CRITICAL ANALYSIS OF THE IMPACT OF INFORMATION TECHNOLOGY IN ICA by-K. Swesthiga
I. ABSTRACT
While cost limitations stay strict and demands for quick resolution increases, disputes are becoming progressively multinational, complicated, and increasingly include multilateral actions and mass claims. It is rather usual nowadays to complain about the time and expense of the legal process. Using information technology (IT) solutions to speed and ease arbitration is one way to address the excessive duration and expenses of arbitration. IT tools have the ability to drastically cut costs and time, ensuring that required right to a fair trial is maintained.The use of IT in arbitration was first acknowledged by the ICC (International Chamber of Commerce) in the year 2004. Since then, the use of information technology has continuously developed and improved in the arbitration process to save energy / cost. In this research paper the researcher will focus on the following chapters. They are, Principles of ICC in IT, the appliances in IT under arbitration proceedings and issues which will arise under the IT w.r.t. ICA.
KEYWORDS
Information, Technology, International, Commercial, Arbitration, Chamber, Commerce, Proceedings.
II. INTRODUCTION
We have seen an increase in the use of technology to all parts of our everyday lives and organizations for the last two decades. This pattern continued to expand. Simultaneously, international commercial arbitration has seen a surge of interest. Advanced technologies have had a significant impact on the international arbitral proceedings. Technology is now omnipresent in the arbitration process, facilitating it in a number of ways. Technology has also had a big impact on the type of information currently used in most arbitrations, making it difficult for even the lowest digital disputes counsel and arbitrator to conform to the internet world. Nowadays most arbitration institutions have internet case systems which are frequently updated. They frequently install new technological techniques to take advantage of recent information technology.In addition, the amended 2010 IBA Rules2 on the Taking of Evidence in International Arbitration include new guidelines relating to electronic document output and recognises reasonableness as a factor in determining the applicability of electronically stored information in the face of extreme electronic file output.While cost limitations stay strict and demand for quick resolution increase, disputes are becoming progressively multinational, complicated, and increasingly include multilateral actions and mass claims. It is rather usual nowadays to complain about the time and expense of the legal process.
Using information technology (IT) solutions to speed and ease arbitration is one way to address the excessive duration and expenses of arbitration. IT tools can drastically cut costs and time, ensuring that the right to a fair trial is maintained. The use of IT in arbitration was first acknowledged by the ICC (International Chamber of Commerce) in 2004. Since then, the use of information technology has continuously developed and improved in the arbitration process to save energy/cost. The primary issue is whether using technology drives up the price and delay of international commercial arbitration or, on the contrary, adds extra cost and delay when jurisdictional societies conflict over the appearance of virtual evidence and the performance of questioning witnesses by both the tribunal and other parties and their advisers in the virtual environment. The methodology which will be used in the research paper will be an analytical study. In this research paper, the researcher will focus on the chapters- Principles of ICC in IT, the appliances in IT under arbitration proceedings and issues which will arise under the IT w.r.t. ICA.
III. PRINCIPLES OF ICC IN INFORMATION TECHNOLOGY
The International Chamber of Commerce (ICC) is a leading figure in international arbitration. The ICC is a research institute for emerging advancement in dispute resolution in terms of running the world’sgreatest range of international arbitration proceedings.The ICC Chapter on Information Technology’s ultimate aim is to recognise the relevant benefits and threats for international commercial arbitration that occur from the widening insertion of IT availability and use by arbitration clients, as well as the expansion of information communication and providing quality by IT. The most apparent is the proper transfer and corruption of information inside any single arbitration process via physical storage media, e-mail, and shared internet access. It highlights that, particularly in the event of huge filings, IT has the opportunity to considerably improve the effectiveness of international arbitral procedures in terms of speed, affordability, and convenience of use of the data conveyed.In proceedings, information technology can be utilised to provide technical evidence or support real-time cooperation through phone conference, video conferencing, and the compilation of electronic recordings of the proceedings. IT also promotes access to legal materials such as all forms of legal documents as well as comparative law and practise research, according to ICC.In international arbitration, information technology isn’t commonly used yet.The adversarial aspect of arbitration; the complexity of implementing a standardised approach when parties already have their own IT practices; the cost to maintain and using the required IT facility; poor skills or tendency to use IT solutions; lack of adequate regulatory system pertaining to the use of IT in international arbitration; and conservatism are all proposed as potential basic reasons.Any party or the arbitration proceedings can commence the use of the Rules by sending the appropriate “Initiation Form”, which is supplied in the attachment to the appendix, to the other parties and tribunal representatives. After that, each beneficiary should fill in the form and send a copy to the other parties and the arbitration representatives.
