What would you do if you were an administered arbitration scheme in search of an out-of-the-box internet solution to ensure your Neutrals and your Scheme are secure and compliant with data protection legislation? The options are self-build or endorse/list preferred providers. The self-build route has been undertaken recently by the Arbitration Institute of the Stockholm Chamber of Commerce (SCC) and launched to much deserved fanfare earlier in 2019.
With many Scheme rules dating to long before September 2018 few arbitral institutions address cyber-security. That has begun to change in the past 12-15 months and the start can be traced to the publication of the Cyber-Security Protocol in draft by the International Institute for Conflict Prevention and Resolution (CPR), the New York City Bar and the International Council for Commercial Arbitration (ICCA). The Protocol has been in consultation for more than 12 months and is due to be launched in final form at the 25th Congress of the ICCA in Edinburgh in May 2020.
The SCC is in the van of the movement by administered schemes to recognise cyber-security risks and, crucially, do something about them.
There are two issues for administered Schemes choosing LegalTech solutions:
- No Platform (other than the DisputesEfiling.com Platform (DEF)) facilitates the hybrid forms of ADR such as Arb-Med-Arb; and,
- None of the currently available LegalTech solutions offers anything other than discrete solutions which are difficult to pick between. Further, no solution (except DEF) enables the overall management of the ADR process. The diversity of solutions simply serves to slow down the process as one solution does not speak to another and none support the entire ADR process.
The issues are perfectly illustrated by the IBA who have gone down the route of Preferred or endorsed Providers. The IBA’s information site says this about LegalTech for arbitration:
“There are dozens of programs available on the market that can serve as a platform to host, manage, organise, sort, and transfer voluminous documents and submissions gathered and/or exchanged in an arbitration. The most basic platforms are cloud-based systems that serve as repositories for arbitration data, allowing users to upload, label, and share arbitration pleadings and exhibits with others through a single, centralised location that all parties and tribunal members can access.”
The counter-productive diversity of such solutions can be viewed on the IBA information site via this link: https://www.ibanet.org/technology-resources-for-arbitration-data.aspx. None of the listed services come remotely near to providing an out-of-the box solution to managing ADR for administered Schemes.
More sophisticated platforms permit parties to use the ‘dual’ functions of storing, accessing and editing their own information for use during the drafting and case management phase, and later sharing complete pleading sets or submissions with others, essentially creating multiple databases within a single platform. The most advanced tools contain dozens of specialty features that allow users to edit, sort, organise, label, search and annotate their files throughout the course of the arbitration. This technology might include, for example, the ability to create a chronology of all exhibits submitted in the arbitration or a joint hearing bundle with the mere stroke of a button, or to pull up all documents submitted in the arbitration that reference a particular witness, to name just a few.
The challenges in managing this type of process have never been greater. From the high volume of electronic data that large commercial disputes now generate to the robust data protection systems that arbitrators must have in place, climate concerns and political issues that make physical hearings impractical or undesirable.
Some commentators have observed that “If arbitration practitioners are to remain relevant in the fourth Industrial Revolution, more needs to be done than make efficiency savings to the current process.”
Yet if an administered Scheme is not efficient it will not compete well in the busy market for such services. The mass of LegalTech solutions crowd out recognition of the simple need to get the basics right. The basics in this context mean putting in place a foundation of LegalTech through which the Scheme may manage the process and supervise its proceedings. Given few administered Schemes have such a foundational system possession of such a system is a real selling point. That foundation must be responsive to current and emerging trends in ADR to match customers’ present and future needs with a process that works anywhere at any time.
International arbitration is already using technology. Tools that are regularly used include:
- Online document repositories to manage pleadings and evidence
- Automated document analysis and AI tools for voluminous document review
- Project management tools
- Machine translation
- Audio and video conferencing for hearings
None are unified in a single Platform yet all are capable of being connected via total Paltformisation. Total Paltformisation means having a system capable of enabling seamless data transition for the hybrid forms and which enables efficiencies by linking the discrete solutions to the Platform by API or a web service. Such integration technologies are well-established and create value for the discrete services and the Platformed Scheme by utilising a single Platform Provider.
To realise such value requires total Platformisation of the entire ADR process. This is the logical end-point for initiatives such as the Cyber-Security Protocol. DEF is the only Platform capable of achieving this. The last 12 months saw the industry awaken to the risk of cyber-security and the need for efficient working. The next 12 months will see the growing Paltformisation of the industry.
Those Schemes able to facilitate the hybrid forms and provide efficiency will be the Schemes that win appointments.