Electronically stored documents, in particular, emails, have rapidly become perhaps the most important source of evidence in commercial business disputes of virtually every kind. In the United States, new rules of court procedure seek to address the scope and conduct of discovery of electronic documents, which present unique challenges for litigants that discovery rules and principles designed with hardcopy documents in mind are ill-equipped to address. The same issues arise for international commercial arbitration but no guidelines tailored to the unique nature of international arbitration have yet been devised. This article surveys the unique issues and problems that arise in connection with the production of electronic documents, discusses the discovery rule innovations that are taking place in the United States to address those issues and problems, and proposes guidelines for the conduct of electronic disclosure in international commercial arbitration, taking into account important differences between international arbitration and U.S. domestic litigation.
Journal Article. 14815 words.
Subjects: Arbitration ; Company and Commercial Law ; Competition Law ; Employment and Labour Law ; Settlement of Disputes
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