Introduction

The purpose of this document is to provide users of international arbitration with an overview of the issues that may be considered when planning to use information technology (IT) solutions as part of international arbitration proceedings. Concise guidance is provided for each issue. The term IT encompasses all electronic means to produce, capture store, transmit and display information. In the context of arbitration, the primary area of IT use will be electronic communication (e.g. e-mail) and the exchange of documents as electronic files. Further applications of IT are hearing-room technologies (e.g. videoconferencing, multimedia presentations and electronic transcripts). 'IT solution' means the hardware, software and other technical means that are needed for a specific purpose, such as the exchange of electronic documents or videoconferencing. Depending on the requirements of each case, only some or all possible IT solutions may come into play.

1.Pre-arbitration issues

1.1 Agreement to arbitrate

- May the agreement to arbitrate provide for the use of IT?

Yes, if the parties have assured themselves that they will continue to have access to the required resources.

- How detailed should such agreement be?

Preferably, the agreement should not be overly detailed. The state of IT is likely to change over time. Specific IT requirements may not become clear until after the dispute has arisen. Some aspects of the parties' agreement on IT may be impractical or even impossible to implement when the dispute has arisen. Thus the parties should consider committing themselves generally to using IT and/or making their agreement subject to later review. In the event of subsequent disagreement or if otherwise required by the circumstances, the review and decision should be left to the arbitral tribunal.

1.2 After the dispute has arisen

- In what circumstances should use of IT be considered?

The use of appropriate IT solutions should always be considered. Ideally, the [Page64:] parties should have a clear understanding of what the use of such solutions should achieve and how it will assist them and maybe also the tribunal in a way that would be impossible with purely traditional means.

- At what point should use of IT be considered?

The greatest benefits of IT will be realized if the parties can agree as early as possible on compatible file formats and means for transmitting electronic data. Preferably, these issues should be discussed and agreed before the proceedings begin. After the parties have exchanged substantial written submissions, agreeing on large-scale use of IT for electronic document exchange may be less efficient and cost effective.

- Which issues should be addressed in such discussions?

The issues identified herein should be covered. Those that are irrelevant to a given situation may be ignored.

- How will disagreement be resolved?

If the parties are unable to reach agreement, it will be for the tribunal to give appropriate directions.1 However, the parties are encouraged to overcome any disagreement themselves as the tribunal will be unable to give such directions until it is constituted, by which time the parties may be committed to incompatible IT applications.

- How to provide for flexibility in dealing with IT problems arising during the arbitration?

Even when agreement has been reached or a decision made, difficulties may be encountered when using IT during an arbitration. Thus, the parties are encouraged to agree that the arbitrators may intervene and issue directions modifying or derogating from the parties' IT arrangements, if IT-related difficulties occur and are unable to be resolved by the parties within a reasonable time.

- How to formalize agreement?

Agreement on the use of IT solutions should be recorded in writing and in appropriate detail. The parties should bear in mind that some aspects of what they agree may be subject to acceptance and application by the tribunal. It may therefore be advisable to agree on the wording of a draft consent order to be issued later by the tribunal, or in ICC cases to include the agreement in the Terms of Reference.

- Using advanced IT solutions may generate considerable expense. Can the parties agree on how the additional expenses will be borne?

The efficiency of using IT depends on the increased convenience measured against cost. When planning to use IT, parties should take account of additional costs and may prefer to agree at an early stage how they should be borne. Otherwise, the tribunal will decide.

1.3 IT and the selection of arbitrators

- Do the parties agree that the tribunal should be IT-literate and, if so, what are the minimum IT skills required of its members?

The arbitrators' IT skills will be an issue if the parties wish to use IT solutions when communicating with the tribunal, during the tribunal's preparation of [Page65:] the case or at hearings. The level of IT literacy will depend on the requirements of each case.

- Is the nominee familiar with or willing to learn how to use the IT solutions the parties may wish to use in their proceedings?

When nominating or seeking to agree on an arbitrator, parties should consider enquiring of the candidate's familiarity with and ability to use the desired IT solutions.

- If the tribunal or an arbitrator needs IT equipment, training and/or technical support, who will provide this and, if so, who will bear the cost?

The parties should consider these issues before agreeing to particular IT solutions. When they are unable to agree on the sole arbitrator or chair, each party should provide sufficient information to the appointing authority (e.g. ICC) or the co-arbitrators about the need for the tribunal to be able to accommodate the parties' likely IT needs.

