ABOUT THE AUTHOR: Dr Esmé Shirlow is an Associate Professor at the Australian National University (ANU)
Despite the increased pervasiveness of electronically-stored information (ESI) and e-discovery techniques, existing procedural rules are largely silent as to the role and mechanics of e-discovery in investor-State arbitration. As I note in a recent article, on which this post draws, this does not mean that issues of e‑discovery do not arise in investment treaty claims. It instead means that parties and tribunals are left to navigate such issues on an ad hoc basis from case to case. Given the likelihood of e-discovery being used in future investor-State arbitrations, parties, tribunals and other stakeholders need to consider how to adapt investment arbitration to respond to the challenges and capture the opportunities that e-discovery entails. This post addresses the likelihood of e-discovery being relevant to investor-State disputes; the challenges associated with such procedures; and the procedural guidance currently available to parties and tribunals to navigate these issues. It concludes by considering how tribunals, parties and other stakeholders might more proactively address e-discovery for future disputes.
Towards an Increased Likelihood of E-Discovery in Investor-State Disputes
Several factors indicate that e-discovery is likely to become increasingly relevant to investor-State arbitration. First, most documents are nowadays created exclusively in electronic form. This means that several categories of ESI – including emails, data, and recordings – are commonly sought through production requests in investor-State arbitrations. Typically, any such ESI will be produced by the parties in electronic (often native) format. Coupled with this, many tribunals direct parties to produce even hardcopy documents in electronic form as a default production mode. Second, parties and tribunals are also increasingly exploring the use of electronic discovery techniques, including keyword searches and automated reviews for relevance and/or privilege. Investment tribunals often actively encourage parties to use such techniques, including by requesting that parties specify in their document requests keywords for the producing party to use to search for the requested documents.
Party requests for domestic court assistance in discovery processes have also led to an increasing prevalence of e-discovery in investor-State arbitration. Pakistan, for instance, attempted to use domestic procedures to secure e-discovery following its unsuccessful attempts to seek production by the claimant of 70 backup tapes in an ICSID proceeding. Where such requests are granted, arbitrators will consequently need to assess the admissibility of any documents subsequently filed in the arbitration proceedings. Finally, where investor-State proceedings involve Anglo-American counsel or arbitrators, requests for ESI, and for the use of e-discovery techniques, may be particularly likely to be both made and granted.
The Challenges of E-Discovery
The production of ESI raises unique issues as compared to hardcopy production. Electronic documents are, for example, typically easier to archive and back-up than hardcopy documents. This may mean that electronic documents are more likely than hardcopy documents to be held in higher numbers and in a number of different sites, yielding multiple search locations. Electronic storage also increases the likelihood of duplicate documents. Electronic data is also particularly context-dependent. Where it is removed from its electronic environment, ESI and its metadata ‘may become obsolete and incomprehensible’. This may make it necessary for parties and tribunals to use specialists capable of using data in legacy formats. ESI can also be particularly transient and subject to destruction, increasing costs and complexity in a proceeding. As the respondent in Windstream noted, for example, production of ESI may become particularly ‘costly, time-consuming and uncertain’ where relevant email accounts have been ‘decommissioned’ such that production relies on the ‘restoration of back-up tapes’.
These features of ESI in turn make the use of technology-assisted review particularly useful. Parties might, for example, use software to thread messages to both reduce duplicates and facilitate review of documents in context. Such technologies may also assist to deal with issues associated with the presence of embedded electronic information in the ESI itself, including the risk of inadvertent disclosures of privileged metadata. Technology-assisted authentication may also be required where ESI is produced. In Lighthouse, for example, the parties disputed whether emails had been sent and/or received by particular individuals and/or had been fabricated entirely. Similarly, in EDF, the tribunal noted that ‘today’s sophisticated technology may permit easy manipulation of audio recordings’ such that ‘proven authenticity is in fact an essential condition for the admissibility of this kind of evidence’. Issues associated with the security and authenticity of electronic records have even prompted some parties to investor-State proceedings to resist disclosure through electronic platforms altogether.
