ICC Arbitration Commission Report on Managing E-Document Production
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Under the ICC Rules of Arbitration (the “ICC Rules”) arbitral tribunals have the power to decide whether or not to order the production of documentary evidence, including electronic documents, and to manage any such process in a fair and efficient way.
In addition, the framework for the production of documents set out in the IBA Rules on the Taking of Evidence in International Arbitration (the “IBA Rules of Evidence”) is a valuable resource to help parties and arbitrators deal with the issue of document production, and expressly encompasses the production of electronic documents. As reflected in the IBA Rules of Evidence, the same principles of specificity, relevance, materiality and proportionality apply to the production of both paper and electronic documents.
It does not seem necessary to prescribe specific “rules” or “guidelines” applicable specifically to the production of electronic documents. Furthermore, it may be undesirable to do so to the extent that such rules or guidelines may compromise the parties’ and arbitrators’ flexibility to address issues in light of the particular circumstances of each case. In particular, the production of electronic documents, if any, should not jeopardize the efficient and cost-effective use of arbitration and thus its attractiveness as a method of dispute resolution.
Typical practice in international arbitration, and a widely-shared concern of users, is that requests for the production of documents by an opponent, when available at all, should be limited to specifically identified documents or to narrow and specific categories of relevant and material documents. Moreover, an arbitral tribunal should also consider the proportionality of ordering any requested production: it should weigh the relevance and materiality of a document or category of documents against the likely burden of searching for, retrieving, reviewing and producing it.
In deciding whether to allow, and in managing, the production of electronic documents, parties and arbitrators should take account of particular features of such documents that give rise to additional or different practical considerations from those that arise in connection with paper documents. In so doing, it is essential not to discourage businesses from having recourse to arbitration by proposing approaches that are likely to increase the expense of the proceedings and the disruption to their business activities.
This Report describes the key features of electronic documents and how they may be managed, which is facilitated by a co-operative approach by the parties, by a focus on avoiding steps that will occasion unnecessary cost or delay, and by active case management by the arbitral tribunal. However, the advent of electronic documents should not lead to any expansion of the traditional and prevailing approach to document production, if any, in arbitration. Requests for the production of electronic documents, like requests for the production of paper documents, to the extent that they are necessary at all, should be limited and tailored to the specific circumstances of the case. The 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 general principles of specificity, relevance, materiality and proportionality.
Two Appendices accompany this Report. Appendix I provides a Primer—for the benefit of parties and arbitrators less knowledgeable about information technology—which contains a description of some of the differences between paper documents and electronic documents and explains how the latter are created, stored, searched, transmitted and deleted. This basic information about electronic documents is intended to assist parties and arbitrators in dealing with some of the practical considerations that may arise when addressing questions relating to electronic documents and to help them manage any production of such documents in a fair and efficient manner. Appendix II contains a Glossary of relevant terms relating to electronic documents.
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