On 19 March 2024, Freshfields held its annual “Fast & Furious” event as part of Paris Arbitration Week. This year we explored two angles to the ever-relevant issue of technology: first, the use of arbitration for resolving technology disputes and, second, the use of technology in dispute resolution. True to form, the event offered a fast-paced and thought-provoking discussion, wherein our panellists met their challenge of answering tough questions in 60 seconds or less.
Freshfields counsel, Vasuda Sinha and associate Valerio Letizia moderated the panel comprised of Alina Leoveanu (Group Senior Counsel, Litigation, Dispute Resolution & Risk Management at Eviden International), Benjamin Malek (Chair of the SVAMC AI Task Force and arbitrator at T.H.E. Chambers), Benjamin Roux (Senior Vice President at Compass Lexecon) and Milie Taing (CEO of Lili.ai).
What is a ‘tech dispute’?
Speakers discussed the challenges of defining a tech dispute. They commented on recent attempts to provide such a definition, for example, within UNCITRAL Working Group II. The panel noted that a broad definition meant that any dispute involving a technology component—whether due to the use of specific technology or the involvement of a technology company—could be classified as a technology dispute. Whether this was the correct definition, and what purpose it served remained unclear, however.
Resolution of tech disputes: What can arbitration do for the technology sector?
International arbitration is one of the most popular methods of cross-border dispute resolution. Many of the reasons for such popularity should be attractive to tech companies for their cross-border business: the flexibility available to parties, the enforceability of awards, the confidentiality of proceedings and the potential to choose an arbitrator with expertise.
At the same time, factors such as costs and the difficulty of finding arbitrators with sufficient technology expertise, can cause tech actors to prefer other dispute resolution methods.
Arbitral institutions are seeking to address these challenges, including by releasing lists of arbitrators with technological expertise, such as the 2024 Silicon Valley Arbitration & Mediation Center’s (SVAMC) March 2024 list.
Beyond procedural issues, the speakers noted subject-specific challenges that arose in the context of technology disputes. From a damages and expert valuation perspective, certain new classes of assets, such as cryptocurrency, may be more difficult to value where there is price volatility or no clear regulatory framework.
Use of tech in arbitration: What can technology do for arbitration?
Practitioners increasingly recognise that technology must be used to administer a dispute efficiently. However, there is still ongoing debate about how technologies like artificial intelligence (AI) should be implemented in the context of legal disputes.
The speakers considered how AI could be used in the dispute context: (i) in the discovery stage of a dispute, by allowing parties to review and analyse evidence more quickly; (ii) to synthesise judgments from comparable cases; (iii) to understand patterns in decision-making; or (iv) to accelerate (albeit not replace) the drafting process for counsel and decision-makers. The speakers agreed that it was important for lawyers to be adaptable and to seek to understand new legal technologies as they evolve to address the practical needs of clients and legal practice.
Regulation will have an important role to play in how AI tools are incorporated into legal proceedings. The discussion noted that excessive regulation may stifle innovation within the legal sector but was nevertheless necessary for accountability and quality assurance.
In this regard, the SVAMC has published the first set of Guidelines on the Use of Artificial Intelligence in Arbitration, which provides guidance on how to better understand AI and use it ethically and effectively.
An AI tool had the task of concluding the discussion. It was asked to describe with an analogy the future impact of artificial intelligence on international arbitration. Here’s how the AI tool put it: “imagine the future impact of AI on international arbitration as the advent of the steam engine on traditional industries. Just as the steam engine revolutionized manufacturing, transport, and even the social fabric of the 19th century by making processes faster, more efficient, and accessible to a broader audience, AI is poised to transform arbitration. It will streamline case management, enhance evidence analysis, and make dispute resolution more efficient and precise. […] This transformation will not replace the human element—much like the steam engine didn’t eliminate the need for human oversight—but it will significantly change how we approach and conduct arbitration on a global scale.” We will watch with interest to see if this prediction comes to fruition.
Catherine Lally assisted with the preparation of this post.
