Young ICCA Skills Training Workshop: Document Management and Production in International Arbitration
Post Event Report
By Cathryn Neo, Associate at Michael Hwang Chambers LLC
On 15 December 2017, Simmons & Simmons hosted a Young ICCA Skills Training Workshop which focused on document management and production in international arbitration, with a generous lunch reception sponsored by Deloitte & Touche Financial Advisory Services Pte Ltd. The participants to the workshop comprised of local and international arbitration practitioners, in-house counsel, as well as numerous post-graduate research students from diverse backgrounds such as Greece and India.
The introduction to the workshop was delivered by Ms Charis Tan, Director at DWF LLP and Young ICCA’s Events Coordinator. Ms Charis Tan gave an overview of the Young ICCA, its structure and network in the arbitration industry. She explained the scope of the skills training workshop on document production and management and the expertise of each speaker. To further hone the skills of the young practitioners who attended the workshop, the panel of speakers had put together a comprehensive and practical case study.
Starting off the first session were Ms Jennifer Fong, Partner at Eldan Law, and Mr Shum Wai Keong, Legal Counsel at Accenture. Ms Jennifer Fong and Mr Shum Wai Keong gave an overview of the case study which involved a contractual dispute between an Indonesian company which owned a coal-fired power plant and a Singapore company in charge of retrofitting the power plant. Tapping on his experience as an in-house counsel, Mr Shum Wai Keong discussed the lawyer’s role in requesting documents at the start of a dispute and emphasised that the in-house counsel should not be the only person that the lawyer should rely on. Ms Jennifer Fong highlighted that lawyers should not assume they understand the roles of different technical departments. Additionally, when dealing with clients who are not in-house counsel or legally trained, it is important to warn clients to put in place a litigation hold which is a company-wide stipulation not to destroy any documents and to preserve all documents relevant to the dispute.
In the second session, Mr Pravin Pandey from Deloitte Forensic SEA and Mr Christopher Bloch, Associate Counsel of the Singapore International Arbitration Centre, tackled issues on the management of voluminous documents. Mr Pravin Pandey shared that an average person generates about 50 to 100 gigabytes of data per year! He also conducted a demonstration on Relativity by Deloitte, a software which analyses and tags documents to improve the efficiency of document review. Following Mr Pravin Pandey’s demonstration, Mr Christopher Bloch shared his views on the tagging “hot docs” (i.e. privileged and confidential documents in industry-speak) and highlighted the importance of a clear and consistent document review protocol.
Ms Amanda Lees, Of Counsel of Simmons & Simmons, was invited to share her war stories in document production and management. She compared the difference between factual witnesses and documentary evidence, concluding that it is very rare in international arbitration that oral testimonies will determine a dispute. Ms Amanda Lees further added that counsel should be strategic in their document requests. For instance, counsel should consider the implications of requesting documents which go towards allegations for which the opposing party bears the burden of proof.
The final session focusing on the disclosure of documents was conducted by Mr Vivekenanda Neelakantan, International Counsel of Allen & Gledhill, and Ms Cam Tu Vo Nguyen, Associate of YKVN LLP. The participants discussed the application of the IBA Rules on the Taking of Evidence in International Arbitration (“IBA Rules”). In particular, the session examined Article 3 on the requirements in a Request to Produce and a party’s possible objection, and Article 9 on the admissibility and assessment of evidence.
One question raised by a participant was whether objecting to production of a document on the basis that it is “too time-consuming and costly” to do so would be too vague a reason, and whether the objecting party should be required to provide more details. Ms Cam Tu Vo Nguyen replied that it is possible to object to the production of a document on the basis that it was too burdensome to do so under Article 9.2 of the IBA Rules. However, counsel will have to show how burdensome such a request is. Mr Vivekananda Neelakantan added that the first port of call to reject a document request is to consider the document’s relevance before proceeding to the possible reasons under Article 9.2. Another question raised by a participant concerned the extent to which counsel may redact their client’s documents. Mr Vivekananda Neelakantan advised that the party disclosing the document retains control. It is up to the opposing party receiving the disclosed documents to seek further disclosure of any redacted portions of a document. The lively questions and answers session ended on a high note with many participants remaining after the workshop to meet with the speakers.
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