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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
I. Preamble
These explanatory notes are intended to provide parties, their counsel, arbitrators, and those who assist them during arbitral proceedings, with a better understanding of what the Standards are and what their intended use is.
The Standards are not a legal procedure, but are rather intended to be used as a 'protocol'. Readers with a legal background will be inclined to think of the term protocol as another word for agreed legal rules. Readers with an engineering or information technology (IT) background will understand by protocol the procedures to be observed in managing a process aimed at achieving a certain result. The difference between these two perspectives is that the lawyer may more readily focus on the possible consequences if a participant does not comply with the described procedures. The engineer, on the other hand, may be more inclined to view the protocol as a tool to minimize disruptions and guarantee that the desired objective - a working system - is achieved. The Standards were written primarily for people with a legal background, but with the hope that they will use them as an engineer would.
In drafting the Standards, we have also tried to consider the needs of the technical and support personnel who will be responsible for implementing IT solutions through application of the Standards. The Standards are intended to provide them with the basic information they need to implement a particular IT solution in an arbitration and to manage that solution after it is implemented. This information covers such matters as (i) the compatibility of the parties' respective IT systems; (ii) whether and how agreed IT solutions need to be formalized; (iii) how to address problems/disruptions; and (iv) whom to contact if they are unable to resolve the issues themselves.
Arbitral proceedings put pressure on those involved. Grappling with technical problems may absorb attention that would be better devoted to the substance of the dispute. Such problems usually occur under time pressure, which increases the risk of disruption. The Standards are intended to minimize this risk through standardized reporting and problem-solving procedures that are presented in the form of a modifiable boilerplate document.
The forms included with the Standards aim to provide those who are responsible for IT with standardized methods and the information required to resolve technical matters without major procedural disruption. At the same time, they alert arbitrators and counsel to the existence of these problems early on.[Page100:]
II. Generalities
Introduction and Section 1 - General procedures ('G')
This first section of the Standards comprises procedures that deal with starting the implementation of the Standards and defining the scope of their use. This section also addresses procedures for later adjustments to the Standards and a method for handling problems.
Examples:
Any customized solution adopted will be recorded in writing according to G7 and G12-G13.
- Any IT-related difficulty will be handled according to G8-G11.
The introduction briefly describes what the Standards are, how they are structured, and how they may be implemented.
Section 1.1 is intended to make it clear that the Standards are not procedural rules applicable to the arbitration. This should ensure that the Standards
? remain a flexible tool to deal with the use of IT during arbitral proceedings; and
? do not evolve into a procedural straightjacket which could be used to challenge the validity of an arbitral award or its enforcement.
Because the guiding principle of the Standards is that IT-related difficulties should not disturb the arbitration, their adoption as agreed procedural rules is discouraged, even if the parties or, in the absence of their agreement, the arbitrators may decide otherwise. For this event, G3 contains wording intended to preclude reliance on any non-compliance unless certain requirements are met.
Section 1.2 describes how to start using the Standards.
The Standards are intended to be used primarily in conjunction with the exchange of electronic documents and electronic means of transmission. It makes sense to begin using the Standards as soon as the arbitration is commenced. If the parties start by using traditional means of communication (e.g. transmitting sufficient copies of all briefs and exhibits in print version), the transition to electronic exchanges of documents may involve additional work and expense, which early agreement to use the Standards would help to avoid.
It is generally to be expected that a party, rather than the arbitrators, will propose that the Standards be applied. The Standards Initiation Form should be used for this purpose. Its aims are as follows:
to inform the other party and arbitrators of the specific IT solutions that are proposed;
to cause a party to assess its own IT capabilities when completing the form, so as to be sure that it can fulfil the requirements;
? to allow the recipient to verify the IT capabilities of the party submitting the [Page101:] form;
to cause the recipient to assess and disclose its IT capabilities;
This exchange of information is intended to facilitate agreement. As the arbitration progresses, it may also be necessary to obtain information regarding IT capabilities from arbitration institutions, arbitrators and third parties such as witnesses or experts.
If during party-driven discovery proceedings, the parties exchange electronic files with true reproductions of historic documents for the parties' purposes only, the arbitrators' IT capabilities and system interoperability are irrelevant if the documents filed with the arbitral tribunal are submitted on paper only.
If the documents filed with the arbitral tribunal are also to be submitted as electronic files, the arbitrators' IT capabilities, system interoperability and their willingness to use IT must be determined.
