With COVID-19 travel restrictions expected to hold firm for the next few months at least, lawyers are continuing to rely on remote working practices. In the field of arbitration, this adjustment has been rather smooth, as the pandemic accelerates trends already in process, but Francis Xavier SC, regional head of the dispute resolution group at Rajah & Tann and the immediate past president of the Chartered Institute of Arbitrators (CIArb), says that this also comes with risks.
ALB: In what ways have we seen the role of arbitration evolve due to the pandemic and are these changes likely to stay long-term?
XAVIER: In the past year, the pandemic has compelled every form of dispute resolution (including arbitration) to go online. Movement and travel restrictions are likely to prevail soon. Arbitration users are now well acquainted with online platforms and have been pleas-antly comforted by their effectiveness. Beyond the pandemic, online platforms will not completely replace physical hearings. However, a paradigm shift has occurred – many aspects of arbitration, such as directions hearings and inter-locutories, will likely be heard online to a degree never seen before.
ALB: Has the reputation of arbitration changed during this period – if so, how?
XAVIER: Arbitration has demonstrated that in the hands of enlightened practitioners, its procedural pliability and ability to adapt enables it to take vicissitudes such as the viral pandemic, in its able stride.
ALB: What role has technology played in arbitration over the past year, and are there any risks or challenges that might occur from becoming so tech-reliant?
XAVIER: Technology has been a tremendous boon this past year – it has enabled the business of arbitration to continue unabated despite the unprecedented lock-downs and restrictions on physical movement. Needless to say, the flipside of this uttermost dependence on tech platforms brings to fore its handi-caps – uneven literacy, lack of sufficient literacy and the potential for abuse including witness tampering and the heightened risk of cyber-attacks.
ALB: Globally, which markets have really excelled in arbitration since the pandemic has hit, and which are trailing behind?
XAVIER: Unsurprisingly, markets that forged ahead have an advanced technical framework and network capabilities, and a highly literate and sophisticated legal community.
ALB: What further developments might we see in this area?
XAVIER: The age of technological innovation was upon the legal profession well before the pandemic. Its pace was perhaps greatly enhanced by the viral onslaught. Make no mistake – traditional modes and modalities of dispute resolution will continue to mutate and be wholly transformed by the evolving forms of technological innovation, with or without the pandemic.
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