In its Report on the Use of Information Technology in International Arbitration published in October 2017 the ICC
Commission and Task Force wrote:
“As work on this report progressed, the lack of reliable and statistically significant information concerning the frequency and sophistication of IT use in international arbitration became apparent. Despite the availability of ‘war stories’ and anecdotes (which are often interesting but might have been shared to show that the arbitrator or lawyer who shared them is ‘IT savvy’), ‘hard’ data was scarce. Ironically, this dearth of information is probably good news. Given that bad experiences are often reported immediately to the arbitration community, the absence of negative data and anecdotes in relation to IT use suggests that IT is not disruptive and has not created new procedural hurdles or difficulties that would be worth mentioning.”
IT can be of tremendous assistance in international commercial arbitration, as indeed it is in commercial litigation, to parties and decision makers alike. We know that the use of email communication, videoconferencing and hyperlinked e-briefs is frequent and ubiquitous; and that digitalised document handling and processing and exhibit organisation and display can, in appropriate cases, significantly contribute to the efficiency of the arbitral process or judicial determination1 or indeed save costs.
But what would be interesting – and useful to have – is hard data to provide a basis for research as to whether the leopard has indeed changed his spots.
Have counsel in witness-heavy arbitrations really abandoned the comfort blanket of hard copy marked-up lever arch files for the delights of the digitally high-lighted e-bundle when it comes to a lengthy cross-examination of a di cult – if not mendacious – witness? Does the arbitrator – on the side – print out hard copies of all the documents that he or she thinks relevant to the case? Can counsel as effectively cross-examine a witness by video-link? Is an arbitral tribunal able adequately to judge credibility of a witness by seeing that witness “perform” on screen? Should a losing party feel resentful that he has not had a fair hearing where all or part of the arbitral process has been conducted in a remote virtual environment as opposed to in person?
Of course, one answer to all these questions is that it depends on the type of arbitration, the issues involved and the requirements of the particular case. While the ICC Task Force in its report “enthusiastically” recommended the use of IT in international arbitration whenever appropriate and expressed the view that:
“At least based on anecdotal evidence, our sense is that generally available IT solutions probably are not used to save time and costs as effectively
as they could be. For example, despite the advent of readily available means of videoconferencing (e.g. Skype; FaceTime), some tribunals and parties remain reluctant even for minor witnesses to testify by video...”
it nonetheless acknowledged that use of specific IT was a matter for the parties and the tribunal to decide and that:
“Whether and how IT may be appropriate to a particular case will depend on many factors, including, for example, communication and storage security requirements, the parties’ agreements and preferences, the tribunal’s preferences, the amount in dispute, the parties’ respective budgets, the disputed issues in the case, and the technology available to the parties and the tribunal. Thus, the Task Force does not suggest whether, when, or how IT should be applied in any particular case, and this report does not attempt to define ‘rules’ concerning IT.”
With the hope that they will not be characterised as “war horse” tales – since they largely derive from my recent experiences as a Commercial Court and Court of Appeal judge and those further-o days as a commercial QC – I would venture to express the following (non-prescriptive!) views, subject to the caveats already stated.
E-bundling in a document heavy case, so far as a tribunal is concerned, is a necessity not a luxury. But the files have to be appropriately tabulated, organised and paginated in the same way that a hard-copy bundle would be, so that they are easily identifiable and searchable. Being invited to go to page 2473 of 4769 in one long unnamed pdf le is not an attractive request to an arbitrator.
And if the tribunal is supplied with an e-bundle, I personally don’t want also to be provided with a hard copy version – often still the norm. If I want, I can print o the critical provisions of the contract or other critical documents.
If witness statements (often the creation of the legal imagination of the relevant party’s lawyer... but that is another story) refer to documents, they should be hyperlinked as a matter of course.
I have mixed views as to whether it is really feasible for counsel to cross-examine effectively from an electronic bundle in a document-heavy case. Maybe the next – and more e-savvy – generation of lawyers will be able to do so, but my experience is that counsel still prefers the comfort blanket of the hard copy, which involves the trolley load of files being wheeled into the hearing room at the start of the day.
Why is this? I think that it has a lot to do with sight lines. Counsel needs to maintain relatively continuous eye to eye contact with the witness and indeed with members of the tribunal. That is difficult to achieve if counsel is having to locate the relevant document, and the relevant passage, on the computer. And time can be wasted searching for the document electronically.
Likewise, the informed witness, who is being cross-examined, may well ask to have the documents available in a hard-copy bundle as it is often easier to click forward to see what document is coming next and so be prepared for the next question! It might be a bold tribunal who would refuse a witness that facility and I have never seen it done.
I share the ICC Commission’s view that it is desirable that IT solutions should be used more frequently to save time and costs, but a tribunal nonetheless needs to be conscious of the possible limitations of a video-conference hearing.
While some, perhaps minor, witnesses can usefully be cross-examined in a virtual environment, where a substantive challenge is mounted to a witness’ evidence, both the tribunal and cross-examining counsel may need to have the witness there in person. That is not only so that the tribunal can more adequately assess credibility and reliability, but also so that counsel can maintain the impact and momentum of cross-examination. Both can be lost where cross-examination is conducted remotely.
Likewise, although a video-conference hearing may be suitable for a procedural or directions hearing or some substantive hearings even where witnesses are involved, in a case where complex issues need to be resolved by the tribunal it may often be more efficient and cost effective for the hearing to take place in person with all members of the tribunal and the parties’ legal representatives present.
What will be the correct combination of virtual hearing or in person hearing, and the extent of the IT assistance required, will always, as I have emphasised, depend on case-specific factors and the requirements of the parties. But while, as an arbitrator, one can enthusiastically embrace the huge assistance that IT affords to the dispute resolution process, it is critical to remember that any solution will need, above all, to ensure that the respective parties are fairly treated and are perceived to have been so treated.
By The Rt Hon Dame Elizabeth Gloster