Existing Guidance on E-Discovery for Investor-State Arbitration
The above challenges associated with e-discovery have largely been addressed to date by tribunals and parties on an ad hoc basis. Tribunals most frequently refer to the IBA Rules on the Taking of Evidence in International Arbitration to guide discovery procedures. The 2010 IBA Rules provide some limited guidance as to the treatment of ESI in disclosure processes. The IBA Rules provide, for instance, that parties need not produce ‘multiple copies of Documents which are essentially identical unless the Arbitral Tribunal decides otherwise’. Under the IBA Rules, a requesting party can also be required to identify ‘specific files, search terms, individuals or other means of searching for documents in an efficient and economic manner’. The Rules further provide that ESI can be ‘submitted or produced in the form most convenient or economical to it that is reasonably usable by the recipients, unless the Parties agree otherwise or … the Arbitral Tribunal decides otherwise’. Beyond this guidance, however, the Rules are almost entirely silent with respect to the particular procedural challenges associated with the production of ESI or the use of e-discovery techniques.
Another possible source of guidance for investor-State e-discovery procedures is the UNCITRAL Notes on Organizing Arbitral Proceedings. During a recent revision process, UNCITRAL’s Working Group II noted ‘the increasing prevalence of electronic disclosure in international arbitration’. The Secretariat further noted that users of the Notes had suggested they should be amended to include: ‘a separate section on the use of technology in arbitral proceedings, including for example guidance as to….electronic disclosure and commonly accessible electronic sites for providing information electronically’. The revised version of the Notes released in 2016 contemplates submission of documents in ‘specific electronic formats, such as original or native format where applicable’. Beyond this, however, the revised Notes provide limited guidance as to the modalities of electronic document review and production. Despite the Secretariat recognising that ESI might be associated with authenticity issues, for example, the Notes are silent as to how the authenticity of ESI should be assessed. They merely provide that the tribunal is entitled to ‘require that the evidence in its original form remain accessible to the parties and the arbitral tribunal’.
Grappling with E-Discovery for the Future
One way in which parties and tribunals can more proactively grapple with issues of e-discovery is through procedural conferences during arbitral proceedings. To date, such procedural conferences have rarely addressed the technicalities of discovery, let alone e‑discovery, in any detail. Tribunals instead tend to deal with issues of discovery in broad and general language in their first procedural orders, to defer deciding on specific issues of discovery for when they arise over the proceedings. This is despite the IBA Rules Commentary encouraging the use of such conferences to discuss, inter alia, whether the production of ‘electronic evidence’ is envisaged and, if so, ‘the form of production’. Using party conferences over the course of an arbitration to anticipate and discuss issues associated with e‑discovery in advance of them arising could yield considerable time and cost efficiencies. In the Bilcon proceedings, for example, the tribunal convened several meetings to give the parties ‘guidance on outstanding questions regarding document production, such as indexing and automized searches on the basis of date parameters and search terms’. Such conferences could be designated at various points within an arbitration timetable to achieve time and cost efficiencies, whilst also improving the quality of discovery.
E-discovery could also be addressed by guidance notes and rules promulgated by arbitral institutions. The ICSID Secretariat has foreshadowed, for example, the possibility of creating guidelines concerning, inter alia, ‘how to deal with electronic documents and meta data, etc’, as well as the creation of ‘templates of possible matters to be discussed in case management conferences’. Such notes would assist parties and tribunals to shape e-discovery processes fairly and efficiently in advance of disagreements arising. Other resources, such as model orders, training programs, and glossaries, could also be developed to standardise approaches to e-discovery.
The question is increasingly becoming not whether to incorporate e-discovery in investor-State arbitration, but instead how best to conduct it. As the amount of electronic data increases, and as technology-assisted review becomes more established, ad hoc responses are likely to produce unnecessary complexities that undermine the efficiency, equality, and cost-effectiveness of arbitral proceedings. Proactive management of e-discovery, including the more proactive use of procedural conferences and the development of guidelines and processes for such procedures, can provide important guidance for parties engaged in proceedings in which e-discovery is only likely to become more prevalent. Proactively addressing issues of e-discovery will also assist to equalise the opportunities for all litigating parties – including investors and States from regions that are less familiar with e-discovery – to engage in investor-State arbitrations proactively, reflectively, effectively and fairly.
 Esmé Shirlow, ‘E-Discovery in Investment Treaty Arbitration: Practice, Procedures, Challenges and Opportunities’ (2021) 11 Journal of International Dispute Settlement 549.
Dr Esmé Shirlow is an Associate Professor at the Australian National University (ANU). She researches and teaches public international law, international dispute settlement, and international investment law and arbitration. Dr Shirlow maintains a practice in the field of international law, and has been involved as an advisor to parties to investment treaty claims and in proceedings before the International Court of Justice.