As the COVID-19 pandemic has moved international arbitration online, the importance of case management platforms has come into a clearer focus. Most people would acknowledge that dedicated video conferencing software like Zoom, Microsoft Teams, Google Meet, etc., have emerged as the new essential applications during the pandemic, but case management platforms have not been far behind. This is because case management is an essential component for the online administration of arbitrations. Good case management platforms can drive efficiency and reduce costs, and bad case management can generate frustration, delay, and risk that outcomes will be overturned. Well-designed and deployed case management systems help arbitral participants understand the process, meet their deadlines, and protect the security of sensitive information related to the arbitration.
As an acknowledgment of this growing importance, a new Protocol drafted by a group of lawyers from six international law firms aims to consolidate a set of best practices and principles for case management platforms. The Protocol aims to set out in one place “relevant and practical” guidance on how to design case management systems that “facilitate efficient and secure document sharing, and improve arbitral participants’ ability to meet obligations relating to data handling and cybersecurity.” This collaborative working group involved individuals from Herbert Smith Freehills, Ashurst, CMS, DLA Piper, Hogan Lovells, and Latham & Watkins, some of the leading law firms in international arbitration.
As the authors note, many of the stakeholders interviewed as part of the working group provided a consistent set of priorities in the deployment of a case management system:
- 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.
Charlie Morgan, a senior associate in Herbert Smith Freehills’ International Arbitration team (and member of the working group) observed: “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...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.”
As Bryce Williams, international arbitration associate at Latham & Watkins (and also a member of the working group) noted, “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.”
The Protocol is designed to help arbitral participants (parties, lawyers, arbitrators, arbitral institutions or organisations) think through the key questions that need to be addressed in adopting a shared online case management platform for their arbitration proceedings. It is also intended to help technology providers better understand the requirements of their users, which is expected to aid the development and enhancement of online case management platforms for use in international arbitration going forward.
The Protocol is structured into two main parts, with a set of supporting Appendices. Part One highlights the benefits of, and drivers behind, the adoption of online case management platforms in international arbitration, examines arbitral institutions’ efforts to integrate online case management into their processes and rules, and finally, identifies the spectrum of case management platforms available for use in arbitration. Part Two offers practical guidance to arbitral participants seeking to use an online case management platform in their proceedings and identifies characteristics and functionality that arbitral participants should consider when evaluating which platform to use in arbitration.
The appendices cover a wide variety of other related topics, including:
- An overview of considerations relevant to Platform adoption in international arbitration (Appendix 1);
- Additional guidance for technology providers, illustrating core processes that Platforms may need to address (Appendix 2);
- A checklist for arbitral participants to use when adopting a Platform (Appendix 3);
- A list of data security and privacy questions that arbitral participants may ask Platform providers (Appendix 4);
- Draft wording for a potential procedural order on issues associated with Platform adoption (Appendix 5); and
- A list of the entities and individuals consulted on the draft Protocol during the private consultation period (Appendix 6).
The joint authors of this Protocol should be congratulated for a job well done. This document is an important and significant contribution to the efforts to move arbitration online while preserving the security, independence, integrity, and efficiency of the international arbitration process.
You can read the full protocol by clicking here.