Going Virtual – The Use of Technology in International Arbitration
The flexibility afforded by institutional rules, such as the ICC and LCIA, makes international arbitrations well suited for the use of technology in a myriad of ways in arbitral proceedings. Parties can be faced with responding to dozens and sometimes hundreds of Redfern requests (i.e. documentary production requests), the need to call witnesses and experts based in various parts of the world and an arbitral panel that can be made up of arbitrators who are also based in different jurisdictions. Confronted with these challenges, the use of technology is crucial to international arbitration living up to some of its central pillars – being that it is faster and less expensive than court proceedings, can be tailored to the nature of the dispute and, of course, gives parties the benefit of confidentiality.
At the outset of proceedings, parties to an international arbitration ought to consider how technology can assist them throughout the course of the proceeding. Importantly, how such technology will be employed by the parties should be recorded in the first procedural order or the terms of reference for the arbitration to help avoid any future disputes.
Parties may contemplate using technology in the following ways and/or at the following stages of a proceeding:
(a) Responding to Redfern Requests: employing technology assisted review, such as continuous active learning, allows lawyers who are very familiar with the issues in the case to review a smaller subset of documents for the purpose of “training” the system. Technology can use that coding for the purpose of identifying other potentially relevant documents with a view to avoiding the sometimes cumbersome process of agreeing on search terms and/or reviewing large numbers of irrelevant documents.
(b) Calling Witnesses: where factual witnesses and experts are based in various jurisdictions, enabling them to testify using video conference will reduce travel time and costs. The IBA Rules on the Taking of Evidence in International Arbitration contemplate that the Tribunal may permit the parties to give evidence in this way. The issue of presenting evidence remotely has been contemplated recently by most arbitration centres as a result of the COVID-19 internationally imposed travel restrictions. For more information on that, see our blog post here.
(c) Electronic Document Briefs: The parties can agree to have an electronic hearing brief / bundle. There are numerous third party vendors that can assist parties in facilitating an electronic hearing. Those vendors can host any arbitral documents such as pleadings, witness statements and expert reports, and contemporaneous documents on a secure site that can be accessed by the parties and the Tribunal. Ideally the parties would engage the vendor at an early stage so that documents on which each party intends to rely on can be added throughout the life of the arbitration and be used during any procedural hearings.
Ultimately, proceeding electronically, means that parties can reduce or entirely avoid the costs incurred in photocopying and binding hearing briefs / bundles which can be voluminous where there are large numbers of contemporaneous documents being relied on by the parties.
(d) Virtual Hearings: Parties may decide that the nature of the arbitration is such that any hearing (procedural or substantive) can be conducted virtually. Parties may have different appetites as to whether they wish to conduct hearings virtually but it a post COVID-19 world, it is likely that parties may be more amenable to proceeding in this way.
When thinking about how to employ technology in an arbitration, there are some more practical considerations to bear in mind. These include:
(a) Whether there are any data protection issues that need to be addressed before deciding on the nature of the document review to be undertaken and whether documents can be hosted on a third party server.
(b) Whether the arbitration concerns issues where IT security is a paramount concern.
(c) Whether any witness will require the assistance of an interpreter and how interpretation would work if video evidence is employed.
(d) Whether the parties have compatible software / hardware and an internet connection which will allow them to use technology in a way contemplated in the procedural order or terms of reference.
(e) If the parties agree to use an electronic hearing brief / bundle, how the process of creating that brief / bundle will be managed.
(f) Whether any special training is required for the parties and/or the Tribunal to ensure that any technology employed is used effectively and efficiently.
The use of technology in an arbitration should be a help and not a hindrance to parties and the Tribunal. It can be used for some or all of the proceeding. Simply put, it should be used in a manner to make proceedings more efficient and cost effective. International arbitration affords parties the flexibility to use technology in a way that helps them meet these objectives taking into account the nature and complexity of the dispute. Parties who have arbitration clauses in their contracts or ultimately decide to proceed by way of arbitration would be well served in the longer term to pause and think about how technology may be used in their arbitral proceedings.
For further information on the use of technology when examining witnesses remotely in international arbitration, see our previous blog post here.
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