ROLE OF TECHNOLOGY IN INTERNATIONAL ARBITRATION
Author: Suhani Dhariwal, IV Year of B.A.,LL.B(Hons.) From Jagran Lakecity University.
Technological advancements have always played an important part in all aspects of life, and the same is true in terms of the legal development that has occurred over time. Interference and influence of technology may be observed everywhere in the legal sector, from writing cases in the file to recording data on the computer, from announcing the cause list to online availability of the next hearing date. The same is true for arbitration technology, which is employed in a variety of fields where it delivers benefits such as job efficiency, effectiveness, and ease while completing tasks.
International arbitrations are highly suited for the use of technology in a variety of ways because to the freedom provided by institutional regulations such as the ICC and LCIA. Parties may be confronted with dozens, if not hundreds, of Redfern requests (i.e. documentation production demands), as well as the necessity to call witnesses and experts from all over the world, as well as an arbitral panel made up of arbitrators from several countries.
Parties to an international arbitration should think about how technology might help them throughout the proceedings right from the start. Importantly, the parties' use of such technology should be documented in the initial procedural order or terms of reference for the arbitration to avoid future conflicts.
In the realm of law and arbitration, technology is a wonderful gift; all we need to learn is how to put it to good use in a reasonable way so that we may get the most out of it.
Concept of Information Technology in International Arbitration
IT may be used in international arbitration in a variety of ways, like as
(i) Email and other forms of electronic communication between the parties, the arbitrators, and the administrative body;
(ii) Information is stored on portable or stationary storage devices for access by the parties and the tribunal (e.g. flash drives, DVDs, hard drives, and cloud-based storage);
(iii) In an e-hearing, the parties' cases are presented via software and media.
(iv) hearing room technology (videoconferencing, multimedia presentations, translations, and "real-time" electronic transcripts, for example)
When implemented properly, IT can assist parties in international arbitration in saving time and money while also ensuring that the arbitration is handled and performed smoothly. On the other hand, if IT is improperly handled, it can increase time and expenses, or even result in unjust treatment of a party in the worst-case scenario.
Acceptance of IT in International Arbitration
A report on the use of Information Technology was first published in 2004 by ICC Commission on Arbitration and ADR's Task Force. Since the use and acceptance of IT in international arbitration has grown significantly, and technological advances have led to solutions that were previously unavailable or technically undeveloped.
Although email was used to communicate between the parties, the tribunal, and the administering body in 2004, duplicate communication was frequently transmitted by post or overnight courier service. Once the tribunal has been established, textual communication is mostly, if not entirely, conducted in electronic format.
As anticipated in 2004, PDF is the most often utilised electronic format for textual contributions. Parties seldom used file transfer protocol ("FTP") servers (whether maintained by a party or a commercial third-party service) to transport substantial submissions to the other parties and the tribunal in 2004, mostly because the requisite infrastructure was too difficult to set up.
It is becoming increasingly popular to transmit data utilising widely available bulk file storage services that use the FTP protocol (e.g. Dropbox; Google Drive).
Stages of Proceeding using Technology
Responding to Redfern Requests: Using technology-assisted review, such as continuous active learning, allows attorneys who are intimately knowledgeable with the case's concerns to evaluate a smaller selection of papers in order to "train" the system. That coding can be used by technology to find other possibly related papers, reducing the time-consuming process of deciding on search keywords and/or analysing vast amounts of useless documents.
Calling Witnesses: In cases when factual witnesses and experts are located in different jurisdictions, allowing them to testify via video conference will save time and money. The Tribunal may allow the parties to provide evidence in this manner, according to the IBA Rules on the Taking of Evidence in International Arbitration. As a result of the COVID-19 foreign travel limitations, most arbitration centres have lately considered the subject of presenting evidence remotely.
