22 Jan The future of Arbitration and the use of technology beyond 2020
This year, the use of virtual hearings as a response to the COVID-19 pandemic has highlighted the need for greater integration of technology within the arbitral space as well as clarification of the procedures required to ensure high standards are upheld.
The International Court of Arbitration of the International Chamber of Commerce (ICC) recently published their 2020 Arbitration Rules, which come into force on 1 January 2021 and will be officially launched in December 2020. The ICC Arbitration Rules were previously revised in 2017. These Rules make the necessary changes to allow virtual hearings to proceed. Article 26(1) now specifically provides that, following consultation with the parties and consideration of the facts and circumstances of the case, the tribunal may decide that any hearing be conducted by remote attendance, video-conference, telephone or by other appropriate means of communication. Additionally, hard copies of the Request for Arbitration or Answer are no longer required, unless specifically requested by a party to be served, as per Articles 4(4) and 5(3).
Additional changes in the 2020 Arbitration Rules highlight the intention of the ICC to ensure the increased integrity of proceedings. Article 11(7) requires that the Secretariat, tribunal and applicable parties be promptly notified of third-party funding arrangements in order to assist arbitrators with regards to disclosure obligations and overall transparency of proceedings. In order to avoid the risk of unequal or unfair treatment and the effect this may have on the legitimacy of the award, the ICC Court can, in exceptional circumstances, override the parties agreed method for appointment of the tribunal, as outlined in Article 12(9). Moreover, Article 17(2) grants tribunals the power to take any measure necessary to avoid a conflict of interest, due to change in party representation and can go as far as excluding new representative.
The changes made by the ICC in the 2020 Arbitration Rules certainly have the potential to ensure that future proceedings are not only as easy as possible for the parties involved, through the use of technology, but also that the process is more transparent and accountable than ever before. However, The ICC is not the only institution to have recently revised their rules. The London Court of International Arbitration (LCIA) Rules 2020 came into effect on 1 October 2020.
The LCIA Rules, in Articles 16.3 and 19.2, also make provision for hearings to take place virtually, either wholly or in part, by conference call, video-conference or by using other communications technology. Interestingly, the LCIA has made electronic submission of the Request and Response the default approach for arbitrations, by implementing a change requiring all Requests and Responses to be submitted in electronic format, either by email, other electronic means or via an electronic filing system in Article 4.1 and 4.3. In fact, in order to file or deliver Requests or Responses by other means, prior permission will be required from the Registrar, as per Article 4.1.
Procedurally, the LCIA Rules in Article 14.6(iii), encourage the tribunal to use technology to ensure that proceedings are as efficient and expeditious as possible. This is further highlighted in Article 26.2, which allows for awards to be signed electronically and in counterparts and then be assembled into a single document, unless agreed or directed otherwise. Such developments are imperative to ensure that not only are proceedings able to take place electronically but that the necessary processes required afterward are also easily completed. The LCIA Rules take matters related to technology a step further in Article 30A, by requiring that the tribunal consult with the LCIA and parties involved, to ensure data protection by determining whether any specific information security measures should be implemented. These far reaching and future-relevant decisions by the LCIA will surely provide renewed confidence in proceedings going forward.
The developments made by institutions such as the International Chamber of Commerce and London Court of International Arbitration should reinforce the importance of Arbitration as a legal tool and highlight the willingness of the industry to stay current, while guaranteeing service of the highest calibre.