By Vijay Bange and Tanya Chadha
The global pandemic continues to challenge us, with various measures ranging from further lockdowns to restrictions on in-person meetings. The judicial machinery, including that in the arbitration world, has continued to function throughout the pandemic notwithstanding the difficulties of embracing innovative processes and new technology.
In January 2021, Vijay Bange wrote an article examining the challenges of using technology in formal dispute resolution proceedings. Whilst technology has of course been used in international arbitration and high court litigation (particularly in the Technology & Construction Court) for quite some time, that use has been somewhat limited with parties, their legal counsel, and the tribunal often preferring in-person hearings and hard copy papers. 2021 however saw a dramatic rise in the use of technology in dispute resolution proceedings. This was almost certainly borne out of necessity as a result of the COVID-19 pandemic, rather than necessarily by choice or organic progression. If disputes were to continue to be resolved, parties had no option but to get to grips with remote hearings, electronic bundles and virtual breakout rooms. Whilst some inevitably faced technological and logistical stumbling blocks, the move to virtual hearings and electronic working proved largely successful with many disputes being resolved expeditiously along the way. In fact, the move towards technology was so successful that many people are now opting to use technology out of choice and not simply out of necessity.
In person hearings remain the “gold standard”, at least in the courts. However, the use of technology and remote hearings has largely been welcomed as it has allowed the business world to have proper and timely recourse to justice to resolve disputes and differences. Many may also benefit from cost economies as a result of some of the technological processes adopted. Furthermore, these practices will likely result in the adoption and implementation of lean thinking working habits and concepts. That said, there will inevitably be issues that arise as a result of the introduction of technology and remote hearings. Can remote hearings ever completely dispense with in-person ones? Arguably, there will probably be good reason to have certain interlocutory matters dealt with remotely, and more substantive matters in-person. It will vary from case to case. There is then the issue of natural justice and fairness, and whether a disgruntled party can insist on its right to have in person hearings. Is cross-examination more or less effective via remote or in-person hearings? Can the arbitrator really form a view of the credibility of a witness of fact, absent the observations of body language and behaviour that will be a metric used, albeit by the subconscious thinking process.
Regardless, remote hearings and technology usage will be more prevalent going forward. That said, to alleviate at least some of the concerns, it makes sense to have regulatory guidance in place for the arbitrator and parties as to the dos and don’ts of remote and electronic working.
The CIArb has been quick to react to this changing landscape by publishing the CIArb Framework Guideline on the Use of Technology in International Arbitration. This two part guideline primarily addresses two matters.
First, the powers and duties of arbitrators in respect of technology and ensuring fairness and proportionate use of technology. Some key points to note are as follows:
- Absent any contractually agreed procedures, arbitrators can conduct the arbitration in any manner they consider appropriate. This includes the use of technology. Parties with strong preferences, either for or against the use of technology, should therefore include express provisions in the contract to deal with the procedure for arbitration to avoid being stuck with a process they did not sign up to. Local laws applicable to the arbitration may constrain the use of technology.
- The duty to treat all parties fairly may affect the arbitrator’s decision to use technology if, for example, not all parties have equal access. No unfair procedural advantage should be created so timezones and availability of technological infrastructure should be considered.
- The use of technology must not jeopardize due process and relevant laws and circumstances must be taken into account. Arbitrators have the power to make directions when it comes to a party’s private use of technology to safeguard due process and ensure efficiency and cost-effectiveness where necessary.
- The use of technology must be proportionate in the circumstances. Factors such as cost, time, environmental resources and size of the case should be considered.
- Technology must be secure and stable.
Second, best practice on cybersecurity and avoiding data breaches. The guidance recommends:
- Standard security measures are adopted by parties and these do not necessarily require third party technical support or significant extra expense.
- Risk analysis and profiling to identify assets and data which require particular protection.
- Seeking institutional support where available, such as using secure case management platforms hosted and run by arbitral institutions.
- Effective data management such as password protected documents, encryption, backed up data and remote erasure software.
As we use and adopt remote hearing processes more often, and indeed rely more on technology, there will be wrinkles that need ironing, and the various arbitral institutions will no doubt review, revise and update best practice guidance. We applaud the CIArb for the guidelines produced, and all those in the arbitration family that have contributed.