The use of technology in arbitration is not a new concept, with many arbitral institutions incorporating various trial technologies into their proceedings. Article 24(4) of the ICC Arbitration Rules 2017 allow for the use of video-conferencing and other digital technologies during hearings and, more recently, the new IBA Rules on Taking Evidence in International Arbitration outline the requirement of tribunals to take judicial notice of electronic evidence and allow for the use of audio-visual aids during hearings. The AAA-ICDR Virtual Hearing Guide also provides detailed guidance on the use of trial technologies in arbitration, such as video-conferencing, document sharing and real-time transcription.
The trend towards technology in arbitration during the pandemic has been a way to maintain productivity amid lockdowns and travel restrictions, and has worked to reduce costs involved in international arbitrations.
As with physical arbitrations, the use of trial technologies in virtual proceedings will vary depending on the agreement of the parties and the tribunal as well as the type of case at hand. However, there are three identifiable technological trends that have emerged.
Electronic discovery, or eDiscovery, is the process of identifying, collecting and producing electronically stored information (ESI) in response to a request for production in a lawsuit or arbitration. Oftentimes, arbitrators will receive information in multiple formats, requiring physical files to be scanned, indexed, and OCR’d into machine-encoded text. An eDiscovery platform helps to manage this process by providing a central repository for all ESI, which can be searched, tagged and reviewed electronically.
A Case Preparation platform is primarily a web-based application that allows users to upload, annotate and share documents electronically. This type of platform is often used by arbitrators to prepare for hearings, as it allows for easy collaboration and real-time document sharing. Premium platforms also offer features such as highlighting, bookmarking and search functionality, which can be useful when working with large volumes of material that needs to be managed and prepared quickly and efficiently. Data security is also an important consideration when selecting a case preparation platform, and features such as two-factor authentication and encrypted file storage should be taken into account.
Virtual Hearing Rooms are web-based platforms that allow for real-time video and audio collaboration between arbitrators, counsel and witnesses. Premium platforms offer features such as HD video and crystal clear audio quality, live captioning, document sharing and annotations, and the ability to record hearings for future reference. Virtual Hearing Rooms allow for proceedings to take place remotely, without the need for expensive travel and accommodation costs. The use of an arbitration support platform to manage the process of taking evidence virtually can be very helpful in ensuring that hearings run seamlessly. Reducing a firm’s carbon footprint is another benefit for arbitral institutions and tribunals, with virtual hearings eliminating the need for travel expenses, administration costs, as well as paper and other resources used in traditional face-to-face arbitration.
While virtual hearings might not completely eliminate the need for in-person hearings, it is safe to say that the use of trial technologies in arbitration is here to stay. The pandemic has forced us to re-think the way in which we conduct business and has accelerated the adoption of digital tools and technologies – what Mohamed Hafez refers to as an “evolutionary change” in his assessment of Remote Hearings and the Use of Technology in Arbitration.
As we move forward, it is important that we embrace this change and continue to innovate in order to remain relevant, efficient and cost-effective. As one of the only full services Legal Support Provider, Flosmart Solutions pioneers the way forward with a range of expert legal support solutions that include eDiscovery, electronic Bundles, Case Management Platforms and Arbitration Hearing services for both local and international clients.
For more information on how we can assist you with your next arbitration proceedings, contact us today and our team of experts will be happy to tailor a solution to your unique needs.