Author: Eric Leikin & Alexander Grimm, Freshfields
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Mirroring broader developments in the world economy and society, there has been an increased focus on “Tech Disputes” in the arbitration community (see e.g. two DIS events (here and here) and GAR Live New York Event on the topic). In general, the discussion is split between two vantage points: One discussion is about technology as a powerful tool to conduct disputes (usually focusing on the use or mis-use of Artificial Intelligence). This blog post will not address this aspect but rather focus on the second perspective: technology as the subject matter of a dispute.
First, to determine how arbitration could be best employed to help settle Tech Disputes, it is important to delineate the key defining elements of these disputes. Given the lack of a uniform definition or universally-accepted understanding, this blog post will outline what defines a Tech Dispute. The suggestion is to use the term “Tech Disputes” to refer to a broad category encompassing any highly complex (or “technical”) case, not strictly limited to the “tech sector”; and for counsel to remain focused on clarifying the technical issues only to the extent necessary for the arbitrators to decide the legal issues in dispute – but not turn the arbitration itself into a tech-focused exercise.
Second, Tech Disputes require particular dispute management skills from counsel and from the tribunal given their complex nature. Arbitration in general is well-suited to manage the high complexity of a technology-related dispute. However, arbitration’s flexibility also means that due to a lack of specific rules or guidelines, an efficient dispute resolution is not guaranteed in practice.
Third, an obvious method to mitigate this risk is to use special arbitration rules for Tech Disputes. This blog post will describe recent attempts to create such rules, including via additions to the arbitration agreement. The authors ultimately consider that none of these rules or model clauses constitute a silver-bullet or look poised to become an industry-standard approach for Tech Disputes as a whole. But these options may find worthy application in specific cases and serve as additional tools that the parties and arbitrators can use to shape the flexible arbitration procedure to be as efficient as possible for the specific case.
1. Tech companies and Tech Disputes
In the arbitration space, there is as of yet no generally accepted definition of “Tech Disputes”. It is rather an amalgamated term, grouping together fundamentally different companies, subject matters and markets.
“Tech companies” are usually understood as companies that offer products or services based on (new) technology. But this description encompasses substantially different kinds of companies. On one end of the spectrum, there are large tech companies operating with a diverse product and service portfolio, whereas on the other end, there are start‑ups that usually focus on one idea that they try to develop and eventually scale. Tech companies also have “normal” legal disputes, such as shareholder disputes, broken M&A deals, contract related claims, etc. So not every dispute from a tech company should qualify as a “Tech Dispute”.
Furthermore, from a product or sector perspective, it is difficult to define “technology” in a manner that sufficiently limits the term to make it practically useful. The OECD has defined “high technology” as a two‑pronged concept: a) being based on the most advanced knowledge available as it progresses far more rapidly than other knowledge and b) its degree of complexity that requires a vigorous and sustained research effort. Although still vague, this is a helpful delineation as it shows what is at the heart of these Tech Disputes: new products or services that were developed from new knowledge and that are usually extremely complex. While legal disputes usually deal with facts from the past and thereby may involve older technologies (which were once cutting edge), this does not eliminate the challenges that legal counsel and arbitrators face in addressing these highly complex matters.
Some may limit “Tech Disputes” to those products or markets that are associated with tech companies serving particular markets, such as mobile phones, laptops, social media, software applications, AI, etc. However, when considering a broader definition of a Tech Dispute, it includes a significantly wider range of markets, such as:
- Cryptocurrency
- Space
- Undersea mining
- Life Sciences (particularly MedTech and BioTech)
- Automotive
- Data breach
- Construction
Although disputes in these tech sectors require their own knowledge and understanding of the business sector and technologies involved for an effective dispute management, on a higher level, these are all highly complex cases requiring a deeper understanding of the technology in dispute.
2. Tech Disputes require particular dispute management skills
In practice, such highly complex disputes come with their special challenges. Most notably, arbitrators often will not be familiar with the technology in dispute although they require a sound understanding of the facts to render an informed decision. At the same time, tech companies (as any clients) try to avoid lengthy and costly proceedings that may be required for teaching the relevant knowledge to the arbitrators. The respective counsel teams therefore must find the right balance between presenting the client’s case fully and rendering complex facts understandable to the extent they are directly relevant for the issues in dispute – while avoiding overcomplicating the matter or wasting time and costs by pleading unnecessary complex facts and seeking to elucidate every technical nuance.
