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WCART SECOND ANNUAL ENERGY ARBITRATION CONFERENCEMay 6, 2008
THE ROLE OF TECHNOLOGY INDISCOVERING AND PRESENTING EVIDENCE IN COMMERCIAL ARBITRATIONS
by: Aldo Argento Mary Comeau
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E-DISCOVERY
What is a "document"?
• Hotmail
• Website
• Instant / text messages (pin to pin on blackberries cannot be produced)
• Electronic calendar
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E-DISCOVERY
What is a "document"? (cont'd)
• PDF and TIFF files
• Audio and video files
• Metadata
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E-DISCOVERY
Should I produce "live" files?
• Document integrity
• Disclosing more than you intended
• Providing unnecessary advantage
• Licensing issues
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E-DISCOVERY
What is producible?
• Ontario Guidelines (now adopted in Alberta) provide that:
A party may satisfy its obligation to produce relevant electronic documents in good faith by using electronic tools and processes, such as data sampling, searching or the use of selection criteria, to identify the documents that are most likely to contain relevant data or information.
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E-DISCOVERY
What is producible? (cont'd)
• Electronic searching is an acceptable way to determine what documents are producible.
Shell Canada Ltd. v. Superior Plus Inc. [2007] A.J. No. 1359
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E-DISCOVERY
How does this apply to Arbitration?
• Arbitration Standards for production usually lower than litigation
– International Chamber of Commerce
• documents necessary to establish the circumstancesof the case.
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E-DISCOVERY
How does this apply to Arbitration? (cont'd)
– London Court of International Arbitration
• essential documents which the parties rely upon
– International Bar Association, IBA Rules on the Taking of Evidence in International Commercial Arbitration
• documents available upon which the party relies
In each case, discretion is given to require more production.
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E-DISCOVERY
Result?
• Production is usually more narrow in arbitration than litigation
• Electronic production is the same generally, but to ensure this you may want to address:
– searching for key words
– narrow to types of files; and
– limit archival searching
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USE OF TECHNOLOGY IN ARBITRATION
Use of new technology in Arbitration.• Information and communication technologies
– Examples include e-mail, internet, document management software, videoconference evidence and Real Time Court Reporting
• Technology used by parties in the preparation of their case.
• Technology used by the parties in the presentation of their case.
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ISSUES FOR CONSIDERATION BY ARBITRATION PANELS
• In what circumstances should an Arbitration Panel intervene where technology/ability to use technology only available to one of the parties?
• What fairness considerations under applicable legislation/rules must be taken into account?
– Article 18 of the Model Law – Equal treatment of Parties
– Article 14.1 of the LCIA Rules
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ISSUES FOR CONSIDERATION BY ARBITRATION PANELS
• In what circumstances will an Arbitration Panel be required to level the technological playing field? Potential considerations:
– Cost of the technology
– Availability of the technology
– Potential benefits to the Arbitration from the use of the technology.
• Reference: Thomas Halket, 81 St. John’s L. Rev. 269 [2007] “The Use of Technology in Arbitration: Ensuring the Future is Available to Both Parties”.
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ISSUES FOR CONSIDERATION BY ARBITRATION PANELS
• Specific examples:
– Document management software
– Computer programs to analyze information
– Real Time Court Reporting
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REAL TIME COURT REPORTING
• What if only one party is prepared to pay for the cost?
• Can the Panel access Real Time Reporting if it is not used by all parties?
• Can the Panel direct that all parties share the cost to enable the Tribunal to access Real Time Court Reporting?
• Witness use of Real Time Reporting while giving evidence
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EVIDENCE BY VIDEOCONFERENCE
• Use at Examinations for Discovery v. Use at Hearing– Rule 261.1, Alberta Rules of Court– De Carvalho v. Watson [2000] A.J. No. 555 (Q.B.)– Edmonton (City) v. Lovat Tunnel Equipment Inc. [2000]
A.J. No. 276 (Q. B.)
Practical Considerations• Cost • Reliability • How are documents dealt with?• Logistical details (location of Court Reporter, counsel)• Circumstances where translation is required
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ONLINE ARBITRATION - Where Are We Going?
Case Management
• What is an extranet?
– hosted by one of the parties
– provides centralized filing
– more secure than e-mail but not totally
• spoofing
• sniffers
– able to deal with large cumbersome information
– can cross-reference and search
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ONLINE ARBITRATION - Where Are We Going?
Online Case Management and More!
• International Chamber of Commerce
– NetCase
• American Arbitration Association
– Webfile
• Chartered Institute of Arbitrators
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ONLINE ARBITRATION - Where Are We Going?
Services provided on these sites:
• File claims
• Handle service of documents
• Appoint arbitrators
• Access rules and procedures
• Conduct arbitration online
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Virtual Arbitration Hearings - The Wave of the Future?
Virtual Magistrate• Quick resolution of online computer related
disputes– wrongful messages and postings
– copyright, trade secrets, fraud, defamation, privacy
– complaints against system operators
• Available from any computer network in the world as long as parties agree.
• Last data available indicates has been used to resolve one dispute.
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Virtual Arbitration Hearings - The Wave of the Future?
Online Ombuds Office (UMass)
• eBay link for eBay disputes from $1 to $15,000
• Mediation only
• Over 150 complaints in first 2 weeks, half resolved
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Virtual Arbitration Hearings - The Wave of the Future?
World Intellectual Property Organization
• International Corporation for Assigned Names and Numbers has established rules for the resolution for domain names disputes.
• WIPO and AAA establish process whereby domain name disputes are resolved in writing online
• Results posed on WIPO website - over 150 cases each month on average - over 10,000 decisions have been rendered.
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Virtual Arbitration Hearings - The Wave of the Future?
Chartered Institute of Arbitrators
• Specific processes for specific industries or corporations
– FordJourney
– Association of British Travel Agents
– Musicians Union
– Construction Adjudication
• Delivered about 400 awards to date
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The Verdict at this point?
• Works well for disputes
– for small amounts
– that are fairly simple
– that are resolved by reference to a standard set of rules
– that fit a standard model
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• Unlikely to work well for disputes
– for large amounts
– that are complex
– that are resolved by reference to complex legal arguments
– that are factually unique.
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THE ROLE OF TECHNOLOGY IN DISCOVERING AND PRESENTING EVIDENCE
IN COMMERCIAL ARBITRATIONS
THE END