Similarly, any other persons or entities that are expected to receive and transmit electronic data in connection with the arbitration will need the required IT capabilities and system interoperability, unless other specific solutions are adopted for them. Shortcomings here may be less critical but should be anticipated.
If it turns out that an institution, arbitrator or third party is unable or unwilling to use the desired IT solution(s), this does not necessarily mean that they cannot be used at all.
As far as the parties and members of the arbitral tribunal are concerned, such an obstacle may however prevent the Standards from being implemented. This may be overcome by appropriately adjusting the Standards process.
The Standards are a tool for cooperating voluntarily. Their implementation largely depends on the participants' willingness to use IT and to provide the information needed for this purpose.
At the outset, two kinds of difficulty may be encountered:
While there is a general willingness to use IT, one or more participants may encounter technical difficulties in connection with the implementation of the Standards.
One or more participants may be unwilling to use IT as suggested by other participants and may not even be willing to reply to the Standards Initiation Form.
For problems of the first kind, a technical solution or workaround may be possible if the participants cooperate. In most cases the Technically Responsible Persons will be able to identify and solve the problem. They should also be able to determine whether the difficulty will materially impact the implementation and use of IT if no workaround is feasible.
A party needs to scan hundreds of documents but does not have a heavy-duty multipage-feed scanner. Possible solutions: (i) purchase an appropriate scanner, or (ii) contract with a service provider that will do the scanning.
A party uses a service provider to access the Internet. The service provider restricts [Page102:] e-mail attachments to a maximum size that will not be sufficient for the volume of the documents expected to be transferred during the arbitration. Possible solutions: (i) change to a different provider, or (ii) agreement to exchange files on CDs/DVDs.
The Standards cannot be implemented until a consensual solution is found (G6 (i)-(ii)). Since the Standards do not address the use of IT by only one participant, no specific suggestions have been made as to what a party that nonetheless wishes to use IT should do if a consensus cannot be reached. The only practical alternative is for the arbitral tribunal to issue the appropriate directions (G6 (iii)).
For problems of the second kind, it may be more difficult to find a solution. In some cases the parties may be able to overcome a lack of responsiveness or willingness to use IT if they adopt a cooperative approach that considers:
personal and/or cultural barriers to using IT in arbitration
perceived or real legal barriers to using the desired IT solution(s)
perceived or real factual obstacles to using IT (lack of experience, extent of investment required, etc.)
Addressing these issues may make it possible to agree on mutually-acceptable solutions or workarounds.
In one reported case where an arbitrator did not have the necessary equipment and IT experience, the parties provided him with a ready-configured laptop PC with all data stored on the hard-disk in an easily accessible way that was explained to him.
Difficulties of the second kind, like the first, will make it necessary to suspend or abandon the implementation of the Standards, subject to directions from the arbitral tribunal (G6 (iii)).
In the event of disagreement, the tribunal should consider the ethical, practical and legal implications of the parties' and the tribunal's ability (or inability) to manage the data. Any arrangement regarding the use of IT in arbitral proceedings must recognize the need to give the other parties and the tribunal full access to any submission, regardless of whether a party or arbitrator uses IT or is unable or unwilling to do so.
The guiding principles (consistent with most relevant arbitral 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 duty to conduct the proceedings effectively and efficiently (e.g. ICC Rules of Arbitration, Article 20(1)). Accordingly, 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. It may thus be necessary for the party or parties using IT to provide the other parties and arbitrator(s) with a printed version of the documents.
The tribunal should also consider any information available regarding the time and cost that would be incurred if the parties were allowed to use a particular IT solution, as well as its expected tangible benefits and ease of use.[Page103:]
The Standards assume that within a reasonable period of time after one participant has initiated the process by providing the other participants with a duly completed Standards Initiation Form (G5), each of the other participants will respond by providing the other participants with their respective Standards Initiation Forms. The Standards also assume that all participants will review the forms to assess whether there is agreement on implementing the IT solutions identified in the forms.
Result: Everyone agrees to using the Standards and to exchanging documents in electronic format. Unless the tribunal directs otherwise, the electronic documents will be exchanged on CDs/DVDs and not by e-mail or via a web site. In the absence of an agreement on customized procedures, the naming system referred to in P5 and P6.3 will be used, unless the tribunal directs otherwise.
Result: All agree to using and exchanging documents in pdf and tiff format. Unless the tribunal directs otherwise, the electronic documents will not be exchanged in other formats.
