The Technological Competence of Arbitrators
A Comparative and International Legal Study
- 2023
- Book
- Author
- Katia Fach Gómez
- Book Series
- European Yearbook of International Economic Law
- Publisher
- Springer International Publishing
About this book
Arbitration is facing revolutionary changes due to new technologies’ irruption into the entire arbitration proceeding. Wide-ranging technical-legal concepts such as e-discovery, e-hearing, cyber-security protocol, e-deliberations, algorithmic decision-making and digital signing have become part of life. Technology’s impact on arbitration is unlikely to decrease after the COVID crisis; on the contrary, how the arbitration community positions itself vis-à-vis technology will be a key factor in determining arbitration’s future. Faced with this challenging scenario, the book discusses a novel legal topic: arbitrators’ relationship with this increasingly ubiquitous, rapidly-changing technology.
This innovative book applies journalism’s “5 W questions” to the underexplored issue of arbitrators’ digital competence. It reaches a workable definition of what digital competence in the current arbitration context is, also providing answers to the essential question of why arbitrators’ digital competence is relevant from legal and financial points of view. Attention then shifts to who, with reflections on arbitrators working in a highly technological context and clarification of their relationship with other legal and non-legal actors. The book equally offers an in-depth comparative study of the question of where arbitrators’ technological competence is regulated, with critical analysis of soft and hard law provisions that may impose a digital competence duty. Finally, the book specifies when arbitrators need to be digitally competent and develops legal proposals regarding key procedural stages (initial conference, hearings) and legal topics (cybersecurity, data protection).
The first study to scrutinise the rapidly changing relationship between arbitrators and technology, the book aims to spark a crucial debate among practitioners and scholars. Academically rigorous and using the latest legal material, it emphasises arbitrators’ needs, rights and duties in our technological age, presenting them alongside carefully selected practical topics. The unprecedented and well-grounded proposals for arbitrators’ digital competence are intended to be a call to action for its broad target audience.
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Table of Contents
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Frontmatter
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Chapter 1. Introductory Reflections on the Technological Competence of Arbitrators
Katia Fach GómezThe chapter delves into the increasing importance of technological competence for arbitrators, driven by the integration of information technology and business. It examines the impact of the COVID-19 pandemic on accelerating technology adoption in arbitration, while also addressing the challenges and inefficiencies that arise from this transition. The text argues for the need to establish a duty of technological competence among arbitrators, complementing their traditional duties. It explores the ethical, legal, and practical aspects of this new requirement, offering a detailed analysis of the technological challenges arbitrators face today. The chapter also considers the broader implications of technological competence for the future of arbitration, making it a valuable resource for understanding the evolving role of technology in dispute resolution.AI Generated
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AbstractThis chapter presents key reflections and relevant statistical data on the incorporation of new technologies into the legal services field. The introduction outlines the highly diverse attitudes and abilities that legal stakeholders currently manifest vis-à-vis technology, with special attention paid to the arbitration community. This chapter notes some examples of incidents and decisions involving technology that international arbitrators may face in their professional activities and looks ahead to the major legal issues that will be thoroughly addressed in Chaps. 2–6. -
Chapter 2. What Is Technological Competence in the Current Arbitration World?
Katia Fach GómezThis chapter delves into the definition of technological competence in the current arbitration landscape. It begins by examining the broader context of digital literacy, highlighting the global digital skills gap and various definitions from international organizations. The focus then shifts to the legal profession, discussing the increasing relevance of digital literacy and the diverse terminology used to describe it. The chapter explores the specific requirements for technological competence in arbitration, including the use of various IT solutions and the challenges arbitrators face in adopting new technologies. It also addresses the debate on the level of technological requirements expected of arbitrators and the potential impact on diversity within the arbitrator community. Throughout, the chapter offers a nuanced perspective on the evolving role of technology in arbitration, making it a must-read for anyone seeking to understand the contemporary demands on arbitrators and legal professionals.AI Generated
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AbstractThis chapter is based on a range of sources including studies carried out by international organizations, documents endorsed by professional associations and scholarly contributions. The chapter starts from broad definitions such as digital literacy in contemporary society and technological competence for judges and lawyers. Building on these notions, the overall aim is to sketch out a working definition of technological competence that is specifically applicable to modern arbitrators. The difficulty of creating a universal and immutable definition due to a range of factors such as continuous technological advances and differences within the broad arbitrator collective is acknowledged. In spite of these circumstances, the arbitration community would be well-advised to move towards a consensus on a definition of technological competence for the profession. This chapter proposes a working definition of the minimum level to be expected from arbitrators, which is sufficiently flexible to be nuanced as technological and legal advances require. Drawing a distinction between “basic” and “premium” technological competence might be a useful starting point and one that will be further developed in Chaps. 4–6. -
Chapter 3. Why Is Technological Competence in Arbitration Important from a Legal and Financial Point of View?
