Towards a Brave New World: Facilitating the use of technology in international arbitration

9 April 2019

Summary

In this post we consider the IBA Arb40 Subcommittee’s project: Technology Resources for Arbitration Practitioners and the ways in which it may facilitate the increased use of technology in international arbitration.

Technology has a thorny reputation in arbitration circles. Practitioners distrust it, clients don’t want to pay for it and tribunals often prefer paper. All of this adds up to many hours at the photocopier and late-night bundle-checking for the more junior members of the team.

However, the IBA Rules of the Taking of Evidence in International Arbitration specify cost, time and environmental impact as factors to be considered when consulting on evidentiary issues. Informed use of technology is one of the solutions which can address all three of these elements, but despite many anecdotes of esteemed arbitrators embracing their iPads, uptake of the more involved aspects of technology in arbitration remains sporadic. This is despite the ICC Commission Report on Information Technology in International Arbitration, which is designed to encourage arbitrators and counsel to consider as a matter of routine (rather than exception) whether and how technology may be incorporated into proceedings.

There are many reasons why practitioners might hesitate before turning to technological solutions. Efficiency and cost need to be balanced with the value of the dispute (as well as which party should bear that cost) as often, complex technological solutions are expensive. Clients can be reluctant to invest in technology where they cannot immediately see a benefit or where the technology is new to the law firm suggesting it, such as AI-led document review processes. It can also be difficult to get the agreement of the other side to use such solutions, particularly where cooperation is crucial for the solution to be effective. This often affects decisions to host proceedings on document management platforms, for example, which must be considered sufficiently early in the course of the dispute to seamlessly integrate them into proceedings.

Some of these challenges are logistical and can be dealt with by good case-planning practices and effective communication at an early stage of the case. The ICC Commission Report makes the practical suggestion that IT-related issues should be an agenda item for the first case management conference. Most of the major institutional rules require the tribunal and parties to make every effort to conduct the arbitration in an expeditious and cost-effective manner, having regard to the complexity and value of the dispute.  Balanced against the obligation of the tribunal to act fairly and impartially as between the parties, this can sometimes come down against very expensive IT products, but there are a number of ways in which other products or streamlined use of IT can assist even if it doesn’t appear necessary to incorporate multiple technological solutions into small sets of proceedings.

The recent publication of the IBA Arb40 Subcommittee’s Technology Resources For Arbitration Practitioners project is therefore a welcome resource, highlighting the solutions that could be deployed at difference stages of an arbitration. It is designed to educate practitioners as to what exact IT programmes and platforms are available and could provide helpful assistance with ideas for discussion at early case management conferences. It could also be a practical tool to use in conjunction with the ICC Report, which provides theoretical guidance on when and how to integrate IT solutions into proceedings.

The project is designed to showcase various resources available to arbitration practitioners and is organised according to usage category, rather than stage of proceedings. This is helpful in demonstrating that the programmes and platforms which are listed can be utilised throughout an arbitration, and crucially, should be considered from the very outset of the case. It also allows practitioners to easily search for the type of solution which they require, as many services will be equally suitable for smaller sets of proceedings where the expensive document management platforms, for example, are not appropriate.

The types of IT solution listed are not limited to those promoting efficiency in arbitration proceedings. There are also tools which can assist with administrative elements (such as audio-visual conferencing methods), and tools which can help with more effective oral presentations. The project should enable practitioners to stay up to date with the resources which are available, so they are in a position to recommend their use in appropriate cases.

Tools are divided into eight groupings.

Audio and video-conferencing: video-conferencing tools have not always been of sufficient quality to integrate into proceedings without considerable cost, or the need for external IT support However, good quality services would certainly be useful in enabling parties to limit the costs of cross-border arbitration by examining witnesses remotely, or by conducting procedural conferences without travel costs or so many scheduling difficulties. The section sets out five high-quality video-conferencing platforms which the authors hope will provide options for incorporating the technology into proceedings.

Document collection, review and production: this section suggests common document review platforms such as Ringtail and Relativity, but also describes the benefits of AI-led document review and suggests vendors who can offer technology-assisted review.

Management and transfer of arbitration data: this section recommends platforms which can host and manage arbitration documents, including pleadings and evidence, which the parties and the tribunal can all access through a single centralised location. Many of these platforms have additional functionalities which can save huge amounts of work and money, for example enabling the creation of joint hearing bundles or chronologies. It should be noted that the platforms tend to be quite expensive, so may not be appropriate for all cases.

Presentation of graphics and evidence: this section contains suggestions of suppliers of visual communications and presentation graphics to assist counsel with oral pleadings.

Virtual reality and augmented reality: VR and AR providers are relatively new to the market and are not yet commonly used in international arbitration. They may have utility, for example, in presenting images of relevant sites to a tribunal, perhaps with the most obvious application in construction disputes. There are a number of providers who offer this kind of service and practitioners should be aware of developments in the area which might be helpful to include in their arsenal.

Analytical tools and mind mapping: this section presents tools and programmes largely designed to assist lawyers in the case planning stages of an arbitration, as they offer functions which can predict the judgment patterns of individual judges or could be used to predict the type of arguments deployed by opposing counsel.

Translation and interpretation: this section includes suggestions of tools that use AI to produce sophisticated machine translations of large volumes of documents. This is useful particularly in the early stages of document review where large quantities of documents need to be translated to establish their ultimate relevance, and could prevent costly and time-consuming sets of expert translations which are not ultimately needed, or potentially inaccurate attempts to glean the gist of a document without professional translation; and

Cybersecurity and data privacy: this section sets out ways of ensuring the security of all the methods discussed above.

It is clear that use of technology in international arbitration will continue to grow and the “Technical Resources for Arbitration Practitioners” project provides a useful starting point for practitioners who are looking to make cost and efficiency savings for their clients, and also for those looking for new and innovative ways to augment their advocacy.

This blog first appeared on Practical Law Arbitration on 8 April 2019