If the parties partly disagree on how to use the Standards, the tribunal must determine whether the agreed items are sufficient for implementing the desired IT solution under the Standards. This would be the case in the examples provided above. If, for example, both parties indicate in their Standard Initiation Form that they are unable to write CDs or DVDs, implementation cannot proceed until this problem has been cured.
The consolidation process (G7 to G11) may normally be completed via correspondence, telephone conferences or an early meeting. Problems are handled as explained above.[Page104:]
Once the Standards have been implemented, unexpected problems still may arise:
E-mails arrive garbled because program settings were not adjusted as required.
- A file is infected by a computer virus.
A file is damaged and may not be opened by the recipient.
The receipt of an e-mail with attachments is not acknowledged.
The cause of these or similar problems may not always be obvious. The key to a quick solution is a clear and concise description of the problem and tentative analysis of the possible solution. In the IT world the use of standard error report forms requiring certain information to be provided has proved to be a useful means of helping to deal efficiently with this sort of problem. The Standards follow this approach (G8-G9). Under the Standards, each participant is made aware of the incident and when the problem is solved. The Standards provide guiding principles as to how difficulties should be addressed (G10-G11) by stressing the need for good faith cooperation and the avoidance of disruptions to the arbitral process.
The process linked to the Standards Incident Form may also be used for any other disruption or incident, even if it is not of a fully technical nature.
As mentioned above, the Standards are intended to be flexible and can be modified to meet the needs of parties, arbitrators and third parties at different stages of the arbitration, deal with previously unforeseen problems and allow for new IT solutions.
A tribunal-appointed expert will receive the relevant documents in electronic format and the expert's report will (additionally) be submitted as an electronic file.
A court reporter will transmit the transcript to the parties and arbitrators as an electronic file.
The parties and arbitrators who originally all preferred to receive electronic files on CDs want to switch to transmission via e-mail.
To hear a witness, who would otherwise be unavailable at the hearing, a videoconference becomes necessary.
To address these sorts of situations, the Standards provide a simple method of adjustment described in G12-G13. The arbitrators are also free to order any adjustments they consider appropriate.
III. Special procedures for specific IT solutions
The following sections, covering specific IT solutions likely to be used in arbitration, are intended to be applied together with the general procedures in section 1. The general procedures apply regardless of whether all or only some of the specific procedures are implemented.[Page105:]
Section 2 - Paperless files ('P')
Introduction
Exchanging and managing documents electronically is likely to increase the efficiency and decrease the cost of the arbitration if intelligently implemented.
File formats
The recipient's computer may be unable to open or properly display files that were created with:
a program running under a different operating system (e.g. MS Windows, Linux, MacOS),
a program from a different software company (e.g. MS WinWord, WordPerfect, OpenOffice),
a newer version of a program from the same software company.
More specifically, the recipient's computer may be unable to display the file in the same way as on the computer used by the person who created the file.
Similarly, if the recipient does not have the correct font set installed on her/his computer, a garbled text may be displayed and printed. These flaws are due to software and inadequate standardization.
The Standards and the Standards Initiation Form are designed to reduce the occurrence of these sorts of problems by encouraging the parties to agree on the use of standard file formats and platforms in the arbitration.
File names
During arbitration proceedings, a party may receive numerous documents in electronic form. If the other party does not use a coherent and meaningful file-naming system (e.g. arbitrarily changes the way it names its files, uses identical names several times, uses meaningless digits or letters as file names) much time and effort can be wasted identifying and arranging the files received.
The Standards require a coherent file-naming system to be used. If the participants are unwilling or unable to agree on their own file-naming system, the Standards provide for a default file-naming convention.
Searchability
Full text searchability of electronic files is a feature that greatly simplifies the retrieval of information from documents, especially if they are large. Although many operating systems and programs contain rudimentary search functions, full text search requires the text to be stored in an electronic format called 'ASCI'. Text content stored as a graphical file, or digital photocopy, is not searchable. Full text searches of these files require optical character recognition (OCR 1) by dedicated OCR programs or program features (such as Capture included in Adobe Acrobat) that produce ASCI files. Although such programs are claimed to have impressively low error rates, their reliability will depend on the quality of the original. If it is a photocopy made from another photocopy, the risk of error is likely to increase. Editing the text to eliminate errors may be expensive and time-consuming. It may not always be practical or appropriate to rely on the other party to perform all the required OCR work properly. Moreover, parties who use document management [Page106:] software to handle huge numbers of documents may prefer to key relevant information into a database rather than rely on OCR. The structure and import capabilities of such databases vary from one product to another, so the exchange of database information may present technical difficulties. In most cases however, the tactical advantages parties expect from using their own databases will deter them from exchanging database information.
