Abstract
International dispute resolution in general and international arbitration, in particular, is highly affected by the emergence and fast development of innovation-driven technologies. On the one hand, such technologies are cost and time-effective. To name a few, they allow online filing of a case, collecting of e-evidence and remote hearings, among others. On the other hand, they also may lead to some challenges that need to be addressed. The primary concerns comprise e-arbitration agreements and e-awards, as well as cybersecurity and data protection. Therefore, this begs the question of whether such new technologies will significantly impact the dispute resolution landscape and thus become a game-changer therein. This analysis leads to the conclusion that the emergence of new technologies provides an opportunity to establish a long-lasting new standard for international arbitration.
Similar content being viewed by others
Explore related subjects
Discover the latest articles, news and stories from top researchers in related subjects.Avoid common mistakes on your manuscript.
1 Digitalization of International Arbitration: Recent Trends
The term “online courts” was introduced by Richard Susskind. Indeed, he referred to the use of new technologies in the judicial system. One must note twofold approaches to such innovation-driven technologies. On the one hand, it concerns the online determination of cases by human judges without the need to conduct hearings in physical courtrooms. Apparently, this type of online court is much more appropriate in the case of low-value disputes where proceedings are not conducted remotely. On the other hand, given the “general concept” of online courts, technology is used not only to support judges in the process of delivering decisions but also to provide users with tools that may be helpful to better understand relevant laws, and formulate arguments alongside collecting evidence. Therefore, this type of online court also involves non-judicial settlement mechanisms, including negotiation and neutral evaluation, among others [1].
Interestingly, Susskind in his book titled “Online Courts and the Future of Justice” predicts that all courts worldwide will have to undergo such digital transformation and thus make use of Artificial Intelligence (AI) Footnote 1. Indeed, AI can be used both as tools and techniques in court proceedings. Given the history, there were two waves of developing AI. The first one refers to the 1980s and relies on rule-based systems and logic programming. The second, in turn, has emerged recently and focuses on supervised machine learning alongside deep neural networks. As such, this wave is mostly classified as a more “functional approach” which means that focuses on what the systems can achieve given the past data Footnote 2.
Regardless of the potential benefits of online courts and the use of AI in dispute resolution, many practitioners and scholars are sceptical due to their conservative and risk-averse nature. In addition, the use of digital technology can be problematic in conflict zones. Another problem involves different time zones that may complicate the organization of remote hearings, regardless of being usually still feasible. There may be some legal restrictions that prevent witnesses from testifying remotely. In addition, some users may even be hesitant to use innovation-driven technologies based on their cost, although this may be offset by savings on both travel and accommodation in the arbitral proceedings. Aside from these issues, the mandatory use of digital technology can interfere with the parties’ rights to a fair and equal opportunity to set forth their case [2].
Despite some initial skepticism, the implementation of new technologies and the growth of digitalization in international dispute resolution, particularly in the field of international arbitration, has become increasingly commonplace. The COVID-19 pandemic even accelerated the entire process of digitalization. In the case of dispute resolution, there has been a significant shift towards e-filing of cases, remote hearings and thus limited in-person interactions between the parties involved. The future of arbitral tribunals worldwide is closely linked to such a digitalization process which requires the collection of e-evidence and rendering of e-awards. Therefore, the aforementioned alterations resulting from the COVID-19 pandemic would significantly affect the global scenario of settling disputes comprehensively and the global system of arbitration particularly. Therefore, a new framework is likely to become the norm [3].
2 New Technologies in International Arbitration: A New Era?
New technologies are promoted in international arbitration as a way to improve and enhance not only efficiency but also lower expenses. They also allow arbitration to reach new market segments. Interestingly, various legal systems have already recognized efficiency and cost management as priorities for arbitration. Indeed, the widespread use of emerging innovation-driven technologies will lead to many new and complicated disputes based on the unique features of the technology or the slow development of regulations covering these issues [4].
