Simpler, cheaper, quicker – cross-border arbitrators are working with new guidelines from the International Centre for Dispute Resolution.

The American Arbitration Association (AAA), through its international arm, the International Centre for Dispute Resolution (ICDR), issued new guidelines to arbitrators this year, effective from May 31. They are designed to reduce costs and simplify and speed up international arbitrations conducted by the ICDR.

The guidelines will be reflected in amendments to be incorporated into the next revision of the International Arbitration Rules, but they may be adopted in arbitration clauses or by agreement at any time in any other arbitration administered by the AAA. These initiatives bring the ICDR more in line with international arbitration practices generally – for example, as reflected in the International Bar Association’s rules on the taking of evidence in international commercial arbitrations. It should be noted, for instance, that depositions will generally not be permitted and that discovery is to be much more limited than in litigation. The guidelines state:

In generala) The tribunal shall manage the exchange of information among the parties in advance of the hearings with a view to maintaining efficiency and economy. The tribunal and the parties should endeavour to avoid unnecessary delay and expense, while at the same time balancing the goals of avoiding surprise, promoting equality of treatment and safeguarding each party’s opportunity to present its claims and defences fairly.

b) The parties may provide the tribunal with their views on the appropriate level of information exchange for each case, but the tribunal retains final authority to apply the above standard. To the extent that the parties wish to depart from this standard, they may do so only on the basis of an express agreement among all of them in writing and in consultation with the tribunal.

Documents on which a party reliesParties shall exchange, in advance of the hearing, all documents upon which each intends to rely.

Documents in the possession of another partya) In addition to any disclosure pursuant to paragraph 2, the tribunal may, upon application, require one party to make available to another party documents in the party’s possession, not otherwise available to the party seeking the documents, that are reasonably believed to exist and to be relevant and material to the outcome of the case. Requests for documents shall contain a description of specific documents or classes of documents, along with an explanation of their relevance and materiality to the outcome of the case.

b) The tribunal may condition any exchange of documents subject to claims of commercial or technical confidentiality on appropriate measures to protect such confidentiality.

Electronic documentsWhen documents to be exchanged are maintained in electronic form, the party in possession of such documents may make them available in the form (which may be paper copies) most convenient and economical for it, unless the tribunal determines, on application and for good cause, that there is a compelling need for access to the documents in a different form. Requests for documents maintained in electronic form should be narrowly focused and structured to make searching for them as economical as possible. The tribunal may direct testing or other means of focusing and limiting any search.

InspectionsThe tribunal may, on application and for good cause, require a party to permit inspection on reasonable notice of relevant premises or objects.

Other proceduresa) Arbitrators should be receptive to creative solutions for achieving exchanges of information in ways that avoid costs and delay, consistent with the principles of due process expressed in these guidelines.

b) Depositions, interrogatories and requests to admit, as developed in American court procedures, are generally not appropriate procedures for obtaining information in international arbitrations.

Privilege and professional ethicsThe tribunal should respect applicable rules of privilege or professional ethics and other legal impediments. When the parties, their counsel or their documents would be subject under applicable law to different rules, the tribunal should, to the extent possible, apply the same rule to both sides, giving preference to the rule that provides the highest level of protection.

Costsa) In resolving any dispute about pre-hearing exchanges of information, the tribunal shall require a requesting party to justify the time and expense that its request may involve, and may condition granting such a request on the payment of part or all of the cost by the party seeking the information. The tribunal may also allocate the costs of providing information among the parties, either in an interim order or in an award.

b) In the event any party fails to comply with an order for information exchange, the tribunal may draw adverse inferences and may take such failure into account in allocating costs.

Roger Hopkins is co-head of Faegre & Benson’s international arbitration group and a partner in the London office.