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Technology is not new in arbitral proceedings. Rather, what has changed, and will continue to change, is the use of technology during, and post-coronavirus.
Initially, and pre-coronavirus, technology was considered as nice-to-have but was not a must have.
Technology facilitated tasks and processes ancillary to arbitral proceedings. For example, artificial intelligence (AI) solutions were capable of analysing thousands of documents in a matter of seconds and ‘selecting’ those relevant to specific document production requests. Notwithstanding the parties’ ability to complete these tasks electronically for years, they were oftentimes also carried out physically, as a measure of precaution, or simply out of preference. Hearings, however, were almost always carried out in-person.
Now, during the coronavirus pandemic, technology is not only nice-to-have, but rather a must have. Without strong technological capacity, such as access to case management platforms (CMP) on which parties and arbitrators can share and review documents in an efficient and safe manner, parties are doomed in circumstances where physical meetings are impossible. The application of technology has therefore become of core importance.
In the future and post-coronavirus, technology’s relevance is likely to change.
Post-coronavirus, technology will remain a must have but will not necessarily be a must use. The use of technology will have been successfully tested during coronavirus, and will be used depending on the nature of each particular case; for instance depending whether the testimony of fact witnesses is required and the anticipated length of the hearing etc.
There are a number of best practice tips that can make the implementation and use of technology easier in international arbitration.
The starting point for efficient digital hearings is the selection of a CMP, preferably by common agreement of the parties, tribunal and arbitral institution. CMPs are digital platforms on which documents can be shared, stored, reviewed and signed by the parties and tribunal. If parties are not able to use a CMP, they could opt for document-sharing platforms like CaseMap and Opus II Magnum.
Further, the parties, tribunal and arbitral institution should select a videoconference platform on which case management calls, witness examinations, and hearings can take place. Solutions of this type include WebEx (Cisco), Skype (Microsoft) and Zoom (for more best-practice tips, see: Hogan Lovells Protocol for the use of technology in virtual international arbitration hearings, April 2020).
Technology adoption and use is primarily being driven by clients and their counsel who are tech-savvy and already well-accustomed to digital solutions. Tribunals may generally be bound by the will of the parties on matters of this sort, but may sometimes suggest, on the basis of their experience, the most suitable types of options for arbitral proceedings.
There is no definitive alternative approach for all parties who are currently, or will shortly be involved in a dispute. Parties can only adapt their response to the pandemic insofar is permitted by the specificities of their case.
On the one hand, parties who find themselves in non-factual disputes, or disputes involving only legal issues, where only counsel will be pleading, digital hearings, or document-only proceedings may be adopted by parties.
On the other hand, parties involved in complex, fact-intensive, technical disputes involving the examination and cross-examination of numerous witnesses and experts in addition to pleadings, will generally opt to postpone in-person hearings until after coronavirus.
The use of technology in proceedings raises the same issues and challenges that you and I may encounter when video calling our family and friends. Overloaded internet servers, software glitches, technology un-savviness, and a lack of access to records can all hinder digital proceedings.
Technology usage, particularly given the cross-border nature of international arbitration, has also given rise to a series of data privacy and cybersecurity concerns. Participants in international arbitration proceedings oftentimes need to comply with strict data protection regimes, particularly the General Data Protection Regulation (GDPR), Regulation (EU) 2016/679, and must also guarantee the confidentiality and integrity of their proceedings. Consider a witness for instance, testifying from confinement. Is their video conference being intercepted or their testimony being shaped by a third party?
These challenges are being overcome through the development of software solutions addressing the needs and wants of parties worldwide. Participants in SIAC arbitration proceedings recently shared their virtual hearing success story and the technology platforms which made it possible, namely Polycom RealPresence Group 700 video conferencing facilities provided by Maxwell Chambers and Bluejeans video conferencing software. These participants also employed Opus II and Law in Order as their document-sharing platform and transcription services respectively.
Given that most arbitral institutions, law firms and parties do not have their own proprietary CMPs, videoconference, file-sharing, or other necessary solutions to conduct digital hearings, they must rely on third-party software.
Luckily, and given the spike in demand, software and hardware developers have sprung to action and are offering products which address these entities’ needs.
Arbitral institutions worldwide have been very reactive in addressing the coronavirus crisis. For example, the Korean Commercial Arbitration Board (KCAB) published the Seoul Protocol on Video Conferencing in International Arbitration.
The ICC issued a guidance note on possible measures aimed at mitigating the effects of the coronavirus pandemic, see: Arbitral organisations respond to coronavirus (COVID-19)—ICC and DIFC-LCIA LNB News 14/04/2020 51.
While the fundamental rules of party autonomy are respected, the ICC guidance note encourages parties and tribunals to increase the efficiency of their proceedings, and even opt for digital hearings. To illustrate, the note sets out under para 8 that the tribunal can, after consulting the parties pursuant to article 24(3) of the ICC Rules resolve a dispute ‘in stages by rendering one or more partial awards’, resolve issues ‘on the basis of documents only’, or organise conferences in order to assess the most relevant issues and consider possibilities for on these issues through the most efficient means.
The ‘during coronavirus’ demand for digital hearings is primarily due to the quasi impossibility to travel, assemble, and work together in the same room. Once travel resumes, once freedom of assembly is re-established, and once lawyers and essential support staff are back in the office, demand will likely subside.
This being said, a likely decrease in demand for digital hearings does not mean a disappearance of demand. It simply means that when parties once again have the option to return to traditional, face-to-face hearings, many will, where necessary.
The cost-saving effect of electronic hearings however cannot be ignored, particularly in light of the imminent global economic recession and high-volume of expected disputes arising out of the pandemic or government-ordered containment measures. As parties brace themselves for tight budgets and mountains of disputes, they will likely seek to resolve them in a cost and time-efficient manner. The market response to clients with lower budgets and tighter schedules may be an increased use of technology, notably digital hearings.
Interviewed by Pietra Asprou
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