Currently, arbitration is in the course of seeking ways to become more efficient, faster, and even less burdensome for the parties involved. One of the recent advancements in this field is the emergence of online arbitration which has been widely implemented in prominent arbitral institutions worldwide. To illustrate, online arbitration is available in the International Chamber of Commerce, the American Arbitration Association, the World Intellectual Property Organization Arbitration and Mediation Center, and the Chartered Institute of Arbitrators. The aforementioned institutions highly benefited from the emergence of innovation-driven technologies and thus heavily rely on information technology. Aside from the positive sides, one must note that online arbitration still lacks a sense of reality while reconstructing the offline world. To address such challenges, technology is rapidly and constantly developing and thus provides new tools for the sake of handling disputes. Indeed, such tools could help bridge this gap. Given the literature, technology is widely recognized as the “Fourth Party” in dispute resolution. This means that it has been introduced to support the third-party mediator, arbitrator, or judge [5].
The so-called “Fourth Party” evolves in twofold ways. Indeed, it also corresponds to two different types of online dispute resolution (ODR) platforms. Firstly, there are simple tools developed, including red flags, emoticons, images, or sounds instead of pens and flipcharts widely used in traditional offline dispute resolution mechanisms. The aforementioned tools are relatively easy to implement and thus they lead to the emergence of basic forms of “electronic body language” which can help to communicate more effectively. On the contrary, evaluating the body language of witnesses or experts in arbitral proceedings would be more challenging. Indeed, without any verbal cues, it is impossible to scrutinise the individual’s demeanour. Given the national context, judges occasionally refer to the “chemistry” regarding verbal interactions within a courtroom. This type of rapport can develop between a judge and counsel, or a cross-examiner and witness. Assessing the credibility of a witness when providing evidence via video link is a challenging task [6]. It should be noted, however, that non-verbal cues, such as body language, may be discernible during remote hearings when there is a video transmission available from multiple angles showing the witness’s full profile. Once there is high-quality transmission via video link and a suitable remote setup, including large screens, the tribunal can perceive the witness much better than in an offline courtroom. Similarly, the audio volume can be adjusted to meet the personal requirements of each participant. As “electronic body language” is more easily perceived through screens, compared to offline communication, it is imperative to maintain a clear and objective language devoid of emotional and figurative expressions Footnote 3. Holding one’s arms could signal hostility or dissatisfaction. As a result, eye-rolling is commonly seen as a manifestation of exasperation, and as such, could be perceived as unprofessional or even impolite. Meanwile, eye contact and rolling one’s eyes play vital roles in non-verbal communication, particularly in evaluating one’s reaction to a message. Similarly, during remote hearings, maintaining eye contact with the camera creates the perception of direct eye contact with other attendees [7].
Due to the absence of reliable indicators of honesty, many people rely on eye contact, posture shifts and body movements as indicators of honesty. If these indicators are obscured during remote witness viewings, it is likely that the absence of these trusted cues will affect observers’ assessments of the credibility of a remote witness. Participants in remote international arbitration have encountered this issue firsthand [8].
The camera settings are worth mentioning, particularly the angle, which can affect the proper evaluation of both credibility and blame. Based on the data available, a tighter camera angle that focuses on the primary person of interest increases the attribution of cause “to personal factors (such as the person’s choices, behaviour or motivation) rather than situational factors that might cause those choices, behaviour, or motivation”. Therefore, when the camera angle only focuses on the alleged perpetrator or uses a neck-up (rather than chest-up) camera frame, witnesses are considered less credible Footnote 4.
Secondly, through the “Fourth Party” concept, there is an increasing number of experiments with sophisticated technological tools and platforms, for instance, virtual workspaces aimed at exploiting the tools offered by electronic communication technology. One must note that between these two extremes, there is a range of technologies, namely extranets, virtual case-rooms, case management platforms, and remote videoconferencing which already exist and are widely used in the arbitral proceedings worldwide [9].
Apparently, the increasing complexity of international arbitration cases should be considered a significant challenge for dispute resolution. On the one hand, it can easily lead to both undue delay and expense. On the other hand, it may even be relatively difficult to adjudicate properly such cases. Such complexity of cases relies on the large volume of factual evidence, some technical details and intricate legal issues. To address such challenges, it seems adequate to use specialized arbitrators with certain knowledge and expertise. Therefore, such arbitrators can properly understand both the technical details and complexities of the case. Additionally, it may be appropriate to use technology for the sake of managing the complexities of the case. To name a few, the use of e-discovery tools can be beneficial to efficiently manage large volumes of documents and data. Given this tool, it would be much easier to properly identify relevant evidence and streamline the entire arbitration process [10].
