On May 7, 2022, the International Panel Discussion on International Arbitration organised by New Law College Madhyasthta- The ADR Cell put together a very international panel to discuss “Technology in Arbitration: Challenges, Avenues and Road Ahead” took place. The panel was composed of Robert Heath QC, arbitrator enrolled at the Victorian Bar from Melbourne; Ankoosh K Mehta, partner at Cyril Amarchand Mangaldas from Mumbai; Svenja Wachtel, an associate at Willkie Farr & Garrell in Frankfurt and founder of Coffe Break in International Arbitration; Pratyush Miglani, managing partner at Miglani Varma & Co. from New Delhi, and Carolina Mauro, legal counsel at Permutive Ltd and executive board member at CyberArb. The discussion was moderated by NLC students and CyberArb members Sanjana Sachdev and Arijit Sanyal.
Technology has indeed always been employed in dispute resolution, even before the outbreak of the Covid-19 pandemic. Particularly, international arbitration involves a great number of different stakeholders, participating from different jurisdictions around the globe, so the use of technology in this field urges various considerations.
Opening remarks were offered by Ankoosh Mehta, who praised the flexibility offered using technology in international arbitration, and the very welcomed comfort of working from home. Nonetheless, he acknowledged that the use of technology in international arbitration can also have its downsides, particularly concerning confidentiality issues with using online platforms, and the lack of in-person “feel” of arbitrators for witnesses, which cannot be replicated online.
Q. What are the key issues that need to be considered when using technology in international arbitration?
According to Svenja Wachtel, it is crucial to understand a stakeholder’s role in the arbitration, as interests and issues are different for each. For example:
- The arbitrator hopes for the parties to align on the procedure and to agree on which technology to use/ to what extent, and their decision on the matter has to be enforceable;
- The counsel wants their client to win the case, so their considerations on the use of technology are part of their overall defence strategy;
- The parties generally want technology to make the arbitration cost-efficient;
- For lay witnesses, in contrast, the use of technology usually adds a layer of different issues to be stressed about – how to behave in front of the camera, making sure that their internet connection is stable, etc.
Following up on Svenja’s remarks, Robert Heath QC noted that remote witnesses may cheat by trying to read notes while on camera; however, this is very noticeable from other participants, who should be able to deal with it.
He recalled an experience of his to remind the audience that no one can win a case conducted remotely if their internet is not working smoothly – and that is something that can never be taken for granted but must always be checked in advance. As technology is undoubtedly here to stay, he noted that arbitrators’ ability to deal with technology in conducting an international arbitration is likely to become a crucial requirement for their appointment. However, he hopes that technology and virtual hearings will not completely take over the practice of physically going to courts and interacting with other stakeholders before and after hearings, as these interactions often lead to “soft negotiations” which are critical to the case at hand.
Q. How can we use the benefits of technology to advance while managing the procedural drawbacks that may potentially arise?
Pratyush Miglani recalled how, at the beginning of the pandemic and when lockdown measures were first enforced around the world, moving the whole business online seemed impossible and how the transition went smoothly, instead. He noted that there has been a “change in the mindset” of the international arbitration community, supported by the International Bar Association (IBA) and other institutions and organisations which provided guidance on how to adopt this new way of using technology to conduct hearings remotely.
He stressed that the enhanced use of technology in international arbitration will help minimising the costs, reducing the carbon footprint, and enabling more junior professionals to attend hearings despite not being able to physically travel around the globe.
Q. How can the numerous guidelines on the use of technology in arbitration be used, considering that they are not binding in nature – how do you convince the parties to adhere?
Carolina Mauro noted that the pandemic, and the fact that the whole business went online, somehow forced everyone in the field to realise that cybersecurity issues and technology, in general, are no longer a matter for IT experts only and that everyone needs to get familiar with them. This also explained the great number of guidelines that were issued throughout the year 2020 and following, focussing particularly on the conduct of remote/ virtual hearings, at first – such as the Seoul Protocol on Video Conferencing in Arbitration, and the CIArb Guidance Note on Remote Dispute Resolution Proceedings. Arguably, the most comprehensive tools available to international arbitration practitioners are the IBA Cybersecurity Guidelines, aimed at law firms in general and thus useful for counsels, and the 2020 ICCA – New York City Bar – CPR Cybersecurity Protocolwhich provides practical advice taking into consideration the different circumstances of each arbitration and the different roles of each stakeholder.