Handling technically highly complex matters therefore requires a particular set of dispute management skills. Counsel must understand the technology in question comprehensively and describe it in plain language to the tribunal. This involves early collaboration with expert witnesses within and outside the tech company, careful selection of supporting documents (which are often technical and therefore too cryptic to be convincing for the tribunal without further explanation), and thorough preparation for cross-examination as the other side will usually also deploy expert witnesses. When preparing legal briefs, counsel must constantly weigh the strength of the complex facts as presented against the legal standard and adapt the presentation accordingly. Since complex cases often show their true shape only later in the proceedings, counsel must also be able to adapt the presentation of the complex facts without losing credibility.
How the facts are presented ultimately depends on the procedural rules and practice put in place by the specific tribunal. Arbitration rules provide the tribunal with a broad leeway in conducting the arbitration. Hence, the arbitrators have a very large toolbox that contains a wide variety of different tools that they could use (such as bifurcation or early determination of specific issues, expert conferencing, agreed facts, etc.). And the tribunal may even create new tools if they think this is the most appropriate way to deal with the dispute before them. However, this famous flexibility also means that procedural decisions may not turn out to be as efficient as was hoped. Or, in practice more common, arbitrators may be reluctant to appear to be trying something new, given the high stakes for the parties involved, and therefore rather stick to a commonly accepted procedural structure. This, of course, will work, but it may not work well or may not be the most appropriate or efficient option.
3. Tech Disputes as an incubator for new arbitration rules?
Thus, the question is whether Tech Disputes require their own set of procedural rules to cater to some of their peculiarities. Currently, there are only few special arbitration rules specifically tailored for highly technically complex cases. For instance, the WIPO Arbitration Rules are mainly meant for IP disputes; in practice, 92 percent of WIPO’s caseload concerns copyright and digital content, trademark and patent cases. The arbitration rules of the recently established Patent Mediation and Arbitration Centre (PMAC) are equally meant to mainly deal with IP disputes, with a focus on FRAND licensing related disputes. There are also some special rules for outer space or aviation disputes, for instance the PCA Outer Space Rules. Furthermore, JAMS has published the first set of arbitration clauses and rules designed for AI-disputes. And LCAM has published their Blockchain Expedited Arbitration Rules. In any event, these tailored rules usually are not so specific that other commercial disputes could not be arbitrated under them. Conversely, these rules usually are a generalization of what could be expected in the respective industry and therefore may still not be tailored for the needs of the specific highly complex case, even for disputes arising in that industry.
In addition to pre-set rules, Parties to a (future) dispute can shape the arbitration process by agreeing on specific clauses in their arbitration agreement. WIPO provides some model clauses or guides tailored for some specific sectors, for instance for life science and FRAND disputes.
Further, the UNCITRAL Working Group II has recently published the “UNCITRAL Model Clauses on Specialised Express Dispute Resolution” (SPEDR). The original idea for these “model arbitration clauses” was to cover specifically “technology-related” disputes to allow tech companies to adapt arbitration to their needs and thereby increase the use of arbitration by these companies. But the definition of a “Technology dispute” was unwieldly broad and the Tech-focus was later removed. As re-focused, SPEDR contain four model arbitration clauses, of which only one now focuses on Tech Disputes in a broad sense:
- The first two model clauses target technical, long-term and still running commercial relationships that demand a particularly fast dispute resolution and expertise.
- Model Clause on Highly Expedited Arbitration: This model clause aims to allow for hyper-speed arbitrations – faster than what is usually currently offered under expedited arbitration rules. The timeframe of the arbitration is cut down to 45-90 days until the issuance of an arbitral decision. Such highly expedited arbitration procedures are now also more frequently included in institutional arbitration rules (such as the 2026 ICC Rules and the Streamlined Procedure under the 2025 SIAC Rules). While a speedy decision can be useful for start-ups or cryptocurrency disputes, or for any extremely time-sensitive project where the dispute constitutes an insurmountable bottleneck, companies should be wary of the limitations in presenting their case or the tribunal’s (here: sole arbitrator’s) understanding of the key issues at play. The explanatory note to SPEDR underlines that the high-speed rules may be unsuitable for highly complex cases. While tribunals may determine that the “high speed” rules are unsuitable for the specific case although the parties had agreed to them in the arbitration agreement (Model Clause (f) and Art. 2(2) UNCITRAL Expedited Rules), it is uncertain that they will make such an order if the other side insists on the application of the “high speed” rules. It may therefore be advisable to use the highly expedited arbitration rules only for certain, clearly and narrowly defined (sub-) issues.