It is noteworthy that Professor Richard Susskind stressed almost 25 years ago that emerging technology may lead to regulatory complexity, which is a phenomenon described by him as “hyperregulation”. There are, in fact, two chief factors driving such a trend. On the one hand, a need to regulate and address legal and ethical issues stemming from such emerging new technologies. On the other hand, there are also practical constraints based on the amount and complexity of laws Footnote 5.
Through advanced technologies, data have become cheaper and much easier to generate and retrieve. This entails that such data are more accessible and cost-effective.
3 Digital Arbitration: A Pipe Dream?
There are already many examples of digitalization in international arbitration. It is thus worth exploring innovative solutions and multifarious approaches to digitalization in the global dispute settlement landscape. One of the most common examples and effective approaches refers to the use of new technologies in case management systems. To illustrate a few examples, the International Chamber of Commerce (ICC) introduced the NetCase system in 2005. Given this platform, the parties were allowed not only to monitor the online arbitration process but also to communicate online [11]. One must note that this system was replaced by ICC Case Connect in October 2022. Indeed, the ICC Arbitration highly encourages parties to submit their application file electronically and thus promotes the online filing of cases. The ICC Case Connect is widely considered a secure online case management system introduced for the sake of connecting the parties, arbitral tribunals and the ICC Secretariat. It has the aim to facilitate entire communication and document-sharing in the arbitral proceedings. Nonetheless, it is worthwhile to mention that this system is deemed to manage cases registered by October 2022. Interestingly, both parties and arbitral tribunals can freely decide how much they want to rely on this system which is free of additional charge. Although the ICC Case Connect is dedicated to handling merely new cases that have been submitted to this arbitral tribunal, there are already a few exceptions. Therefore, it is possible to handle a case through the ICC Case Connect in the following situations: “(i) the case file has not yet been transferred to the arbitral tribunal, (ii) all participating parties to the arbitration agree to its usage and/ or (iii) where use of the platform will provide a clear benefit to the proceedings” [12].
Another example of an online platform refers to the Stockholm Chamber of Commerce (SCC) which has introduced innovative solutions for streamlining the arbitration proceedings through digital technology. It is noteworthy that the SCC even issued special guidelines that require all SCC arbitrations to be handled on a special secure digital platform, widely known as the SCC Platform. This platform was launched in May 2019 and provides end-to-end services from the request to the rendering of an arbitral award. It has been introduced for the sake of achieving four chief goals such as efficiency, simplicity, transparency, and security. To realize its goals, this platform provides a simple, efficient, and secure means for all the participants in the arbitral proceedings (including parties, counsels, and the arbitral tribunal). Therefore, thanks to this platform, the parties concerned are able not only to share documents and reports but also to communicate throughout the entire proceedings. To properly deal with the data protection and cybersecurity issues, merely the participants of the ongoing proceedings are granted access to the platform. In addition, all the data included therein are encrypted based on military-grade encryption to ensure better security. Aside from these precautionary measures, all the files uploaded to the platform go through special scanning to detect potential malware [13].
Apparently, the SCC platform has been introduced for the sake of maximizing benefits for the parties concerned. One of the key features is to ensure transparency which can be achieved through two main functions, such as securely storing case materials alongside maintaining an archive for a year after the end of arbitral proceedings. It is worth stressing that the SCC’s guidelines for using this platform are widely regarded as encouraging the use of digital technology in arbitration. Based on this positive example, many arbitral institutions worldwide decided to follow such a practice and thus adopt similar solutions Footnote 6.
4 E-Arbitration: Challenges Ahead
The already binding rules and regulations in international arbitration have been adopted and implemented far before the emergence of innovation-driven technologies. Therefore, it seems crucial to assess whether this technology can be used and whether any adjustments are needed to accommodate it. It is thus necessary to determine the flexibility of the current legal framework to identify any necessary modifications therein [14].
One must note that the current legal framework for international arbitration does not explicitly prohibit the use of new technology. This entails that both the decision to arbitrate and the procedures of handling arbitration are determined by contracts. Therefore, parties and arbitrators are granted a significant degree of operational autonomy. Under Article 19(1) of the UNCITRAL Model Law on International Commercial Arbitration (UNICTRAL Model Law), “subject to the provisions of this Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting proceedings” [15]. In addition, “failing such agreement, the arbitral tribunal may subject to the provisions of this Law, conduct the arbitration in such a manner as it considers appropriate” and even has “the power to determine the admissibility, relevance, materiality and weight of any evidence” (Article 19(2) of the UNCITRAL Model Law) Footnote 7.