2. Issues during arbitral proceedings

2.1 Role of the parties

- Can parties initiate use of IT solutions after the arbitration has commenced?

Yes, but they should consult with the tribunal and seek instructions if the arbitrators are also expected to use IT.

- What about use of IT solutions by only one party?

IT use for internal purposes will always be possible. External use, such as the submission of electronic documents, will normally require consent by the other party and/or the tribunal, which may issue the appropriate directions. Electronic communication and submission of documents will be most effective if all parties use these methods.

- What are the parties' responsibilities when using IT solutions?

Responsibility for the implementation of IT solutions should lie with the parties throughout the arbitral proceedings. This includes (where necessary) enabling the tribunal to use IT, unless its members already dispose of all required means.

The parties should also be responsible for resolving technical issues that may arise when certain IT solutions are used, such as the interoperability of required software and hardware, the availability of the IT solutions whenever needed during the arbitration, and the detection and removal of technical problems.

2.2 Role of the arbitral tribunal

- When should directions be given for the use of IT?

The sooner directions are agreed or given the better. It may be possible to deal with these issues in correspondence, by telephone conference or during a preliminary meeting with the tribunal.[Page66:]

- What directions should the tribunal give on the use of IT?

To allow the tribunal to give appropriate directions on the use of IT at an early stage, the parties should exchange and discuss proposals for the use of IT in advance and appropriately inform the tribunal thereof. It is preferable for any directions given to be agreed. While directions as to certain disputed details of using IT may not be a cause of general concern, great caution should be exercised if a party is unwilling or unable to use IT or a specific solution as such. Preferably, a draft of any direction sought should be presented in advance of a decision.

- What criteria should the tribunal apply, especially when each party wishes to use different technology?

Especially in the event of disagreement, the tribunal should consider available information on the time and cost that would be incurred if the parties are allowed to use IT (and possibly different technologies), as well as the expected tangible benefits and the operability of any particular IT solution.

Any IT solution in arbitration, particularly when imposed, should take into account the ethical, practical and legal implications of the parties' and tribunal's ability (or inability) to manage the data.

- What should the tribunal do if one party objects to the use of IT proposed by the other party?

The guiding principles (consistent with most relevant arbitration laws and institutional or ad hoc rules) are that parties have a right to equal treatment and to be heard (e.g. UNCITRAL Model Law on International Commercial Arbitration, Article 18). Also, the tribunal has a discretionary duty to conduct the proceedings effectively and efficiently (e.g. ICC Rules of Arbitration, Article 20(1)).

- What directions should the tribunal give in relation to financial aspects of using IT where agreement has not been reached between the parties?

IT solutions can be expensive and raise difficult issues as to who should pay what.

For example, where each party (or set of party representatives) has its own preferred IT solutions that are not compatible with those of others, one party may be unwilling to accept the others' solution, particularly where this will require additional licensing, training or IT support. Is it better to impose one system and seek to equalize the costs between the parties or to tolerate two or more incompatible systems?

Where a party has already, on its own initiative, undertaken and incurred the expense of, for instance, scanning and databasing documents, what, if any, cost should be allocated to the other party for using all or part of that work, e.g. pursuant to an order for disclosure?

Where the parties choose to use widely different levels of IT in the course of preparing or presenting their cases, how should this be addressed when the tribunal makes any orders for costs? If one side uses a stateoftheart document management system, should it recover its costs against a party running a low-tech case?

These questions must be decided on a case-by-case basis.

The tribunal's directions on the allocation of costs must necessarily balance possibly competing concerns.[Page67:]

- Should the tribunal use electronic means for communicating with the parties?

This question needs to be answered in relation to the following types of communication:

- correspondence between the tribunal and the parties' lawyers,

orders and directions,

awards.

When doing so, the tribunal should consider the issues of integrity, proof of service, legal validity and legal status referred to below.

3. Issues relevant for parties and arbitrators at any stage

3.1 Compatibility issues

- Do all necessary participants (e.g. counsel, arbitrators and, possibly, clients and experts) have adequate and compatible hardware and software?

Any sharing of information electronically between different users can proceed only if the users have the same or compatible hardware and software. Before an IT solution is adopted, all issues regarding compatibility and interoperability must be resolved. These include, without being limited to, the following:

- Hardware interoperability . All intended users need a minimum level of processing power with adequate data storage capacity, peripherals and internet connectivity with sufficient bandwidth for communication.

