Ruminations on Arbitration Towards The New Normal

The two arbitration conferences recently held in the UK - the inaugural Future of Technology in Arbitration (FOTA) in London, and the 25th Congress of the International Council for Commercial Arbitration (ICCA) 2022 in Edinburgh - were both long-delayed due to the pandemic, and therefore hotly anticipated as soon as each got the proverbial “green light” to proceed. And they did not disappoint. Both events were wonderful opportunities for members of the international arbitration community to reunite, connect and consider the current state of international arbitration in a post-pandemic ‘emerging normal.’

As with all businesses, the pandemic drove unprecedented technology adoption within law firms, courts, and arbitration.  Rapid adoption dramatically accelerated change in the way the arbitration community uses technology and forced everyone to adapt to virtual hearings as a matter of regular practice. So it’s no surprise that these two conferences both focussed on the ‘new normal’.

FOTA 2022 marketed itself as “the first-ever global conference focused on… the very latest in cutting-edge technologies that will transform arbitration as we know it today, tomorrow, and in the years to come”. Alongside Immediation, Wolters Kluwer, Delium, Thomson Reuters Case Center, Jus Mundi, IMS Consulting & Expert Services and Disco sponsored the event. Each was awarded a showcase and finalists were interviewed by the expert judging committee comprising thought leaders and experts in the arbitration community.

FOTA’s sessions and ensuing discussions focussed largely on the impact of technology on the arbitral process, rather than the way in which technology can facilitate, streamline and drive efficiency in arbitration. The approach fostered many interesting exchanges about the growing role of technology in the   space and how it can create a more robust overall experience and expedience.

ICCA, spread across three days, had a record attendance of 1,700 people from around the world including Europe, the US, China, Brazil, Saudi Arabia, Mauritius and Australia; and aside from law firms, arbitral institutions and tech providers, “knowledge” suppliers such as Kluwer, Jus Mundi, GAR and others attended too. 

The theme of ICCA was “The Age of Enlightenment”, and the sessions explored the way forward in the field of international arbitration. One session: “Arbitration in the Age of [Post-pandemic] Technology” whose speakers were Kathryn Khamsi, Ji En Lee, Julie Raneda and Prof Maxi Scherer, moderated by Fabien Gélinas, discussed how ‘digitilisation’ in the arbitration process delivers benefits and challenges and how those challenges may be overcome.

Arbitration new normal

So what does International Arbitration’s ‘new normal’ look like?  Here are some of our observations from these two events:

It was universally agreed by attendees at both conferences that even with the expected ‘rush’ to return to face-to-face meetings post-pandemic, the upside of using technology to facilitate workflows, streamline processes and speed up resolutions is so significant that there is no going back. Technology now touches/improves all aspects of the arbitral process; including case management, discovery, evidence management and neutral selection and virtual or hybrid hearings.  

Attendees at both events now consider virtual hearings commonplace in arbitration, but there is a difference between procedural and evidentiary hearings. All agree that procedural matters (such as a CMC) can be dealt with efficiently and easily on a virtual basis, but where cross-examination is involved, the general view seems to be that hybrid or in-person hearings are preferable. 

Sessions at both conferences covered the implications of blockchain technology, and at FOTA there was a session on ‘metaversal’ arbitration. In our view, the arbitration community (and legal in general) is a long way off from adopting and deploying these technologies, and we are perhaps best served taking baby steps and using what we have in front of us today. 

At FOTA, Immediation raised the point that, at the outset of the pandemic (and in some cases, far earlier), many of the arbitral institutions issued guidelines and protocols for the use of technology in hearings, but most do not go far enough in their recommendations, particularly regarding confidentiality and privilege. It is crucial that parties give proper consideration to whether or not they are using the right virtual hearing platform for their arbitration so as to minimise the risk of privilege being breached, either accidentally or otherwise; and mainstream technologies do not protect against that. 

In closing, we would like to repeat the words of the outgoing president of the Scottish Arbitration Centre, Brandon Malone, who, at the Opening Ceremony of ICCA, read out a poem about arbitration called ‘Chameleon’, by Allan Ramsay, which he “translated” for the largely non-Scottish audience. We wonder whether Mr Malone has started a trend of opening arbitration conferences with arbitration poems … although one wonders how many such poems exist!

Contributor Immediation.

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