Electronic Documents in International Arbitration Daniel Schimmel Kelley Drye & Warren LLP UIA Congress October 31, 2014

Introduction  Disclosure of electronic documents in the common law and civil law tradition  Electronic documents in international arbitration 1

Structure of a Civil Action: Common Law (U.S.) 2 Trial Complaint Answer or Motion to Dismiss (1st dismissal opportunity pre-trial) Discovery ● Fact ● Expert Motion for Summary Judgment (2nd dismissal opportunity)

Discovery (U.S.) II.Discovery A.Purpose of Discovery  Establish the facts and develop a theory of the case  Crystallize the testimony of witnesses at an early stage  Undermine Credibility 3

Discovery (U.S.) B.Discovery Standards are Very Liberal  Produce all relevant documents and document that may lead to admissible evidence  “[D]iscovery accounts for as much as 90 percent of litigation costs when discovery is actively employed.”  Large organizations receive, on average, 250 to 300 million e- mails per month 4

Discovery (U.S.) C.Requests for Documents are Broad 5

Discovery (U.S.) C.Requests for Documents are Broad 6

Discovery (U.S.) Bill Gates 7 D.The Importance of credibility

Structure of a Civil Action: Civil Law (France) 8 Art. 145 Pre-action disclosure Assignation Référé Mise en état Rapport du juge Audience Expertise Criminal Action

Production of Electronic Documents (International Arbitration) I.The IBA Rules A. Reflect a Compromise Between Civil Law and Common Law 9

 2010 amendments to the IBA Rules  “[I]n the case of Documents maintained in electronic form, the requesting Party may, or the Arbitral Tribunal may order that it shall be required to, identify specific files, search terms, individuals or other means of searching for such Documents in an efficient and economical manner.” 10 Production of Electronic Documents (IA)

B.Document Disclosure in Practice:  Depends on the legal tradition of arbitrators and the place of arbitration  International arbitral tribunals in the U.S. frequently order the production of significant amounts of electronic documents  Arbitration organizations have developed rules to address the concerns of companies 11 Production of Electronic Documents (IA)

ICDR International Dispute Resolution Procedures (Effective June 1, 2014)  “The parties shall exchange all documents upon which each intends to rely on a schedule set by the tribunal.”  In addition, the “tribunal may, upon application, require a party to make available to another party documents in that party’s possession not otherwise available to the party seeking the documents, that are reasonably believed to exist and to be relevant and material to the outcome of the case.” 12

 Arbitral tribunals are expected to exercise greater scrutiny with respect to e-documents.  “When documents to be exchanged are maintained in electronic form, the party in possession of such documents may make them available in the form (which may be paper copies) most convenient and economical for it, unless the tribunal determines, on application, that there is a compelling need for access to the documents in a different form. Requests for documents maintained in electronic form should be narrowly focused and structured to make searching for them as economical as possible.” 13 ICDR Procedures (2014)

 “The Tribunal may require and facilitate such discovery as it deems it appropriate in the circumstances, taking into account the needs of the parties and the desirability of making discovery expeditious and cost- effective.”  Initial pre-hearing conference scheduled promptly after the constitution of the Tribunal.  CPR Protocol on Disclosure of Documents. 14 International Institute for Conflict Prevention and Resolution (Effective July 1, 2013)

International Chamber of Commerce  ICC Task Force Established in June 2008 at the suggestion of the U.S. National Committee of the ICC (USCIB)  Approximately 80 members from 23 countries  Practitioners on both sides of the Atlantic have very different views about e-documents 15

International Chamber of Commerce Arbitration Rules (Effective January 1, 2012)  Article 24 - Case Management Conference  “[T]he arbitral tribunal shall convene a case management conference to consult the parties on procedural measures that may be adopted pursuant to Article 22(2). Such measures may include one or more of the case management techniques described in Appendix IV.” 16

 Article Establishing the Facts of the Case  “The arbitral tribunal shall proceed within as short a time as possible to establish the facts of the case by all appropriate means.” 17 International Chamber of Commerce

 Appendix IV - Case Management Techniques:  Identifying cases to be decided solely on the basis of documents  Request for production limited to documents that are relevant and material to the outcome of the case  Using a Redfern Schedule  These are well-known techniques in international arbitration 18 International Chamber of Commerce

 Document disclosure in international arbitration has undergone major changes because of e-documents  Legal fees depend in part on the scope of e-disclosure  Having a well drafted arbitration clause will have a significant impact on the costs and duration of an arbitration 19 Conclusion

Production of Documents (International Arbitration) DOCUMENTS REQUESTED IN RESPONDENTS’ REQUEST TO PRODUCE DOCUMENTS SPECIFIC FACTUAL ALLEGATIONS CLAIMANTS’ OBJECTIONS RESPONDENTS’ REPLY CONTENTIONS TRIBUNAL’S DECISION 20 I.The IBA Rules A.Reflect a Compromise Between Civil Law and Common Law  Redfern Schedule

Acknowledgments