Consequently, the Standards do not include procedures for OCR and making full text searchability available or sharing databases containing document information. If, however, such procedures are desired, they could be agreed in accordance with P2, P9-P11 and G12 (see above).
Scope of application
The Standards concerning electronic files are intended to apply to electronic documents that are filed with the arbitral tribunal and copied to the other side. Procedures relating to electronic documents exchanged by the parties but not included in the tribunal's file (discovery) are not included (P1-P2). Such procedures would need to be agreed by the parties in accordance with P2 and G12 (see above).
File content
To reflect most people's working habits and to simplify the arrangement and storage of electronic documents, it is desirable that what would be called a document in the 'real' world (e.g. a letter, a printed photograph, a precedent) be included in a single electronic file, even if the document comprises several pages. A file should not contain more than one document, because this would make organizing and retrieving the electronic documents more difficult. This is addressed in P3-P4.
File naming/File content description
The need for a coherent and meaningful file naming system is explained in the introduction above. The basic process for naming files is described in P5.
P6 details different options for file-naming. The parties may agree on a file-naming system (option 1, P6.1) or each party may follow its own file-naming conventions, which it will make known to each other party (option 2, P6.2). If neither of these options is chosen, the Standards provide a default option consisting of a common system that aims to give files meaningful names that simplify their management and retrieval (P6.3).
For the reasons explained above regarding OCR and databases, the parties are not required to provide further data/electronic information with each electronic document (P7), although extended file sharing such as OCR and the exchange of databased information may be implemented through P9-11.
Authenticity
The Standards provide that documents be submitted as electronic photocopies of the originals (i.e. as bitmap graphic files) (P4).
Many users are concerned about the fact that it is relatively easy to tamper with electronic documents and difficult to detect tampering. The main focus of these [Page107:] concerns is documentary evidence. Changes made to a file after it has been created and signed can normally be detected using electronic signature software, but this software does not work for documents that existed in print form and have been scanned and processed in file format.
Such concerns must be put into perspective. Even with traditional photocopies, there is no means of knowing whether or not a purportedly true photocopy from the original paper document has been (electronically) manipulated before it was printed. Moreover, if the original was simply an electronic document such as an e-mail, a printout is no better proof than an electronic copy of the original file.
In this regard, the Standards offer no more than what would appear to be normal procedure in traditional arbitration. If tampering with documents is alleged and a tangible original exists, the latter may need to be physically produced (P8).
Form of submission
Although the increased efficiency to be gained from using IT would be maximized if documents were exchanged by electronic means only, users are sometimes reluctant to go so far, believing themselves to be better protected if both printed and electronic copies of documents are produced. The Standards cannot provide a solution that would be perfectly safe for each case, and such concerns cannot be dismissed completely. Accordingly, the Standards provide an opt-out default solution under which the exchange of electronic files will supplement, but not replace, the traditional exchange of physical documents (P12). Under this solution, participants must expressly opt out in writing in order to receive electronic documents only (P13).
Another issue is the medium on which the electronic documents will be submitted. Given that section 2 may be implemented without at the same time implementing section 3, and the number and size of files may make transmission via the Internet less convenient (see explanations on section 3 below), the Standards provide for electronic documents to be stored and physically distributed on CDs/DVDs by post or courier service. This type of transmission appears to be more reliable especially when compared to Internet transmissions that do not use a web site 'case room'. It also ensures that any hypertext links a document may contain are not destroyed by copy and save operations on the recipient's computer.
Verification requirements
It is possible for an electronic document, like a physical document, to be inadvertently omitted. Thus, the Standards provide that an electronic table of contents will accompany each submission (P7) and that each recipient will check to see that there are no technical problems affecting the CD/DVD and that all files listed in the table of contents are actually included. The Standards also provide for procedures to cure detected problems (P15-P16).
Section 3 - Electronic communications ('E')
This section deals with exchanges of text messages and electronic files only. It does not address same-time communications via Internet-relayed chat tools, videoconferencing (see section 4), audioconferencing (see section 5), or complex [Page108:] web-based collaboration tools such as bulletin boards or discussion groups. There has so far been little practical experience of using such tools in arbitration, so it is too early to develop standardized processes.
