International Arbitration Associations Issue Discovery Guidelines

In response to criticism that international arbitration is becoming as time consuming and costly as U.S. litigation, (read ABA article here) several arbitration associations have published guidelines recently:

• The International Chamber of Commerce (ICC) Commission on Arbitration published a 2007 report entitled “Techniques for Controlling Time and Costs in Arbitration.” (available here) The report covers guidelines for the creation of the arbitration agreement, selection of arbitrator, preliminary procedural issues, as well as subsequent procedural issues.

• The International Centre for Dispute Resolution (ICDR), the international arm of the American Arbitration Association promulgated in 2008 its “ICDR Guidelines for Arbitrators Concerning Exchanges of Information.” (available here) The guidelines provide that “while arbitration must be a fair process, care must also be taken to prevent the importation of procedural measures and devices from different court systems, which may be considered conducive to fairness within those systems, but which are not appropriate to the conduct of arbitrations in an international context and which are inconsistent with an alternative form of dispute resolution that is simpler, less expensive, and more expeditious.” Under the guidelines, the only documents to be exchanged are those on which a party relies.

• The Chartered Institute of Arbitrators issued its “Protocol for E-Disclosure in Arbitration” in 2008. (available here). The protocol’s purpose is to focus early consideration upon disclosure of electronically stored information.

• The CPR International Institute for Conflict Prevention & Resolution issued in 2009 its “Global Rules for Accelerated Commercial Arbitration” which when agreed by the parties, provides for one neutral with significant new powers to control discovery and requires rendering the award within six (6) months of the selection of the Arbitral Tribunal. (available here)

• The International Bar Association (IBA) published in 2009 a draft form of its “IBA Guidelines for Drafting International Arbitration Clauses.” (available here) The guidelines provide helpful comments and sample arbitration clauses.

• The Dispute Resolution Section of the New York State Bar Association published its “Report on Arbitration Discovery in Domestic Commercial Cases” in 2009. (available here) Despite its domestic focus, the recommendations are also helpful to international arbitrators. The objective of the report was to issue some guidelines of use to counsel and arbitrators to best handle the unpredictability issue of discovery proceedings in arbitration. The report provides ten precepts to help enable arbitrators to control the discovery process: (1) Good Judgment of the Arbitrator, (2) Early Attention to Discovery by the Arbitrator, (3) Party Preferences, (4) E-discovery, (5) Legal Considerations, (6) Arbitrator Tools (7) Artfully Drafted Arbitration Clauses, (8) Depositions, (9) Discovery Disputes, and (10) Discovery & Other Procedural Aspects of Arbitration.

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