Young ICCA - ICC YAF Conference: Technology in International Arbitration
Post Event Report
By Morgane Willekens, Hogan Lovells, Mexico City
On 27 March 2019, Young ICCA and ICC YAF hosted a Conference on Technology in International Arbitration at Torre Mayor in Mexico City. The audience was composed of national and international arbitration practitioners. The event was kindly sponsored by three law firms: Creel García-Cuéllar Aiza y Enríquez, Cuatrecasas and Von Wobeser y Sierra. Orlando F. Cabrera C. (Young ICCA Events Coordinator, Hogan Lovells, Mexico City) and Daniel García Barragán (ICC YAF Representative, García Barragán Abogados, Mexico City) provided the introductory remarks.
The audience had the pleasure to welcome Eduardo Siqueiros T. as keynote speaker, a leading international arbitrator and ICCA Governing Board Member, who is thrilled by technology. He began his speech by providing some advice for young lawyers to build an ethical and successful practice, ‘maintain your principles, under any circumstances’. He used this step to introduce the topic of technology in international arbitration and emphasized that arbitrators should ensure that the use of technology does not violate the right of the parties to present their case. Eduardo talked about Kleros, a decentralized arbitration protocol that uses game theory, blockchain and crowdsourcing for selecting jurors and adjudicating claims in a fast, transparent and inexpensive way and new developments on dispute resolution, highlighting that fact that it may be an option for certain claims in the future. He ended by posing the following question: how can technology in arbitration help all parties - including arbitrators, to deliver the best work they possibly can, while ensuring that the award is valid and enforceable?
To answer this question, the core event was divided into 3 Panels. The first Panel on “technology and the arbitral process” was moderated by Kristina Klykova (White and Case, Miami) and with María Carolina Durán (Sidley Austin LLP, Washington D.C.), Richard Lorenzo (Hogan Lovells, Miami) and Adrián Magallanes (Von Wobeser & Sierra, S.C., Mexico City), as panelists. These prominent arbitration practitioners addressed different programs as Exhibit Manager and other tools as Elmo to help all arbitration players at managing and presenting the case in a dynamic and secure way. They made a point that technology can be a great tool but only if used correctly. Technology is there to assist associates but not to replace them. Technology can tend to create certain laziness amongst young practitioners in regard to finding information. Richard stated that it is not because Google, Relativity or other legal platforms cannot find the answer that the question cannot be solved. María Carolina advised not to have a protocol for technology at the hearing, instead she suggested to have leeway to present the case. Adrián noted the impact that IBM’s Project Debater can bring to the legal field. In answering whether artificial intelligence (AI) will replace a human judge or arbitrator, the panelists argued that this will happen in the near future. Their main argument presented to support this view came from a business perspective: would a CEO or a company entrust dispute settlement of a high-level claim in the hands of a machine or algorithm? The panelists believed that it would not be the case. The question may be differently answered when younger generations become those CEOs or the heads of companies, who are used to technology and maybe will be more open towards the use of AI as a dispute resolver.
The second panel dealt with “technology and arbitral players”. This panel consisted of Héctor Anaya (Creel García-Cuellar Aiza y Enrique, Mexico City), René Irra (ICC YAF representative for Latin America; Cuatrecasas, Mexico City) and Christina Hioureas (Foley Hoag, New York) with Vanessa Winkler (Mattos Filho, Río de Janeiro) as the moderator. They offered their views on the use of technology in international arbitration from the perspective of the arbitral institution, the arbitrator and the counsel. Among the topics discussed were the possibility of holding hearings remotely in small to medium claims or emergency arbitration using video conferencing services and other resources to save on costs and travel time. Christina commented on how online arbitration could serve as an aid to resolving low quantum cases and commented on how arbitral institutions can use artificial intelligence. The panel cast doubt on the use of remote hearings in all circumstances and artificial intelligence to replace the arbitral process. For example, the cross-examination of witnesses is less effective when it is not performed in person. Further, the panelists had each a different view in regard with the possible benefits of AI and how AI may replace a judge or arbitrator, because AI is said to be less biased. However, the panelists stressed that a proceeding has an ultimate goal of creating justice. René does not believe that, at least now, a machine can reach that level of sophistication to determine the true intention of the parties to interpret a contract. For now, AI may be used in cases in which the analysis is straightforward, i.e. a breach for non-payment in a sales contract. Based on what we know today, AI could make objective decisions based on past decisions and the input it receives, but it cannot easily ponder all the different aspects of the case, meaning the more “subjective elements”. Hector referred to cybersecurity issues and how arbitrators can ensure the management of cybersecurity during the arbitral process. And with these ideas in mind he set the stage for the next panel.
The last panel addressed the hot topic of the moment, namely how to deal with Cyber Security. The panel, composed of Oliver P. André (Senior Vice President, CPR, New York), Brandon J. Malone (Solicitor Advocate, Brandon Malone & Company, Edinburgh) and Kathleen Paisley (Ambos MBGO, Brussels), who are members of the ICCA-New York Bar-CPR Task Force on Cybersecurity in International Arbitration, addressed the ICCA-New York Bar-CPR Report and the new guidelines of the CPR on Cyber Security. Cyber security is not only important for confidential files that are uploaded on a platform; it also protects all of us against attacks that would affect the filing and the course of the arbitration proceeding itself. The panelists suggested good insurance to protect law firms and institutions from liability deriving from potential cyber-attacks. They noted that no matter how good you protect yourself, if someone wants your data, he or she will get it. The speakers gave practical advice on the use of technology in international arbitration. They recommend avoiding the use of free platforms as this is not where you want to store or use sensitive data. This means no free Gmail, Dropbox, Facebook or other platforms to exchange information and documents. The CPR will soon release a protocol on data protection and organize training sessions so that CPR neutrals can better understand how to protect themselves and what parties should do in case of a cyber-attack. Further it was suggested that when traveling, it is better to use an empty laptop, especially in airports and not connect to unsecured Wi-Fi signals.
The event was closed with some final remarks of ICCA President Gabrielle Kaufmann-Kohler, ICC Vice-President Claus von Wobeser, and René Irra. This panel of arbitrators stressed that current arbitration memorandums and other documents consist of hundreds or thousands of pages with piles of exhibits that surpass the capacity of any human. Not surprisingly, awards are becoming too lengthy. The panel pointed out that AI may assist arbitrators with these huge memorandums and piles of exhibits where human brains can only read and process a certain amount of documents in a constrained timeframe.
It is clear that AI and technology in different forms will further collide with the legal world. We must not be blind about AI’s effects on the arbitral practice. Thus, we must embrace technology and AI to make sure it can work to benefit arbitration. In the end, AI is only as smart as the data it gets, assuming the information it processes and under which it operates is not biased. Further, law firms and law practitioners do not need to be scared of the upcoming changes. Adaptation is key. We do not need to understand how technology functions in detail; we just need to make sure we can use it in a way in which it can help and assist us within the arbitral process and further in our daily tasks as law practitioners.
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