E-mail is widely used in many arbitral proceedings on an ad hoc basis. It is likely to be available to all participants whenever use of the Standards is contemplated. For this reason, section 3 deals mainly with using e-mail.
The following are some of the potential problems affecting e-mail communications in an arbitration:
e-mails may not arrive at their destination;
e-mail may not be properly forwarded to addressees and read by them, despite having been received by their systems;
relevant e-mails may be buried in spam e-mail or filtered out by automatic spam filter tools;
(iv) e-mails with attachments increase the risk of infection of the recipient's system with viruses, worms, spyware, etc.;
(v) e-mails are not completely confidential and may be intercepted.
Although an unlikely occurrence, problem (i) can be addressed through the Standards.
Problem (ii) reflects poor internal organization and is unacceptable. Law firms and companies with an e-mail address should treat incoming e-mail messages with the same level of care as incoming traditional post.
Problem (iii) is a serious concern. E-mail spam is a scourge which the Standards cannot solve, other than through the application of E6 on monitoring receipt. Nonetheless, the following measures may be taken:
? Use of a dedicated e-mail address for a specific arbitration (e.g. a meaningful special address such as 'claimant.icc25346@yourfirm.com' 2 rather than 'yourname@yourfirm.com'). It is less likely that a spammer will obtain such an address. It would also facilitate automated internal forwarding of e-mails relating to a particular case without other e-mail correspondence, when out of the office.
? Use of a spam-filter tool. In this case, the e-mail addresses of all other participants should be included in the 'green' list so that the senders will not be filtered out.
? Avoidance of the domain names of (cost-free) internet service providers when choosing an e-mail address. Such e-mail accounts are more frequently targeted by spam and, furthermore, are often subject to restrictions on the size of e-mail attachments.
Problem (iv) must also be taken seriously. This risk is not specific to arbitration. Although it cannot be completely eliminated, unless one disconnects from the Internet and ceases receiving outside files, it can be reduced through anti-virus/anti-worm software that automatically and continuously scans all incoming and outgoing data traffic and any files opened on a computer. While most such protection programs also block typical suspicious patterns of activity, their virus definition files need to be kept up-to-date so as to allow them to detect known malign programs. For this reason, it is important to take advantage of the automatic download of definition files offered by protection programs, even if this requires a subscription.[Page109:]
The Standards presume that participants will do all that is necessary to protect their respective systems against infection without this being dependent on reciprocal action by the other party or parties.
From a technical perspective, problem (v) is as much of a concern for e-mails as it is for telephone conferences or facsimile transmission. It should be borne in mind, however, that filtering specific information out of the millions of electronic communications that are exchanged and analyzing their content is a sophisticated, expensive and time-consuming exercise. Moreover, the information obtained needs to be useful to the interceptor or to be brought to the attention of those to whom it is of interest. For someone truly interested in obtaining such information, there are many other low-tech ways of going about it.
While security concerns should not therefore be overstated, encryption programs exist to make electronic eavesdropping difficult by automatically encrypting e-mails and files sent over the Web. It is also possible to set up a so-called Virtual Private Network among the participants in a specific arbitration to encrypt communications at network level. Also, a secure (encrypted) connection for using a web-browser when exchanging information via an Internet portal can be set up.
The Standards do not include detailed procedures on organizing and implementing the exchange of encrypted messages and decryption, as this requires special knowledge and will depend on the software tools available. The Standards simply provide for a method to agree on such issues (Standards Initiation Form B.4, Standards E13-E16, see also Standards E19-E22 for (secure) web site access).
General
E1 of the Standards describes the means of communication covered by this section. E2 provides that other participants must be notified of any changes relevant to electronic communications via the Internet (e.g. a new e-mail address).
Communication via e-mail
A decision is required in order to use e-mail for communications. While agreement on such use is favoured, the Standards do not prevent the tribunal from issuing directions in this regard (E3). Subject to the decision made, e-mail may also include the transmission of file attachments.
The following should be considered with regard to the transmission of file attachments:
Although attaching one or several files with a volume of several hundred kilobytes will not usually cause any difficulty, this may not be the case if dozens or hundreds of files or one or two huge bit-map files are attached to the e-mail, adding up to a total volume of several megabytes. Even if all participants have a broadband connection to the Internet (see Standards Initiation Form IV B.2), downloading such volumes may take considerable time. If the sender or any of the recipients does not have such a connection (even a 57,000 kbp modem connection is not broadband) sending and/or downloading the e-mail with attachments may last for hours, during which disruptions may occur, making it necessary to start all over again.[Page110:]
The above problem may be exacerbated by restrictions, which some Internet service providers (ISPs) and system operators place on the size of attached files. This should be checked.