Likewise, many arbitral institutions worldwide have adopted their own rules on this matter. To illustrate, according to Article 19.1 of the Singapore International Arbitration Centre (SIAC) Rules, “the tribunal shall conduct the arbitration in such matter as it considers appropriate, after consulting with the parties, to ensure the fair, expeditious, economical and final resolution of the dispute”. Further, these Rules provide that “the Tribunal shall determine the relevance, materiality and admissibility of all evidence [and] is not required to apply the rules of evidence of any applicable law in making a such determination” (Article 19.2 SIAC Rules). Similarly, the London Court of International Arbitration Rules, the Hong Kong International Arbitration Centre Rules and the International Chamber of Commerce Rules also provide such provisions. Finally, it is noteworthy to mention the International Bar Association (IBA) Rules on the Taking of Evidence in International Arbitration. Given IBA Rules, a document is defined as “a writing, communication, picture, drawing, program or data of any kind, whether recorded or maintained on paper or by electronic, audio, visual or any other means” [16]. Hence, the expansive definition of “document” includes both contracts written completely in code and purported decisions that have been made in a codified manner [17].
Based on the aforementioned examples, there are no limitations on the procedure applied by the arbitral tribunal concerning how to obtain factual evidence or define a document. Indeed, it confirms that the adoption and further advancement of innovation-driven technologies in international arbitration should not be impeded by the assumption that the arbitral institutions worldwide will forbid their use Footnote 8.
Considering the e-arbitration agreement, many scholars have observed that through the development of new technologies, it becomes difficult to fulfil the exacting formal criteria provided by the 1958 New York Convention on the recognition and enforcement of arbitral awards (“New York Convention”) while concluding an arbitration agreement via the Internet. According to Article 11(2) of the New York Convention, “agreement in writing” means either an arbitral clause included in a contract or an arbitration agreement that has been signed by the parties or included in an exchange of letters or telegrams. It is worthwhile to note that the New York Convention is a relatively old piece of global legislation on international arbitration. Therefore, it does not anticipate unprecedented developments in terms of technology as a means of communication. Although many arbitrators agree that it requires modernization and adjustment to the new reality, changing an international convention is rather a challenging task. Fully up to date, many national laws regarding international commercial arbitration have eased their requirements on the written form and thus took into account modern modes of communication. Apparently, such laws validated the existence of a technological equivalent of the already binding requirement on written form instead of altering or even rejecting it [18].
One must note that if arbitrators have achieved a consensus over the use of electronic means of communication and all the parties concerned are granted access to use such means, “there are no obstacles to the exchange of information (textual or visual) online” Footnote 9. Some practical problems and concerns may result in compliance with the requirement specified in Article IV(1)(a) of the New York Convention. According to this Provision, to obtain the recognition and enforcement of an arbitral award, “the party applying for recognition and enforcement shall, at the time of the application, supply the duly authenticated original award or a duly certified copy thereof […]” [19]. This begs the question of whether an e-award can be qualified as an acceptable equivalent of such an award. For instance, under Article 8(1)(a) of the UNCITRAL Model Law on Electronic Commerce, “where the law requires information to be presented or retained in its original form, that requirement is met by a data message [electronic message] if there exists a reliable assurance as to the integrity of the information from the time when it was first generated in its final form, as a data message or otherwise” [20]. Given many scholars worldwide, although the e-arbitral award may fulfil the criteria provided by the New York Convention, arbitrators are deemed to provide a physical copy of the signed arbitral award to the parties. As a result, such a signed document would prevent the uncertainties that could arise in the case of different interpretations made by national courts on the written form requirement [21].
