Arbitration is supposed to be a quicker and more economical way to settle disputes than litigation, but the introduction of electronic discovery (eDiscovery) into the process could take away its appeal to businesses.
How to handle requests for electronic information in arbitration proceedings is being addressed by a number of organizations.
The International Centre for Dispute Resolution, which is the multinational arm of the American Arbitration Association, in its "Guidelines for Information Exchanges in International Arbitration" recommends that requests for electronic documents should be narrowly focused and structured to make searching them as economical as possible.
In its "Protocol for E-Disclosure in Arbitration," the Chartered Institute of Arbitrators stresses that if electronic disclosure is going to be used in a case, all parties should be notified early in the process.
Another arbitration organization, the International Institute for Conflict Prevention and Resolution, in its "Protocol on Disclosure of Documents and Presentation of Witnesses in Commercial Arbitration" advises that in making rulings on disclosure, an arbitration panel should carefully consider the high cost and burdens associated with compliance with eDiscovery requests.
Some groups, like the International Chamber of Commerce, are taking the "nothing new under the sun" approach to eDiscovery. Its Task Force on Production of Electronic Documents in Arbitration, which is preparing a final report on the subject, is expected to find that e-discovery is in principle no different from traditional paper discovery and may be generally governed by the same specificity rules governing requests for exchange of information.
"The key problem in commercial arbitration, whether done domestically or internationally, is that it has become as costly and almost as slow as litigation," writes Richard Chernick, vice president and managing director of the arbitration practice forJAMS, the largest private alternative dispute resolution provider in the world.
"The main culprit has been identified as discovery cost and abuse," he added. "E-discovery is the poster child for the 'litigization' of arbitration as well as for the source of rapidly increasing costs."
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