If briefs are submitted containing electronic references (hyperlinks) to certain exhibits also transmitted, these automated references will normally be destroyed when sending, downloading and storing the files on the recipient's computer.
For these reasons, the Standards encourage the use of CDs/DVDs for major submissions comprising numerous large files. Participants are free to use e-mail transmission too for these submissions, if they are satisfied that the difficulties described above will not arise in their case. For e-mails with fewer and smaller attachments these concerns will normally be irrelevant. The hyperlink problem may be overcome by using a compression tool (e.g. '.zip'-format) that reduces the size of files and, more importantly, compresses a folder containing several files into a single so-called archive file. The recipients will be able to extract the folder containing the files on their computer and the hyperlinks will work unless files are moved out of the folder. Many compression programs have password protection for extraction and thus provide simple (although not perfect) protection of confidentiality.
E-mail records
The need for all messages exchanged during arbitration proceedings to be included in the case file and archived according to the applicable rules does not need to be further explained. Ideally, e-mails should be archived in the same electronic format as they are sent or received. This does not always happen in practice and sometimes a firm's policy provides that all electronic messages are deleted after a relatively short period of time. To satisfy the requirements of arbitration, the Standards provide that e-mail communications be kept in electronic and print form throughout the proceedings and for a reasonable time thereafter (E5). The time that is 'reasonable' depends on the facts and circumstances, including the rules and applicable law.
Managing e-mails
It may be necessary to make sure that electronic messages were actually received and opened by the intended recipients and to obtain proof thereof. This may be a requirement laid down in the applicable arbitration law (e.g. UNCITRAL Model Law on International Commercial Arbitration, Article 3) or arbitration rules (e.g. ICC Rules of Arbitration, Article 3; UNCITRAL Arbitration Rules, Article 2). The date of receipt may be relevant for calculating periods of time.
To allow for a certain level of security in this regard, the Standards provide that the receipt of electronic messages be effected manually upon receipt (E6). This solution was preferred to the use of automated generation of acknowledgements by the recipient e-mail program, which is a standard feature of such programs. Many users do not activate this function, however, and it is less reliable. Manual acknowledgement also provides more certainty that the message was opened and read.
Sometimes e-mail boxes are regarded as less important than normal post boxes. To address this problem, the Standards provide that users shall regularly check their e-mail boxes (E8) and open the messages with attachments (E12). The Standards also require recipients to report irregularities promptly (E12).[Page111:]
The Standards also provide procedures for detecting and remedying problems with e-mails (E7-E9). To avoid difficulties affecting the readability of e-mails or the identification of e-mail attachments, the Standards provide that plain ASCII text be used (see explanations on font sets in section 2), that attachments conform to the requirements of section 2 (E11) and that the attachments be itemized in the body of the message. This enables the recipient to ascertain whether the sender has inadvertently failed to attach a file or whether a file has been lost during transmission (E10).
Encryption and electronic signature
These issues (E13-E16) are addressed above in the introductory part of this section. The Standards Initiation Form provides for the exchange of relevant information under IV.B.4.
Virtual case/data rooms that may be accessed via the Internet are increasingly being used in industry, especially for work-group collaboration in intranets. These case/data rooms consist of document management and/or database software that runs on a central server connected to the Internet. The software has a user interface that allows users to upload, access, search and retrieve, and display the information stored on the system in a structured way without the need for the software to be installed on each user's computer. These systems are normally password protected and have elaborate access rights for selectively allowing visualization and modifications. The acquisition and configuration of the hardware and software infrastructure upon which such systems rely are costly and call for IT specialists. Some of the larger law firms have such systems as part of their intranet and for their clients. Use of such systems is most frequent in the field of mergers and acquisitions.
Virtual case/data rooms may be appealing in arbitration. One reason is that the occasional user is not required to run sophisticated software on her/his computer system. Moreover, centralized and structured data management incorporating a ready-made means of recording modifications and access by users is likely to simplify many, although not all, of the issues described above. A further advantage is that user identification and password-protected site access via an automatically encrypted connection reduce concerns relating to authenticity and confidentiality. For these reasons, ICC and other arbitration institutions are or will be offering case room facilities to their users.
