eDiscovery in SA - Arbitration versus Litigation

I am hearing more and more about the use of Arbitration in SA and felt that it was time to take a practical look at an area in which eDiscovery technology is essential. 

As long ago as 1987 the UK introduced the concept of Alternative Dispute Resolution (ADR) under the Legal Services Authorities Act, the idea being to provide alternative methods to the usual official judicial procedures of resolving disputes. In essence, a platform for the resolution of disputes outside courtroom litigation. Why was it introduced? The driver was the maxim of “access to justice” whereby it was felt that the cost of litigation was a barrier to some people being able to have their rights heard and resolved. We saw a proliferation of Tribunals of one kind or another, we saw mediation, and we also saw the development of Arbitration, all as very real alternatives to resolving disputes. In 1996 the Arbitration Act (after previous Acts of 1950 and 1979) was formed following the Model Arbitration Law, which was implemented by the United Nations Commission on International Trade Law (UNCITRAL) so now Arbitration has developed into a global and much used method of ADR.

Like most things in life there are advantages and disadvantages of arbitration as against court litigation. Some of the advantages include:-

  1. The appointment of an arbitrator with specific skills and knowledge 
  2. The likelihood of lower costs than litigation (although I will refer again to this later).
  3. Time! The overcrowding and lack of resources of the Courts can cause long, long delays in matters reaching trial.
  4. The ability to agree procedures within the arbitration.
  5. Privacy and confidentiality plays a big part in the thinking on using arbitration instead of litigation as the hearing and its proceedings are private, whereas litigation cases are a matter of public record and the Courts are open to observers and media. 
  6. The multi-jurisdictional neutrality offered by arbitration can be in contrast to “local” laws in a dispute.

The above are strong factors but what about the “cons”? In 2016, the Lord Chief Justice of the UK, Lord Thomas, argued that the growth of arbitrations had adversely affected the development of common law. He said, “ It is the Courts that develop the law. Arbitration does not. Courts articulate and explain rights, including definitive rulings on the scope and interpretation of contractual clauses financial instruments and so on. Arbitration does not. …..open Court proceedings enable people to watch, debate, develop, contest, and materialise the exercise of both public and private power. Arbitration does not”. Powerful stuff! However, I think more practical disadvantages include the fact that costs could in fact be higher than litigation if it is agreed that High Court Rules apply as in addition to following these procedures there is the additional cost of the Arbitrator and the arbitration organisation. Furthermore, a third party in the dispute who is not a party to the arbitration agreement cannot be “joined in” to the arbitration without full consent, unlike the situation in litigation. 

Here in SA we have the Arbitration Act of 1965 which is way outdated and there have been many calls for an overhaul or update including one in 2001 from what is now called the SA Law Reform Commission. Like so much in SA we await changes (I understand a draft Bill is in the pipeline which will follow closely the UNCITRAL model), but looking at the positives it is clear that there has been good growth here in the use of arbitration as a method of ADR. Sadly, whilst most of the rest of the world has developed arbitration to the point of being international arbitration centres, SA has not, and I see that even African countries such as Mauritius are more notably regarded in this respect. There are default powers within the Arbitration Act covering such matters as, filing of pleadings, inspections …….AND DISCOVERY! Now you begin to see my interest! 

We usually see arbitrations dealing with disputes surrounding commercial contracts in which it is agreed that any disputes will ultimately be resolved by arbitration, and usually there are clauses giving details as to how and where the arbitration will happen and the scope of such proceedings. It is quite common to adopt the High Court Rules which of course means that, inter alia, the normal rules of discovery would apply. One of the most used areas of dispute which often lends itself to arbitration is construction and it is in these that I have personally been mostly involved over the years and right now here in SA.  That said there are so many areas in which I know arbitration is used including, mining, agriculture, medical and finance matters as well as others. 

All of this has led me to communicating with the Association of Arbitrators (Southern Africa) NPC - through its impressive and incredibly hard working General Manager Rochelle Appleton. I know that there are other arbitration organisations in SA but my experience is  with Rochelle and I like the fact that this organisation was founded as long ago as 1979. I like the fact that it has handled almost 9000 arbitrations. I like the fact that they run ADR training and education courses right across the country. I like the fact that they have more than 6500 mediators and I also like the fact that International co-operation agreements exist between the Association of Arbitrators and other arbitration organisations across the world. Check out their website as they do a whole lot more than simply provide a venue and an Arbitrator! Rochelle and I have decided that we have common goals and indeed we are scheduled to meet very soon in JHB to further discuss these goals - watch this space!

So what of eDiscovery and arbitration? Exactly the same issues, problems and challenges apply in SA as with civil litigation. I do not need to go through all of my reasons why we must pay more attention to electronic documents, just read my blog posts of the last 2 years.  The vast majority of business communications are made electronically yet, here in SA, we still have a propensity towards ignoring that. We like to print electronic documents thereby ignoring the evidential value of the electronic version and its associated metadata, and of course we miss some documents altogether. eDiscovery is just as essential in arbitrations as it is litigation, and yes, I am unashamedly trying to bring SA into the 21st century as far as eDiscovery is concerned. Whilst we wait patiently to hear from the Rules Board of the DoJ on my initiative to amend the Uniform Rules to incorporate eDiscovery, maybe someone should be looking at the Rules relating to Arbitration proceedings and the Rules within arbitration organisations? I might just do that.