International Construction Law Review
DISCLOSURE OF ELECTRONIC DOCUMENTS: THE ISSUES AND GUIDELINES IN INTERNATIONAL CONSTRUCTION ARBITRATION
TROY L HARRIS
Dip IC Arb, FCI Arb King & Spalding, Atlanta, Georgia USA
I. INTRODUCTION
Disclosure of electronic documents in international commercial arbitration has drawn much attention recently.1 Concern regarding the prospect of extensive electronic document discovery in international commercial arbitration, particularly among lawyers from civil law traditions, is frequently the result of principled resistance to the concept of American-style “discovery” and recognition that electronically stored information (“ESI”) exists in a wide variety of forms, reproduces at an alarming rate and contains “hidden” information. Thus, what was already a bad idea (i.e., wide-ranging inquiry into matters of questionable relevance) threatens to grow exponentially worse due to the proliferation of ESI. This concern is even greater in the context of international construction arbitration, and for many of the same reasons that make construction disputes different from commercial disputes generally: (1) the multiplicity of parties2; (2) the document-intensive nature of construction projects3; and (3) the extended duration of most major construction projects, during which documents may be lost or destroyed in the ordinary course of business.4
The concern over disclosure of ESI is a valid one, and it has both procedural and substantive aspects. This article will consider first the procedural aspect of disclosure of electronic documents, including guidance currently available to address the issues raised and potential gaps in
1 See, e.g., Robert H Smit and Tyler B Robinson, “E-Disclosure in International Arbitration”, 24(1) Arbitration International 105 (2008); Anke Meier, “The Production of Electronically Stored Information in International Commercial Arbitration”, German Arbitration Journal 179 (July/August 2008); David J Howell, Ed, Electronic Disclosure in International Arbitration (Juris Publishing, Inc, 2008); Nicholas Tse and Natasha Peter, “Confronting the Matrix: Do the IBA Rules Require Amendment to Deal with the Challenges Posed by Electronically Stored Information?”, 74 Arbitration 28 (February 2008); Jonathan L Frank and Julie Bédard, “Electronic Discovery in International Arbitration: Where Neither the IBA Rules nor US Litigation Principles are Enough”, Dispute Resolution Journal 62 (November 2007–January 2008).
2 See generally John W Hinchey and Troy L Harris, International Construction Arbitration Handbook (hereafter, ICAH), §§ 3:29–3:36 (2008).
3 See ICAH, §§ 6:20-6:25.
4 See ICAH, §§ 1:1, 1:5; see also John Uff, “Arbitrating International Construction Disputes”, in Lawrence W Newman and Richard D Hill, Eds, The Leading Arbitrators’ Guide to International Arbitration (2nd ed., 2008) (hereafter, “The Leading Arbitrators’ Guide”), pp. 735–748.
[2009
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