The New Era of Arbitration
The Hong Kong arbitration landscape is set to change and evolve into a more streamlined, efficient model. We explore how innovation and technology is having a significant impact on this evolution.
Arbitration in Hong Kong has seen a gradual move towards adopting technology solutions that enable complex, multi-jurisdictional cases to be effectively managed. This comes as no surprise considering that arbitrators are embracing the use of technology and believe this to have a significant impact on the future evolution of international arbitration (2018 International Arbitration Survey, White & Case).
Using eDiscovery for Arbitration
Electronically Stored Information (ESI) is now growing at an exponential rate with 90% of the world's data generated in the last two years alone. Arbitration counsel are having to deal with reviewing larger document sets because of this and it is no surprise that many are utilising eDiscovery and technology assisted document review in place of manual review methods.
Traditional eDiscovery tools such as de-duplicating, email threading and complex key word searching speeds up the process of reviewing documents. These tools have "allowed us as counsel to price ourselves more competitively by reducing time spent on document review", according to Robert Rhoda, Dispute Resolution Partner with Bird & Bird in Hong Kong.
Looking into the future of how eDiscovery will shape the arbitration landscape, new technology is set to reinvent the way arbitration practitioners deal with ESI. "What is really exciting now is the advent of predictive coding tools," according to Rhoda. With these tools, legal teams are able to identify clusters of 'concepts' within large volumes of ESI, particularly helpful when specific keywords will not encompass all that is relevant. Predictive coding also assists the review process by learning decision making patterns and applying these patterns to the ESI to speed up the evidence review process. For arbitration practitioners, this means that significant efficiency in document review can be achieved "without undermining confidence [on the part of tribunals and the parties] in the integrity of the process" said Rhoda.
There is a growing acceptance by international arbitration tribunals towards adopting eDiscovery in the disclosure of ESI, which can be very complex and require careful planning by the parties. The importance of planning ahead is highlighted by Rhoda since, in his experience, however sophisticated eDiscovery technology may be it, "best serves to enhance the efficiency of arbitration when the parties and the tribunal work together as early as possible to define the scope of electronic disclosure". This is ideally done through the use of an eDiscovery protocol set up with the help of eDiscovery providers who understand the workflow through each stage of the arbitration.
It is also worth highlighting the new HKIAC Administered Arbitration Rules, which came into force on 1 November 2018, and which identify the use of technology as a factor to be considered by an arbitral tribunal when determining suitable procedures for the conduct of an arbitration. Rhoda describes the new provision as, "a welcome step towards promoting technology as a means of streamlining arbitration more generally and not only in the area of eDiscovery."
Cloud-based Workspace & eBundle
International arbitrators deal with collaborating across multiple offices and jurisdictions, making cloud-based data storage and shared workspaces a preferred method for collaboration. Reviewing and making real-time changes in this manner allows arbitrators to save time on producing and sharing bulk copies of documents leading to increased efficiency. With documents already in electronic format and uploaded onto a workspace, creating an eBundle or electronic court book with automatic linking to each individual document is easy to achieve.
As arbitrators and counsel become more proficient in using the latest technology, Hong Kong's arbitration scene is set to evolve in order to better uphold the very ethos of arbitration, i.e. to settle disputes quickly and efficiently. With thoughtful planning and the help of expert providers, arbitrators and counsel can step confidently into the new era of arbitration.
12018 International Arbitration Survey, White & Case