Originally from International Arbitration Checklists - Third Edition

Arbitration should not be embarked on without careful consideration.  It can be time-consuming and expensive, and it will certainly be damaging to the commercial relationships between the parties to the arbitration.  It is therefore essential for there to be as full an understanding as possible of what the issues are, what evidence is required, and what the likely outcome of any arbitration would be, before arbitration is commenced.

It is often the case that the parties to a potential arbitration have argued out their respective positions in correspondence and/or meetings before arbitration is considered.  That is certainly the prudent course; commencing arbitration without hearing what the other party’s position is would not usually be wise.  In certain circumstances it may also be contrary to the terms of the relevant contract, and may generate disputes as to whether an arbitrable dispute has arisen. 

Preservation of Documents

The first steps to be taken are preservation measures.  Instructions should be given that all documents in any way related to the dispute should be retained.  This is not to pre-suppose that all of these documents are likely to have to be disclosed to the other party (see Chapter 10); it is simply the case that the evidence needs to be retained so that it can be reviewed for its usefulness.  The adverse inferences that could be drawn if relevant documents are missing or have been destroyed are potentially serious.  Securing documentation will involve tracking down all relevant files.  Different organizations have different methods of retaining their documents.  The likelihood is that there will be an official filing system, but that individuals will have their own personal files of working documents to which they refer from time to time.  All these different types of files must be retained.  This covers not only hard copy documents but electronic documents as well.  This will include email traffic, and electronic copies of files, whether held on a central server or on the hard drives of individuals’ computers.  Other types of information that should be retained will include diaries, photographs, videos, drawings, project management records and accounting information, but this is not an exhaustive list.  Depending on the applicable rules, disclosure obligations could extend to other information in electronic media, such as social media communications and feeds, SMS messages and notes held on tablets.  In short, at this early stage it is wise to assume that all electronically stored information is relevant to the exercise.