Technological advances have had a transformative effect on almost every part of economic and daily life over the past decade, and international arbitration is no exception. The use and acceptance of IT in international arbitration has substantially increased since the ICC’s original report was published in 2004, prompting ICC to develop a new up-to-date report on the topic.
Offering basic guidelines on how to navigate the use of IT with other parties and the tribunal, the report provides an analytical framework to assist parties and arbitrators on how to use IT in a fair, efficient and cost-effective way.
The report covers a range of hot-button IT issues such as cybersecurity and data integrity, and also includes an updated appendix with sample wording dealing for the use of IT that can be adopted by parties and arbitrators at various stages of arbitration.
New risks, new opportunities
As the new report explains, although IT has undoubtedly transformed the international arbitration process in a positive way, it would be mistaken to think that any use of IT will always save time and costs or ensure the arbitration is conducted efficiently. If managed poorly, the use of IT can increase time and costs, or even result in the unfair treatment of a party.
For example, briefs with embedded electronic links to cited exhibits, testimony and legal authorities can help the tribunal better understand and evaluate cases, yet can also be time-consuming and expensive for parties to prepare. In general, any increased convenience should be balanced against increased costs needed to implement the IT, the report suggests.
Moreover, new technologies create novel issues that parties and arbitrators must increasingly grapple with, such as cybersecurity concerns. The ICC report notes that it is common practice for IT users to communicate through unencrypted email with unencrypted attachments, despite the significant risks that can exist.
As information in arbitration is increasingly communicated electronically, documents become more vulnerable to both cyberattacks and manipulation. At the same time, the ICC report notes that technologies have also sprung up to ensure the authenticity of electronic documents or records, including electronic signatures, for example.
The benefits of greater IT in international arbitration largely outweigh any risks and the report argues that many widely-available IT solutions are not used to save time and costs as effectively as they could be. Videoconferencing, which some tribunals and parties remain reluctant to use even for minor witnesses, is a good example of an IT solution that can easily cut time and costs in international arbitration.
The ICC report is produced by the ICC Commission on Arbitration and ADR’s Task Force on the Use of Information Technology in International Arbitration, chaired by Erik Schäfer and David Wilson. The ICC Commission on Arbitration and ADR is ICC’s research and rule-making body for dispute resolution services and constitutes a unique think tank on international dispute resolution. The Commission produces reports and guidelines on legal, procedural and practical aspects and, together with the International Court of Arbitration, drafts and revises the various ICC rules for dispute resolution. With over 1000 members from some 90 countries, the Commission brings together experts in the field of international dispute resolution from around the globe.