Electronic Discovery in International Arbitration -Focusing on the Establishment of Rules Regarding Electronic Discovery-

국제중재에서의 전자증거개시 -전자증거개시를 규율하는 규정의 제정을 중심으로-

  • Received : 2010.06.21
  • Accepted : 2010.07.30
  • Published : 2010.08.02


Electronic discovery refers to the discovery of electronically stored information. The differences between producing paper documents and electronic information can be categorized into seven groups: massive volume, persistence, dynamic and changeable contents, metadata, environment-dependence, dispersion and searchability. Since these differences make the discovery more expensive and less expeditious, it is necessary to limit the scope of discovery. Accordingly, a number of arbitration institutions have already introduced rules, guidelines or protocols on electronic discovery. ICDR guidelines take a minimal approach and address only the proper form of electronic document. CIArb Protocol is intended to act as a checklist for discovery of electronic data. CPR Protocol offers four modes of discovery of electronic documents ranging from minimal to extensive among which the parties may choose the way of electronic discovery. IBA Rules on Evidence and ICC Rules are silent on the issue of electronic discovery, however, working parties of the ICC are considering updates to the rules to deal with electronic discovery. It is disputed whether rules, guidelines or protocols on electronic discovery is necessary or appropriate. Although some have suggested that existing rules can make adequate provision for electronic discovery, it is more desirable to prepare new rules, guidelines or protocols to make arbitrators and counsels be familiar with electronic discovery process, to provide an adequate standard for electronic discovery and to limit the time and cost of electronic discovery. Such rules on electronic discovery should include provisions regarding the form of electronic document production, conference between parties regarding electronic discovery, keyword search, bearing the expenses to reduce disputes over electronic discovery.