The arbitration has started, the deadline for document requests is running, and the evidence in the case lies in emails, code repositories and logs from a system the other side controls.
Law 9,307/1996 (Brazilian Arbitration Act), the 2020 IBA Rules, production of electronic documents, the technical report, the expert hearing and the cybersecurity of the proceedings.
In arbitration, the tribunal may order expert examinations at the request of the parties or on its own motion (Law 9,307/1996, art. 22). The procedure is whatever the parties and the arbitral institution define (art. 21). The parties often adopt the IBA Rules on the Taking of Evidence, which deal with electronic documents and with experts.
Digital evidence is lost at three points: before the arbitration starts, when nobody preserved it; in the document request, too broad to be granted; and in production, when the document arrives as a PDF with no metadata. Then come the technical report and the hearing with the experts side by side.
The course covers the technical side of each phase. Adriano Vallim acts as tribunal-appointed expert or as party-appointed expert. He does not act as arbitrator.
Pick as many courses as you like: they are kept and arrive ticked on the registration form.
Client and developer were in dispute over a partly delivered project, and each side blamed the other. An independent technical analysis of the scope, the deliveries and each party's dependencies supported the negotiation. Shared responsibility was demonstrated, and an agreement was reached without court litigation.
A development contract was terminated with the parties disagreeing over what had been delivered. The repositories were preserved with their history, and the examination rebuilt a mirror environment. The expert report established, with dated evidence, what was ready at termination and where the failures came from.
A manufacturer takes the integrator that failed to put its ERP into production to arbitration. The evidence lies in the support tickets, the repository and the acceptance testing records, all under the integrator's control.
In pairs, participants receive the ERP case and the technical guide for document requests. In 12 minutes, each pair drafts the technical fields of three requests: what is requested, from whom, from which system, for what period, with which search terms and in what format. Legal relevance is left to the lawyer. The instructor comments on two requests and shows where each would be refused as overbroad.
Laws and rulings discussed
Law 9,307/1996, arts. 13, 18, 21, 22, 22-A, 22-B, 22-C, 32 and 33 (Brazilian Arbitration Act) · CPC, art. 189, IV (Brazilian Code of Civil Procedure) · Law 13,140/2015, art. 30 (Brazilian Mediation Act) · IBA Rules on the Taking of Evidence in International Arbitration, 2020 · ICCA-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration, 2022 edition
See also
IT Arbitration and Mediation → Forensic Services in Litigation and Arbitration → Software and Development Project Forensics → See all courses →