Four years ago, I participated in a panel discussion about the use of technology in arbitration. With the help of some brave souls across the pond in London, we conducted an opening statement and witness examination in a mock commercial arbitration involving a breach of contract all from the comfort of a conference room in midtown Manhattan. I left that panel optimistic that videoconferencing could be used effectively in arbitration but was not so certain that it would be used by practitioners and arbitrators who seemed comfortable and somewhat set in their antiquated ways.
Remote Conferencing & Arbitration:
A few years later, a 2018 international arbitration survey showed that only 43 percent of respondents used videoconferencing “frequently” during arbitrations, 17 percent “always” used it, and 30 percent used it “sometimes.” Notably, the lion’s share of participants (a staggering 89 percent) believed videoconferencing should be used more often in arbitration. Fast forward to today. Although it remains to be seen just how many will be impacted by COVID19, it seems fair to say–nearly six weeks into what is essentially a worldwide quarantine—that this health crisis will change the world as we know it and the way arbitration is conducted.
Many advocates and arbitrators, like most of the world, worked quickly to establish home offices so they could continue operations as government restrictions prevented them from congregating in offices and arbitral hearing centers. Meanwhile, many of the major arbitral institutions have encouraged parties and arbitrators to utilize existing technology to keep things moving and minimize disruption and difficulty. For example,
- In the United States, the Financial Industry Regulatory Authority, Inc. (FINRA) is encouraging its arbitrators and the parties to agree to participate in virtual hearing sessions (via Zoom and teleconference) and is providing necessary technical support.
- The International Chamber of Commerce recently issued guidance for how to mitigate the effects of the pandemic which included cyber-protocols that comply with applicable data privacy regulations while simultaneously protecting the confidentiality of electronic communications within the arbitration proceeding and any electronic document platform.
- The Korea Commercial Arbitration Board recently released the Seoul Protocol which discusses considerations for conducting international arbitration proceedings by video-conference.
- Hong Kong hosted the renowned Willem C Vis (East) International Commercial Arbitration Moot through an online dispute resolution (ODR) platform offered by Electronic Business Related Arbitration & Mediation (eBRAM) when other jurisdictions cancelled or postponed their competitions.
What Does Virtual Arbitration Mean for Clients and Litigation Funders?
If virtual arbitration gains widespread acceptance, there could be significant savings for clients in attorney and travel costs and reductions in overhead for lawyers and arbitral institutions. When combined with other technologies, like dictation, technology assisted review platforms using artificial intelligence, instant translations, and online research, even greater savings could be achieved which might allow small and medium-sized businesses to pursue claims they otherwise could not afford to prosecute. Moreover, litigation funders might demand that such technology be utilized regularly to maximize their ROI especially as the litigation finance community has experienced an uptick in demand since the beginning of the health crisis.
In the end, coronavirus could be the catalyst for making virtual arbitration a requirement rather than an option. For that to happen, however, advocates, arbitrators, and arbitral institutions must continue to invest in and develop technology and infrastructure that will allow the process to be more streamlined and (importantly) be accessible to everyone, including those with disabilities.
Suffice it to say that if this transition to virtual arbitration is to occur, patience will be required to allow some curmudgeonly arbitrators (who still prefer in-person hearings with exhibit binders) to adjust to online document rooms and using web conferencing software like Zoom or Legaler. And who knows? With a little bit of practice, those very same arbitrators might be sharing their screen and changing their Zoom background before you know it. Keep the faith.
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