Whilst the world has been physically isolating thanks to the pandemic, lockdown has triggered a sharp increase in online knowledge sharing. I was honoured to speak at such an event recently: the ICC’s Arbitration Day ‘in’ Prague. The discussion centred on technology in arbitration, and I was fortunate to be in the esteemed company of senior representatives from Deloitte, Airbus and Sidley Austin LLP.
Everyone – fortunately for the moderator – agreed that technology was a good thing. However, we diverged somewhat on its current adoption and future uptake. It’s true that we must walk before we run. Using simple tools like Excel and hyperlinks definitely augment manual workflows. Those tools are also a way to realise the small wins technology offers.
Arbitration has long seen itself as a discipline slightly apart (if not above) the mainstream disputes industry. For years, practitioners have cited this detachment from onerous procedural rules as a key tenet of success. With that came the desire to maintain the feel of a forum to negotiate a commercial resolution rather than fight acrimonious legal battles. But, as any modern practitioner will attest to, that isn’t the case anymore. The arbitration world sees the highest profile disputes where the stakes are higher than ever and played out on an international stage. This fact alone means the industry must keep pace with the tech-progressive, commercial world that arbitration serves.
One accusation often levelled at technology is that it’s expensive. Another is that it’s inconvenient. Yet another is that it increases data privacy risk. This is simply explained: bad advice. If a six-year-old crashes the Lamborghini you give her, it doesn’t make the Lamborghini a bad car. The main benefits of technology are that it is time and cost efficient, renders better results (or the same results with more ease) and protects your data. A view that ‘technology does the opposite’ is lazy and unsustainable.
The preeminent Sophie Nappert, renowned arbitrator and founder of ArbTech, puts it best: ‘As the pace of innovation has gone from a trickle to a steady deluge, this has also raised the quality and maturity of the discussion about technology and dispute resolution – we are well past the days of tongue-in-cheek futurist predictions of “robolawyers.” These days, the discussion is technical, and high-level – for example, whether “on-chain” ADR built on blockchain platforms holds practical advantages over traditional ADR when integrated onto smart contracts, and if so, which types of smart contracts.’
Most lawyers are nearer the start of that journey than the end. So where can technology make a practical difference today?
With its international nature, reliance on email and the prevalence of open source cloud-sharing platforms, arbitration is particularly susceptible to cyberattacks. Warnings to law firms and specifically to the arbitration community are commonplace. The ICC’s 2017 commission report on Information Technology in International Arbitration highlights the increased incidents of cyberattacks over four years ago.
The threat is technological in nature. Whilst the weakest link is usually human, the defence should also be technology-founded. Simple, easy-to-use case management platforms have been designed with security in mind, including multi-factor authentication, encryption, information rights management, access level controls and more. These platforms are usually hosted in the cloud (Azure, AWS) or by tech companies’ data centres – both with equal, if not superior, security credentials to their clients.
These platforms are simple to navigate and have been designed with the end-user in mind. They replicate a fully customisable, Windows-looking file structure. Lawyers and arbitrators who have not used a computer may struggle. Everyone else can master these tools as easily as Outlook in just a few minutes.
You can upload large memorials without sending ten emails, each containing three PDFs. You can constitute a time- and date-stamped hearing bundle from a contemporaneous proceedings record with one click, rather than having four paralegals working on it all night.
These platforms drive so many efficiencies, a Working Group on LegalTech Adoption in International Arbitration made up of lawyers from HSF, CMS, Hogan Lovells, Latham, Ashurst and DLA produced a 40-page Protocol for Online Case Management in International Arbitration. It is well worth a read!
Lawyers can only advise in context. That context lives in the information surrounding a dispute. Some arbitrations turn on narrow legal points. Many more require evidence in support. Evidence exists everywhere: laptops, phones, Zoom logs, servers. Lawyers and tribunals are savvier to the veracity of data. We see more and more POs have litigation-esque obligations around the integrity of evidence collected and adduced.
Analytics are not reserved for the meddling Cambridge Analyticas of the world. Fairly meagre, case-by-case investment can render significant results. For example, infrastructure arbitration typically has huge data volumes to organise and interrogate before pleadings. Simple techniques like deduplication and threading suppress copies of the same information. More sophisticated, conceptual analytics can easily organise documents related to similar issues in a matter. Visual analytics are growing in their importance to case presentations. The ability to track these from request to hearing can really change the way a tribunal absorbs a fact-based argument.
Lastly, lawyers and technologists collaborating can easily map Redfern requests into complex search terms – leveraging syntax, wildcards, connectors and multi-language iterations. The results of those Redfern search terms can easily be categorised per the request. Where documents are responsive to multiple requests, you can avoid different reviewers incurring the cost of looking at them separately.
There will never be a replacement for an in-person chat between clients after the reality of the hearing sets in. I’m sure many disputes have been settled in the vicinity of the IDRC as opposed to its hearing rooms. (Side note – the 2021 Vis Moot looked like it was being run by the team from Minority Report – Damian and team are definitely not technophobes!). However, as face-to-face meetings became impossible – lawyers and institutions alike saw the significant benefits to virtual hearings:
- Magnified facial expressions, changes in tone and emotional intelligence. High-definition video renders an aesthetic close to in-person. When a camera is focused on faces, it magnifies facial expressions, which are key body language indicators (though facial coding is probably beyond the scope of practical advice!). Similarly, sophisticated audio can pick up changes in tone that the naked ear cannot. The more we use video, the better our emotional understanding through the medium becomes. Gen Z may have better virtual emotional intelligence than in-person.
- Tighter control of relevant documents by leveraging secure document repositories.
- Wider pool of tangential resources remotely, like translators and interpreters.
- Reduction in both paper and carbon footprint. In fact, virtual hearings tick a number of the key principles established in the Green Pledge.
- Indulge me! Witness polygraphs sound futuristic, but Robert Bradshaw published a paper on them in Arbitration International on 17 March 2021. ‘A number of cases before the Court of Arbitration for Sport have considered whether polygraph evidence is admissible as a means of verifying witness testimony, though tribunals have not reached any consensus. Now, authorities in several countries are trialling a new generation of “lie detectors” using technologies such as eye tracking, artificial intelligence, and brain imaging.’
We can neither ignore technology nor deploy it. Like other areas of commercial life, arbitration practitioners must take care in researching tools that give their clients security, reduce the time and cost burden and deliver results that humans alone cannot. There are many resources and many experts to discuss these issues with. One thing is for certain: the world is moving forward. One of my fellow panelists rightly pointed out that the legal tech guru Richard Susskind famously said that we overestimate where technology will be in two years, but underestimate where we will be in ten. Most of the concepts above are detailed in some way or another in his 1998 publication The Future of Law. So, giddy up, the only real constant is change!