbitration holds.” Three contemporary phenomena – professionalization of international arbitration, digitalization, and globalization – shape the preservation duty, and merit discussion as an introduction to our topic.
First, international arbitration is professionalizing. Arbitration has evolved from a “closely shared culture of trusted wise men” who “declare arbitral justice as they see it” to a “more formalized and legalized dispute resolution process.” Modern international arbitration has become “pluralistic and technocratic.” Regulating counsel conduct and the formulation of specific rules on the arbitration lawyer’s role in preservation of evidence could be seen as part of that professionalization process.
The second development is digitalization. Electronic documents are becoming an increasingly important source of evidence. Nowadays, almost all business information exists electronically. Often, information does not even exist in paper format. Electronic information is stored in ever larger quantities and is generally easier to retain than paper documents. Concurrently, e-information is more susceptible to modification or destruction, and yet paradoxically more difficult to permanently extinguish. When it comes to the taking of evidence, the difference in disclosure between e-discovery and physical documents is fading, and e-disclosure has become customary. Nonetheless, the preservation of e-evidence raises idiosyncratic questions.
Third, globalization fosters increasing interaction between different legal systems, revealing their often fundamental differences. As a system of transnational adjudication, international arbitration corresponds uneasily with national legal cultures and their domestic predilections in the taking of evidence. To point to one pertinent difference, lawyers from civil law jurisdictions are unfamiliar with extensive document disclosure, while discovery is sacrosanct for lawyers from common law systems. As international arbitration gains increasing prominence in our globalizing world, differences in approaches to duties of document preservation are increasingly laid bare and may induce conflicts. For instance, counsel from diverse jurisdictions are subject to dissimilar ethical rules, which creates different expectations about their professional duties to preserve e-documents when they represent clients in international arbitrations.
In addressing this paper’s research topic, (I) the duty to preserve documents, both in (I.A.) U.S. civil litigation and in (I.B.) international arbitration are discussed first. Subsequently, regard is had to (II) ethical duties, again starting from a (II.A) U.S. domestic litigation perspective, before (II.B) applicable rules in international arbitration are reviewed. The paper ends with a general conclusion.