6 September 2018
YSIAC-YJAA Tokyo Workshop 2018
By Kei Kato, Associate, Orrick (Tokyo office)

On 6 September 2018 in Tokyo, YSIAC held its inaugural joint workshop with YJAA, the young members’ group of the Japan Association of Arbitrators (JAA). The title of the workshop was “Disclosure and Document Production in International Arbitration”, a subject in which young practitioners would have a particularly keen interest because of the countless hours spent on document production. Over forty YSIAC and YJAA members and other practitioners as well as in-house counsel attended the workshop at the Tokyo Office of Nishimura & Asahi, which hosted the event.

The workshop began with a warm welcome address from Ms. Lim Seok Hui, CEO of SIAC, who provided a brief overview of the recent developments at SIAC, including, among others, the rapid increase in Japanese users. After that, Ms. Joy Tan, Partner at Wong Partnership LLP, gave an introduction to the case scenario of the mock procedural hearing to be held in the latter half of the workshop.

Session I: Panel Discussion - Document Production and Management in International Arbitration; Discovering to Win

The initial session was a panel discussion moderated by Mr. Aoi Inoue, Member of both the YSIAC Committee and the YJAA Committee, and Partner at Anderson Mori & Tomotsune. The panellists included: Mr. Michael Crowther, Vice President at Deloitte Tohmatsu Financial Advisory LLC; Mr. Peter Harris, Counsel at Clifford Chance; Ms. Azusa Saito, Senior Associate at Nishimura & Asahi; Mr. Tsuyoshi Suzuki, President of YJAA and Partner at Momo-o Matsuo & Namba; and Mr. Joaquin Terceño, Counsel at Freshfields Bruckhaus Deringer LLP.

At the outset, Mr. Suzuki gave an introductory presentation: “What is Disclosure and Why Is It Important in International Arbitration,” where he explained the practical importance of disclosure and discovery, such as (i) there are no default rules, (ii) they can materially affect the outcome of the case, and (iii) they might incur substantive costs. Ms. Saito spoke about “Common Law v. Civil Law Approaches,” including the difference in these approaches, how they are harmonised in the field of international arbitration, and practical tips to limit potential uncertainty. Mr. Terceño explained about “The IBA Rules, SIAC Rules, and Redfern Schedules,” all of which are important sources related to disclosure and document production issues in the face of a lack of guidance from the lex arbitri. Mr. Crowther offered a different perspective on “Document Management - Tools to Make the Process Easy and Cost Efficient,” for instance, how to utilise the advanced technologies like cognitive coding to manage the voluminous amount of data. Mr. Harris closed the session with a personal case study “The DPR from Hell,” which detailed his experiences with document production and the lessons he learned.

The audience appreciated the diverse topics presented by the panellists from different perspectives and countries, and was able to gain insights and best practices, as well as practical tips from the up-and-coming leaders of international arbitration.

Session II: Hearing on Document Requests - Oral Submissions

The second session was a mock procedural hearing on document requests based on a realistic case scenario about a dispute stemming from a joint venture project. The mock Tribunal consisted of Mr. Hiroyuki Tezuka, Member of the SIAC Court of Arbitration and Partner at Nishimura & Asahi; Ms. Tan; and Mr. Ng Kim Beng, Partner at Rajah & Tann Singapore LLP. Arguing for the Claimant was Mr. Takashi Ohno, Associate at Nagashima Ohno & Tsunematsu, whilst Ms. Eriko Kadota, Associate at Herbert Smith Freehills and Mr. Yoshinori Tatsuno, Associate at Mori Hamada & Matsumoto, argued for the Respondent.

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Members of the audience

Left to Right: Michael Crowther, Peter Harris, Aoi Inoue, Azusa Saito and Tsuyoshi Suzuki

In this case, the Claimant sought production of four categories of documents, and the Respondent raised objections to each of these requests. For each category of documents, counsel to the Claimant argued relevance and materiality of the documents to substantiate their request, and counsel to the Respondent argued grounds to bar the Claimant’s request. Both then were interrogated by the Tribunal. The members discussed legal issues that would frequently appear in actual document production, such as how to balance confidentiality with transparency and how to narrow down the scope of the documents requested. Towards the end of the session, the mock Tribunal gave valuable feedback, where they shared their experiences as seasoned practitioners.

The mock session was a rare opportunity for young participants to enhance their knowledge of the procedural and substantive aspects of document production, and also to develop their oral advocacy skills through passionate oral arguments by counsel.

After the two sessions, Mr. Tsuyoshi Suzuki delivered Closing Remarks on behalf of YJAA, where he expressed gratitude to YSIAC for organising the event and noted the importance of collaboration between YJAA and YSIAC.

The workshop was followed by an opportunity for the audience to enjoy drinks and to mingle with the leading young practitioners and prominent leaders in the field.
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