By: Thomas D. Halket
Among the advantages typically given for arbitration are its
potential speed and cost benefits over traditional
litigation. Yet, it would probably not surprise anyone
familiar with the arbitral process that these supposed benefits can
be illusory. Nevertheless, that does not mean nothing can be
done to increase the efficiency—and reduce the cost—of the arbitral
process. Appropriate use of technology can significantly aid
in the arbitral process and should be encouraged. It can
increase the speed of an arbitration, decrease its cost and
generally improve its efficiency. Many technical aids are
easily available at low or no cost and in a very real sense they
can be a win-win for the arbitral process. Low cost and equal
availability, accessibility and usability are, however, not
universal “givens” for all technical aids in all
situations.
Panels will be increasingly called upon to make decisions to
permit the use of technology in arbitration situations where the
arguments favoring its use are not so clear. Those
determinations need to be made in a way that is fair to both sides
and that takes into account the purposes of the arbitral
process. To what extent should the panel be charged to level
the playing field, potentially even to the point of prohibiting the
use of any technical aid which is not equally available to and
useable by both parties? The answer to this question should,
it is submitted, be: A panel does not have to assure technology
equality, at least for many situations.
This answer, however, depends on, among other things, the
technology in question, the use to which it is to be put, and its
effect on the other party’s ability to fairly put on its
case. How, when and under what conditions, is an arbitral
panel to make this determination? This article will explore
some of the issues, both legal and practical, and general
principles that may bear on a panel’s decision to permit the use of
a technical aid in an arbitration. It will then consider
several technology case studies, including the impact of the
technologies on the arbitral process, the application of these
general principles to each technology, and the steps, if any, which
should be taken prior to the use of the technical aid in
question.