The rules recommend that they not be used until each party has attained the appropriate IT competence, or unless the parties agree on how to resolve any such hurdles. The arbitration panel may also issue orders for the parties’ IT resources to be linked. In any case, the Rules ensure that the parties’ final deal regarding the use of technology throughout the arbitration hearing shall be written down.The Rules also specify that any issue or event arising from the application of the IT agreement, whether internal or external, should be reported as quickly as possible to the other parties and the arbitrators, using the report form. Generally, the parties should work together in “good faith” and make all feasible attempts to resolve any issues or incidents.Furthermore, the Rules advise that any amendments to the Guidelines should be submitted in writing. If the parties cannot agree on particular changes, the arbitrators can make the changes.Also, the Rules deals with submissions made to the arbitration panel as well as copies of these resources given to other parties, such as records in the case file of an arbitrator. Suppose each party agrees to transfer all documents into the agreed-upon electronic format inside this aspect. In that case each material record should be translated into a separate encoded format that is as similar as practicable to the original, with layout. As suggested by the ICC, the file should contain all important details like file name, owner’s name, date, place and category should be there in the file. The files should be protected in a safe place. “Within 7 working days”, the party who submitted the file should analyse the concept and give a new file.
The Rules recommend that E-mails be transmitted in ASCII3 format instead of HTML formatto reduce the danger of virus infection and to maximise flexibility. The e-mails should contain a clear citation to the case, the date, the sender’s name and the postal address. Parties must read their E-mail inbox at least once every two working days. The parties may decide to utilise encrypted signatures to safeguard the privacy and legitimacy of their e-mail conversations. Following their conversation, they should prepare an agreement that can be adopted after their legal counsel has approved it. Parties in the arbitral process may also desire to connect via an Internet-based virtual case room. Each party should also be able to send and receive messages in the case room, with or without documents. At least once every two working days, all parties should join the case room.If the parties agree to use videocall meetings, the arbitration panel should issue directions on the arrangements of the video – conferencing, including the schedule, the venues used, the attendees after consulting with the parties. Any technical issues should be reported as soon as possible to the single arbitrator or the chairperson of the arbitration panel. These same rules will be applied to the parties who agree to the audio conferences.
IV. IT APPLIANCES IN ARBITRATION PROCEEDINGS
In this part, we will learn about the appliances available for arbitration proceedings under ICA. The two main appliances are “websites for case management and videoconference”. This will also be elaborated further. Other than E-mails, the most crucial communication technology for arbitration processes is one that allows for the easy and systematic management of long and many files. Various types of apps have been devised from other corporate environments for this goal. In essence, they all comprise of a smart website that allows anyone to create, save, organise, and obtain papers and other materials, as well as send texts, share online schedules, and generally make all information pertaining to a particular case more accessible. These tools, also known as extranets, case management webpages, and online case rooms, can be applied in a variety of ways.Extranets are essentially private online domains. In terms of technology, they are internet areas with secure features, such as firewall server administration, user authentication, and messaging encryption. Virtual Private Networks (VPNs), which are unique and an exclusive links that pass across the public network, may also be used. Mostly, they exchange information using the Internet’s infrastructure and the same interface.In general, accessibility to such shared information serves two purposes: “document management and schedule”. Document management entails obtaining and evaluating the most recent edition of files from remote areas, as well as disseminating files to the entire company, enterprise, or client. Scheduling and providing notifications, scheduling appointments with lists of attendees, and evaluating the performance of projects are all part of the scheduling process.Case managing webpages are essentially extranets dedicated to administering a court case. They provide two basic grounds: a password-protected, freely available system for storing files, and an internet portal that enables communication quickly and safely.Online case halls are case management webpages dedicated to the settlement of a case. As a result, online case halls may feature more advanced communication tools, such as enhanced noticeboards, phone conferences features, or webcam applications.
