14 December 2020

"This protocol is of global application, and it is relevant to all arbitration stakeholders and all types of arbitrations"

Charlie Morgan works in the international arbitration department at Herbert Smith Freehills. A few days ago, this law firm, CMS, Hogan Lovells, Latham & Watkins, Ashurst and DLA Piper published a protocol guide for managing international online arbitration proceedings. This joint publication - which is unprecedented in the legal sector - had a lot of work done by a team of lawyers led by Morgan, who have been interviewed by email by The Impact Lawyers.

1. With what main objective has this protocol been carried out?

The protocol will help to accelerate digital transformation within arbitration. It bridges the gap between the users of arbitration and the providers of online case management software. The protocol also helps to build consensus within the arbitration community around use of new technologies to make arbitration more efficient and effective.

We hope that the protocol will be a 'go to' reference guide for arbitral participants looking to use online case management software in their cases.

In addition, the protocol will help technology providers to understand the evolving needs of arbitration users and to continue developing their offerings for use in international arbitration going forward.

2. How has it been working together between six law firms?

It has been great to collaborate with the other firms involved in the project. This project has been a real testament to what a collaborative approach can achieve. Hopefully it will be a precedent for other projects of this nature. Indeed, collaboration across the sector is increasing – another example is where Herbert Smith Freehills came together with Dentons and Addleshaw Goddard to promote the Royal Mail’s SafeSpacesOnline campaign (see here).

3. How have the work teams worked to carry out this protocol: Have they met in person or virtually?

We initiated this project back in May 2019. Since then, all members of the working group have been in regular contact. Meeting in person has become a little harder recently, but the joys of technology have meant that we have been able to continue working together virtually. In fact, the impacts of the Covid-19 pandemic have only brought into sharper focus the importance of building an community-wide consensus around how to use (and get the most out of) new technologies in the context of international arbitration. The fantastic response that we received to the consultation has been further testament to this trend.

4. Have you encountered any difficulties in carrying out this protocol?

The novel features of this project and the collaboration at its heart meant that we were often covering new ground. But each of the firms involved has been able to act quickly to obtain the necessary internal approvals in order to ensure the timely release of the draft protocol in July and the post-consultation version that we published yesterday.

5. Has it been devised that this protocol applies to all arbitration institutions (with their different arbitration rules)?

The protocol is of global application, and it is relevant to all arbitration stakeholders and all types of arbitrations (ad hoc and institutional, commercial and treaty). We received terrific input from many of the major global arbitral institutions during our consultations on the draft protocol. Many of them are currently undertaking a review of their own case management processes, and we were delighted to hear that the protocol has been helpful in supporting those projects.

6. Do you think that virtual arbitration procedures will exist in the future? Or will there be an attempt to recover the face-to-face procedures after the pandemic?

The pandemic has accelerated a trend that was already afoot within the arbitration community and the legal sector more broadly. Many commentators suggest that in a matter of weeks, we fast-forward 5 years in terms of technology adoption. That trend stands to continue as we move to a post-Covid world. There are of course certain aspects that will revert back to taking place physically (e.g. we would still expect to see many physical hearings), but the default position on a number of these issues and the mind-set of many arbitration users will have irrevocably shifted towards digital.

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