United States: The Inevitability Of Predictive Coding In International Arbitration


International arbitration cannot withstand the inexorable march of technological progress any more than the national courts with which it competes for jurisdiction.2 As recently as this month, Clifford Chance – a leading law firm – announced a comprehensive training programme for its lawyers that covers cybersecurity, block chain technology and predictive coding.3 In this article, I will argue that predictive coding can, and should, bring efficiency gains and costs savings to the document production phase, and thus the arbitration process overall.4 given the flexibility already inherent within the arbitral process, predictive coding can, and should, fit into proceedings without any need for changes to arbitration laws or institutional rules.5 In all likelihood, it is already doing so. examples of quick adoption in other jurisdictions indicate that predictive coding is likely to become commonplace sooner than many practitioners expect.


2.1 Summary

Predictive coding is a software algorithm that can be 'taught' how to interrogate a set of electronic data in order to identify documents possessing certain characteristics with a high degree of accuracy. There are three main ways in which it can be used:

  1. It can replace extensive human review. Initially, a senior lawyer with proper knowledge of the issues in a given case reviews a stratified sample of documents and codes them. The software 'learns' from this coding, then replicates that coding across most of the remaining data set.
  2. It can make human review more efficient. As all document reviewers progress through search results, the software continually 'learns' from their cumulative coding and 'promotes' un-reviewed documents to ensure that the next documents to be reviewed by humans are more likely to be relevant.
  3. It can 'quality control' human review. As all document reviewers progress through search results, the software 'learns' from their actual coding but simultaneously in the background records the coding it thinks should be applied in light of the actual coding cumulatively applied so far. At the end of the review, the two sets of results can be juxtaposed and the differences between them reviewed to ensure nothing has been missed or coded in error.

while useful, the second and third ways are a matter of internal case management, which need not involve the other party to proceedings. Although both yield efficiency and risk mitigation benefits, they still involve extensive human review and so do not bring the huge advantages described below. This article therefore focuses only on the first way, which, as studies show,6 can produce superior, more consistent results than manual document review.

2.2 Commentary

Perhaps unsurprisingly given the relative novelty of predictive coding, there are no publicly available awards that mention it, though it may already have featured in some procedural orders.7 In addition, predictive coding is not yet mentioned in the document production chapters of several leading practitioner texts. given its swift adoption in several jurisdictions, however (on which see below), it soon should be.

In the meantime, these same practitioner texts all emphasise:

  1. The unwieldy nature of the vast numbers of electronic documents that often need to be searched during disputes;8
  2. The different expectations in respect of the approach to evidence gathering of arbitration practitioners from different jurisdictions;9
  3. The flexibility available to parties in their approach to evidence and document production;10 and
  4. The extensive discretion tribunals possess in this regard.11

These factors, on which there is academic (and practitioner) agreement, suggest that widespread usage of predictive coding should be a possible and welcome development in international arbitration.


1 This material is the author's own and does not purport to represent the positions, strategies or opinions of Milbank Tweed hadley & McCloy LLP.

2 A good introductory summary of technologies that could become more prevalent in disputes is: Lucas Bento, 'International Arbitration and Artificial Intelligence: Time to Tango?', Kluwer Arbitration Blog, february 23 2018.

3 M. Munro, 'Clifford Chance offers coding training to all lawyers', The Lawyer, 5 April 2018.

4 See e.g. B. Krużewski and R. Moj, 'Documents in Construction Disputes', The Guide to Construction Arbitration (eds. S. Brekoulakis D. Brynmor Thomas), Global Arbitration Review, 2017

5 See e.g. D. Kiefer and A. Cole, 'Suitability of Arbitration Rules for Construction Disputes', The Guide to Construction Arbitration (eds. S. Brekoulakis D. Brynmor Thomas), Global Arbitration Review, 2017

6 See e.g. M. grossman and g. Cormack, 'Technology assisted review in e-discovery can be more effective and more efficient than exhaustive manual review', Richmond Journal of Law and Technology, Volume 17, Issue 3, 2011, 1-48.

7 This is to the best of my knowledge, but if any readers know differently it would be interesting to hear from you! For an understanding on how predictive coding has been applied in english litigation, see the recent decision in Pyrrho Investments Limited & Anr v MWB Property Limited and Others [2016] ewhC 256 (Ch). This represents the first time an english court has provided a detailed judgment closely examining and approving the use of predictive coding, as explained further on in this article.

8 N. Blackaby and C. Partasides, Redfern and Hunter on International Arbitration, oxford University Press, 2015 ("Redfern and Hunter"): 6.104-110; D. Sutton, J. gill and M. gearing, Russell on Arbitration, Sweet & Maxwell, 2015 ("Russell"): 5.108, 5.142-144; g. Born, International Commercial Arbitration, wolters Kluwer, 2014 ("Born"): 16.02[e][5].

9 Redfern and hunter at 6.77-79, 6.92-94; Russell at 5.109-110; Born at 16.02[e][1].

10 Redfern and hunter at 6.01-06; Russell at 5.100, 5.144-145, 5.147; Born at 16.02.

11 Redfern and hunter at 3.229; Russell at 5.105, 5.144-145, 5.147; Born at 16.02.

Please click here to read the full report.

Previously published in Young Arbitration Review.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions