E-Discovery in Investment Treaty Arbitration: Practice, Procedures, Challenges and Opportunities

Abstract

Document production, and with it e-discovery, presents unique opportunities but also challenges for parties and tribunals seeking fair, efficient and effective investor-state arbitration proceedings. Despite the prevalence of electronically stored information and the potential utility of technology-assisted review techniques, e-discovery procedures in investor-state arbitration are relatively underdeveloped. Applicable procedural rules and guidelines are largely silent as to the mechanics of e-discovery. Analysis of investor-state arbitration decisions indicates a further reticence on the part of parties and investor-state tribunals to squarely address issues of e-discovery proactively. This means that the use, selection and scope of e-discovery are left almost entirely to parties and tribunals to navigate on a case-by-case and largely ad hoc basis. Given the likely increasing relevance of e-discovery in international investor-state arbitration, this article considers how parties and tribunals might be supported to become better equipped to accommodate e-discovery appropriately in investor-state arbitration.