E-discovery in foreign and non-judicial contexts, part five: International Chamber of Commerce (ICC)
October 23, 2013
The International Chamber of Commerce does not have specific provision regarding e-discovery in their arbitration rules, but in advisory papers, such as the Report of the ICC Commission on Arbitration Task Force on the Production of Electronic Document in International Arbitration). Article 25: ‘Establishing the Facts of the Case: 1) The arbitral tribunal shall proceed within as short a time as possible to establish the facts of the case by all appropriate means’.
Article 19: ‘Rules Governing the Proceedings: The proceedings before the arbitral tribunal shall be governed by the Rules and, where the Rules are silent, by any rules which the parties or, failing them, the arbitral tribunal may settle on, whether or not reference is thereby made to the rules of procedure of a national law to be applied to the arbitration’.
Article 21: ‘Applicable Rules of Law: 1) The parties shall be free to agree upon the rules of law to be applied by the arbitral tribunal to the merits of the dispute. In the absence of any such agreement, the arbitral tribunal shall apply the rules of law which it determines to be appropriate. 2) The arbitral tribunal shall take account of the provisions of the contract, if any, between the parties and of any relevant trade usages’. “ …[t]he key to maintaining the efficiency of international arbitration, and avoiding the problems occasioned in some jurisdictions by the advent of electronic documents, is for parties and arbitral tribunals to continue to adhere to these principles of specificity, relevance, materiality and proportionality.” (Section 2 and Section 3 (c) of the Report)
Preamble of ICC Report:
“The need to produce ESI shall not constitute “…the vehicle through which US-style discovery will penetrate the world of international arbitration.” International arbitration should not “…fall prey to the inefficiencies of electronic document production that have plagued litigation in certain national court jurisdictions like the United States.”
Principles of ICC Report
Time and Method of ESI Production – address issue at the outset, use Attachment IV to the ICC Rules (case management techniques) and use of IBA Rules;
Scope of production – no more, no less than paper documents, and attention to narrow, focused, material and reasonable requests only after first submission on the merits. Also no production of hidden metadata (unless proven relevant and material) and use of tools and search methods to increase efficiency.
Expertise in IT – parties to inform on their IT system; Reversal of cost burden; Form of Production – the most cost-effective and efficient manner appropriate for the circumstances; Priviledge – search terms and claw back agreements; Preservation of documents/failure to produce documents – rebuttal of US-style holding period, which should be an exception.
Conflict Prevention & Resolution (CPR) Rule 11: ‘The Tribunal may require and facilitate such discovery as it shall determine is appropriate in the circumstances, taking into account the needs of the parties and the desirability of making discovery expeditious and cost-effective.’ Protocol on Disclosure of Documents and Presentation of Witness in Commercial Arbitration – “expeditious and cost-effective” are in, but “possible relevance” is out.