Young ICCA Conference on Technology in International Arbitration

29 September 201809:30 - 15:30(CEST)

Post Event Report

Rapporteurs: Ksenia Koroteeva, MIDS LL.M. Candidate & Rémi Garros-Quinn, Legal Case Manager, WIPO Arbitration and Mediation Center

On 29 September 2018, the Geneva Graduate Institute hosted a conference jointly organized by Young ICCA, ICC YAF and the MIDS, with a generous reception sponsored by Archipel. The conference aimed at examining the impact of new technology on international arbitration and was held as a side event to the MIDS 10th Anniversary Conference. Numerous local and international arbitration practitioners associated with the MIDS attended the event.

The introduction to the conference was made by Nhu-Hoang Tran Thang (Associate, LALIVE; Young ICCA’s Co-chair) and Eva Kalnina (Counsel, Lévy Kaufmann-Kohler; Representative of ICC YAF Europe). Ms. Tran Thang gave an overview of Young ICCA, its programs and upcoming events, while Ms. Kalnina spoke about the activities of ICC YAF. Ms. Kalnina also shared her view on the ways for making arbitration more cost-efficient using technology.

The keynote speech was delivered by Zachary Douglas (QC, Matrix Chambers), who admitted that technology has a highly positive effect on the resolution of certain types of disputes, for instance, standardized consumer disputes. He highlighted that technology ensures access to justice, as often consumers cannot afford to seek justice through costly litigation proceedings. According to Mr. Douglas, technology has an undeniable positive impact on arbitration. He mentioned the tools allowing an efficient management of evidence and recalled the use of search terms in the practice of English courts (“predicative coding”), which replaced hundreds of young lawyers previously in charge of analysing lengthy documents. For Mr. Douglas, the main question was whether or not artificial intelligence (“AI”) would replace arbitrators. In his view, arbitrators will be not be replaced in the nearest future. He noted that when parties choose arbitration, they relinquish control over decision-making to arbitrators. Importantly, they do not know the arbitrators’ reasoning process. In contrast, AI’s analytical systems are available to the parties in advance. Therefore, if AI replaced arbitrators, would the parties still believe in the authenticity of the underlying reasoning of the award, and thus the legitimacy of such decision, regardless how impeccable its analysis may be? There is a particular irony about the use of technology in arbitration, Mr. Douglas said. On the one hand, trust may break down if robots replace arbitrators. On the other hand, while submitting thousand-pages documentary evidence and witness statements, parties treat arbitrators as robots. “Human arbitrators may one day be replaced by machines, but until that day comes, don’t forget that arbitrators are human beings, so please treat them humanely”, he concluded.

Following Mr. Douglas’ keynote speech, the first panel comprising of Nicolas Leroux (Swiss Forensic & Compliance), Anina Liebkind (Baker & McKenzie) and Pratyush Panjwani (Hanotiau & van den Berg) analyzed the effect of technology on acquisition, protection, presentation and use of evidence. The panel was kindly moderated by Elena Sevila Sanchez (Senior Associate, Andersen Tax & Legal). She noted that it was essential to understand what kind of technology is rolling over arbitration practitioners, since, as a famous quote says, “once a new technology rolls over you, if you are not part of the steamroller, you’re a part of the road”.

The first speaker, Nicolas Leroux, noted that, notwithstanding the existing delusions, the work of human beings requires more cognitive effort than the work of machines. Still, surprisingly, lawyers are impressed by the ability of machines to process enormous amount of data. Mr. Leroux identified three kinds of technology which are nowadays used in international arbitration: document assembly, AI and blockchain. Document assembly tools are now widely used in international arbitration resulting in more cost-efficient proceedings. For AI, Mr. Leroux observed that, for the moment, there is insufficient data to implement AI into international arbitration for several reasons. First, international arbitration is a relatively small industry, and therefore, the amount of data that can be processed by machines is insignificant. Secondly, numerous documents (importantly, arbitral awards) are confidential, which also limits the data available to build sophisticated AI. Thus, the possibility of using AI in international arbitration remains controversial.

After Mr. Leroux’s remarks, Ms. Liebkind tackled the effect of new technology on the acquisition and protection of evidence in international arbitration. During her presentation, she put together a comprehensive and practical analysis on how technology affects preservation, collection, review, communication and presentation of evidence. She analyzed the arguments for and against the use of technology for evidentiary purposes and addressed the concerns related to confidentiality, cybersecurity and privacy that may arise in this context. Ms. Liebkind referred to existing best practices of the use of technology in arbitration, i.e. the 2017 Report on the Use of Information Technology in International Arbitration by the ICC Commission on Arbitration as well as the work of the Scientific Working Group on Digital Evidence, the US National Institute of Justice, and the ABA.

Finally, Mr. Panjwani shared his thoughts on the impact of technology on the presentation and use of evidence. As of now, Mr. Panjwani observed, technology is used to present documentary and oral evidence before arbitral tribunals through filing systems (DropBox, GoogleDocs, OneDrive, etc.) and specific software designed for conducting oral hearings (Box, Netcase, Dealroom, etc.). However, so-called “hacktivism” and data breaches are becoming more and more popular in arbitration and litigation. He analysed the recent case law of ICSID tribunals as well as the decisions of domestic courts of Singapore  and the UK, which had come to different conclusions concerning the admissibility of illegally-obtained or leaked documents.