Katia Fach GómezThe chapter delves into the significance of technological competence in arbitration, emphasizing how it aligns with the goals of fairness, rapidity, and economy in legal proceedings. It highlights the benefits of technology in improving legal productivity, enhancing efficiency, and minimizing errors. The text also discusses the growing reliance on technology in legal research and decision-making, as well as the potential challenges and ethical considerations that arise from its use. The chapter concludes by exploring the future implications of advanced technologies like AI in arbitration, including both the opportunities and the risks they present.AI Generated
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AbstractThis chapter explains why technology is currently one of the most trusted resources for achieving rapid and cost-effective resolution of conflicts, both with regard to judicial and extrajudicial mechanisms. The chapter discusses the multiple benefits of technological competence for legal actors such as lawyers, judges and especially arbitrators. Among them are: enhancing legal productivity and efficiency, limiting of expenses, fairer provision of legal services, protecting legal actors’ reputations, overcoming the culture of adjudicator isolation, increasing diversity and protecting the environment. There is also a critical analysis of the increasing use of technological means in the legal field and more specifically in arbitration. -
Chapter 4. Who Has to Be Technologically Competent in Arbitration?
Katia Fach GómezThis chapter delves into the intricate relationship between commercial and investment arbitrators and two key groups: legal assistants and non-legal professionals with technological expertise. It discusses the delicate balance between delegating tasks to these professionals and the arbitrators' own technological competence. The chapter reflects on the evolving role of legal assistants, highlighting the recent consensus on transparency in their appointment and the increasing importance of their technological skills. It also examines the growing integration of non-legal professionals in arbitration, focusing on their role in remote hearings and the necessity for arbitrators to supervise and interact with them. The chapter concludes by considering the potential future of these roles in the face of advancing technology, raising thought-provoking questions about the impact of AI and the possibility of human replacement.AI Generated
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AbstractThis chapter reflects on the role assigned to legal assistants in contemporary arbitration and the level of digital competence required from them. It also meditates on whether technological advances require a restructuring of the relationship between arbitrators and their legal assistants. Light is also shed on the existing relationship between arbitrators and a broad group of professionals who have not legal but technical expertise (IT experts, technology secretaries, outside technology consultants, vendors, etc.) Nowadays arbitrators need to have contact with these non-legal professionals not only in the day-to-day business of their increasingly multidisciplinary law firms, but also during the arbitration proceedings. This chapter explains that at key stages such as remote hearings, arbitrators have to interact more closely with other professionals and take on additional supervisory duties. -
Chapter 5. Where Is Arbitrators’ Technological Competence Regulated?
