This article was first published on Lexis Nexis, 1 December.
The Chartered Institute of Arbitrators (CIArb) has issued a new ‘Framework Guideline on the Use of Technology in International Arbitration’ (the Guideline). Our co-head of international arbitration Ben Giaretta chaired the Drafting Committee that prepared the Guideline and describes what the Guideline contains and why it is important for arbitration practitioners.
What is the Guideline?
The CIArb has to date issued fourteen Practice Guidelines relating to international arbitration (as well as Guidelines for mediation and adjudication), covering topics ranging from interviewing prospective arbitrators, to security for costs, to witness conferencing, and others. The purpose of these is to give guidance on topics that may not be covered by arbitration rules, and to describe best practice across the world in international arbitration.
The CIArb has now issued a fifteenth Guideline, about the use of technology in international arbitration. This Guideline has been prepared by a distinguished group of practitioners drawn from the ranks of arbitrators, counsel and users, including people with considerable experience of legaltech and of the administration of arbitrations by institutions.
Why has the CIArb issued the Guideline?
Technology has, of course, been used in international arbitration for many years. Indeed, if one includes the telephone, then technology has been a key component of modern international commercial arbitration for over a century. But there has undoubtedly been a step-change in the use of technology during the last decade. This has partly been the result of the emerging legaltech sector, and the greater availability of tools such as computer-assisted document review. In addition, in the past year, during the pandemic, there has been an explosion in the use of video conferencing technology such as Zoom and Teams, including for online hearings. We have entered a new phase of the relationship between technology and arbitration.
Indeed, international arbitration might now be characterised as a technology-driven activity, and the CIArb has acknowledged this by issuing its new Guideline. At the same time, the CIArb recognises that technology is under constant development. The Guideline is intended to initiate an ongoing discussion about new technologies, and how these should be used in international arbitration, with a focus on what is an appropriate use in the context of a particular arbitration, and on cybersecurity.
What does the Guideline contain?
The Guideline has two sections. In the first part, there are four general principles about the use of technology in international arbitration. In the second part, there is specific guidance about best practice to ensure online safety and protection of data.
The four general principles are:
These are of course overarching principles, and accompanying each principle in the Guideline there is detailed commentary on how they might be put into practice. This commentary might be most useful to practitioners because it gives practical guidance; equally, while the principles will probably remain constant over time, the commentary is likely to be revised in successive editions of the Guideline to reflect the introduction of new technologies and changing attitudes across society about what is appropriate in the use of technology.
The first principle (arbitrators’ powers and duties) is followed in the Guideline by a discussion of the sources of these powers and duties, and how far arbitrators’ powers might extend, particularly to cover not only technology which is in common use in an arbitration such as the platform used for an online hearing, but also technology which is used by one party alone: for example, where technology in private use might compromise the confidentiality of the arbitration as a whole.
The second principle (proportionate use of technology) encourages arbitrators to consider the particular circumstances of the parties in an arbitration (including the extent to which the parties can access and easily use technologies), and the cost and impact of technologies. Arbitrators must take these factors into account when they make a decision about the use of technology in an arbitration.
The third principle (fair and transparent use of technology) looks at the impact of technology on the process of an arbitration, and how technology can sometimes create unfairness: for example, online hearings may entail parties joining at different times of the day or night, with different impacts on their levels of concentration. This principle also encourages transparency in the use of technology by arbitrators: particularly if they use technology which is outside the normal expectations of parties and which might derogate from the arbitrators’ duty to apply their minds to the submissions of the parties when reaching their decision in a case.
The fourth principle (secure and stable use of technology) covers the vulnerabilities of technology to cyberattack or other causes of data loss, and the duties of arbitrators and parties to report this when it occurs. This principle leads into the second part of the Guideline, which contains detailed guidance on cybersecurity in international arbitration. It recommends the use of various security measures such as employing unique and complex passwords and keeping computers up-to-date with antivirus software. It also encourages a risk-based assessment of the technology being used in an arbitration, looking at how and where it is being used and who might have access to it.
Why is the Guideline of practical interest to practitioners?
The Guideline represents the current state of thinking about the proper approach to the use of technology in international arbitration. While the Guideline does not itself establish any binding rule or law, practitioners can refer to it as best practice when asking the tribunal to make directions in an arbitration. They can also use it as a guide to the factors that they should take into account when they use technology themselves, in particular to ensure that their use of technology is secure.
The Guideline expressly recognises, however, that technology remains under development, and practitioners can therefore also use the Guideline as a starting point for discussion about new technologies as they are introduced.
What is next for the CIArb and technology?
In due course, as indicated above, it is likely that the Guideline will be updated to reflect the adoption of new technologies. The Guideline is written in general terms so that it remains relevant over many years, but there will nonetheless come a point in the future where a revision will be needed in light of technological changes.
CIArb also intends as a next step to focus on particular technologies—not only technologies used in arbitration, but also technologies used more generally that may require particular forms of dispute resolution, such as cryptocurrencies.
The CIArb will look at the ways to ensure that arbitration remains fit for purpose across a technology driven society. The conversation about technology and arbitration will continue.
The CIArb Practice Guideline on the Use of Technology in International Arbitration is available here.
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