The use of information technology (IT) has increased dramatically in all commercial spheres in the last decade. Recognising this fact, a task force of the International Chamber of Commerce (ICC) Commission on Arbitration and ADR updated its report on the use of IT in international arbitration in March 2017. The report, "An Updated Overview of Issues to Consider when Using Information Technology in International Arbitration" covers the broad scope of IT use within arbitration including electronic communications between the parties and between the parties and the arbitral tribunal (such as email), the storage of IT; the software and media used to present the parties' cases; and hearing room technology (such as videoconferencing and transcripts).
The goal of the task force was to provide an analytical framework to help parties, their representatives and arbitrators evaluate whether to use a particular form of IT and if so how to use it cost-effectively, fairly and efficiently. The task force acknowledges that: "When used – and especially when used effectively – IT can help the parties in international arbitration to save time and costs and to ensure that the arbitration is managed and conducted efficiently. On the other hand, if poorly managed, IT can increase time and costs, or – in the worst case – even result in unfair treatment of a party."
The updated report provides useful guidance and working material on:
- the process of agreeing to use IT – both at the outset of a relationship, when the parties include an agreement to arbitrate in their contracts, and after the dispute has arisen;
- a review of issues that arise during arbitral proceedings and, specifically, issues relating to the roles of the parties and the tribunal;
- addressing the proportionality issues involved in weighing up whether IT's usefulness in any particular case justifies the cost;
- other specific issues that may be relevant to parties and tribunals at any stage of the arbitration including compatibility issues, electronic exchange of exhibits and other submissions, data integrity issues, proof of service, confidentiality and data security and intellectual property; and
- sample wording that could be used for directions in the arbitration for the use of IT including wording to deal with a pre-dispute agreement on IT use, the terms of reference, first procedural orders, pre-hearing orders and the procedural timetable/procedural orders.
The task force is keen to involve those using the arbitral process to improve the use of IT as technology advances so that even better best practices can be found. Comments and suggestions for additional issues to consider can be addressed to the Commission's Secretariat at email@example.com.