Video-conference is an IT-based technology that allows people to interact using telecommunication and surveillance camera videoconferencing simultaneously. This is no longer true to introducing data transfer technologies that enable video over IP, lowering the expenses related to doing so. Video chat technology currently only needs relatively minimal terminal equipment, that is, the tools that each end user must have on their side of the network, considerably simplifying the setup and operation of such technology.Aside from mandating a large investment, such as high-end IT alternatives may be rather complicated to use, for example they need the non-standard devices that may use various channel guidelines and be hard to set up. Videoconferencing is used in more advanced layouts, such as linking each participant, or at least each group, from multiple places. There are much easier choices available that make use of recognisable, basic, and low-cost appliances. There are two principal types of videoconferencing systems: “dedicated systems and IP-based systems”. “Dedicated systems” depend on the H.3204 specific protocol, which is used for mobile switching telecommunication systems or ISDN videoconferencing. These devices are sold as a complete package that includes all necessary information in a single device. They come in various sizes. They enable for exceptionally high sound – visual signal quality. “IP- based systems” use a various innovative standard known as H.3235, which was created in the late 1990s for Ip telephony and is also known as Voice over IP. The creation of audio-visual systems that work with conventional pcs has been made possible. Anybody with a greater Internet access, a camera, a microphones, speakers or headsets, and a sufficiently powered computer can now join in videoconferencing meetings.As a result, videoconferencing equipment were made available to the general public, and open hardware and software, such as “NetMeeting, MSN Messenger, and Yahoo Messenger”, were quickly grew. Unfortunately, the majority of these systems are of poor quality, and they frequently do not offer multiple network conferencing, which is a videoconference with more than two participants and is technically much more difficult to manage.
V. ISSUES
The utility of e – mail would be undermined if one or more targeted receivers failed to access it properly or declined to collaborate based on unprovable reasons such as confidentiality.If such tribunal’s legal orders are complex and hard to execute, disruptive activity may be a cause for not employing specific IT or terminating the endeavour to do so. In respecting basic principles of fair and equitable treatment, any IT application that would deny the tribunal or party information and support that is essential to the procedures must be prohibited.Unless the tribunal instructs otherwise, all decisions or orders regarding the use of technology must be followed throughout the hearings. Furthermore, each party ensures that the defending team and the tribunal can utilise and acquire the IT that the party uses, as a matter of basic equality and professional decency. For instance, a party providing the information into the hearings should avoid employing IT solutions that are inaccessible to the other party or the tribunal.It also implies that a party should substitute malicious programs, unusable links, attachments which cannot be initiated, and unreadable files without delay, irrespective of whether the tribunal or the other party has made a fuss. These same fundamentals should apply to any other technical issues that arise, such as the inoperability of necessary software and hardware, the accessibility of IT during the arbitration, and the identification and resolution of other technical issues. If needed, the party using a specific type of IT may be required to provide guidelines on how to use it to the tribunal and the other party.
If a party proposes to employ technology during oral proceedings, it should leave sufficient time to set up and verify the technology so that any glitches can be recognised and remedied before the trial commences. Before the proceeding, the tribunal and the other parties should be advised of the intended use of technology.IT-related problems should be on the strategy of the care plan meeting convened in accordance with Article 246 of the ICC Rules. Additional meetings may be required due to the nature and sophistication of the suggested IT and any technical problems that may occur. Typically, the use of information technology (IT) is a topic that should be spoken about when preparing for the oral hearing. Even so, in most cases, these conflicts can be resolved through communications or phone calls, eliminating necessity for in-person conferences.
Cyber violations of the arbitral process, including intrusion into arbitration related data and transmissions pose a direct and severe threat to the integrity and legitimacy of the process. International arbitration proceedings are not immune to increasingly pervasive cyberattacks against businesses, law firms, government agencies/officials and other custodians of large electronic data sets of sensitive information. Human risk represents the most common cause of data violations, significantly more than system failures. The arbitration rules, ethical codes, guidelines and national laws that govern ICA do not by large establish an express obligation on arbitrators, counsel and other parties in the arbitral proceeding to implement cybersecurity measures/protocols. In the absence of protocols for data security, arbitral process can be compromised and illicit intrusion will not be minimized. The instances for tools used by hackers are password cracking, root kit, viruses, key loggers, packet sniffer, vulnerability scans, etc. ICCA-CPR-New York Bar Draft Protocol on Cybersecurity (2018)7 recommends a procedural framework for developing specific cybersecurity measures within the context of individual cases recognising that what constitutes reasonable cybersecurity measures will vary from cases to case basis on multitude of factors.
