In May last year, six international law firms combined forces to create a set of universal best-practice arbitration guidelines. But Herbert Smith Freehills, Ashurst, CMS, DLA Piper, Hogan Lovells and Latham & Watkins were not aware that they would be releasing the draft protocol, which is out for consultation this month, in such a different climate.
How the arbitration landscape will shift in the coming days remains to be seen, but the impacts of the coronavirus pandemic will doubtlessly have an impact — virtual disputes have grown more pronounced and the use of technology has spiked.
Rob Palmer, managing partner of Ashurst's Singapore office and partner in the firm’s dispute resolution practice, says that he considers COVID-19 an “accelerant rather than any sort of change agent.”
“There were already great concerns around the cost and time associated with arbitration, and there was a lot of focus on how to make the process more efficient — COVID-19 really has accelerated that,” he says, adding that this digitalisation is only going to continue.
He cites Singapore, where he’s based, as an example: “In Singapore we’ve got huge familiarity with virtual hearings, support of institutions, and infrastructure that’s available... so all of those things point towards increasing take up of technology and virtual dispute resolution. We’ve also got the fallout from the COVID-19 pandemic, where increasingly many entities are going to be financially. There will be an increased focus on doing more for less, and virtual dispute resolution is almost certainly going to be a part of that,” Palmer says.
His opinion is echoed by Myfanwy Wood, a senior international arbitration lawyer, also at Ashurst agrees. “COVID-19 has just sped up the inevitable, and the inevitable was that we were heading towards conducting online dispute hearings.”
However, not all clients are on board just yet. Katherine Yap, chief executive at Singapore dispute resolution venue Maxwell Chambers, tells ALB since the pandemic clients have expressed mixed feelings about adapting from physical hearings to virtual and hybrid hearing arrangements.
“Many have stuck to their preference of having a physical hearing hence often opting for a hybrid hearing instead of a fully virtual or a physical hearing,” says Yap.
In order to assist these clients, Maxwell Chambers recently teamed up with Arbitration Place of Toronto and Ottawa and London’s International Dispute Resolution Centre to launch the International Arbitration Centre Alliance, a global hybrid physical and virtual hearings platform.
“To further facilitate those with trouble adapting, we have dedicated moderators navigating our clients through technical difficulties to ensure that they are familiar with the platforms and tools used,” Yap adds.
She additionally notes that use of technology in this arena can at times create something of “a lingering sense of uncertainty” that firms have to be constantly prepared for going forward.
“Our goal is to ensure that our clients receive utmost assurance in terms of safeguarding their data with our increased firewall protocols and stringent measures to safeguard their privacy and confidentiality,” Yap says. “Parties will also be advised to use a secure network to minimise data breaches and to employ reputable service providers for document sharing.”
The new protocol developed by the six firms aims to address some of the misgivings clients have when it comes to moving their arbitration online. And while this accelerated reliance on technology may have ruffled some, Wood says feedback to the protocol itself has been largely positive—especially from clients who may be cost-sensitive and are considering their options.
“I’ve had a number of clients contact me to say what a great initiative it is, and for the future, they can see the cost benefit of it because it does create a roadmap for conducting disputes much more efficiently, particularly in relation to document management and cyber security,” Wood says.
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