International Arbitration and E-Discovery: Rising to the Challenge

Those of us of a certain vintage remember the good old days of international arbitration. Discovery/disclosure was limited, if permitted at all, depositions were unheard of, and cross-examination was considered Anglo-Saxon “theater” that had to be tolerated, if not embraced. Although some documents were typically exchanged, the process seemed relatively manageable, albeit sometimes costly and time-consuming. Fast forward to today, however, and the rise of electronically stored data (ESI) has led to a host of challenges for international arbitration practitioners, arbitrators and arbitral institutions.

Modern international arbitration has been with us for many decades, and for parties doing business internationally it was the best recourse in the event the parties became involved in a dispute, because there was a global treaty in place providing for the recognition and enforcement of foreign arbitral awards. Currently 150 countries have signed the 1958 United Nations Treaty on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), which provides not only for the enforcement of the agreement to arbitrate, but also for the enforcement of the resulting arbitral award. There is no equivalent international treaty for the enforcement of court judgments to which the United States is a party.