Electronic evidence in arbitration
Produced in partnership with Simmons & Simmons
Electronic evidence in arbitration

The following Arbitration practice note produced in partnership with Simmons & Simmons provides comprehensive and up to date legal information covering:

  • Electronic evidence in arbitration
  • How electronic disclosure is used in arbitration
  • When to think about electronic disclosure
  • If there is to be electronic disclosure, what am I obliged to disclose?
  • Useful sources of guidance on electronic disclosure in arbitration
  • The English Civil Procedure Rules
  • The IBA Rules
  • The ICC Commission Report
  • CIArb protocol for e-disclosure
  • ICDR guidelines and rules
  • More...

How electronic disclosure is used in arbitration

There is no universal binding protocol on e-disclosure in arbitration. This is consistent with the general approach that arbitration procedures should be flexible and that the tribunal has the authority to determine what evidential rules shall be applied in each individual case, subject to the agreement of the parties. However, as electronically stored information (ESI) is likely to form a significant proportion of the documentation involved in most arbitrations, serious thought must be given as to how it will be managed and used during the arbitral process to best enable the parties to present their cases without the task of producing the evidence becoming too onerous. Note: the term ‘document production’ rather than ‘disclosure’ is usually used in arbitration but the term ‘e-disclosure’ seems to be used in both contexts.

In contrast with English civil litigation, it is usual in arbitration for parties to disclose documents on which they rely early in the proceedings. Their opponent may then request any further documents they wish to see and any dispute over whether these documents should be produced will be referred to the tribunal for resolution. Under most sets of arbitration rules (institutional or ad-hoc) it is for the tribunal to determine how evidence will be presented and what weight it will be given in the arbitration. In doing so, the

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