Given that the features of virtual case/date rooms will vary depending on the software used, the Standards do not provide detailed procedures but only basic processes for agreeing on and using case rooms.
Responsibility for the case room
In most cases, neither the parties nor the arbitrators will wish to host a case room facility. It thus seems desirable that the case room be operated by a neutral entity trusted by all participants. The Standards encourage the use of a neutral service provider or institution for hosting case rooms (E18).[Page112:]
Arranging for use of a case room
If a service provider is used, all amendments and requirements specific to the case room it hosts are incorporated into the implementation of the Standards using the process described therein (see G12-G13, P9-P11, P13, E13-E15). Initially, work on the required arrangements is delegated to technically qualified persons, who establish a supplementary protocol reflecting the operational procedures of the service provider. As a second step, the parties' representatives and the arbitrators review and, maybe, approve the supplementary protocol, which only then can be implemented (E19-E23).
Checking information
Unlike e-mail transmissions, the use of a case room requires all participants to log into the case room and search for new relevant information. Automatic notification by e-mail that new information is available in the case room may facilitate this. However, it is appropriate to require participants to regularly check the case room or have it checked for new information (E24).
Section 4 - Videoconferences ('V')
A videoconference is a meeting of several persons that takes place in at least two different locations and allows attendees to communicate in real time by voice and vision and also possibly to exchange data using information technology. In order to conduct a videoconference, there need to be as many videoconferencing front-ends or videoconferencing systems as there are locations where attendees will be present for the conference. In addition, communication channels are required through which the compressed data generated by one front-end is transferred to the other(s) and vice versa. These channels may be point-to-point fixed lines or the Internet. If more than two front-ends are involved in a conference, a logical 'broker' is required for distribution.
In each location, it is only possible to see what the video camera shows and to hear what the microphone captures. The handling of these devices may cause distraction. The communicative setting is not only different from meetings in person, but also less rich, especially insofar as semi-conscious and sub-conscious communication is concerned.
Consequently, videoconferencing is merely a second-class substitute for meetings in person, although a better communication tool than telephone conference calls. Meetings in person are likely to be more efficient, but at greater cost. Requiring participants to travel to a meeting room may result in dead time and considerable expense for them. Therefore, the efficiency gained must be balanced against that lost in terms of time and money. This is easily understood if one thinks of the impact normal telephony, fax and e-mail have on business if compared to the early nineteenth century.
At the present time, most parties, counsel and arbitrators do not have the relatively expensive equipment and communication facilities required for videoconferencing. Moreover, setting up a videoconference that provides the desired sound and visual quality requires technical expertise. Therefore, the technical arrangements for a conference are normally delegated to specialized [Page113:] service providers that may be found in many major cities around the world.3 For this reason, the Standards Initiation Form (B.5) requests information on videoconferencing equipment only on an optional basis and the Standards cover only the more general aspects of organizing a videoconference.
According to V1, this section is intended to apply to using videoconferencing at hearings or conferences between the tribunal and the parties.
Arranging for the videoconference
The arbitrators - preferably in consultation and agreement with the parties - firstly need to define the requirements (day and hour, places where participants are located, availability of documents in each videoconferencing room, etc.) and issue appropriate directions in this regard (V2).
The technical and ancillary arrangements for organizing the videoconference are then delegated to the Technologically Responsible Persons and/or the video-conferencing service provider(s). They will identify what needs to be done at a technical level (V3) and prepare a document setting forth the steps to be completed. This document will take the form of a supplementary protocol (V4, G12-G13). The arrangements described in the protocol are then reported to the tribunal and the parties' representatives for approval (V4).
The videoconference is then prepared accordingly.
Conducting the videoconference
The Standards do not propose any procedures as to how a videoconference should be conducted because this depends on the requirements of each case. It should be borne in mind, however, that there will be noticeable delays when sound and images are transmitted over long distances. If a single camera is used in each conference room, the focus will need to be adjusted as different people speak. Greater discipline will be needed than if everyone were physically present in one location. Interruptions while a person is speaking must be avoided. It is essentiel, therefore, to have a pro-active chair who will direct the videoconference with due regard to these particularities.
Section 5 - Audioconferences ('A')
An audio or telephone conference involves several persons in different locations communicating vocally with each other in real time. Technically, it is possible to set up an audioconference via the Internet, but at the present time special knowledge is still required to arrange Internet-based audioconferences. Moreover, they are less reliable, satisfactory and easy to use than the facilities offered by telecom companies. Therefore, participants will normally use their telephones for audioconferencing.
