January 9, 2013
In the prior installment of this blog, I discussed the framework for e-discovery in the United States. In this post, I will discuss the leading law systems in use throughout the world, and the use of arbitration in those jurisdictions.
The majority of the United States, the United Kingdom, Canada, and India, as well as Australia, New Zealand, Ireland, Singapore, Hong Kong, among other nations, possess common law systems. The common law and court of equity are systems of law continually built by judiciary decisions.
Alternatively, civil law is not necessarily based on judicial decisions that establish authority derived from prior decisions. Civil law courts typically do not utilize juries, with the exception of certain criminal matters. Examples of civil law systems include most of the European Union, China, Japan, Brazil, Mexico, Argentina, and Ethiopia. Notably, the European Union Court of Justice takes a hybrid approach to civil law and the common law practice of placing importance on case law. It is also important to note that common law countries typically have a more litigious approach to arbitration than civil law countries.
Islamic law is one of the three major worldwide legal systems in addition to common law and civil law. Islamic law (also known as Sharia law) governs Saudi Arabia and Iran, among others, and can vary in the extent of incorporation of Sharia into local laws and practices. Lastly, there are a few countries that do not fall into a strict category of common law, civil law, and Islamic law. Among these would be Russia and China.
Regardless of the legal system, e-discovery generally has become extremely expensive in litigation, leading parties to proactively contract to resolve international commercial litigation in alternative dispute resolution forums (“ADR”). Adding further expense to international commercial disputes are language barriers, which often create additional burdens and costs during the international e-discovery process.
An example forum would be the Arbitral Tribunal, the body presiding over the London Court of International Arbitration (“LCIA”). It is empowered to govern e-discovery by virtue of Article 22 of the LCIA Arbitration Rules. Discovery in LCIA proceedings focuses on the relevance of documents, and that focus narrows the scope of discovery. Litigants in the United States, by comparison, appear to broaden the scope of discovery of ESI, losing focus on requesting specific documents and becoming engrossed in overbroad categorical requests. This approach makes e-discovery more expensive than necessary, turning the process into “discovery litigation” rather than a pursuit of justice. The LCIA has become increasingly more involved in the pre-hearing exchange of ESI by promulgating standards specifically pertaining to the process. Certain ADR providers have followed suit – both in the United States and abroad – making ADR more attractive than judicial process in matters involving high-volume e-discovery.
There are a number of other forums to reduce the time and expense of cross-border litigation. In the coming installments I will discuss these options as well as a look at how the US and other countries have guided the evolution of e-discovery within the context of their legal systems.