Introduction
The International Bar Association held its 22nd annual Arbitration Day on March 14 and 15, 2019 in Montreal. Hundreds of lawyers gathered from North America, Latin America, Europe, Asia, Africa and Australia.
On March 14, the IBA Arb 40 Subcommittee of the IBA Arbitration Committee, the Young International Arbitration Group of the London Court of International Arbitration and the Young Canadian Arbitration Practitioners held a young practitioners symposium on the topic of document production in arbitration and other hot topics such as appointing retired judges as arbitrators, cybersecurity, how to get your first appointment as an arbitrator, and diversity.
Also on March 14, the International Chamber of Commerce’s International Court of Arbitration held a round table discussion on emergency arbitrator proceedings, expedited proceedings, summary disposition of claims and defences, and the timely rendering of arbitral awards.
The events on March 14 concluded with a welcome reception hosted by the IBA.
On March 15, the IBA held its conference. This year’s topics included arbitration vs. mediation, mandatory rules and lois de police, trade sanctions, NAFTA/USMCA and other trade agreements, and data protection, privacy, confidentiality and cybersecurity. Ian Binnie, Q.C., gave a keynote speech over lunch. The day concluded with a closing reception.
Of all of the various topics covered over the two days, I provide below a brief summary of the key takeaways from the presentations on document production and cybersecurity, which in my view provided the most practical tips for practitioners and might be of the most interest to CBA members.
Document production in arbitration
In common law jurisdictions, discovery is an essential part of litigation proceedings. Parties are compelled to produce documents, even if they are unfavourable to their case. In civil law jurisdictions, while each party must gather the evidence to substantiate the facts of their case, the adverse party is not obliged to assist in that process. There is no general obligation to give documents to the other side that are detrimental to one’s case.
Privilege in particular is treated quite differently in common law jurisdictions versus civil law jurisdictions. Accordingly, parties in international arbitration are presented with challenges to privilege that they wouldn’t routinely encounter in litigation. Different countries vary on privilege issues such as the protection of lawyers’ work product, inadvertent disclosure and waiver, and the question of whether privilege protects a person or the content of the communication. For example, communications with in-house counsel are covered by solicitor-client privilege in Canada, the United States and the United Kingdom, yet, in certain civil law jurisdictions like in France, this is not the case.
If the standard of privilege is not dealt with in the agreement between the parties (which it rarely is), it will require the arbitral tribunal to apply the standard, but there is risk with this if the standard is different than what the parties expected based on their own country’s rules. Most international tribunals do not have an established set of rules on privilege to refer to for guidance. Further, there is not a great deal of guidance from national instruments, institutional laws, or soft law. As a result, when dealing with document production in an international arbitration, it is important for the parties to be aware of the privilege rules in each country at play in the dispute to understand the differences. While the IBA Rules for the Taking of Evidence in International Arbitration do not address the issue of privilege, they do provide procedural guidelines around document production, notably article 3 on documents and article 9 on the admissibility and assessment of evidence, which may be particularly useful when the parties are from different legal cultures.
Data protection and cybersecurity in international arbitration
Data protection and cybersecurity are hot topics in all areas of law at the moment, however the risks may be even greater in international arbitration because of the parties, the tribunal and the institutions often being in different countries and exchanging large volumes of electronic data. Further, international arbitration often involves multinational corporations, public figures and governments that are the target of cyber attacks.
A data breach may be a breach of confidentiality, integrity, or availability of personal data. This may include the accidental or unlawful destruction, loss or alteration of documents, or unauthorized disclosure or access of documents or personal data. Law firms have become targets for breach as cyber criminals perceive law firm security to be weak. A data breach can lead to severe consequences including breach of attorney-client confidentiality, data and identify theft, financial loss, etc., all of which can lead to liability and damages.
Most arbitration rules contain limited duties of confidentiality and these duties are typically only binding on arbitrators and institutions, but not the parties. Further, whether you are required to notify potentially affected third parties and in what time frame depends upon the respective country’s laws.
The International Council for Commercial Arbitration, the New York City Bar Association, and the International Institute for Conflict Prevention and Resolution have launched a working group on cybersecurity in international arbitration. The working group is preparing a set of guidelines, which will provide practical guidance for counsel, arbitrators, institutions, and protocols which can be adopted by parties to an arbitration. The IBA also has cybersecurity guidelines aimed at legal practitioners and law firms.
It is unclear at the moment whether it falls on the arbitrator to set the stage for data protection and cybersecurity, the institution, or the parties. Including basic measures for data protection and cybersecurity in a procedural order or in an agreed-upon protocol is a good practice to develop in order to avoid a breach. The procedural order or protocol should include a procedure for transferring and storing sensitive data, limiting disclosure and use of sensitive information, and disclosing any data breaches.
Conclusion
A good tip to remember when working on international cases is that the rules you are accustom to in your jurisdiction may not be the same in the other parties’ jurisdictions, so to avoid any surprises, either address these issues in the arbitration agreement, or where it’s too late for that, come up with a protocol or procedural order at the outset of the case.
Alexandra Mitretodis is a lawyer with Fasken in Vancouver.