Originally from Between East and West: Essays in Honour of Ulf Franke

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Evidence is increasingly found in electronic form. This is hardly surprising given the explosion in electronic media and associated technologies over the past decade. Corporations, governments, and individuals worldwide regularly transact business and communicate by electronic means, often without creating a physical “paper trail.”

As a result, more and more requests for electronic disclosure are being made in international arbitration proceedings. In handling these requests, tribunals have struggled with how (and whether) to apply established document exchange standards to e-disclosure. The technical nature of e-disclosure, and perhaps the mystery that surrounds it, can make it a vexing issue for tribunals. Consequently, some tribunals have granted far-reaching requests when presented with difficult e-disclosure questions—erring on the side of allowing more disclosure as opposed to properly limiting it. These tribunals likely fear that the final award will be subjected to an attack during enforcement, on the grounds that a party was denied a full and fair opportunity to present its case.

In response, several institutions have begun to supply helpful guidelines on e-disclosure that seek to quell liberal disclosure orders while homogenizing e-disclosure practices. Still, institutions must do more. It is time for institutions to amend their arbitral rules to ensure a more predictable and conservative approach to e-disclosure. For instance, institutions might benefit the arbitral process by codifying established document exchange standards in their rules, making clear that they are applicable to e-disclosure. Institutional rules could also clarify that tribunals must be active gatekeepers during disclosure. This would provide arbitrators, counsel, and the parties themselves better guidance and tools in controlling the process and its costs.