Innovative tools and platforms represent a way to improve the international arbitral process and ensure respect for conventional wisdom.(1)
Innovative tools and better application of conventional principles
It is commonly accepted that arbitration proceedings should be quick, efficient and predictable to ensure access to justice. This is also essential to ensuring that it maintains its advantages over national court proceedings, which often suffer the consequences of an overloaded schedule.(2) The development of innovative tools is even more necessary in an ever-evolving society with an increasing need for speed and swift dispute resolution.
Once a swift and cost-efficient method of resolving international disputes, international arbitration is now often stalled by long and costly procedures.(3) Yet, long and costly procedures can be avoided if the arbitration is organised and managed effectively, and numerous ideas have been developed to improve the efficiency of the arbitral process.
The below are examples of procedural innovations which can improve both the time-consuming nature and cost efficiency of the arbitral process.
Procedural innovations
In a survey conducted by Queen Mary University of London on "Improvements and Innovations in International Arbitration",(4) the procedural innovation perceived as most effective at controlling time and cost in international arbitration was the requirement for tribunals to commit to a schedule for deliberations and delivery of final awards.(5) Such internal commitments by the arbitral tribunal are essential and can be achieved only if the proceedings are efficiently organised, which can be maximised when arbitrators are fully knowledgeable of the details of the case when they attend the evidentiary hearing.
Innovative tools
Iain Sheridan identified three qualitative analytical models that may contribute to the processes and outcomes of international arbitration – namely:
- mind map diagrams;
- simplified evidence charts; and
- cause and effect diagrams.(6)
The aforementioned models are only examples of innovative software among the myriad tools which are being developed and used to simplify and organise complex fact matrices and ideas.
Mind map diagrams
Mind map diagrams summarise a case in a non-linear way, replicating how the human brain often analyses knowledge and problems. The essential elements of any mind map are:
- a main topic represented with a central image;
- important themes radiating from the central image as branches;
- branches comprised of a key image or key word printed on an associated line to form a connected nodal structure; and
- the incorporation of colour to clarify or emphasise connections.(7)
This tool allows for complex, voluminous facts to be summarised with links to other types of document, such as party requests and responses, as well as expert spreadsheets.(8)
Simplified evidence charts
Simplified evidence charts can succinctly set out a party's arguments alongside supporting evidence and accepted generalisations.(9) Well-drafted simplified evidence charts help counsel to prepare for and deliver their oral arguments. They also aid arbitrators' decision making. This technique further allows parties to put forward their main argument with supporting evidence and generalisations.
Cause and effect diagrams
Cause and effect diagrams, or 'fishbone diagrams', can help in the:
- brainstorming process;
- identification of possible causes of a problem; and
- sorting of ideas into useful categories.
These diagrams are a visual way to look at causes and effects and can thus help to clarify causation matters in the most complex cases.(10)
Online platforms
Recourse to online dispute resolution (ODR) through diverse online platforms can be key to saving time and costs, particularly where the parties are not situated in the same country and where the amount in dispute and the nature of the dispute allows for such procedure.(11)
By way of example, the European Commission has sponsored the ODR Platform, an innovative online platform which can be used for any contractual dispute arising from the online purchase of goods or services where the trader and consumer are both based in the European Economic Area. The platform is designed as a mechanism aimed at providing the speed and high quality required by the world business sector.
The World Intellectual Property Organisation Arbitration and Mediation Centre is also developing an online system for administering disputes. Digital communication tools will allow the parties to file requests by completing electronic forms and submit documents and exchange correspondence online through secure channels. The parties, neutrals and the centre will thus communicate electronically (in addition to using any available audio and video facilities), reducing the need for other potentially time-consuming and expensive means of communication and in-person meetings and hearings.
The concept of wisdom was extensively analysed by Greek philosophers in the fifth century and is central to the five virtues described by Aristotle in Nicomachean Ethics:
- Science allows people to draw conclusions in a logical, demonstrable fashion from given facts and principles.
- Intelligence is the intuition of self-evident truths and can be referred to as 'common sense'.
- Theoretical wisdom is a combination of science and intelligence.
- Prudence or practical wisdom involves not only the ability to decide how to achieve a certain end, but also the ability to reflect upon and determine good ends.
- Art is the ability to use one's skills to produce and create.(12)
As practitioners of international arbitration, and particularly as arbitrators, it is useful to keep in mind the five virtues described by Aristotle more than two millennia ago. Arbitrators must approach the decision-making process in a scientific fashion, while using common sense, wisdom, prudence and a sense of creation to reach just and fair solutions.
According to Aristotle, humans learn moral virtues primarily through habit and practice rather than reasoning or instruction. It is up to the arbitration community to uphold these essential virtues by practising them as habits to ensure the perennity of international arbitration in the future.
Endnotes
(1) This is the third article in a series on conventional wisdom in arbitration proceedings. For earlier articles in the series, please see:
- "Conventional wisdom in arbitral proceedings"; and
- "Conventional wisdom and perceptions in arbitral proceedings".
(2) See Frank Sander's 1976 speech at the Pound Conference on "The Causes of Popular Dissatisfaction with the Administration of Justice", widely seen within the legal academy as the birth of the alternative dispute resolution movement in the United States and then worldwide. During this speech, Sander explained that alternative dispute resolution should help to avoid case overload in courts, which slows down the judicial process.
(4) Queen Mary University of London survey, "Improvements and Innovations in International Arbitration" (2015).
(6) Iain Sheridan, "Qualitative Analytical Models for Arbitration", 33(2) Journal of International Arbitration (2016) pp 171-184.
(7) Page Vitulli and Rebecca M Giles, "Mind Mapping: Making Connections with Images and Colors", 6(2) Delta State University Journal (2016).
(8) Iain Sheridan, "Dispute Resolution: Three tools to improve international arbitration", IFLR1000, 12 October 2015.
(11) Julio Cesar Betancourt and Elina Zlatanska, "Online Dispute Resolution (ODR): What is it and is it the Way Forward?" 79(3) International Journal of Arbitration, Mediation and Dispute Management (2013) and Derrick Yeoh, "Is Online Dispute Resolution the Future of Alternative Dispute Resolution?", Kluwer Arbitration Blog (29 March 2018).
