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In the last two years, judicial systems in the U.K. and U.S. have seen a steady decline in the number of lawsuits actually going to court. With the rising cost of litigation and decreasing judicial tolerance for weak cases, more legal professionals are choosing arbitration as an alternative. An attractive feature of arbitration is the ability of parties to have more choice and control in choosing many of the laws and procedures that will apply. One aspect is the potential for flexibility with respect to disclosure.

In practice, the extent to which disclosure is provided for depends not only on the applicable rules and particular contractual provisions, but also on the positions, expectations and legal background of the panellists and party representatives involved. It is likely disclosure will become more common in international arbitration, as the rules and procedures of major arbitration organisations increasingly provide for it.

As the use of technology – and particularly e-mail communications – in business has become commonplace, the volume of material that lawyers may wish or need to review has grown tremendously, so has, likewise, the impact of disclosure exercises. Many lawyers and their clients look electronic disclosure primarily as a source of extra costs, either to be suffered at the hands of others or to be imposed on an opponent. But parties to an international arbitration may also gain significantly from going through an electronic disclosure processes. For example, by using electronic processing and efficient review tools they may be able to quickly and efficiently identify key evidence and optimise the preparation of witness statements and cross-examination strategies.

The Current Status of E- Disclosure in International Arbitration
Some, if not all, of the rule-making bodies including the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA) the International Centre for Dispute Resolution (ICDR) and the United Nations Commission on International Trade Law (UNCITRAL), explicitly provide for disclosure and include electronic materials in the definition of ‘document’. The IBA Rules on the Taking of Evidence in International Commercial Arbitration strongly resemble the Civil Practice Rules for England and Wales, requiring that parties disclose copies of documents that support or contradict any party’s case.

A ‘document’ is defined in Article 1 as:

“A writing of any kind, whether recorded on paper, electronic means, audio or visual recordings and any other mechanical or electronic means of storing or recording information”.

As the volume of paper documents diminishes electronic data is becoming a more dominant source of discoverable evidence. Even in the context of arbitration there is a significant growth in the amount of materials lawyers may wish or need to consider and review as part of the case preparation process. Parties need to consider the value and opportunity that may be achieved from utilising an electronic disclosure process.

Using Technology To Assist
While commonplace in typical litigation, the use of electronic disclosure technology can prove to be an invaluable tool in arbitration. Accelerated timescales are often a hallmark of international arbitration. With significantly less time for case preparation, parties benefit from using a fast online document search and review tool which cuts through the mass quickly and efficiently.

A review tool, combining paper and electronic documents on a secure database which can be accessed by multiple reviewers in different locations, can ensure that the review is conducted with alacrity and is less likely that a key document will be overlooked.

Of course, it is important for parties to take proportionality into consideration. They must take into account the specifics of the case and the appropriateness of expansive disclosure in the context of the proceeding as a whole.

All parties should be clear from the outset what they intend to achieve from the exercise. As far as possible the likely volume, relevance and accessibility of the electronic documents should be assessed. This should be balanced against the value of the dispute and the cost implications, with the ease and expense of retrieval of any particular document.

There are ways in which the process can be streamlined with online review and in-house technologies. Firstly, from an early stage any potential electronic data preservation and planning should be implemented as soon as possible. Identify key sources of electronic information and where it might be stored. Identify the parameters in the context of the case. For example, can it be filtered by date range or file type to reduce the volume of data? Can you devise a keyword list or target sources of crucial information to filter the material in anticipation for an effective review?

Gain a Strategic Advantage
It is important to be open to the benefits of electronic disclosure in the context of arbitration and to consider a position with respect to disclosure as early in the process as possible, perhaps even in the context of drafting the arbitration clause.

Even if not required, there is an opportunity to obtain a strategic advantage in a commercial dispute to obtain and consider all relevant documents. Technology can help you overcome some of the challenges.

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