Improving Arbitration Through Technology: A Quest for Basic Principles - Chapter 24 - AAA Handbook on Arbitration Practice - Second Edition

Author(s):

Thomas D. Halket

Page Count:

14 pages

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1 PDF Download

Published:

December, 2015

Author Detail:

Thomas D. Halket is a partner in Halket Weitz LLP in New York and an adjunct professor at the Fordham University School of Law where he teaches courses on International Arbitration, IP Transactions Law and Entrepreneurship Law. An experienced arbitrator and mediator, he has chaired the American Arbitration Association’s Technology Advisory Committee and is a member of the AAA's commercial, large complex, technology and IP and international panels. He also serves on the panels of the Chartered Institute of Arbitrators, the CPR Institute for Dispute Resolution and the World Intellectual

Property Organization, among others. He is a Fellow of the Chartered Institute and Chartered Arbitrator, a Fellow of the College of Commercial Arbitrators, a Member of the London Court of International Arbitration and a Freeman of the Worshipful Company of Arbitrators.

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Originally from:

AAA Handbook on Arbitration Practice - Second Edition

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CHAPTER 24

IMPROVING ARBITRATION THROUGH

TECHNOLOGY: A QUEST FOR

BASIC PRINCIPLES

Thomas D. Halket

I. Introduction

Arbitration’s advantages over court litigation historically have focused

on its potential speed and cost savings. Yet, these benefits can, and often

do, disappear as cases have become larger and more complex and involve

more parties. Nevertheless, this does not mean that nothing can be done to

increase the efficiency of the arbitral process, even for the larger, more

complex disputes. Some improvements—for example, encouraging

arbitrators to exert more control over the process—are controversial;1

others—such as the exercise by the parties of reasonable discretion in any

discovery mechanisms they employ in the arbitration—much less so. The

of technology (or technological aids—these terms will be used

interchangeably in this article to mean information and communication

technologies, such as email, the Internet, computerized document

processing, video conferencing, and the like)—falls somewhere in between.

The use of technology can decrease the cost and increase the speed

of and otherwise aid in the arbitral process. But its use is not without

issue; it must be done in a way that is fair to both parties, while

maintaining their expectations about the process. Fairness in the

availability of a technical aid to both parties, however, is not a given. Of

course, because the parties have almost unlimited ability to agree on the

procedures to be used in their arbitration, they can agree on the use of

various technological aids to facilitate their process.2 The more

complicated situation, and the topic of this article, is where at least one

party objects to the use of the aid. When all parties do not agree to the

use of an aid, fairness concerns arise because access to the aid could be

an issue. For example, a party may not have high-speed access to the

Internet available to it where it is located, Internet access may be

restricted by its government, or the size of emails may be limited.

These fairness issues raise an important question for arbitrators: do

arbitrators have the power—indeed, can they be required—to permit the

use of a technical aid that is not equally available to both parties? In other

words, to what extent in any of these situations should arbitrators be

charged with responsibility for leveling the technological playing field?

First, however, we need to consider the nature of the task we have

assigned to ourselves. That is, we need to consider whether it will be

possible to develop a test for arbitrators to employ that would help them

decide whether the use of a technical aid should be permitted or even

mandated. An easy-to-administer black-and-white test for all cases

would be desirable; but such a test is not feasible given the wide variety

of possible technologies and circumstances in which the test would have

to be applied. There is also the inevitable trade-off between the duration

of a principle’s applicability and its specificity. In other words, the more