Aside from the aforementioned challenges concerning e-arbitration agreements and e-awards, many factors need to be considered prior to remote hearings. First of all, it seems crucial to select an appropriate digital platform to conduct such hearings. Both parties should prioritize cybersecurity and data protection. Although there are many free and public platforms (i.e. Google Meet) that can easily accommodate multiple participants, they do not provide an accurate level of protection for arbitral proceedings. Therefore, it is much more desirable to make use of customized platforms that have been introduced specifically for arbitration. Nonetheless, while making such a decision, parties should carefully consider data security issues to avoid any problems in the foreseeable future. As such, it is recommended to choose a platform that offers the so-called end-to-end encryption and unique user access based on password protection. One must note that the parties should also carefully consider the potential risks while opting for a certain solution thus making a priority of convenience over data privacy. For that reason, it is worth mentioning that some platform providers even may claim ownership rights over transmitted data (both storage and access to such data). This may potentially compromise the confidentiality of the entire arbitral proceedings which is one of the most important benefits of arbitration compared to traditional litigation [22].
Another significant consideration is appointing a special technical support agent responsible for handling the digital platform. Such an agent can be arranged either from a third-party provider or may be provided by the arbitral tribunal for an additional fee. To avoid any technical difficulties, it is advisable to appoint an agent to operate the platform properly, even if the arbitral tribunal is handling the online proceedings. This solution helps to avoid any delays and additional costs provided that arbitrators may not have the required technical knowledge and expertise Footnote 10.
To properly handle remote proceedings, the arbitral tribunal is also responsible for ensuring that all participants who attend such hearings have necessary technical equipment, including microphones, speakers, cameras, monitors, and a reliable Internet connection. Therefore, all the parties must comply with the minimum requirements of the chosen platform. To illustrate, the Seoul Protocol Video Conferencing in International Arbitration (“Protocol”) represents a set of valuable guidance on how to organize remote hearings in arbitration. Given this Protocol, there are some requirements on minimum transmission speed (256 kilobytes per second, 30 frames/second) with high-definition standards [23]. In addition, it is crucial to ensure compatibility between hardware and software in the course of arbitral proceedings. Aside from these technical standards, the Protocol recommends using portable equipment for the sake of preventing unforeseen technical complications once handling remote hearings [24].
While introducing remote hearings in the arbitral proceedings, it is necessary to go through testing. Therefore, it is important to handle at least two testing and training sessions with the main participants of the hearings, namely parties and their legal representatives and the arbitral tribunal. Given such sessions, all the parties concerned would have the opportunity to familiarize themselves with the digital technology and identify any potential problems that may arise during the arbitral proceedings. One must note that these precautionary measures are necessary to rectify any potential issues before the remote hearings Footnote 11.
According to the binding laws and conventions of international arbitration, there are no provisions for virtual workspaces. Importantly, it is worth analysing this legal structure given the innovation-driven technologies. The right to be heard is one of the most fundamental rights in arbitral proceedings. This entails that the parties involved may present their cases, including facts, legal arguments, and evidence concerning the relevant facts. Considering the use of new technologies such as shared virtual workspaces, the question arises regarding the accessibility and possibilities to be used by the parties. To illustrate, in the case of highly complex web interfaces to set forth the case, there is a question of whether the use of such technology provides a reasonable opportunity for the parties to even set forth their case. Initially, the arbitral tribunal should receive consent from the parties to use a particular technology throughout the arbitral proceedings. Hence, this refers to the principle of freely choosing the way of presenting facts, legal arguments and evidence in the case. Indeed, if the arbitral tribunal fails to obtain such consent, the determination of whether the use of complex technology would ensure a genuine opportunity to fully present a case or would be regarded merely as an illusory right will depend on the parties’ technical abilities alongside the user-friendliness of the technology. Interestingly, “one may assume that both the technical skills and the user friendliness must be very high in order to be able to validly obligate the parties to use such technology” [14]. On the other hand, if the parties can easily submit their claim, legal arguments and evidence in written form, thus it satisfies the right to be heard. This means that document-only arbitrations are generally acceptable [14].
Another problem concerns the right to be heard orally. In fact, once face-to-face in-person hearing cannot be handled during the arbitral proceedings, the parties only have the possibility of presenting their case via videoconference (that is using a shared virtual workspace). Nonetheless, this begs the question of whether such remote hearings violate the right to be heard orally. Indeed, it varies depending on the governing law of the arbitral proceedings. In addition, “the need for an oral hearing is not a legal obstacle, either because the applicable law does not provide such a right, or because this right can be waived” Footnote 12.