She considered that the latest CIArb Framework Guideline on the Use of Technology rests on this body of soft law instruments and confirms the principles already outlined by its predecessors – the powers and duties of arbitrators with regards to technology, the purpose to ensure fairness and proportionality in the use of technology, among others.
She argued that looking at all the available guidelines, the emergence of general principles about cybersecurity in international arbitration can be noted, particularly:
- Ensuring an appropriate level of cybersecurity is a shared responsibility of all arbitration stakeholders, as the exchange of large databases in international arbitrations makes it so that all stakeholders are interconnected, though to different extents. It is said that the chain is as strong as the weakest link, so everyone has a responsibility to ensure that the arbitration is conducted safely and efficiently;
- Cybersecurity issues are closely intertwined with data protection issues so ensuring the security of personal data is not only a way to enforce the underpinning principles of confidentiality and due process, but also to comply with mandatory data protection laws, as these usually also mandate a minimum level of security of data;
- Cybersecurity issues shall be addressed very early in the proceedings. The question is which stakeholder in the arbitration should take the lead on this matter. Existing guidelines and updated arbitration rules, such as Article 30A LCIA Rules, seem to pose this duty on the arbitrators. However, the question is whether this is the best choice, as arbitrators are not themselves tech experts, and they may not be up-to-date or even able to understand all the existing risks and viable tools, and they are generally not backed up by IT departments, as counsels from big law firms and sophisticated parties may be. Thus, there is an opinion that initiating the conversation on cybersecurity should be the responsibility of arbitral institutions, so that the institutions align to a certain standard that would reach a wider number of arbitrations, ensuring a baseline level of security in the field. Another line of thought considers that it should be the parties’ responsibility instead since the arbitration is conducted in their interest in the first place.
Following on this question, Svenja and Robert both agreed that arbitration is about two parties agreeing on procedural issues, and thus it should be the parties’ responsibility. The counsel’s role in the arbitration is also that of ensuring the best confidentiality and security of their party’s data, including by appointing an arbitrator who fully understands the risks of international transfers of data. Guidelines on cybersecurity, though not binding, are very useful, and all stakeholders should read them, and then adapt the level of security and measures to be adopted at the specific case at hand – as each case is different and requires different levels of data security.
Q. What to do if the parties do not agree on a common set of technology to be used during the conduct of their arbitration?
The arbitrator, Svenja explained, always needs to keep the process fair, including when deciding on the use of technology, and thus they shall hear both parties and consider the capabilities of each to meet the set standard. Pratyush added that once the arbitrator has exercised discretion with regards to the use of technology, in respect of the principle of fair and due process, it would be unfair for a party to resist enforcement of the final award on the basis of such decision.
Q. What obligations do tech providers have under existing data protection laws?
Carolina noted that under the GDPR – which is the data protection law currently setting the standard globally and has an extraterritorial application – tech providers, either as data controllers or data processors, must comply with many obligations. Among these, they shall ensure the security of the processing of personal data, per Article 32, which states: “[t]aking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the controller, and the processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk […]” – as proof that complying with cybersecurity guidelines also ensures compliance with data protection laws.
Moreover, she recalled that the GDPR recognises some fundamental rights to data subjects, i.e., to the natural persons whose data are processed – these being: the right of access, the right to know information about the processing, the right to rectification, the right to erasure (under certain conditions), the right to data portability, the right to object the processing (under certain conditions), and the rights against the automated processing of personal data. This means that tech providers must enhance procedures and tools for users to be able to actually exercise such rights.
Q. If technology is here to stay, how do we make peace with it?
Svenja: do not be afraid of technology. Technology needs to be easy to access and easy to understand – if not, then discard it. Use tools you are comfortable with, but stay open to new developments.
Carolina: stay up to date – technology keeps evolving, tools keep developing, and cyber threats unfortunately follow. Technology has to be simple, but we all need to be aware of what is going on, of what risks are involved, and always use common sense.
Pratyush: embrace the change or you will be left behind – those who master technology are getting ahead already. Considering all its advantages, including for the environment, we should push for conducting the arbitration virtually whenever possible.
Robert: technology in international arbitration is the way of the future – clients should be encouraged to conduct the proceedings online.
The recording of the full event is available here.
Read about more detailed analysis of CIArb Framework Guideline on the Use of Technology here.