Change is inevitable: disclosure reform and international arbitration
This article was originally published on CDR and is reproduced with permission from the publisher.
Proposed changes to disclosure rules in the courts of England and Wales could have a knock-on effect on international arbitration. James Carter, Elinor Thomas, Angus Eames and Caroline Yuen from DLA Piper run the rule over the situation.
In today's increasingly competitive and sophisticated dispute resolution market, the traditional common law ‘cards on the table’ disclosure approach risks appearing an anachronism. The data explosion over the past two decades has vastly increased the number of potential documents available, leading to burdensome and disproportionate disclosure exercises with significant time and cost implications.
The pressing need for the English courts to reform the disclosure process, particularly given the competitive threat arising from Brexit (including risk of users choosing to litigate in other European jurisdictions and plans to open English language courts in Brussels and Frankfurt), has resulted in radical recent proposals.
When announcing the changes, Sir Terence Etherton, Master of the Rolls, commented: "Having effective and proportionate rules for disclosure is a key attraction of English law and English dispute resolution in international markets."
Significantly, the proposed changes move the process of disclosure closer to its equivalent in international arbitration - document production. Two questions arise: do these proposed improvements in English litigation pose a threat to international arbitration and how should international arbitration respond?
The key changes, which are proposed to be implemented in the Business and Property Courts for two years in a mandatory ‘disclosure Pilot’, are:
That ‘standard disclosure’ should no longer be the default position; instead parties will give ‘basic disclosure’ of key documents when serving their first statement of case. This is limited to 500 pages (and necessary data not in page form) and extends only to documents relied on by the disclosing party when drafting the statement of case and any further documents needed for the other parties to understand the case they have to meet. Parties may agree not to perform basic disclosure, and there are other situations where it is not required, but this form of disclosure will be the starting point now, and any further disclosure will need to be justified by the parties.
At the case management conference (CMC) the court will consider, by reference to the recommendations provided by the parties in a ‘disclosure review document’ (DRD), which of five new ‘extended disclosure’ models is to be applied to each issue; these range from model A, being no disclosure, to an exceptional model E, requiring disclosure not only of documents that are helpful or harmful in themselves, but also of documents that may assist an opponent with a train of enquiry. Other models include arbitration-style disclosure by request (see below) and something similar to ‘standard disclosure’. All adverse documents a party is aware of have to be disclosed in any event.
Narrowing the gap
A feature of English litigation was previously the wide-ranging disclosure obligations, including broad document searches and disclosure of adverse documents. A key advantage often claimed for arbitration is that it allows the parties greater flexibility and precision in relation to documentary evidence, resulting in significant time and cost savings.
While the specific procedure adopted varies, documentary evidence is often handled via the parties submitting only those documents on which they rely, followed by a series of targeted requests for specific documents and responses exchanged between the parties, commonly organised and presented in a Redfern schedule.
This key distinction between English litigation and international arbitration now looks set to reduce under the disclosure pilot. ‘Basic disclosure’ appears akin to the initial approach in arbitration that is, only disclosing documents on which the parties rely with their written pleadings, and interestingly, the disclosure pilot’s extended disclosure model C provides for each party to request from the other specific documents or narrow categories of documents, with the court to order a specific search in the absence of party agreement. This closely resembles the process undertaken by the parties when producing a Redfern schedule.
Being inquisitorial in nature, the document production process should be relatively limited in scope. In practice, particularly in complex, high value disputes, Redfern schedules often end up being enormous documents that represent: a ‘fishing’ exercise designed to inundate the other side and produce ‘smoking gun’ evidence; and a further forum in which to argue the merits.
Often the outcome is that each party requests the other to carry out a wide-ranging search for documents, leading to extensive back and forth submissions between the parties and the tribunal having to rule on a large number of requests and if the tribunal has concerns about a subsequent challenge to an award it may order the parties to carry out the extensive searches requested.
As a result, document production is often significantly more costly and time-consuming than anticipated and given the imminent reforms, the theoretical advantage which arbitration offers relative to litigation diminishing.
Time for change
If international arbitration is to remain competitive, it will need to adapt, and document production is clearly an area that is ripe for reform. While some of the major arbitral institutions have been alive to case management issues in recent years, there may still be scope for further improvement in institutional and procedural arbitration rules. Although the IBA rules on the taking of evidence 2010 serve as useful guidelines on the process, they offer little guidance on keeping the costs and scope of document production under control.
The introduction of a ‘necessity’ test in addition to the ‘relevance and materiality’ wording could assist in somecircumstances, as could the introduction of other procedures such as allowing parties to seek initial orders on documents that are regarded as crucial to the case before further requests are made directly to the parties.
The ICC Court of Arbitration (ICC) has already made some efforts towards achieving greater procedural efficiencies in its rule revisions. The case management techniques in appendix IV to the ICC rules include a section on document production and the 2017 rules now include an ‘expedited’ procedure for claims under USD 2 million, in which the tribunal has discretion not to allow requests for document production at all. It may be time for arbitration institutions to give tribunals more specific, codified powers to regulate the extent of document production.
Tribunals could adopt a more proactive approach and engage with document production before the process begins, to prevent wide ranging, predominantly tactical and burdensome requests. This might be achieved by requiring the early agreement of a list of issues, around which requests for document production would be focused. This would, of course, require the tribunal to engage with the facts of the case and set aside time, earlier than it might otherwise prefer. A more pro-active approach would also require sufficient engagement from all participants in the process.
This is not something which the institutions alone can achieve. Party representatives should be educating their clients, and promoting restraint and proportionality. They should be encouraging arbitrators to take a more analytical and focused approach, ensure their own Redfern schedules resist a shotgun approach in favour of a sniper’s rifle. Arbitrators should recognise and promote that behaviour by rewarding it in tightly proscribed document production orders. Given what is so often at stake this has more than a whiff of idealism about it, it is not impossible. A wider conversation and consultation is required.
The challenge has always been to strike the correct balance between obtaining sufficient information, while keeping the costs and scope of the disclosure process reasonable. Litigation has made progress in answering this challenge through the disclosure pilot, although its success remains to be seen.
It now seems that international arbitration faces its own challenge to adapt and reform to ensure proportionality, or risk being overtaken by more pro-active reforms elsewhere.