Finally, the last challenge concerns the inclusion and use of artificial intelligence (AI) in international arbitration. Likewise, in many other AI systems, the effectiveness of an AI arbitrator will rely mostly on the amount of data received. This entails that once an AI arbitrator would like to apply a general rule to new situations, it will need to analyze a considerable amount of past data. As such, the accuracy of predictions made by such an AI arbitrator will depend on the number of cases it is trained on. It is noteworthy that the term “big data” refers to the existence of vast amounts of data. Nonetheless, in the case of international arbitration, it is unlikely to search for such quantities of data. This is mostly because international arbitral awards are rarely made public. Even if they are published, they have been heavily redacted. This is a result of confidentiality which is one of the most important features of the arbitration itself. As a result, access to arbitral awards and related materials is still restricted compared to typical litigation. Hence, one could even say that the idea of compiling a large dataset of arbitral awards would be a challenging task [25].
It is worth mentioning the emergence of the world’s first AI arbitration assistant. This innovative technology has recently been introduced in China, mainly at the Guangzhou Arbitration Commission. The AI assistant resolved its maiden case, which involved a dispute between two local private firms. As per Zhong Xiaowen, the AI assistant, "today’s hearing has ended. I am currently reviewing the trial data and will send the ruling opinion to the arbitration tribunal via email within 5 min”. It is important to note that utilizing such an assistant can significantly enhance the efficiency of arbitral proceedings, with the potential to increase efficiency by nearly four times. Additionally, blockchain technology can aid in evidence recognition and accurately inputting viewpoints and statements. According to Weng Jian, an arbitrator from the Guangzhou Arbitration Commission, the AI assistant has the capability to offer pre-court guidance regarding the recognition of identity, maintenance of written documents during trial proceedings, and other related cases [26].
In addition, provided that arbitral awards are available, the volume of decision-making seems not to be substantial enough to make it appropriate in terms of automation with AI. Given the available data, the number of international arbitration cases filed every year is in the range of thousands. This means that the number of arbitral awards is also similar. Even if there is no definite rule concerning the minimum number of observations that are required in a data set, it is not sufficient to have merely a few hundred to a few thousand observations. Therefore, based on the estimated number of arbitration cases handled annually, there is a justifiable doubt about whether the sample is sufficient enough to generate a reliable outcome [27].
Lastly, since arbitral awards are readily available and a few thousand awards would be sufficient to create a data set, another problem arises from the relatively wide range of disputes that are arbitrated. One must stress that international arbitration very often involves cross-border disputes based on transactions with complicated contractual relationships in specialized fields. Indeed, such diversity has both positive and negative sides. On the one hand, it can be beneficial for creating an AI arbitrator based on a more extensive range of predictions that have a better match with the real world. On the other hand, such a diversity of cases and disputes may significantly narrow down the size of the applicable sample and thus reduce the overall number of observations Footnote 13.
All in all, it brings us to the question of whether an arbitrator can be replaced by an AI. It refers to the fundamental issue concerning the eligibility of machines to serve as arbitrators according to the binding arbitration laws. Are there any explicit provisions on the necessary human qualities of arbitrators under arbitration law? Although the New York Convention mentions arbitrators in two articles (namely Art. I(2) and Art. V(1)(b), but does not mention or imply that arbitrators must be human beings. Apparently, it is not surprising given that this Convention was ratified before the emergence of new technologies, including AI. Therefore, an arbitrator was assumed to be a human being Footnote 14. On the one hand, such an AI could lead to reviving legal formalism, that is “law in books” by taking into consideration behavioural extra-legal factors while applying the law strictly to the facts of the case. In addition, such an approach could potentially enhance the rule of law. Therefore, it could be achieved by promoting predictability, certainty, and consistency. As a result, the appropriate combination of both facts and law would result in the same outcome. On the other hand, the use of AI may increase the legitimacy of the entire arbitration system by promoting not only fairness but also improving efficiency by reducing both costs and time of proceedings. Simultaneously, thanks to AI, there is no need for an appeal mechanism or even review mechanisms that could undermine the finality of the arbitral award. In addition, since the New York Convention is not against AI arbitrators, technically, such arbitrators could issue an award that could be potentially enforced and recognized under this Convention. Indeed, one must note that such a standpoint is surely accurate if the parties involved in the arbitral proceedings have explicitly agreed to appoint such an AI arbitrator. Practically, it may cause some challenges to the recognition and enforcement of such an arbitral award depending on the stance of the courts on the issue and their support for this new trend in international arbitration [28].
