The Pandemic and Digitalisation of Dispute Resolution

Thur 06 August 2020

By Jayne He

 

The COVID-19 pandemic has posed an increasing demand for amicable methods of dispute resolution world-widely – the outbreak has hindered the holding of traditional face-to-face hearing for health considerations and hence online dispute resolution (ODR) or virtual hearing is a more practical way to adapt to the changing environment.

In the blog post on the Kluwer Arbitration Blog titled “The Impact of COVID-19 on the Administration of Justice”, UNSW Law’s Herbert Smith Freehills China International Business and Economic Law (CIBEL) Centre member Associate Professor Kun Fan identifies some general concerns that should be considered in ODR and compares the practices adopted by different institutes around the world in response to the recent changing situation.

In this article, Associate Professor Fan points out that there are several aspects should be carefully considered when conducting a virtual hearing, namely, the access to justice and due process; confidentiality and privacy; cybersecurity and data protection; practical and technical issues; and language and interpretations. She compares the instructions in protocols and guidelines issued by arbitration institutes globally on such aspects including the Joint Statement on Arbitration and COVID-19, the ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic, the ICODR’s Free Guide to Video Arbitrations, the CIArb Guidance Note on Remote Dispute Resolution Proceedings, the Seoul Protocol on Video Conferencing in International Arbitration, the HKIAC Guidelines for Virtual Hearings, the Delos Checklist on Holding Arbitration and Mediation Hearings in Times of COVID-19, the African Arbitration Academy Protocol on Virtual Hearing in Africa, the ICCA-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration, and the ICCA-IBA Roadmap to Data Protection in International Arbitration, etc. 

She argues that “the greater and better use of technology in the administration of justice is an inevitable trend, and the current pandemic may have significantly pushed the digitalisation process much forward, leading to more e-mediation, e-arbitration, online courts and the use of artificial intelligence (AI) in the future.”

On the other hand, Associate Professor Fan notes that China is at the frontlines of the use of technology in court services and has processed a large number of cases without the physical presentence of citizens since the establishment of the nation’s first internet court in 2017. Impressively, AI has been widely utilised to assist human judges in monitoring the proceedings and making the major rulings there.

Since the COVID-19 outbreak, 30 cases heard have been conducted via the virtual court and the Beijing Internet Court has developed a matrix in response to the “new normal” of the judicial proceeding. Such initiative may be insightful for other jurisdictions who are making their steps into the new technology-based model of administration of justice.

“Arbitrators, judges, counsels, parties, arbitration institutions and courts should prepare themselves to such evolution and make best efforts to facilitate the just resolution of disputes as quickly, inexpensively, and efficiently as possible,” she writes.

Associate Professor Fan will lead a panel discussion on this topic at the 2020 CIBEL Global Network on 3 September. Registration is now open via this link