Originally from World Arbitration and Mediation Review

I.   INTRODUCTION

While it has been long established that when used properly, information technology (“IT”) can make international arbitration more efficient, more cost effective, and more secure, many arbitration practitioners still remain hesitant to utilize technological advances in their arbitral proceedings. Because IT advances so rapidly, many practitioners are unable to keep up with the changes, and thus are unaware of many modern technological advances that could be used to assist them in arbitration.  On the other hand, other practitioners might avoid using IT because they are unsure as to whether they can apply a particular form of IT to their proceeding, and if so, how to effectively utilize it. Moreover, although the use and acceptance of IT in international arbitration has substantially increased over the last fifteen years, some arbitral tribunals are still reluctant to allow the use of IT in proceedings before them.  

The International Chamber of Commerce Rules of Arbitration (the “ICC Rules”) do not mandate, prohibit, or even address the use of IT in international arbitration.   Therefore, it is up to the parties, attorneys, and the tribunal to decide whether and how to utilize a specific form of IT in a case.   In reality, the use of a particular form of IT turns on various factors, such as the technology available to the parties and the arbitral tribunal, the preference of the tribunal, the agreement between the parties, the nature of the parties’ dispute, the amount in dispute, and the parties’ respective budgets.   Ideally, the parties, as well as the tribunals, should strive to utilize each form of IT “in a cost-effective, fair, and efficient manner.”  The parties should also consider how the use of a particular form of IT can best enhance the tribunal’s understanding of the case.   Utilizing IT poorly can make the arbitral proceeding more costly and time-consuming, and even result in the unfair treatment of a party.