DAVID J. HOWELL is Co-Chair of the Global International Arbitration practice of Fulbright & Jaworski and acts as counsel and advocate in complex international arbitrations of commercial, investment and construction disputes. He has practiced in London, Dubai and Singapore and is a Fellow of the UK, Singapore and Hong Kong Institutes of Arbitrators.
International arbitration is not litigation. One of the advantages of international arbitration over litigation is the greater flexibility it offers to the tribunal, the parties and their counsel in meeting the requirements of the dispute and the wishes of the parties. This includes the appropriate means to address the issue of documentary disclosure.
Each of the authors in this volume brings a valuable perspective to the challenge of electronic disclosure in international arbitration, ranging from those that believe that the challenge can usefully be met by guidelines, protocols and institutional rule changes, to those that consider that such adaptations are both unnecessary and inappropriate.
For international arbitration practitioners it is instructive to observe the parallel developments in electronic disclosure that have taken place in a litigation context in the U.S., and the experience of US in-house counsel faced with the often onerous challenges of electronic discovery. Many will say that commercial parties resort to arbitration precisely in order to avoid these experiences, which are to be kept out of in international arbitration at all costs. Yet these lessons are instructive for the purpose of informed debate on how best to address the issue of disclosure of electronic documents when and to the extent this issue arises in international arbitration.
Included in this volume are session transcripts of a conference on this topic held at the Harvard Club, New York on 31 January 2008, the first conference entirely devoted to the study of these issues in an international arbitration context.