Transformative Technology and Arbitration’s Emerging Future – Vol. 32, No. 3

Author: Philip D. O’Neill*

Published: February 2022

I. INTRODUCTION

Arbitration’s next technological frontier is not yet zooming into focus. Largely impelled by the COVID-19 pandemic, the arbitral community is mostly fixated on integrating and mastering existing technology in the remote conduct of evidentiary hearings, preparatory conferences and argument. While many advocates still prefer the in-person hearing experience, arbitrators focused on rendering their awards largely discern immaterial difference between the in-person and remote processes to decide many types of cases. Still, the ongoing technical accommodation of the arbitral process is morphing into a hybrid meld of in-person hearings and remote conduct that will likely be circumstantially dependent. The larger cases will certainly retain in-person elements, while some of the smaller or more document-centric cases will explore online dispute resolution. In between, the vast bulk of the cases will employ whatever technology in whatever combination makes sense to promote a speedy, economic and fair resolution.

However, the potential for future process disruption by transformative technology—both in terms of its impact on the process itself and the nature of conflicts to be considered—is barely appearing on the collective radar screen. The discussion initially was focused on how blockchain technology might impact arbitration. More recently, recognition of artificial intelligence (“AI”) has surfaced, including not only over use of systems aiding counsel to sort the wheat from the chaff in discovery, but also to move toward predictive analytic algorithms for insight into the likelihood of particular results. There also had been the beginning of a deeper look at how current AI technology might be integrated into both litigation and the arbitral process, but this was just the tip of the iceberg. Ongoing developments in deception detection, the use of artificial intelligence, machine learning and quantum computing have the potential to disrupt arbitral systems at a hitherto unseen speed. So, perhaps we had best pause to look at the horizon and see what iceberg might be headed our way, lurking beneath the surface in the not-too-distant future. After all, forewarning offers practitioners the opportunity to be forearmed through timely adjustments, rather than tardy in their reactions to these changes.

II. BACKGROUND

The IT revolution is not exactly sneaking up on the practice of international arbitration. There certainly has been institutional and other kinds of recognition of the integration of many aspects of current technology into the arbitral process, along with acknowledgment of its attendant risks and rewards. The cyber risk associated with electronic processes, is one example, as well as the progress made toward security protocols to address that risk, despite their uneven implementation to date. But the institutional and industry response to the pandemic through training, technical support and related guidance reflect a rapid evolution, one condensing the initial development of virtual best practices down to a timeline of months instead of years. At the same time, the legal literature has chronicled these measures, as it has the increasingly diverse use of the arbitral process by myriad industries. The proffered practices, however, usually remain tethered to existing principles of action that are too often advanced without any penetrating recognition of their longer-term implications. In short, there is plenty of hindsight, but a dearth of foresight regarding technology-related problems that even now can and should be anticipated. It is time to consider the next technological revolution, which will impel arbitral practice and procedure to evolve to keep pace with it, but once again within an ever-diminishing timeline. The response to challenges to core arbitral attributes, such as credibility assessment, lack of bias, speed and fairness, as well as the very nature of future disputes—both with respect to subject matter and the resolution process—will soon be driven by the immediacy of vastly accelerating market need, rather than the needs of a public health crisis.

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* Philip D. O’Neill, Jr. is an experienced independent arbitrator, listed globally by numerous arbitral institutions. He has been an adjunct law professor of International Commercial Arbitration at Boston University Law School for over three decades and previously taught the subject at Boston University Law School and at Harvard Law School, where he was Nomura Lecturer in Law. Mr. O’Neill is on the Silicon Valley Arbitration & Mediation Center’s shortlist of the World’s Top Technology Arbitrators. HE is a Fellow in the College of Commercial Arbitrators, in England’s Chartered Institute of Arbitrators, and is a Chartered Arbitrator. He can be reached at www.pdoneill.com.