Six law firms have recently collaborated to produce an industry first, the Protocol for Online Case Management in International Arbitration. The Protocol aims to become industry best practice for online management of international arbitration and provides guidance for users of arbitration, as well as technology companies, so as to ensure the ongoing efficiency of international arbitration in the modern world. This article sets out what the Protocol is and why it is important.
For many years, international arbitration has evolved to keep pace with new technologies and the increasing digitization of information and services. As a party-driven method of dispute resolution, international arbitration is well placed to be at the forefront of the technological revolution in dispute resolution, particularly as it is accustomed to connecting disputing parties from different jurisdictions around the globe.
International arbitration: Going digital
The processes of international arbitration have increasingly been performed online. Communication often takes place via email or other chat providers; documents are frequently served and filed and subsequently stored online; witnesses might be interviewed via video conference; document production is often completed using AI; hearing bundles might be digital and hearings themselves are also being conducted online or partially online.
Despite the trend towards online management of international arbitration, there was no universal guidance as to how arbitrations should be conducted online. Tribunals, parties and their counsel would often adopt different online tools depending on the particular arbitration. Different institutions also have had varying levels of guidance in relation to online arbitrations: some are quite prescriptive, while others are silent. The lack of consistency risked creating inefficiencies with respect to the management and conduct of an arbitration. Importantly, this lack of guidance also made some processes vulnerable to breaches of cybersecurity.
Against this backdrop, six law firms came together in May 2019 to develop a protocol to help deliver a globally consistent approach to the use of online platforms for conducting disputes. Those law firms are Ashurst, CMS, DLA Piper, Herbert Smith Freehills, Hogan Lovells and Latham & Watkins. A core team of multi-disciplinary representatives from each firm formed a working group and met on a regular basis to map out the processes of international arbitration, both commercial and investor-state arbitration, in a bid to identify technological needs as well as potential cybersecurity risks. The core team was made up of lawyers, as well as, innovators and process managers, to ensure that identified needs were met with potential solutions.
The process was a successful one. The working group was able to draw on its breadth and depth of experience having collectively conducted many arbitrations in various jurisdictions. The group also consulted tech providers and underwent a formal consultation period with global international arbitration institutions. These efforts have culminated in the Protocol, which was released to the wider public in June 2020 for broader consultation, with the aim of sharing a finalised and broadly endorsed Protocol later in the year.
The Protocol is a little under 40 pages in length and is designed to create best practice in the use of online case management tools in arbitration. Specifically, the protocol addresses the use of Online Case Management Platforms, or CMPs. CMPs are software that enable arbitral participants to store, share, manage and edit case related documents and other data in a single, shared, permissioned repository. CMPs, when used effectively, can improve efficiency of arbitrations as well as ensure the security of information and data.
The Protocol is designed to be user friendly and provides a list of requirements for platform functionality; a checklist of considerations for platform adoption; data security and privacy questions; a draft procedural order and an illustration of potential process improvements when using a platform in an example arbitration.
To achieve its aim, the Protocol has been deliberately designed to have global application. It aims to be flexible enough to accommodate multiple jurisdictions and different types of arbitrations, big and small. The Protocol applies to institutional and ad hoc arbitrations, as well as both commercial and investment arbitrations.
The working group hopes this initiative will be well received by the arbitration community and will contribute to the continued success and progress of arbitration in the future.
This is the first project undertaken by the working group who aim to become a forum for more ‘blue sky’ thinking in the future about structural changes to arbitration which could improve the process for the benefit of all arbitration participants.