- Model Clause on Adjudication: As an alternative to these “high speed” arbitrations, the second model clause allows an “adjudicator” to render a binding and fast decision on a specific issue that may be fully litigated in a parallel or later arbitration. This is similar to “dispute boards” known from construction disputes. An adjudicator, for instance, can play a key role in resolving recurring disputes during an ongoing tech collaboration. In practice, most parties will comply with the adjudicator’s decision given the continuous contractual relationship between the parties. But if needed, enforcement of these decisions is still problematic. The model clause foresees the initiation of a “compliance arbitration” resulting in an award that then can be enforced.
- The second category of model clauses are self-standing provisions that can be used in any arbitration or in addition to the high speed or adjudication model clauses.
- Model Clause on Technical Advisors: This is the only model clause that targets disputes in “complex technical matters”. The tribunal can seek assistance from a technical advisor who provides the necessary background understanding to the tribunal as needed during the proceedings. This does not preclude tribunal-appointed or party-appointed expert opinions. This is a rather novel procedural tool that has potential in cases that rest on complex technical facts and where the tribunal struggles to make an informed decision on those (for instance in case of two conflicting expert opinions). But the correct use of technical advisors requires careful considerations by the tribunal and the parties to ensure fair proceedings. The model clause therefore expressly stipulates that the tribunal needs to consult the parties at every key step, including for the selection and appointment of the technical advisor, its role in the proceedings, and regarding the explanations that the advisor has provided to the tribunal. The model clause does not provide any details on the specific involvement of the technical advisor, so the parties and the tribunal need to create these for the specific dispute. To facilitate the process, it might be helpful in the future to establish and publish best practices.
- Model Clause on Confidentiality: Parties are encouraged to agree on the confidentiality of the arbitration, a feature that some arbitration rules already contain as a standard. Confidentiality is obviously a key point for Tech Disputes that may concern business secrets relating to a (new) technology. If a party also needs to protect information from becoming available to the opposing party in the arbitration, the parties need to go further and agree to or have the tribunal order the use of a confidentiality protocol, usually defining clean teams that have exclusive access to the protected information.
In the authors’ view, the SPEDR Model Clauses provide helpful options to tech companies and others that anticipate, already at the time of contract formation, that they will need very fast decisions or face highly complex disputes. In general, adding specific rules in the arbitration agreement has some advantages over tailored institutional arbitration rules. Particularly, the procedural rules included in the arbitration agreement can be customized more specifically for the envisaged disputes and the parties’ needs or preferences. So, at least in theory, customized arbitration agreements have potential, particularly for Tech Disputes.
But there are also downsides to this approach. Including such specifically tailored rules in the arbitration agreement requires mutual party consent. And although consent can be reached, it requires special attention and resources during deal negotiations, including the involvement of arbitration experts. This is particularly necessary as off-the-shelf additions to the arbitration agreement may exist and work in some cases, but usually they can only serve as a template and thus still need to be adapted to the needs of the case. But such attention to the arbitration clause is usually not present in practice, in consideration of other more urgent priorities than contemplating how to render a future (and perceived distant) dispute more efficient. Further, realistically, it is not always possible to accurately foresee each type of dispute that can arise in the future.
Nonetheless, even in the absence of special rules in the arbitration agreement, the tribunal and the parties should keep an open mind towards application of these ideas in SPEDR or other relevant guidelines once the dispute has arisen, as part of the suite of options available in the full arbitration toolkit. It may even be useful in practice to have a broader set of custom arbitration agreements available as templates, as this could help negotiating these additions to the arbitration agreement, or considering them later when discussing the procedural rules of the arbitration after its commencement. And such a pool of templates, potentially coupled with best practices for implementing the custom rules, might even serve as an incubator for additional ideas of useful special arbitration rules for Tech Disputes.