London International Disputes Week has kicked off with a series of arbitration-focused events at the same time as senior disputes figures explore the profound and ongoing impact of technology in a new report.
As the latest iteration of LIDW swings into action, delegates have heard from a trio of high-profile speakers during the event’s first International Arbitration Day, taking place across the offices of Mayer Brown, Herbert Smith Freehills and Allen & Overy.
The day has also featured the release of a report by hearings technology provider and LIDW-backer Opus 2, detailing the evolution of hearings technology over the last 10 years, arguing that, post-pandemic, the possibilities that technology presents dispute resolution have radically changed how proceedings work.
Among today’s keynote speakers was Paula Hodges KC, of Herbert Smith Freehills and the London Court of International Arbitration, who criticised the trend in post-award litigation being targeted against arbitrators as distinct from challenges to the awards themselves.
Hodges said such litigation was a “challenge to an award through the back door” in deprecating the practice, noting that “arbitration institutions are in the frame too”.
Former Court of Appeal judge One Essex Court’s Dame Elizabeth Gloster, meanwhile, restated the importance of confidentiality in arbitration, making known her concerns about jurisdictional challenges to arbitration in the courts.
She also backed the Law Commission of England and Wales’s proposals to reform the 1996 Arbitration Act, currently under consultation.
“If the Arbitration Act is to remain a success,” she said, “and to preserve England and Wales as a pre-eminent arbitration location, we should be prepared to reform it.”
Loukas Mistelis, of Clyde & Co and Queen Mary University, also featured, with an exploration of how the Ukraine conflict and the Covid-19 pandemic had served as a catalyst for the development of arbitration.
The Opus 2 report, meanwhile, features an array of senior London disputes lawyers, including Richard Bamforth, co-chair of LIDW and an arbitration partner at CMS, who observes: “Whether technology is a part of everyday activity for the presentation of materials, preparation for court or access to the hearing, it is no longer the exception.”
Having moved from a position in which “virtual trials or hearings were practically non-existent”, according to Fieldfisher director Rebecca McKee, the shift towards hybrid proceedings has continued following the Covid-19 pandemic.
As Bamforth notes, while “scheduling in-person hearings used to take a long time, and this delayed the entire dispute resolution process”, one of the critical benefits of existing hearing technology has been to “make the dispute resolution process more effective, more efficient and cheaper”.
That has benefited clients, said Sean Adams, partner at Gowling WLG, noting that when clients join and follow the hearing virtually, it is easier to engage them.
LIDW, which is supported by The Global Legal Post as a media partner, continues tomorrow Tuesday (16 May) with a sell-out main conference day at 8 Northumberland Avenue featuring a keynote from former UK Supreme Court head Lord Neuberger of Abbotsbury.
Further reading, read Ben Rigby’s LIDW preview: London International Disputes Week changes with confidence
Further Opus 2 report findings
The Opus 2 report details lawyer feedback on the integrative benefits of technology in enabling a smoother and more efficient dispute process, which has reduced travel time, allowed for live transcription, simpler trial preparation through electronic bundles, and improved trial management through more straightforward document navigation – much of it achieved collaboratively.
“Document management systems have gone from being used in 20% of cases to over 70%,” said Damian Hickman, CEO of the International Dispute Resolution Centre (IDRC). His Singaporean counterpart, Jiun Ean Ban, CEO at Maxwell Chambers, notes that alongside greater flexibility, remote participation in international cases allowing for virtual cross-examinations means “virtual or hybrid hearings are a welcome option”.
However, challenges and opportunities for improvement remain. “Modern venues are purpose-built and future-proof but are also few and far between,” noted Richard Page, head of technical projects at Opus 2.
Holly Gavaghan, head of arbitration, says institutions like the ICC have changed too, in considering fair and effective leveraging of technology in arbitration disputes, “recognising considerable advantages whilst remaining conscious of the need for equality of arms”, but training and education is still needed.
While tensions exist between the use of technology and the adversarial process, including how advocates present cross-examination, a hesitation in tribunals and parties to elect for a wholly virtual process suggests some scepticism remains, illustrating some of the drawbacks that legal professionals see as a result.
“The legal community is risk averse by nature and won’t fully embrace technology until it is convinced that its usage will not result in a sub-optimal service,” said Ban.
The report also explores the potential use of new technologies for dispute resolution in the future, from AI to virtual reality – as well as challenges on data security and the limits of technology to replicate human tasks, such as examining witnesses.