5 Conclusions
The use of innovation-driven technologies has a significant impact on the international dispute resolution landscape. Among these methods, international arbitration stands out as particularly agile in adapting to the changing norms. There are already many examples of digitalization in international arbitral tribunals. Nonetheless, it is worth stressing the solutions adopted by the SCC. This arbitral institution has already implemented precautionary measures, including military-grade encryptions and detection of malware, to ensure the appropriate level of cyber security and data protection. Hence, this example could be a guideline for other arbitral institutions worldwide.
Although currently binding laws on international arbitration have been adopted and implemented far before the emergence of innovation-driven technologies, there is no prohibition on to use of such technologies. Indeed, according to the features of the arbitral proceedings, both the decision to arbitrate and the procedures of handling arbitration are determined by contracts. This means that parties and arbitrators are granted a significant degree of operational autonomy. Despite many positive sides of new technologies, some practical challenges arise. One of them concerns the e-arbitral award. Even though such an e-award may fulfil the criteria required by the New York Convention, arbitrators are deemed to provide a physical copy of the signed arbitral award to the parties. Therefore, such a signed document would prevent doubts concerning different interpretations made by national courts on the written form requirement. Considering remote hearings, it is much more desirable to make use of customized platforms that have been introduced specifically for arbitration instead of free and public platforms. As such, it is recommended to choose a platform that offers the so-called end-to-end encryption and unique user access based on password protection.
There are many new challenges and questions arising from the use of new technologies, mostly with regard to AI arbitrators. It should be noted, however, that international arbitration can adapt to changing circumstances and offer optimal services to the involved parties. Therefore, once again the party autonomy concerning procedural rules and confidentiality plays a crucial role in the entire proceedings. Indeed, the new technologies have already marked significantly the international dispute resolution landscape and become a new standard.
Notes
“AI is defined as the creation and use of basic algorithms designed to allow a computer to use training, data provided by the architect, to search through yet unseen sets of data looking for patterns and trends to answer a query with an almost certain probability. Overseeing and managing a mode’s activities are ‘predictive’ algorithms, i.e. instructions telling the computer the steps needed for both dependent and independent performance”. See: Marrow, P.B., Mansi K., Kuyan S. 2020. Artificial Intelligence and Arbitration: The Computer as an Arbitrator – Are We There Yet?, “Dispute Resolution Journal” 74(4):48. In addition, according to the Association for Computing Machinery US Public Policy Council, “An algorithm is a self-contained step-by-step set of operations that computers and other smart’ devices carry out to perform calculation, data processing, and automated reasoning tasks. Increasingly, algorithms implement institutional decision-making based on analytics, which involves the discovery, interpretation, and communication of meaningful patterns in data. Especially valuable in areas rich with recorded information, analytics relies on the simultaneous application of statistics, computer programming, and operations research to quantify performance”. See: Association for Computing Machinery, Statement on Algorithmic Transparency and Accountability (Jan. 12, 2017), https://www.acm.org/binaries/content/assets/public-policy/2017_usacm_statement_algorithms.pdf.
Richard Susskind, Online Courts and the Future…, p. 6.
Ibidem, p. 9.
Ibidem, p. 186.
Ibidem, p. 5.
Ibidem.
Ibidem.
Ibidem.
Ibidem, p. 349.
Ibidem, p. 468.
Ibidem, p. 468–469.
Ibidem, p. 166–167.
Ibidem, p. 223.
Ibidem, p. 237.
References
Susskind, R. 2019. Online Courts and the Future of Justice, 3–4. Oxford: Oxford University Press.
Brillat-Capello, W., L. Canet, and G.C. Lemaire. 2020. Paperless arbitration: The new trend. International Journal of Online Dispute Resolution 7 (2): 186.
Łągiewska, M. 2022. The New Landscape of Arbitration in View of Digitalization, [in:] The Impact of Covid on International Disputes, eds. Shaheeza Lalani, Steven G. Shapiro, “International and Comparative Business Law and Public Policy” vol. 2, Leiden-Boston, p. 208.
Soares, F.U. 2018. New technologies and arbitration. Indian Journal of Arbitration Law 7 (1): 84–85.
