International Conference on
Dispute Resolution in Electronic Commerce
organized by the WIPO Arbitration and Mediation Center
Geneva, November 6 and 7, 2000
Institutional Perspectives and Responses
(See presentation)
presentation prepared by Dr. Richard Hill,
Partner, Hill & Associates
Geneva, Switzerland
"LCIA Technology Group"
Introduction
1. We distinguish between promoting/facilitating electronic communications within the context of a conventional arbitration, on one hand, and arbitration in which the proceedings are entirely on-line, on the other.
2. The LCIA already provide (at Article 4) for email communications and we think it worthwhile to promote the use of electronic communications under existing LCIA Rules, at least partly for the benefit of demonstrating that we are firmly in the 21st century. (There are very few pending LCIA cases in which either the parties or the Tribunals routinely use email. There is one current case in which one of the parties has objected to others use of email, because of fears about security and confidentiality.)
3. We believe that there is merit in setting up a dedicated email address for each new case. This will allow the parties and the Tribunal to copy the dedicated address in all their communications, so creating an independent record of who e-mailed what to whom and when. To create a dedicated e-mail for each arbitration is simple from the technical point of view and inexpensive.
4. The primary focus of the technology group is the more radical issue of a total on-line arbitration service.
Cyberspace arbitration
5. The reported success of WIPOs domain-name on-line arbitrations might give an early indicator as to the potential for cyberspace dispute resolution. However, the application of the WIPO domain-name system is very much limited to the kind of dispute where little, if any, historical paper evidence is involved and which is amenable to determination without any form of hearing.
6. The more ambitious WIPO on-line project is the sort of generally-applicable cyberspace system that the LCIA ought, in the view of the technology group, be seriously investigating.
7. It is our understanding that all necessary technology is currently available to make the system work (though at a cost).
8. Presentationally, the greatest practical hurdle, and the greatest potential expense, would appear to be in dealing with a dispute which, were it a conventional arbitration, would be heavy with documentary evidence. However, it is cheaper to move large bundles of documents around if they are computerised. The biggest hurdle, we think, is in the customary practice of arbitrators who, with some justification, are not keen to abandon well-proven methods in favour of untried methods.
9. If the system is not merely to operate as an adjunct to conventional arbitration (falling back on hard copy files and conventional hearings) the paper problem must be overcome.
10. The paper problem can be overcome by scanning. The cost of scanning is about the same as the cost of copying. Given that documents are invariably copied at least once during an arbitration, there is no economic or technical reason why they should not be scanned instead, once and for all. However, parties, arbitrators, and arbitral institutions will wish to verify the security and reliability of scanning before implementing it on a wide scale.
11. Among (many) other issues for investigation/development/clarification are:
(a) the parties agreement to submit their disputes to on-line arbitration;
(b) the seat of an on-line arbitration (which is wherever the parties have agreed; the "virtuality" of the arbitration not being an issue);
(c) security/confidentiality/encryption;
(d) the form of Awards (which, in our view, must be in conventional written form (so no arbitration can be entirely on-line)); and
(e) secure sub-sites within the main site to allow the private on-line deliberations of the Tribunal.
12. We think that, given the extraordinary pace at which e-technology is developing, the LCIA should be in the vanguard of on-line dispute resolution. Indeed, LCIA will be holding a one-day seminar in London in May 2001 on the use of e-media and e-technology in conventional arbitrations and mediations.