Electronic Hearing Briefs/Bundles: The parties might agree to have an electronic hearing brief / bundle. There are a variety of third-party suppliers who can help parties with the electronic hearing process. Any arbitral papers, including as pleadings, witness statements, and expert reports, as well as contemporaneous documents, can be hosted by those suppliers on a secure site that can be viewed by the parties and the Tribunal. The parties should ideally engage the vendor early in the arbitration process so that any documents that each party plans to rely on can be included and used throughout procedural hearings.
Finally, proceeding online allows parties to save money by reducing or eliminating the costs of photocopying and binding hearing briefs / bundles, which may be expensive when there are a lot of contemporaneous documents to consider.
Virtual Hearings: The parties may determine that the arbitration's nature allows for any hearing (procedural or substantive) to be held remotely. Parties may have varying appetites for conducting hearings remotely, but in a post-COVID-19 environment, it is probable that parties will be more open to doing so.
There are a few additional practical factors to keep in mind when considering how to use technology in an arbitration. These are some of them:
(a) Identify any data protection concerns before deciding on the scope of the document review and if documents may be housed on a third-party server.
(b) Whether the arbitration involves issues with IT security as a top priority.
(c) Whether or not any witnesses will require translation assistance, and how interpretation would function if video evidence is used.
(d) Whether the parties have suitable software/hardware and an internet connection that will allow them to utilise technology in the way that the procedural order or terms of reference specify.
(e) How the process of establishing an electronic hearing brief / bundle will be managed if the parties agree to utilise one.
(f) Is any further training for the parties and/or the Tribunal necessary to ensure that any technology utilised is used properly and efficiently?
Application and Promotion of Technology in International Arbitration Proceedings
It was only a matter of time as internet connectivity and the usage of other types of information technology grew, before they began to affect conflict resolution practise. Interactions between parties, counsels, arbitrators, experts, witnesses, and other players in international arbitration are now more efficient and cost-effective because to technology like mobile, email, and electronic file management systems. Parties in emerging economies have begun to effectively employ some aspects of information technology to overcome the challenging logistics inherent in international arbitration.
Over the last two decades, international arbitration has become more reliant on interconnection as a means of resolving disputes. A typical dispute may include not just parties from two separate countries, but also lawyers from a third nation and an arbitral tribunal made up of members from all over the world. While technology is not equally distributed across nations, parties and their counsel have learned to apply mass communication tools to their arbitration disputes.
In case management, technology may also play a significant role. Courts have adopted alternative dispute resolution (ADR) approaches, and we've witnessed a rise in court-ordered mediation. The importance of such a mechanism for the prompt delivery of justice has prompted several jurisdictions to establish mediation divisions within their court systems, which are chaired by dedicated judges whose primary role is to act as a mediator and assist parties in reaching an amicable resolution of their disputes, or at the very least significantly narrowing issues.
The presenting of evidence is another area where technology will be required to make a substantial impact. Online databases and legaltech apps have already become crucial tools for lawyers. Legaltech is an excellent illustration of how machine learning and the theory of stare decisis may be used to resolve conflicts. Some questions that often come up in reference of using technology in International Arbitration:
Is it possible for the arbitrator's agreement to allow for the use of technology?
Yes, albeit in most circumstances this would be exceptional and impracticable because real needs aren't known in enough detail at this point, and technology is likely to advance between the date of the parties' agreement and the start of the arbitration. As a result, whether such an agreement is wise relies in part on whether its terms are still relevant when the disagreement occurs.
What level of specificity should be included in the contract for the use of technology?
If the parties agree to employ technology in their arbitration agreement, it should not be overly detailed. It is self-evident that technology will continue to evolve. Between the date of the parties' agreement and the date of the arbitration, IT that is "state of the art" today may become obsolete or unavailable. Furthermore, precise IT requirements may not be known until after the conflict has arisen. Due to the nature of the dispute, the tribunal's comfort and expertise with the technology, or the expenses involved, some components of the parties' agreement may be impracticable or even impossible to execute in the context of a specific dispute.