Protopsaltou, D., T. Schultz, and N. Magnenat-Thalmann. 2006. Taking the Fourth party further? considering a shared virtual workspace for arbitration. Information & Communications Technology Law 15 (2): 157.
Scherer, M. 2020. Remote hearings in international arbitration: An analytical framework. Journal of International Arbitration 37 (4): 8–9.
Kessler, J.B., and P. King. The Significance of Nonverbal Communication in Mediation and Arbitration, “JAMS ADR Insights” 12.08.2021, https://www.jamsadr.com/blog/2021/the-significance-of-nonverbal-communication-in-mediation-and-arbitration. Accessed on 30 October 2023.
Does a right to a physical hearing exist in international arbitration? The ICCA Reports No. 10, International Council for Commercial Arbitration” 2022, p. 185.
Protopsaltou, D., T. Schultz, and N. Magnenat-Thalmann. Taking the Fourth Party, p. 159.
Sundaresh, M. 2022. The complexification of disputes in the digital age. Asia Pacific Law Review 30 (1): 1.
Łągiewska, M. The New Landscape of Arbitration…, p. 214.
File your Request via ICC Case Connect, “ICC International Court of Arbitration”, https://iccwbo.org/dispute-resolution-services/arbitration/file-your-request-via-icc-case-connect/#case-before-2022. Accessed on 19.02.2023.
Menezes, T. 2022. Remote hearings in international arbitration. Jus Corpus Law Journal 2: 240.
Protopsaltou, D., T. Schultz, and N. Magnenat-Thalmann. Taking the Fourth Party…, p. 166.
UNCITRAL Model Law on International Commercial Arbitration (1985) with amendments as adopted in 2006, https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/19-09955_e_ebook.pdf.
IBA Rules on the Taking of Evidence in International Arbitration adopted by a resolution of the IBA Council (29 May 2010), https://www.international-arbitration-attorney.com/wp-content/uploads/2018/09/IBA-Rules-Document-Production-Arbitration.pdf.
Soares, F.U., New Technologies and Arbitration…, p. 87.
Biukovic, L. 2002. International commercial arbitration in cyberspace: Recent developments. Northwestern Journal of International Law & Business 22: 346–347.
Convention on the Recognition and Enforcement of Arbitral Awards (1958 New York Convention), https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/new-york-convention-e.pdf.
UNCITRAL Model Law on Electronic Commerce with Guide to Enactment 1996 with additional article 5 bis as adopted in 1998, https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/19-04970_ebook.pdf.
Biukovic, L. International Commercial Arbitration…, pp. 350.
Tynan, M. Remote Hearings in International…, pp. 467–468.
Seoul Protocol on Video Conferencing in International Arbitration, http://www.kcabinternational.or.kr/static_root/userUpload/2020/03/18/1584509782805DD02R.pdf.
Tynan, M. Remote Hearings in International…, p. 468.
Kasap, G.H. 2021. Can artificial intelligence (“AI”) replace human arbitrators? Technological Concerns and Legal Implications. Journal of Dispute Resolution 2: 221–222.
Qiu, Q. AI arbitration used for dispute in Guangzhou, “China Daily” 01.09.2023, https://global.chinadaily.com.cn/a/202309/01/WS64f13406a310d2dce4bb34ad.html. Accessed on Oct 30.2023.
Kasap, G. H. Can Artificial Intelligence…, p. 222–223.
Gicquello, M. 2020 Artificial Intelligence in International Arbitration, [in:] The Oxford Handbook of International Arbitration¸ Oxford University Press, p. 7.
Author information
Authors and Affiliations
Corresponding author
Ethics declarations
Conflict of interest
No potential conflict of interest was reported by the author(s).
Additional information
Publisher's Note
Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.
Rights and permissions
Open Access This article is licensed under a Creative Commons Attribution 4.0 International License, which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence, and indicate if changes were made. The images or other third party material in this article are included in the article's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the article's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this licence, visit http://creativecommons.org/licenses/by/4.0/.
About this article
Cite this article
Łągiewska, M. New Technologies in International Arbitration: A Game-Changer in Dispute Resolution?. Int J Semiot Law 37, 851–864 (2024). https://doi.org/10.1007/s11196-023-10070-7
Accepted:
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11196-023-10070-7