Using Technology In Arbitration: Necessity Or Choice? – Litigation, Mediation & Arbitration – UK – Mondaq News Alerts

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The global pandemic continues to challenge us, with variousmeasures ranging from further lockdowns to restrictions onin-person meetings. The judicial machinery, including that in thearbitration world, has continued to function throughout thepandemic notwithstanding the difficulties of embracing innovativeprocesses and new technology.

In January 2021, Vijay Bange wrote an article examining thechallenges of using technology in formal dispute resolutionproceedings. Whilst technology has of course been used ininternational arbitration and high court litigation (particularlyin the Technology & Construction Court) for quite some time,that use has been somewhat limited with parties, their legalcounsel, and the tribunal often preferring in-person hearings andhard copy papers. 2021 however saw a dramatic rise in the useof technology in dispute resolution proceedings. This wasalmost certainly borne out of necessity as a result of the COVID-19pandemic, rather than necessarily by choice or organicprogression. 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 someinevitably faced technological and logistical stumbling blocks, themove to virtual hearings and electronic working proved largelysuccessful with many disputes being resolved expeditiously alongthe way. In fact, the move towards technology was sosuccessful that many people are now opting to use technology out ofchoice and not simply out of necessity.

In person hearings remain the gold standard, atleast in the courts. However, the use of technology andremote hearings has largely been welcomed as it has allowed thebusiness world to have proper and timely recourse to justice toresolve disputes and differences. Many may also benefit fromcost economies as a result of some of the technological processesadopted. Furthermore, these practices will likely result in theadoption and implementation of lean thinking working habits andconcepts. That said, there will inevitably be issues thatarise as a result of the introduction of technology and remotehearings. Can remote hearings ever completely dispense within-person ones? Arguably, there will probably be good reason tohave certain interlocutory matters dealt with remotely, and moresubstantive matters in-person. It will vary from case to case.There is then the issue of natural justice and fairness, andwhether a disgruntled party can insist on its right to have inperson hearings. Is cross-examination more or less effective viaremote or in-person hearings? Can the arbitrator really form a viewof the credibility of a witness of fact, absent the observations ofbody language and behaviour that will be a metric used, albeit bythe subconscious thinking process.

Regardless, remote hearings and technology usage will be moreprevalent going forward. That said, to alleviate at least some ofthe concerns, it makes sense to have regulatory guidance in placefor the arbitrator and parties as to the dos and don'ts ofremote and electronic working.

The CIArb has been quick to react to this changing landscape bypublishing the CIArb Framework Guideline on the Use of Technologyin International Arbitration. This two part guidelineprimarily addresses two matters.

First, the powers and duties of arbitrators in respect oftechnology and ensuring fairness and proportionate use oftechnology. Some key points to note are as follows:

Second, best practice on cybersecurity and avoiding databreaches. The guidance recommends:

As we use and adopt remote hearing processes more often, andindeed rely more on technology, there will be wrinkles that needironing, and the various arbitral institutions will no doubtreview, revise and update best practice guidance. We applaud theCIArb for the guidelines produced, and all those in the arbitrationfamily that have contributed.

Disclaimer: This Alert has beenprepared and published for informational purposes only and is notoffered, nor should be construed, as legal advice. For moreinformation, please see the firm's full disclaimer.

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Using Technology In Arbitration: Necessity Or Choice? - Litigation, Mediation & Arbitration - UK - Mondaq News Alerts