Katia Fach GómezThe chapter 'Where Is Arbitrators’ Technological Competence Regulated?' delves into the increasing relevance of technology in modern litigation and the regulatory responses from national and supranational organizations. It discusses the technological competence requirements for judges and lawyers, highlighting the shifts in professional duties and ethical standards. The chapter also explores the growing need for arbitrators to be technologically competent, drawing comparisons and parallels with the established frameworks for judges and lawyers. By examining various texts and guidelines, the chapter offers a nuanced view of the evolving landscape of technological competence in the legal profession. It concludes by emphasizing the importance of continuous education and adaptation to technological changes, setting the stage for future regulatory developments in this area.AI Generated
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Abstract“Counsel and the court alike have a duty of technological competency.” This categorical statement is part of a judgment handed down by a Canadian judge in 2021 (Worsoff v. MTCC) and shows the growing importance of technological aspects in the international and comparative adjudicatory world. This chapter reviews a wide range of recent texts and case law requiring digital competence from key legal actors. The amended commentary to Rule 1.1 of the ABA Model Rules of Professional Conduct, for instance, which has been incorporated into most US State legislation over the last decade, declares that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Likewise, a declaration issued in 2020 by the European Commission for the Efficiency of Justice (CEPEJ) of the Council of Europe stresses that “judicial training should adapt to the emerging needs, including the use of IT.” From the starting point of these significant examples, which apply respectively to lawyers and judges, the chapter reflects on whether the arbitrator profile should encompass not only legal expertise, but also other skills such as technological competence. That is, do any hard or soft law provisions currently require arbitrators to have T-shaped profiles? Given that the arbitration world has undergone substantial changes in recent years (e.g., arbitral institutions have updated their rules and issued new guidelines and protocols to deal with the digital challenges posed by COVID-19), it is crucial to determine whether these changes are also creating a new era for arbitrators in terms of technological literacy. The overall conclusion is that arbitrators’ duty to possess technological competence is not yet generally codified in the current arbitration world. In spite of this, the chapter argues that such a duty does exist and that its existence may be derived both from procedural rules granting arbitrators broad powers to conduct arbitration and from ethics rules that refer to diverse arbitrators’ duties. On the basis of these premises, Chap. 5 argues in favour of the future codification of this “next-generation duty” of technological competence. -
Chapter 6. When Do Arbitrators Need to Be Technologically Competent?
Katia Fach GómezThe chapter delves into the necessity of technological competence among arbitrators, examining how it impacts various stages of arbitration proceedings. It discusses the initial procedural conference, remote hearings, and the role of cybersecurity in arbitration. The text emphasizes the growing importance of technology in modern arbitration, offering insights into the challenges and opportunities it presents for arbitrators and the arbitration process. The chapter also highlights the increasing expectations for technological proficiency among arbitrators, reflecting the broader shift towards digital dispute resolution.AI Generated
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AbstractIt is increasingly common for arbitrators to have to answer specific questions about their digital expertise from arbitral institutions or parties before selection. Sometimes they also use software tools to carry out conflict checks before accepting an arbitral appointment. Once the arbitration begins arbitrators are constantly in direct contact with technology. This chapter shows how the proper management, supervision and resolution of contemporary arbitrations require arbitrators to possess sufficient technological competence to be able to make informed decisions about digital issues. The chapter also discusses a range of situations that may arise in any arbitration proceeding in which arbitrators have to demonstrate technological competence: ICT considerations during the initial procedural conference, technological decisions before and during virtual hearings, implementing cybersecurity and data protection measures during the whole arbitration, and so forth. All these situations that may arise during the arbitral procedure show that the need to be able to rely on tech-savvy arbitrators has been accentuated by the Covid-19 pandemic and has become the “new normal” in the post-pandemic era. As this chapter argues, arbitrators’ technological duties in commercial and investment arbitration are here to stay. -
Chapter 7. Conclusion
Katia Fach GómezThe final chapter of this book brings together the arguments and conclusions developed throughout, focusing on the technological competence of arbitrators in the current legal environment. It discusses the benefits and shortcomings of technology in arbitration, emphasizing the need for arbitrators to be technologically proficient to maintain efficiency, transparency, and fairness in their decisions. The chapter also explores the ethical and legal implications of using advanced technologies like AI in arbitration, highlighting the potential threats and opportunities they present. It concludes by proposing a working definition of technological competence for arbitrators, underscoring the need for continuous training and adaptation to the rapidly evolving digital landscape.AI Generated
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AbstractThis chapter summarises and connects the key developments outlined in Chaps. 1–6, leading to the conclusion that nowadays arbitrators’ technological competence is something much more tangible than merely a moral desideratum. The book argues that modern arbitrators have to be technologically competent, a statement that is supported in a significant number of texts of a legal and ethical nature.
- Title
- The Technological Competence of Arbitrators
- Author
-
Katia Fach Gómez
- Copyright Year
- 2023
- Publisher
- Springer International Publishing
- Electronic ISBN
- 978-3-031-11681-0
- Print ISBN
- 978-3-031-11680-3
- DOI
- https://doi.org/10.1007/978-3-031-11681-0
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