Many cellular phones include a conference functionality but serious telephone conferencing will usually be carried out using desktop telephones that are [Page114:] connected to a firm's switchboard. If a telephone is part of an internal telephone network that has several lines connecting it to the outside world, it will usually provide a conferencing facility, which may be subject to restrictions as to the number of participants.
When a participant's telephone system is used for organizing an audioconference, the normal procedure will be that this participant calls all others and adds them to the conference.
Another more convenient, but more expensive, option is to use the conferencing services of a telecom service provider. In this case, either the operator setting up the conference will call the participants and connect them to the conference or the telecom company will make the conference facility available and provide a dial-in telephone number with a code that is entered through a telephone keyboard.
It is beyond the scope of the Standards to provide guidance on when audioconferencing may be efficiently used in arbitral proceedings. Experience shows that for internal conferences between the members of an arbitral tribunal who have a good working relationship and for conferences between the tribunal and the parties dealing with preliminary and organizational matters (preparatory conferences), audioconferences are an efficient tool allowing time and money to be saved. The practicability and admissibility of audioconferencing during hearings (e.g. interrogation of a distant witness who is prevented from attending) needs to be scrutinized on a case-by-case basis. It is doubtful whether such use is generally recommendable. One obvious reason is the inconvenience of hanging onto the telephone for many hours and the resulting cost.
Experience also shows that audioconferences are more efficient if all participants have previously met in person and established a working relationship.
This section is intended to be applied for audioconferencing between the tribunal and the parties (A1).
Arranging for the audioconference
The arbitrators - preferably in consultation and agreement with the parties - need to define the requirements (day and hour, availability of documents at each end, etc.) and issue appropriate directions (A2).
For the reasons explained above in the introduction, the relative simplicity of arranging an audioconference does not call for specific procedures. Details of how the participants will connect to the conference may therefore be included in the arbitrators' directions. If this is not practical or desired, this information may be provided to the participants at a later date, which should be far enough in advance of the conference. If a dial-in number and access code are required, it is necessary that each participant actually receives this information.
Conducting the audioconference
The Standards do not propose detailed procedures as to how an audioconference should be conducted, because this depends on the requirements of the case.[Page115:]
Delays will be experienced when sound is transmitted over long distances. If several people speak at the same time it will be impossible to understand what they say - often for technical reasons (muting automatisms). Greater discipline will therefore be required than would be the case in a setting where everyone is physically present at the same location. Interruptions while a person is speaking must be avoided. It is essential to have a pro-active chair who will direct the audioconference with due regard to these particularities (A5).
As the participants do not see each other, it is essential that the session chair requires all those entering the conference to state their names. It is also advisable to restate the name at the beginning of each statement, unless everybody has already met several times and knows the voices of all the others (A5). At the end of the conference the chair should enquire whether any participant has had any difficulty following the conference and make sure that all required participants are still connected. (Unless a participant speaks, there is no means of knowing whether that person is still connected.)
It is possible that a participant is disconnected from the conference or encounters serious transmission problems without the chair and the others immediately noticing this. This might well have an adverse effect on the substance of the conference. The Standards provide that a participant who encounters such difficulty should immediately notify the chair. It may be helpful when organizing the conference to provide everybody with a distress telephone number available throughout the conference (e.g. a number at the chair's office or the operator designated for such situations by the telecom company).
IV. Closing remarks
The Standards and these explanatory notes were drafted on the basis of reports of the experiences of users of IT in international arbitration. The authors assume that both documents can and will be improved. This is indeed a necessity given that IT is constantly evolving. Therefore, comments would be welcome from users who have considered implementing the Standards but decided to follow a different approach, or who have used the Standards without any change, or who have modified the Standards. We are especially interested to learn about agreed special procedures for using IT, difficulties in implementing any of the Standards and any other comments deemed to be appropriate, including suggestions as to drafting.
Please send your comments to the attention of the General Counsel at the following address:
ICC International Court of Arbitration
38 cours Albert 1er
75008 Paris
France
1 OCR converts text contained in graphical bitmap files into normal ASCII-code and word-processing files.
2 Other top-level domains may also be used instead of .com
3 For more detailed information see E. Schäfer 'Videoconferencing in Arbitration' (2003) 14:1 ICC ICArb. Bull 35.