We know it is clicheé, but we are in an era in which we can use technology daily and solve problems left and right with it. In case you don't know, until recent years, arbitration and technology didn't get along that well since there were security concerns, concerns about the evidence on whether it will be disrupted or not, and how to implement the rules on technology use to institutional rules.
However, recently, ICC published a report on using technology for efficiency in arbitration titled ICC Arbitration and ADR Commission Report on Leveraging Technology for Fair, Effective and Efficient International Arbitration Proceedings. We wanted to explain why this report has a crucial role in arbitration practice overall.
Encourages to Find a Common Ground Between the Parties
Arbitration is a complex proceeding. Since it is a non-court option, parties and the arbitral tribunal will decide the logistics, timeline, and communication medium. Even before the dispute, the arbitration agreement itself may be a detailed contract and parties will have to decide on a number of issues like the seat of the arbitration, the language of the proceedings, whether or not to use the emergency arbitrator provisions, and most importantly which institution rules to govern the arbitration proceedings.
In this report, parties and the tribunal is encouraged to find a common ground for using technology and reducing cost and time spent in order to initiate the proceedings. Also, in the report, the importance of having the knowledge to use the technology and to provide cooperation on it is emphasized.
ICC advises parties to provide their tech-related solution to the tribunal and find common ground on ensuring the proceeding's security which is a great step into a world where we talk about the metaverse.
Supports the Efficent Proceedings
Everybody already knows international arbitration is expensive and we mentioned that it is also complex. However, with every innovative idea, it gets easier, cheaper, and more efficient.
ICC explains how leveraging technology will result in more efficient proceedings on four main points which are as follows:
Pre-dispute Agreements: Implementing technology use and making sure that the provisions are clear and understandable will be the first step towards efficiency. ICC further explains that if there are problems with ever-changing technology, they can be dealt with in the case management conference (Art.24). ,
Party Autonomy: If the technology in question is affordable and accessible by the parties, and also does not interfere with or risk the proceedings, parties can easily implement the technology into the arbitration proceeding.
Tribunal's Authority: In the ICC Rules Art.22, there is a clear mission assigned to the tribunal which is "make every effort to conduct the arbitration in an expeditious and cost-effective manner, having regard to the complexity and value of the dispute’. Thus, the tribunal will assess the situation and options and use the appropriate medium when resolving the dispute.
Advises on Possible Risks and How to Fulfill Parties' Obligations
In the report, ICC provides suggestions on possible risks regarding cybersecurity, data privacy, and confidentiality. It is pointed out that there can be a set of rules in order to ensure cybersecurity and data privacy which is explained detailed in the report.
Drawing a picture of possible risks and how to prevent them is crucial in this day and age because there is uncertainty around cybersecurity after sky-rocketed cyberattacks and security vulnerabilities. Yet, this report shows how parties and the tribunal can achieve a secure proceeding.
Examines Different Scenarios
There are a number of scenarios dealt with in this report and it is constructed after a survey. The questions were crafted carefully to understand what is the expectation and reality of the use of technology in the arbitration. The scenarios and explanation of their implementation can be found in the report and the main topics are as follows:
File transfer
Virtual hearings
Production of the evidence
e-briefs & e-bundles
Visual presentation software
The good news is there are checklists to use and learn how to implement technology in arbitration!
We think that technology and its evolving characteristics are exciting, yet, it might be frightening. However, as we mentioned, currently using technology is a necessity. As ICC emphasizes, at the end of the day leveraging technology and using it right will ultimately be good for the parties because it will be more efficient than the proceedings ever were!
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