As a result, in most cases, it's probably best for the parties and arbitrators to agree on particular IT usage after the dispute has arisen. This might be done in ICC arbitrations, for example, during the case management conference convened pursuant to Article 24 of the ICC Rules.
What happens if the parties can't agree?
If the parties are unable to reach an agreement, the tribunal will be required to provide appropriate instructions. The tribunal is not obligated to choose a specific strategy, whether offered by the parties or not, and may have its own ideas about how IT should be utilised.
Reference to the use of technology among various Arbitration Rules
Prior to the COVID-19 outbreak, a great number of arbitration rules adopted by the world's top international organisations explicitly allowed the use of technology in arbitral procedures, mostly due to time and cost considerations. The International Chamber of Commerce ('ICC') Arbitration Rules of 2017, for example, give arbitral tribunals discretion to decide, in the absence of a parties' agreement, on "using telephone or video conferencing for procedural and other hearings where attendance in person is not required, and use of IT that enables online communication among the parties."
In addition, arbitral tribunals can direct that fact and expert witnesses "be examined through means of telecommunication that do not require their physical presence at the hearing (such as videoconference)" under Article 28(4) of the United Nations Commission on International Trade Law ('UNCITRAL') Arbitration Rules of 2010, which are typically used for administration of proceedings in ad hoc arbitrations. Article 29.4 of the Qatar International Centre for Conciliation and Arbitration ('QICCA') Arbitration Rules of 2012 contains a comparable clause.
Arbitral tribunals may be allowed to depend on the rules' general provisions if the arbitration rules are silent on the use of technology and there is no agreement between the parties. Typically, such rules provide the arbitral tribunal authority over how to conduct the arbitration, which should include judgments on how to incorporate and use current technology, as long as the parties are treated equally and given a chance to present their case.
Indian Platforms of ODR (Online Dispute Resolution)
Due to the COVID-19 issue, the existing pattern of dispute resolution has altered, and the internet platform has become the only option for individuals to address their problems. Because there are no judicial processes, all issues are addressed online through multiple platforms using video conferencing.
A website-based platform for conflict settlement is the Centre for Alternate Dispute Resolution Excellence (CADRE). The parties will not be able to reach them by e-mail or video chat. It operates with skilled arbitrators who are well reversed by the regulations of CADRE. One of their major obligations is that customers do not walk empty-handed without money and remedies during the entire procedure.
SAMA is another online dispute settlement platform that offers ease of access to high quality ADR service providers as well. It helps ICICI Bank resolve ten thousand disputes of Rs.20 lakh worth.
AGAMI is a non-profit organisation that promotes ODR but is not a service provider platform, and it was founded in 2018. Its goal is to use ODR to resolve one million conflicts by the year 2022.
The CODR (Centre for Online Dispute Resolution) is an organisation that handles disputes entirely online. It's a private organisation that specialises in online cases from start to finish. By allowing the client and their advocate to manage the whole process, it attempts to reduce the complexity of the procedure while also ensuring the goals of justice.’
Alternative dispute resolution techniques are considered versatile, economical, quick, and less formalistic than court-based adjudication, making them a potential alternative. Aside from the court system, the parties can choose from a variety of alternate conflict resolution solutions for uncomplicated disagreements. India is making progress in the area of judicial equality. The ADR structure acts as a stepping-stone for both parties as they work their way up the court system. The ADR movement has to move forward more quickly. This would considerably lessen the pressure on the courts, in addition to providing rapid justice at no cost. They will achieve the goal of giving social justice to the conflicting parties if they are adequately executed.
Technology should be a benefit to the parties and the Tribunal in an arbitration, not a burden. It can be used for any or all of the steps in the process. Simply expressed, it should be utilised to improve the efficiency and cost-effectiveness of proceedings. Taking into account the nature and complexity of the dispute, international arbitration allows parties to employ technology in a way that helps them achieve these goals. Parties with arbitration clauses in their contracts or who finally elect to go through arbitration would be well served in the long run to consider how technology may be employed in their arbitration processes.