In the case of Cunningham v. Fair Haven & Westville R. Co8, the court prevented admitting photographs as evidence on the ground that photograph cannot be seen as reliable evidence because it might be misleading and inadequate.
In the case of St. Clair v. Johnny’s Oyster & Shrimp, Inc9, the court held that the plaintiff’s electronic evidence (which was submitted from the internet) was insufficient and should’ve presented the hard copy back-up documentation in admissible form to prove the ownership of the vessel. The court observed that internet is not a reliable source for the evidence and anyone can put any information to the internet and it cannot be seen as reliable evidence.
Also, the hacked or leaked documents or messages or illicit activity (by any party) to the proceedings knowingly and unknowingly wouldn’t be admissible unless a waiver is granted or mutual consent exists. Article 9.7 of IBA rules mentions that, “if a party failed to conduct in good faith in taking evidence, the Arbitral Tribunal, may in addition to any measures available under these rules, take such failure into account in its assignment of costs of the arbitration, including costs arising out of or in connection with the taking of evidence”.
Lawfully speaking, “confidentiality and data security problems” stemming from the use of technology throughout the hearings might be crucial related to legal regulations in effect in major jurisdictions. Although“cyberattacks” are becoming more common, these problems do not tend to play a substantial impact in the perspective of users. Irrespective of who broadcasts and limits the dataset, the tribunal and the parties must have faith that the data held therein will maintainconfidentiality, and that data supplied to the other party and the tribunal will not be made available or obtained without permission for reasons that neither the creating party nor the tribunal permitted. Here, the parties and the tribunal should be informed that some private details may be covered to one or more data privacy regulations, including laws prohibiting or restricting cross-border data transfer. Export regulations may apply to other types of data, like computer programmes. In the case of Dolling-Baker v. Merrett10, the court found that the structure of arbitration imposes an underlying obligation to safeguard the arbitral framework’s confidential info. The arbitration panel is responsible for most of the institution’s arbitration regulations regarding the protecting of confidential information.
VI. CONCLUSION
IT is a safeguard to the legitimacy and integrity of the proceedings. With the advent of technology, there will be an increased growth of online arbitration proceedings and digital evidence. Utilizing the state of art technologies that are integrated and embedded into arbitration proceedings conducted wholly or significantly online, as a necessary revolutionary phase that matches the transition to a paperless world. We cannot both disregard and deploy technology. Arbitration lawyers, like other business professionals, must explore solutions that provide their clients with safety, decrease the time and expense burden, and make progress that humans individually cannot.Each issue has a remedy, and this is true here as well. When it comes to malware, there are anti-virus programmes that can be integrated to identify and eliminate them from the system. A copy of each document should be made to be utilized if the original work is lost due to a software program malfunction. In addition, there’s the Information Technology Act of 2000, which addresses concerns like frauds, cyber theft, and misrepresentation. In the realm of law and arbitration, technology is a true blessing; all we need to understand is how to put it to good use in a reasonable way so that we may get something out of it.Because of the impact of information technology, international commercial arbitration is such a large topic to explore and understand about.
“Once a new technology rolls over you, if you’re not part of the steamroller, you’re a part of the road”
– Stewart Brand
VII. BIBLIOGRAPHY
- http://www.uniset.ca/lloydata/css/19901WLR1205.html
- https://iccwbo.org/publication/information-technology-international-arbitration-report- icc-commission-arbitration-adr/
- https://lk-k.com/wp-content/uploads/The-Use-of-Information-Technology-in- pdf
- https://viamediationcentre.org/readnews/MzQ4/Role-of-Technology-in-Arbitration
1Student, Tamil Nadu National Law University.
2IBA Rules on the Taking of Evidence in International Arbitration
3 American Standard Code for Information Interchange.
4 It is a Narrow-band visual telephone system and terminal equipment.
5 It is a recommendation from the International Telecommunication Union Telecommunication Standardization Sector.
6 Case Management Conference and Procedural Timetable.
8 Supreme Court of Connecticut Third Judicial District, 43 A. 1047, 1.8.1899.
9 U.S. District Court, S.D. Texas, Galveston Division, 76 F. Supp. 2d 773, 17.12.1999, Texas.
10 [1990] 1 W.L.R. 1205 (21 March 1990).