- Software compatibility . This covers the operating system, specific applications such as word-processing and spreadsheet programs, and dedicated software and scanned image formats. If standard file formats (e.g. RTF, TIFF, PDF) are agreed, it may not be necessary to have the same programs, so long as they are equipped with the necessary import functions or filters.

- Common technical ability. Each party or its representative and, if concerned, each arbitrator must have sufficient technical ability to transmit, receive, access and use the data.

- Databases with data related to documents and other information are certainly helpful for organizing and retrieving data. However, if the parties want to include scanned images in a common or shared database, they will normally key in additional information (e.g. document description, keywords). If different database programs are used, it may be difficult to correctly import information supplied by the other party. The use of common resources in an adversarial setting is problematic, especially if, for instance, the creation of an efficient database would eliminate or create a tactical advantage for one party with respect to control over or access to electronic documents. Consideration should therefore be given to ways of avoiding disputes over the quality/reliability of exchanged database records.

- Agreed templates . Especially in complex multiclaim/issue cases, agreeing on templates for the presentation of certain information or the description of documents (e.g. tables, spreadsheets, database masks with one agreed format) may help the parties and the arbitrators to manage certain information more efficiently and reduce costs.[Page68:]

3.2 Electronic exchange of documents

- Are the parties willing to exchange some or all documents electronically during the proceedings?

The main advantages are convenience, reliability and speed, especially if the parties already manage their files in electronic format.

- Are the arbitrators willing to exchange documents electronically?

If members of the tribunal lack access to the technology necessary to enable them to do so, or if they simply find IT inconvenient for their working method, the parties may be willing to exchange documents electronically between themselves even though the tribunal receives the documents by non-electronic means.

- Regardless of whether documents are to be exchanged electronically, will electronic versions of the documents be used during the proceedings?

Consider the following issues:

- whether the tribunal and the parties will use electronic versions of the documents instead of, or in addition to, hard copies;

- whether a specific retrieval program will be used for this purpose and what its use requires;

- whether one party may be entitled to use electronic versions if the other party or an arbitrator does not wish to use the same program or to use electronic versions at all.

- What are the basic requirements?

All parties and the arbitrators must have the hardware and software required to receive, read, print and store documents provided in electronic format. If not, appropriate arrangements must be made for those who do not have the necessary tools. The reason is that any arrangement regarding the use of IT in arbitral proceedings must address the needs of the other parties and the tribunal to have full access to any submission, regardless of whether a party or arbitrator uses IT or is unable or unwilling to do so. Accordingly, it may be necessary for the party using IT to provide the other parties and arbitrator(s) with a printed version of the documents.

- What categories of documents will be exchanged electronically: only those submitted to the tribunal or (also) those exchanged between the parties?

Consider:

- correspondence between the parties' lawyers,

- correspondence with the tribunal,

- pleadings and submissions,

- documents relied on or disclosed,

- witness statements, expert reports.

There should not be any major technical difficulty in transmitting correspondence, pleadings and submissions, which today are generated electronically in nearly all cases. Nor should it be a problem to scan and create files containing copies of printed documents. However, the volume or quantity of such documents may be a concern.[Page69:]

- What factors may influence the decision?

On the one hand, a large number of documents may be more conveniently transmitted (e.g. on a CD/DVD or via e-mail) and efficiently managed if they are available in electronic format. If appropriately processed, electronic documents may also be in a format convenient for searches.

On the other hand, a great number of electronic files that are not logically organized and named and thus not easily identifiable using electronic means will be inconvenient to handle. Thus, agreement or directions as to how the exchanged files should be organized and named may be appropriate.

Consider also whether and which electronic documents should be delivered in the format of the program with which they were created (e.g. Word, WordPerfect, OpenOffice, etc.) or as an image (e.g. TIFF, PDF). The latter formats may be preferable for reasons of integrity, except for agreed templates required by the parties and/or arbitrators for further processing.

- In what format will each document category be exchanged electronically?

To preserve the integrity of the documents, the parties and maybe also the tribunal should use file formats that (i) guarantee that the formatting of the original document as intended by the originator is maintained, and (ii) guard against later modifications and/or facilitate tracking such modifications.

- By what method will each category of document be exchanged electronically?

The main means for exchanging material in electronic form are:

- on a physical storage medium, such as a disk (e.g. CDRom/DVD and other magnetic or optical data carriers);

- via e-mail transmission;

- via common access to a web site (e.g. virtual data room), closed network or other electronic forum for the communication and joint storing of and access to information.

