Young ICCA - ICC YAF Conference: Technology in International Arbitration
Post Event Report
By Marco Moraga, Albagli Zaliasnik, Santiago de Chile
On August 22, 2019, Young ICCA and ICC YAF organized a Conference on Technology in International Arbitration at El Golf Club in Santiago, Chile. The audience was composed of national and international lawyers and arbitrators. The event was sponsored by five law firms: Albagli Zaliasnik, Bofill Mir & Álvarez Jana, Philippi Prietocarrizosa Ferrero DU & Uría, Blanco y Masud, and Loy Letelier Campora. The welcome remarks were given by Orlando F. Cabrera C. (Young ICCA Representative for Latin America, Hogan Lovells, Mexico City) and Juan Rey Jiménez de Aréchaga (ICC YAF Representative for Latin America, Prietocarrizosa Ferrero DU & Uría, Santiago).
The audience had the pleasure of welcoming Cristián Conejero (Philippi Prietocarrizosa Ferrero DU & Uría), as the keynote speaker, who considers that technology today is the great engine that drives legal change. In his speech he spoke about certain realities of technology in arbitration, noting that it has entered into the framework of legal relations, sustaining them with greater efficiency, immediacy and transparency, ultimately helping them blossom into strong relationships. Cristián pointed out that to the extent that there has been a vertiginous growth of technology, it has come hand in hand with an increase in arbitration as a dispute resolution mechanism, as there are more legal relationships and more contracts that are concluded. It also indicates that there is a new paradigm with technology in arbitration, both as a decision-making process and in the subjects of the dispute, where new platforms and tools are used, such as artificial intelligence. He finished his speech highlighting the importance of technology in legal change, but that in the long term, however, we will continue to want lawyers that keep doing things as they did in the twentieth century.
The first panel on “Technology and arbitration procedure” was moderated by Félix Antolín (Albagli Zaliasnik, Santiago, Chile), and the speakers of the panel were Laura Ghitti (Mattos Filho, Sao Paulo), Pablo Mori (GST LLP, Washington DC / Lima), Mairée Uran Bidegain (Coordinator of the Defense Program in Foreign Investment Arbitration; Undersecretary of International Economic Relations of the Ministry of Foreign Affairs, Santiago, Chile). These prominent arbitration professionals, commented on their experience in relation to the impact of technology in law from a broad perspective, and specifically, regarding evidence in arbitration, including obtaining, protection, presentation and use. Laura highlighted how technology could help us to produce evidence, pointing out that the production of documents is one of the longest and most expensive parts of arbitration, and that currently for this, thanks to technology, there exists new software for its management such as Relativity. Subsequently, she referred to possible inconveniences that have been detected in technology (for example, in virtual reality) for which it raises solutions: (i) on costs: not all cases require the use of technology; (ii) on the protection of the right of defense: if technology is necessary it will be decided by the tribunal; (iii) regarding the lack of security: there are encryption systems. Pablo, on the other hand, referred to what the arbitration market demands; the market demands cheaper, less extensive and more technological arbitrations. Then he highlighted certain uses of technology in arbitration, such as the use of blockchain or machine learning (which allows arbitration users, including not only the parties but even third party funders, to make better decisions. For example, whether it is worthwhile or not to initiate a dispute, to a better selection of arbitrators and even to whether it is worthwhile or not to finance a dispute). Pablo concluded by referring to some challenges that technology currently poses in arbitration, taking into account, for example, the desire (sometimes grounded, sometimes not) of some arbitration users to maintain the status quo. Finally, Mairée commented on her experience from the perspective of investment arbitration, noting that technology has been important to expand the transparency of systems and allow greater access to information through the use of videoconferences and the digitalization of documents. This has not only reduced costs and increased efficiency, but it has also involuntarily meant a decrease in the carbon footprint generated by the proceedings. In this regard, she urged new generations to continue reflecting on how technology can help us obtain cheaper and less extensive arbitrations, which also may help those involved to generate a smaller carbon footprint.
The second panel dealt with "Technology and arbitral players". This panel was composed of Gonzalo Fernández (member of the International Court of Arbitration of ICC on behalf of Chile; Carey Abogados, Santiago de Chile), Hugo García Larriva (Carmigniani Pérez, Quito) and Katharine Menéndez de la Cuesta (representative of ICC YAF for North America; Holland & Knight, Miami), with Analía González (BakerHostelter, Washington D.C.) as the moderator. The panelists offered their views on the use of technology from the perspective of the arbitral institution, the arbitrator and the lawyer, respectively. To answer the question, if arbitration institutions could be replaced by technology, Gonzalo said that technology supports arbitral institutions, at least in its administration, however, he believes that there is no risk of technology replacing arbitration institutions since processes and analysis will always involve human beings and elements that go beyond logic. Hugo, for his part, was unequivocal in pointing out that at the moment, it is not foreseeable that lawyers can be replaced by machines, since there are certain aspects in arbitration where the intervention of a human being is necessary, such as, the definition of argumentative strategies, the credibility that is developed when the attorney advocates for his client, the subtleties in the task of discrediting witnesses or experts in cross-examination, among others. Finally, Katharine, warns that there is a series of tribunal’s activities that can be facilitated by technology, such as the inclusion or verification of references in the footnotes in the awards or resolutions, for example. The drafting of the award is not the sole task of the arbitrator, but the arbitrator must also be the guarantor of a fair process, and that this process often includes the use of technology. Therefore, she points out that arbitrators cannot regulate everything, but sometimes the parties do ask the tribunal to guarantee that the technology is used properly and fairly in arbitration proceedings.
The third part of the conference dealt with a presentation on “Cybersecurity and ICCA - New York Bar - CPR Report”, given by Micaela McMurrough (member of the ICCA working group on Cybersecurity in Arbitration; Covington & Burling LLP , NY). She dealt mainly with the experience of the ICCA Working Group dedicated to Cybersecurity matters in arbitration and the creation and use of the Voluntary Cybersecurity Protocol in international arbitration proceedings. Micaela highlighted several aspects on the importance of Cybersecurity in international arbitration, among them she highlighted the protection of confidentiality offered by international arbitrations. Additionally, she pointed that arbitration can be an opportunity for the use of excellent cybersecurity methods, raising the standards even of ordinary justice. She stressed that the existence of the Cybersecurity Protocol is key, but warned that this is not a set of rules that indicate what should be done on a case-by-case basis, rather it is a great contribution to identify and reduce the risks to which parties can be exposed by litigating in international arbitrations. She illustrated the above with several examples: document storage; the manner in which communications are carried out between the parties, the arbitrators or even with third parties; also on how the information will be treated once the arbitration is finished, among others.
The event ended with the closing remarks given by Felipe Ossa (Chairman of the ICC Chile Arbitration & ADR Commission; Claro & Cia., Santiago, Chile) who stressed the importance of holding ICC YAF events for the development of arbitration. Regarding the topics of discussion, he warns that although technology in arbitration brings many advantages, it also contains challenges that include confidentiality and cybersecurity or that it could even be a potential threat to the legal profession for some legal tasks, although it may not replace them permanently. He ended his speech indicating that the new generations of lawyers are prepared to face these new challenges, since the new lawyers, in addition to being native in technology, are also native in arbitration proceedings since they were brought up and educated with both of them.”
