As arbitrations are becoming increasingly globalised, with participants located across various jurisdictions, parties are constantly looking for efficient ways to communicate and share documents and information whilst maintaining cybersecurity and ensuring data protection. In recent years, we have seen an increase in the use of new technologies in arbitration, as arbitral participants seek to streamline processes and procedures and ultimately generate more cost-effective solutions. In this regard, arbitral institutions have begun to consider the advantages of implementing online case management tools to help improve their data security and enhance their internal procedures. Examples include the ICC’s Note on Information Technology in International Arbitration and the SCC’s case management platform.
This issue has become ever more relevant following the outbreak of the COVID-19 pandemic resulting in stringent international and domestic travel restrictions and the vast majority of the global legal community working remotely. Accordingly, participants in ongoing disputes have had to overhaul agreed procedures in order to adapt to the ‘new normal’ and we are seeing an increase in not only the number of virtual hearings being held, but also discussions around the need for a more ‘lockdown-friendly’ dispute resolution process. The effects of the ongoing global pandemic combined with the worldwide pursuit for a more sustainable existence, including paper-free or “green” arbitrations, has highlighted the demand for more digitalised dispute resolution processes.
It is against this backdrop that CMS along with Ashurst, DLA Piper, Herbert Smith Freehills, Hogan Lovells and Latham & Watkins have worked together since May 2019, to produce a protocol to help facilitate efficient and secure document sharing through the use of online case management tools. The Protocol will act as guidance for all participants to an arbitration and will cover all jurisdictions, arbitral institutions and ad hoc arbitrations whilst also assisting technology developers and providers to tailor their solutions to the needs of the end-users. In this regard, the initiative seeks to balance the need for greater digitisation whilst ensuring the data is secure and being handled in an effective manner and focuses on the practicalities of the use of an online case management platform in international arbitration.
The Protocol was launched on 1 July 2020 and has been published in draft form for public consultation. The consultation period will run until 31 August 2020 and all those interested are invited to provide comments on the draft Protocol. You can provide any comments via the Protocol website which can be accessed here or , alternatively, by email to firstname.lastname@example.org, email@example.com, and firstname.lastname@example.org.