5. Where Is Arbitrators’ Technological Competence Regulated?

“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.