Consider the issues of transmission integrity, proof of service, and security referred to below.

- Does the volume, medium or software impose special hardware, software or know-how requirements?

Files, especially scanned images, may add up to many megabytes. Consider size requirements when selecting data carriers and also consider the transmission capacity of your telecom facilities.

- Will an Internet data repository (case room) be used?

If use of an Internet data repository (case room, such as ICC's NetCase) is contemplated, its terms of use and any supplementary rules concerning its use should be reviewed. Consider selecting a neutral provider for such repository services.

3.3 Data integrity issues

- How will the authenticity and integrity of the electronic version of the document be established?

Like other documents, electronic documents can be manipulated, unless certain precautions are taken.[Page70:]

The authenticity of any electronic document can be assured through commercially-available software solutions that allow an electronic signature to be verified. This provides a way of establishing whether the purported originator is the real author and whether the electronically signed file has been modified after signature. This is only a countermeasure against manipulation of documents after they have been signed electronically.

For documents and copies of documents that have been created without electronic signature, the use of IT poses no greater concerns in this respect than the exchange of hard-copy photocopies, which, for example, could have been made from the printout of an electronically-manipulated scanned document. Ultimately, the parties and the tribunal must retain the right to inspect the originals of any documents whose authenticity is disputed.

- What directions should be given in relation to this issue?

If all documents are also exchanged in print version, no special directions are required. Otherwise, or in addition, consider the need for obtaining (agreed) directions to determine the interoperable programs to be used for electronically signing and verifying files and related issues (e.g. exchange of the electronic trusted certificates or electronic keys required for signing and verification).

Historical printed documents should be available for inspection. Historical documents in electronic file format only should be archived at least for the duration of the arbitral proceedings, and they should be open to inspection as specified in directions from the tribunal.

3.4 Proof of service

- How will the date of service of the document be determined and verified?

Most systems of law and most contracts set forth minimum requirements for proof of delivery, increasingly also with respect to electronic communications. Arbitration law(s) may allow specific rules relating to proof of delivery to be agreed by the parties (e.g. by reference to the ICC Arbitration Rules, Article 3(2)) or, failing such agreement, to be issued by the tribunal. Under Article V(1)(b) of the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, these requirements affect the parties' rights to enforce the arbitral award and thus should be verified before electronic communication is used to effect service.

- Do certain categories of documents need to be notified by traditional means of service providing proof?

Consider:

- awards (special regime),

- orders and directions from the arbitral tribunal,

- submissions such as the request for arbitration and answer to the request,

- general correspondence,

- exhibits.

A special regime for the service of certain kinds of documents should be established if required under applicable law.

- How will receipt be verified?

E-mail client programs are able to generate acknowledgements of receipt, [Page71:] which are electronically returned to the sender if this functionality is activated. It is an easy matter to agree that any recipient shall manually generate and send an electronic acknowledgement of receipt. Internet-based document repositories/case rooms will allow access by parties to be tracked.

- What should be agreed or what directions should be given concerning this issue?

The following precautionary measures may be considered:

- regular checking (daily) of electronic mailbox or web site where the document repository is located;

- acknowledgement of receipt with copies to all participants, especially the tribunal;

- definition of the steps to be taken if receipt is not acknowledged within a certain period of time.

duty to keep records in a specific format.

Confidentiality and security

- How will the confidentiality of the information exchanged be maintained?

If confidentiality is a concern, the parties should agree on an acceptable minimum level of security against unauthorized access by third parties. Information may be protected during transit by means of encryption, which is effected through the programs for electronic signature mentioned above. Internet-based data facilities (e.g. case rooms) should automatically ensure that transmissions are encrypted.

- Who will have access to information stored electronically?

Parties need to be aware of the risk of unintended transmittal. However, it is the sole responsibility of the parties to make the arrangements required to avoid this problem.

- What may be agreed or what directions should be given concerning confidentiality?

Each party and arbitrator is responsible for ensuring that the confidentiality of the information under her/his control is protected by the necessary access control.

Other participants (e.g. experts, providers of access to electronic data rooms) may be required to provide appropriate confidentiality commitments.

- What may be agreed or what directions should be given on matters relating to data corruption and viruses?

Electronic data may be unexpectedly corrupted during storage, transmission or reading. Consider requiring recipients to check for data corruption without delay upon receipt and providing for a method of cure (retransmission).

