ICC launches new report reflecting how tech is changing the face of arbitration

As a response to COVID-19, today’s business landscape is being reshaped by technological acceleration, making it essential that the arbitration community assess how they can best utilize digital tools and solutions to meet today’s challenges and future demands on dispute resolution. Seeing this need, ICC’s Arbitration and ADR Commission set out to update the 2017 edition of their report on information technology (IT) in international arbitration; however, ultimately produced an entirely new resource due to the sudden uptick in technology usage.

Led by Canadian arbitrator Stephanie Cohen, a dedicated working group of experts appointed by the Commission drafted the new report, providing tribunals, arbitrators, and counsel with a framework to make better use of technology without compromising fairness or efficiency.

To ensure a range of stakeholders are using technology in a safe, secure and reliable fashion, the document offers a host of practical resources. These include sample procedural language relating to technology tools and solutions, convenient checklists for virtual hearings and items to consider when choosing an online case management platform, as well as a helpful template for procedural orders.

Commenting on the pioneering document, Ms Cohen said: “This report is the only resource that canvasses the wide range of technology being used in modern international arbitration practice, together with the key principles, and practical and legal considerations that influence our selection and implementation of that technology.

I hope that both new and seasoned practitioners and arbitrators alike will turn frequently to this report as they seek to enhance the arbitral process, not only because of its scope of coverage but also for its easy-to-understand explanations and quick-reference appendices.”

The tool’s conclusions and recommendations are based on survey responses from over 500 international arbitration community members on their experiences with, and opinions of technology tools and solutions.

The online questionnaire comprised 26 questions about respondents’ demographics, case management systems, preference for specific technologies or processes in their practice, such as streamlining documents or managing hearings, perceptions of technology’s value, and challenges to adopting it—for example, lack of training, financial considerations, or insufficient technical ability.

Among the key findings, it was revealed that 93% of respondents believe technology has transformed arbitration by helping streamline processes and improving the cost-effectiveness of the process. Results also indicated that the use of technology tools in international arbitration would increase in the future, including a break from old practices, such as hard copy filings, and the increased use of more underused forms of technology, such as e-briefs with hyperlinked exhibits. Further, as interest in and use of online case management platforms continues to grow, we may see new initiatives from arbitral institutions to improve the efficiency of proceedings. ICC is currently designing a secure digital platform for communications and file sharing, with an initial phase expected to launch in June 2022.

However, the report suggests that it is necessary to ensure the early consideration of how technology should be leveraged on an individual basis and revisit past assumptions about how hearings will unfold in the future. As an example, most respondents said they believed that there should be no presumption in favour of physical, hybrid, or virtual hearings, rather tribunals should decide what is appropriate based on the circumstances of the case.

Commenting on the Commission’s latest contribution to the innovation and development of the international arbitration practice, ICC Arbitration and ADR Commission Chair Melanie van Leeuwen said: “The pandemic has served as a catalyst in the use of software and technology in arbitration. While before the global health crisis their use was optional, during the pandemic technological solutions became essential to continue the arbitral process and ensure that justice is administered within a reasonable timeframe.

This report takes stock of the state-of-the-art solutions around the globe; identifies technological tools that facilitate access to arbitration and enhance the efficient conduct of arbitral proceedings; and provides practical guidance as to how to implement the available technological solutions to ensure a fair level playing field.”

The Commission and its working group will host a webinar at 3:00 pm CET today to discuss the report. The programme will focus on effective case management processes, paperless proceedings, and virtual hearings. International arbitration and ADR practitioners, arbitrators, arbitral institutions, and academics are encouraged to attend. Reserve your place.