‘Industry standard’ for use of arbitration platforms moves a step closer as pan-firm collaboration receives support

30 November 2020 – Plans to standardise the approach to online case management international arbitration are a step closer to reality, after a draft protocol received positive feedback from an industry-wide consultation.

Today, an updated version of the Protocol for Online Case Management in International Arbitration has been published, reflecting the benefit of input from a wide spectrum of arbitrators, arbitral institutions, technology developers, parties to arbitrations, and their lawyers.

Developed by a group of six international law firms, including Hogan Lovells, the Protocol aims to facilitate efficient and secure document sharing, and improve arbitral participants' ability to meet obligations relating to data handling and cyber security, by setting out, in one place, relevant and practical guidance.

The Protocol, which is the product of a collaborative working group involving individuals from Hogan Lovells, Herbert Smith Freehills, Ashurst, CMS, DLA Piper, and Latham & Watkins, aims to promote a globally consistent approach to online case management processes. It is anticipated that the Protocol will be of significant value to arbitration practitioners, parties to international arbitrations and to arbitrators as they adapt to the increasing use of technology in international dispute resolution, a development which has been accelerated by the COVID-19 pandemic. 

The consultation, which closed at the end of October, reveals broad support from across the arbitration community. Key findings include:

  • a desire to encourage efficiency in approach through the use of end-to-end case management software, in particular when adopted in the early stages of proceedings;
  • recognition that a standardised approach should reduce the potential for technical mismatches and resulting information-sharing difficulties;
  • a determination to ensure emerging technologies can be harnessed to boost efficiency and encourage innovation, for the  benefit of all arbitral participants; and
  • commitment to ensuring best practices with respect to cybersecurity

The Protocol, which has been in development since May 2019, is of universal application and designed to be flexible so as to be of assistance in all kinds of international arbitrations, regardless of jurisdiction, subject matter or applicable rules. In addition to setting out guidance for parties to an arbitration, their lawyers, arbitrators and arbitral institutions, the working group also hopes that the Protocol will assist technology developers and providers to tailor their existing products and to identify areas for future development.

Michael Taylor, associate at Hogan Lovells and member of the working group, commented: "Through the final version of the protocol, we intend to help shape discussions around the role of new technologies in the arbitration process. Securing a consistent approach to arbitral procedures and cybersecurity across the industry is vital. Looking ahead, we believe this will become even more topical in a post COVID-19 world, as we see growing disputes relating to the use of data, and as flexible working becomes more common."

Maria Scott, senior associate at DLA Piper, another member of the Protocol's working group, added: "The positive feedback and engagement we received as part of the consultation process reflect the growing recognition of the importance of thoughtful and intuitive new technologies in international arbitration. With the assistance of input from law firms, arbitrators, arbitral institutions and technology providers, we have worked with other firms to prepare comprehensive and practical guidance for arbitral users seeking to store, share and manage data securely. This collaborative initiative aligns with our firmwide radical change agenda, addressing the expanding role of technology and innovation in the legal sector, and we hope the Protocol will become an effective instrument for arbitral users around the world."

Earlier this year, Hogan Lovells released a separate Protocol for the use of technology in virtual international arbitration hearings, which provides general guidance on best practices for conducing virtual hearings. It includes calendaring and time zone considerations as well as best practices for witness examination.

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