Viruses (i.e. malign computer programs) may destroy electronic information and programs, either through corruption of the data being transmitted and/or through infection of the recipient's data by the sender's data. Accordingly, any party or arbitrator who transmits data electronically should use and regularly update adequate anti-virus programs. All participants should disclose whether they use virus protection. Each participant should bear the responsibility of adequately protecting her or his system. [Page72:]

3.6 Intellectual property

- Who is responsible for confirming compliance with the relevant copyright and licensing requirements concerning the transmission and use of data and computer programs?

Third party IP rights as such are not subject to any agreement of the parties or order of the tribunal. Generally, each party or arbitrator will remain liable towards third parties for IP infringement.

- What directions should be given in relation to this issue?

Consideration may be given to the following:

- Software . Parties and arbitrators must ensure that the software they are using is duly licensed. If software is to be shared, the parties shall discuss and agree who shall make the required licensing agreements and how the associated costs should be allocated.

- Data/documents submitted . The transmission of files containing data or other information in an electronic format does not differ substantially from the submission of third-party copyrighted materials in print form as already occurs in arbitral proceedings from time to time. Generally, this does not give rise to third-party IP infringement claims. However, confidentiality may be an issue.

Consider whether information to be exchanged concerns IP rights, trade secrets or technical know-how that must be protected. In this event, it may be appropriate to obtain commitments to maintain secrecy and not to use information for purposes other than the arbitral proceedings. This is particularly relevant insofar as witnesses and experts are concerned.

4. Issues relevant to the hearings

- If IT is to be used at the hearing, what issues should be addressed?

Whenever a party intends to use IT during oral hearings, the party should allow enough time for the IT to be prepared and tested so that any technical problems can be identified and corrected before the hearing begins. The tribunal and the other party/ies should be informed of such use before the hearing.

So long as presentations are comprehensible to all parties and arbitrators, the use of electronic documents and electronic means of presentation by one party only should not present legal difficulties barring special circumstances. In the event of disagreement in this regard, the issue should be referred to the tribunal for directions.

- May electronic documents on file be used during the hearings?

Electronic documents on file may be displayed from a PC running the retrieval software, either via a local network on displays available to each participant or via a projector on a large screen in the hearing room.

- What may be agreed or what directions should be given concerning this issue?

If a consolidated set of electronic documents is to be used, the parties may create a common bundle of exhibits.[Page73:]

- May a party use visual presentation software and still/motion pictures, and what directions should be given in this respect?

Yes, subject to the considerations above. Unless the parties wish to make a joint presentation on certain issues, each of them should be responsible for any arrangement required for video reconstructions, PowerPoint presentations, computer graphics, etc. The other party and the tribunal should be informed thereof sufficiently far in advance.

- When may video or telephone conferencing be used?

Video and telephone conferencing will normally require a certain level of cooperation and are thus not recommendable in situations where this cannot be expected.

The organization of video and telephone conferences requires technical arrangements, which should be delegated to professional service providers unless all participants dispose of the required technical means and experience. Especially in the case of a videoconference, the connection and compatibility of the conferencing devices should be tested some time before the conference is scheduled.

Distance conferencing may also require making arrangements to ensure that:

- the relevant documents to which reference will be made are available to all participants and can be identified in an unequivocal manner when being referred to;

- the identity of the participants, especially witnesses, may be verified, and that illicit outside interference (e.g. witness coaching) is prevented.

Also, consider whether the applicable arbitration law allows or restricts the use of distance conferencing for a hearing (e.g. distant witness, party or arbitrator).

- May real-time transcripts or other electronic means of recording the hearing be used?

A professional service provider can usually provide real-time transcripts. As with other verbatim transcripts, they are expensive. Tape recordings may also be used, but are less convenient. Tapes may be transcribed at a later stage at less expense.

- Is simultaneous translation required during the hearings?

For efficient simultaneous translation, sound equipment with a sufficient number of microphones and headphones is needed. A professional service provider will usually provide these.

- Who is responsible for making the necessary arrangements for the hearing?

The ultimate responsibility for hearings lies with the tribunal. The tribunal may issue directions delegating certain organizational tasks to a party under its supervision. Directions should best be issued at a preparatory conference in consultation with the parties.

1
In the case of administered arbitration, the arbitration rules do not normally accord any decision-making role to the institution for implementing IT solutions.