If we were to implement a cup-half-full state of mind, we could strongly argue that a positive which the COVID-19 pandemic manifested, is the globe’s transformation into a new digital age ushered in on the back of video teleconferencing, non-fungible tokens (“NFTs”), and of course, the Metaverse.
As businesses shift their perimeters in a response to this technological acceleration, it has become essential for the arbitration community to do the same by utilizing the digital tools and solutions available to meet today’s demands.
In further positioning themselves on the forefront of the arbitration community, the ICC has responded to the need for technological advancement on 18 February 2022, with the release of their latest report: the ‘ICC Commission Report on Leveraging Technology for Fair, Effective and Efficient International Arbitration Proceedings’ (the “Report”).
The Report examines several key issues including the relevance of technology to arbitrator selection, the role of technology is effective case management, and electronic exchange of communications, exhibits, and other submissions. The Report also provides sample procedural language relating to technological tools and solutions, an organizational checklist for virtual hearings, and a template procedural order for the conduct of evidentiary hearings via teleconferencing.
An intriguing part of the Report is the ICC’s key findings from its survey on the use of IT in international arbitration. This survey was answered by over 500 international arbitration community members and comprised of 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.
Looking at the survey’s findings, it was revealed that 93% of respondents believe technology has transformed arbitration by helping streamline processes and improve the cost-effectiveness of the process. Results further determined that the use of technology in arbitration will increase even more in the future including when it comes to matters such as hard copy filings and e-briefs with hyperlinked exhibits, essentially reshaping old practices. When discussing the continued growth for online case management platforms, the ICC announced that it is currently designing a secure digital platform for communications and file sharing, with an initial phase expected to launch in June 2022.
Having said all of this, the ICC made a point to emphasis that there should be no presumption in favor of physical, virtual, or hybrid hearings, but rather, tribunals should decide what is appropriate based on the circumstances of the case.
When asked about the Report, 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 provided practical guidance as to how to implement the available technological solutions to ensure a fair level playing field.”
To read the full Report, please click here.