A Q&A session followed Mr. Panjwani’s presentation. A question was raised concerning the availability of data for creating AI with sophisticated decision-making capabilities. Mr. Leroux responded that computers need vastly more data than human beings. He also said that arbitration is different from domestic legal systems where the mechanism of predicting court decisions has already been implemented (for instance, in Canada). As arbitration involves an extremely diverse social, political, economic and cultural issues, there is too much diversity in a small amount of data, which makes the creation of AI, as of now, practically impossible, he concluded.  Mr. Panjwani added that machines need significant data in order to create stereotypes and to identify the elements that do not fit within those stereotypes.

After a short break, the second panel, “Technology and the Arbitral Players”, comprised of Qian Wu (SIAC), Clovis Trevino (Covington & Burling) and Rahul Donde (Lévy Kaufmann-Kohler), considered the effect of new technologies on international arbitration from the perspectives of an arbitral institution, counsel and arbitral tribunal. The panel was kindly moderated by Ndanga Kamau, international law practitioner from Nairobi and The Hague.

Ms. Wu analysed the impact of technology on arbitration from the perspective of an arbitral institution. She spoke about the essential functions of an arbitral institution (connecting parties and arbitrators and controlling the quality of arbitral proceedings), as well as the way technology assists institutions with performing these functions. As a part of a day-to-day case management, arbitral institutions use technology for receiving submissions and handling correspondence with the parties. Also, the arbitral institutions may consider developing a system of online payment of arbitration fees. Ms. Wu said that arbitral institutions are increasingly using technology to maintain security, privacy and protection of data.

Further insight into the use of technology in arbitral proceedings came from Ms. Trevino. She observed that technology makes arbitration faster, easier and better. Undeniably, the recent technological developments (for instance, such tools as Relativity and Luminance) have facilitated the process of document review. Nowadays, predictive coding assists with analysing huge volume of data, she added. Ms. Trevino also addressed the issue of predictive analytics and spoke about the analytical tool called RAVEL. Referring to the ideas previously expressed by Mr. Leroux, she highlighted that, indeed, arbitral awards are not public which significantly limits the amount of available data for creating an AI. Moreover, she observed that arbitration does not have a system of precedents, which should be taken into account while designing an AI for arbitration purposes.

The final presentation focusing on the possibility of replacing arbitrators by machines was delivered by Mr. Donde. He observed that the impact of technology on the arbitrators’ role could be considered from two perspectives: first, at present, technology facilitates the arbitrators’ role and second, in the future, technology is likely to replace arbitrators.

As for technology facilitating the arbitrators’ role, Mr. Donde stated that recent studies show that a majority of arbitration users insist on using technology to make arbitral proceedings more efficient. Specifically, he mentioned that most of users have had some experience with videoconference and other hearing room technologies. Mr. Donde added that some arbitral institutions even encourage arbitrators to use technology to make proceedings well organised and cost-effective, which is very positive. He also analysed the 2016 State v. Loomis case, where the technology was successfully used to conduct a criminal risk assessment.

Mr. Donde then turned to discussing the possibility of technology replacing the arbitrators’ role. In his view, the role of an arbitrator is described in the best way in Article 5 of the Jay Treaty, i.e. “to examine and decide” a dispute. He referred to several existing analytical systems (for instance, ROSS) that are capable of predicting court decisions based on existing jurisprudence. Moreover, small and relatively simple consumer disputes are already being resolved through technology. As an example, Mr. Donde cited the program called Modria, which has already handled millions of disputes. Finally, he observed that the obstacles usually cited in opposition to the idea that machines may well replace human arbitrators are, in reality, not significant. There is nothing in the law, at least in most jurisdictions, that truly requires arbitrators to be humans. The New York Convention too does not require arbitral awards to be rendered by human beings. The only requirement for arbitral awards is to contain reasons supporting a decision, which, in Mr. Donde’s view, is possible with sophisticated AI. He also added that the data that might be used for creating an AI is expanding, as the principle of transparency is becoming more popular in both investment and commercial arbitration.

In the Q&A session following Mr. Donde’s presentation, one of the participants inquired whether it was necessary to create a certain technology capable of analysing arbitrators’ previous appointments, professional experience and issue conflicts. Ms. Wu agreed that it might be necessary. She also said that SIAC cooperates with Arbitrator Intelligence and regularly receives feedback on the work of arbitrators from parties. Another question related to the possibility of creating an AI that would be able to analyse various investment treaties, which, unlike domestic legislation, are all different. Ms. Trevino replied that it might be possible, though the use of AI should not affect the flexibility of arbitration, where decisions are made on a case-by-case basis.

The conference concluded with brief remarks from Gabrielle Kaufmann-Kohler, the President of ICCA, the parent body of Young ICCA who observed that technology would have an increasing impact on international arbitration, and that the issues arising from the increasing use of technology would have to be examined closely.

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