CIArb guidelines on the use of technology

The Chartered Institute of Arbitrators (CIArb) recently issued the Framework Guideline on the Use of Technology in International Arbitration (2021).

Technology is prominent in international arbitration: it enables virtual hearings; document management platforms are relied upon to assist with disclosure; and graphic design software is used for creating visual illustrations of parties’ positions.

The updates to the LCIA rules in 2020 confirm the importance of technology in international arbitration; the tribunal is now expressly empowered to employ ‘technology to enhance the efficiency and expeditious conduct of the arbitration’ (Article 14.6(iii)).

Accordingly, the publication of the technology guidelines in late 2021 is a notable and timely development.

International arbitration already benefited from guidelines on specific issues arising from the deployment of technology in international arbitration (for example, in relation to video conferencing and remote proceedings). By contrast, the technology guidelines provide an overarching framework of considerations and suggestions regarding the use of technology in international arbitration, as well as specific guidance on cybersecurity.

Although they are not mandatory, the technology guidelines are likely to be authoritative, given they were published by the CIArb. Notably, guidelines published by the CIArb on other issues are regularly referred to in international arbitration.

‘Technology’, for the purposes of the guidelines, is ‘all digital and data-driven devices, products and services that might be used during an arbitration’. The guidelines are thus likely to have a broad application.

The technology guidelines consist of two parts: general guidance on the use of technology in international arbitration and specific guidance on cybersecurity.

General guidance – a summary

The general guidance consists of four overarching principles, each accompanied by practical guidance.

1. Arbitrators’ powers and duties: arbitrators should identify the extent to which they have powers and duties in relation to the use of technology in an arbitration. Arbitrators need to consider the potential impact of relevant laws applicable to the arbitration (including data protection laws), any agreement of the parties regarding the use of a particular technology, and potential jeopardy to due process which may emanate from a particular technology.

2. Proportionality: where arbitrators must decide on the use of technology in an arbitration, they should consider whether the proposed use is proportionate in all the circumstances. In considering proportionality, arbitrators should be alive to the disadvantages of technology, including the complexity, cost and time required to learn to use it, which should be considered in determining the use of technology. The environmental impact of technology should also be factored in, but recognising that such impact may not always be positive.

3. Fairness and transparency: any technology used for common purposes in an arbitration must not undermine the fairness of the process and must be transparent. The guidelines recognise that technology may create an unfair procedural advantage for one party (for example, due to unequal access to knowledge or resources) and therefore caution against technologies that may lead to such consequences. It is helpful to note that unfairness may result from what may be taken for granted, such as a stable power supply and internet access, as well as potential inequality caused by the parties’ different time zones. Interestingly, the guidelines also recognise that some technologies, such as analytical software, may derogate from the arbitrators’ autonomous decision-making process, the use of which should be brought to the attention of the parties for their comments.

4. Secure use of technology: participants should take appropriate steps to ensure that the technology used in an arbitration remains secure and stable. The technology guidelines recognise that weaknesses in technology can lead to breach of confidentiality and/or loss of essential data. Accordingly, arbitrators are required to take reasonable steps to adopt best practices in their use of technology and to encourage the parties to do the same.

Cybersecurity – specific measures

Recommendations include: (i) implementing standard security measures (for example, use of encryption or password protection); (ii) identifying assets and data which require protection (the ‘risk’ assessment may include factors including involvement of governments and high-profile issues such as cryptocurrencies); (iii) utilising available institutional support; and (iv) adopting prudent data management practices.

A positive development?

The technology guidelines are likely to be helpful because:

• They identify the issues which may arise out of the use of technology in international arbitration and provide guidance on their potential resolution. For example, if a party is keen to deploy (or avoid) certain technology in an arbitration, the guidelines helpfully identify the (non-exhaustive) factors which a tribunal may consider in determining that request.
• They are broader in scope than the existing technology-related guidelines. Accordingly, they may fill a potential gap in the previously available guidelines and are therefore likely to be a valuable addition to international arbitration.
• The availability of the guidelines may – in and of itself – encourage the parties and the tribunal to properly consider the use of technology in an arbitration.

Technology is developing rapidly. It is therefore reasonable to assume that its prominence in international arbitration (and more generally) will not only grow; its usage will also evolve. Such changes should be carefully introduced into international arbitration. Hopefully, the technology guidelines will be a suitable filter.

Mikhail Vishnyakov is counsel and solicitor-advocate at Cooke Young and Keidan