Plans to standardise the approach to online case management in 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 lawyers from six international law firms, 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 Herbert Smith Freehills, Ashurst, CMS, DLA Piper, Hogan Lovells 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.
“We are delighted that the protocol has been so well received. The consultation cast a spotlight on the growing appetite from all corners of the arbitration community to harness the process improvements that online case management software can offer. Respondents to the consultation stressed the importance that the protocol would play in equipping all arbitral participants with a best practice to help them assess the multitude of tools available and select the software most appropriate for their cases. Similarly, we are buoyed by the fantastic appetite from technology providers to continue developing their offerings to meet the evolving needs of the arbitration community. We hope the protocol will become a staple reference guide in arbitrations going forward,” says Charlie Morgan, senior associate in Herbert Smith Freehills’ International Arbitration team and member of the working group.
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.
“Given the changes to working practices brought about by the pandemic, the increasing complexity of data regulation and security, and the ever-growing demand for efficiency in arbitral proceedings – the publication of the final Protocol for Online Case Management in International Arbitration, following an extensive consultation process could not be more timely or significant. The Protocol addresses each of these challenges head-on, and provides clear and practical guidance to participants in arbitral proceedings across jurisdictions, industries and institutions. We are sincerely grateful for the positive engagement from the arbitration community in the consultation process, which has strengthened an already robust and comprehensive resource on online case management into what we anticipate will be an enduring reference point for all stakeholders.,” says Bryce Williams, international arbitration associate at Latham & Watkins and member of the working group.