It has long been an established principle of international arbitration that in order to act as fairly and impartially as possible between the parties, there should be broad 'equality of arms'.

This article will explore the extent to which this principle is threatened by the advent of new technology and the adoption, by certain parties, of techniques pioneered in other realms of dispute resolution.

Many large international commercial arbitrations, particularly in the realm of construction and engineering, now commonly involve very large volumes of documentary evidence.

One consequence of this is that well-resourced parties are increasingly turning to technological solutions for assistance, both in the management and analysis of that documentation and in the ultimate presentation of their case at the main hearing.

Many major disputes are contested by parties with the financial resources to secure equal access to such technology – but what of those cases where the resources of the parties in dispute are not well matched?

It is far from uncommon for disputes to be arbitrated between a major multinational group with a combined market value in excess of the GDP of its emerging state entity adversary.

While the multinational group will be able to engage the law firm of its choice and implement the case preparation strategy recommended, the emerging state entity may be forced to prepare its case with the application of far more limited resources – perhaps without the engagement of experienced external legal advisers.

It may, therefore, be wholly unable to secure access to modern litigation support technology.

Taking advantage of technology

The general counsel to a party engaged in a dispute with such an adversary is likely to find it difficult to explain to his or her chief executive why he has not sought to take advantage of a technological tool which he reasonably believes would give the group an advantage over its adversary – particularly if it is what is known as a 'bet-the-company' dispute.

Indeed, in certain countries, an officer of a company responsible for conducting the company's case may be in breach of his fiduciary duties owed to the company if he does not utilise tools he reasonably believes would improve the company's prospects.

Should the tribunal intervene to prevent a multi-national having access to the technology?

Ought it to make its use conditional upon the same technology being made available to both parties?

What, if any, conditions can properly be applied in relation to the cost implications of usage and to what extent does the law of the seat or any applicable institutional rules change the position?

The mock arbitration

What of other techniques? In large US commercial jury trials, a practice has developed of seeking to stage mock trials in advance of the trial itself.

During these mock trials, the party seeks to replicate, so far as possible, the composition of the jury so that the relevant evidence can be rehearsed in order to gain an insight into the way in which the jury may react.

In this way the party can then refine its case for the ultimate trial.

Some parties are now adopting the same approach in relation to international arbitrations, with leading arbitrators engaged to participate in one or more mock arbitrations before the main hearing.

The aim is to ensure that the composition of the mock tribunal is as close to the real tribunal as possible in terms of likely approach to the issues in dispute.

This can involve significant investment of time in the selection of the mock tribunal, with analysis of prior awards and papers delivered by the various candidate arbitrators on relevant legal issues.

Consider the costs

Inevitably, the costs of this exercise can be very substantial and, with an inequality of available resource, it may be an option which is available to only one of the parties.

To what extent is such a mock arbitration therefore permissible?

To what extent does a party have an obligation to disclose its intention to conduct a mock arbitration?

The extent to which the parties are afforded a 'full' or 'reasonable' opportunity to present their case may be said to impact upon the extent to which they are entitled, as of right, to have access to technological tools which may not be accessible to the other party by the lack of availability of the necessary resources.

Under Article 15 of the UNCITRAL Rules, the parties are afforded a 'full' opportunity of presenting their case, whereas Article 14.1 of the rules of the London Court of International Arbitration gives the parties 'a reasonable opportunity of putting its case and dealing with that of its opponent'.

This may be said to give the tribunal greater scope to pare back access in situations where there is inequality of resource.

It is currently unclear to what extent the recent English High Court decision concerning the witness training company Bond Solon – in which the court laid down further guidance on the extent to which it is permissible to prepare witnesses for court proceedings – is applicable in the arena of arbitration.

Against the backdrop of that decision, the practice of conducting mock arbitrations in relation to arbitrations seated in England and Wales may be difficult to sustain.

The tribunal members' own cultural perspectives, drawn from the legal culture in which they were schooled and practised, will potentially have even greater bearing on the extent to which they feel compelled to intervene to rebalance the position between the parties than the law of the seat or any applicable institutional rules.

An arbitrator with extensive experience of US court procedure may see little wrong in a mock arbitration and may be more sympathetic to the position of the general counsel who wishes to utilise technological evidence analysis or presentation aids.

Meanwhile, a civil law-schooled arbitrator may err more towards conditional usage requiring equal access.

There is, in this difficult area, no universal answer to what constitutes due process and the approach adopted to similar disputes will be likely to differ depending upon the cultural baggage of the individual tribunal members and, most significantly, in a three-person tribunal, its chair.

Parties entering into a dispute with a less well-resourced party would do well to give consideration to possible differences of perception of what constitutes 'due process' when selecting their tribunal.

Similarly, such parties should actively consider giving early warning to the tribunal members and the other party, if tools that could potentially impact on the 'equality of arms' principle are to be used, so as to avoid any risk of them subsequently being disallowed.

Ian Meredith is a partner and Sarah Munro an assistant in the international arbitration group at Kirkpatrick & Lockhart Nicholson Graham.