The ICDR Guidelines for Information Exchanges in International Arbitration: An Important Addition to the Arbitral Toolkit

Article excerpt

How the information exchange guidelines came about and why they are so important.

In the course of 2006, the American Arbitration Association (AAA) undertook a review, the purpose of which was to ensure that the AAA's practices and procedures were responsive to the requirement that alternative dispute resolution (and arbitration in particular) remain a cost effective and expedient process for end users.

Some eight years previously, the International Bar Association had published its acclaimed and widely adopted Rules on the Taking of Evidence in International Commercial Arbitration (IBA Rules). Article 3 of the IBA Rules included provisions relating to the production of documents in international arbitration proceedings. The AAA concluded, however, that there was now a need for further guidance, not least because of a growing and discernible apprehension (whether or not well founded), particularly in civil law jurisdictions, of a trend towards an "Americanization" of the process and because of the ever increasing impact of electronic information storage in the context of document disclosure requirements and expectations.

Accordingly, the AAA decided to focus first upon the question of the exchange of documentary and electronic material in international arbitration. It recognized that increasing numbers of consumers of arbitration services and their advisers, not least in the United States, were finding themselves involved in international arbitration, many, for the first time.

The AAA also recognized that one of the clearest points of difference between the way in which cases are prepared for hearings in jurisdictions around the world arises out of the approach to document production and recourse to other procedures which, in the United States, is regarded generically as "discovery."

Outside the United States (and in international arbitration proceedings held in the United States) comprehensive requests for wide ranging pretrial document disclosure and evidence gathering by way of interrogatories or witness depositions are by no means the norm. Quite the contrary: if they are not exactly unknown, their use is exceptional and invariably controversial. Even if the parties to an arbitration are all represented by U.S. counsel, a tribunal which is not constituted exclusively of arbitrators whose legal background is in the United States- particularly in a case in which non-U.S. parties are also involved or one that is not susceptible to the supervisory jurisdiction of a U.S. court- might well seek to resist, or at the very least limit, attempts to replicate in the arbitration the practices and procedures of a U.S. courtroom.

The AAA is firmly established as one of the leading dispute resolution service providers internationally. Therefore, it is particularly well placed to proffer guidance to arbitrators, counsel and parties as to the best practice in tackling issues arising out of document disclosure and evidence gathering in international arbitration proceedings. In the formulation of its recommendations, the AAA has brought to bear its very considerable experience of the process in an effort to provide such assistance to end users, advisers and arbitrators who are involved in international arbitration conducted under the International Arbitration Rules of the International Centre for Dispute Resolution (the international division of the AAA).

In order to take its review forward, the AAA set up a Task Force on the Exchange of Documentary and Electronic Materials. It appointed as cochairs the distinguished international arbitration practitioner and former chair of the AAA board of directors, James H. Carter of Sullivan & Cromwell LLP in New York, and this writer, in his capacity as a member of the Executive Committee of the AAA board of directors, and as head of the International Arbitration Group of Clifford Chance LLP.

The mandate of the Task Force was to examine current practices, to review institutional rules (including the current rules of the AAA/ICDR) to the extent that they address the subject of documentary disclosure and evidence gathering in arbitration, and to produce recommendations that reflected the Task Force's appreciation of current best practice internationally. …