Understanding the Digital Signature Legality for Arbitration Agreement in United Kingdom

How to eSign a document: digital signature legality for Arbitration Agreement in United Kingdom

good morning and welcome to the program I'm Takashi takashima legal officer with the international trade law division of the UN office of legal affairs I would like to begin by extending our sincere thanks to Xian sport law school for partnering with us to make this event take shape and also a special thanks to the speakers who are joining us today to contribute to this program before going into the discussions I would like to provide a brief overview of the project we are implementing to put the discussions into context the project that on Central is implementing regarding dispute resolution is officially called the stock taking of developments and dispute resolution in the digital economy and and the acronym of dispute resolution and digital economy is the rde so in short we call it the drde stock taking project or even shorter stock picking project the project was launched by the Commission in 2021 and it conferred on the secretary of the mandate to monitor the changing landscape of dispute resolution in the digital economy uh specifically what the secretary is tasked to do is to compile analyze and share relevant information and because on Central is a legislative body we do that with a view to laying the groundwork for possible future work on updating on Central text or developing new ones if necessary uh for the secretary from the secretary's perspective we think a little bit further and we ask ourselves three questions one is what is the technological means new and conventional used in dispute resolution these days and two um how has practice adapted to the integration of technological means and three whether or not there's a need for new on Central texts or develop need for developing new ones uh the focus of the project is twofold one is the disruptive aspects of digitalization and dispute resolution especially those with respect to due process and fairness and the second is enabling aspects of Technologies especially those with with respect to impact on cost and duration here you will see a list of topics that the project has been taking up so far and this is a result of extensive scoping exercise I'll just read them out so in case uh the bullet points are not clearly visible how can legal Frameworks be adjusted to be more conducive to the issuance and enforcement of electronic orbital Awards how can case management be done better to address the problem of information overflow what are the latest technological means used for the presentation of submissions and evidence and arbitration how our hearings in arbitration and mediation conducted online where are we in terms of AI assisted decision making or AI decision making what can be done so that practice on interim measures is up to speed in the digital economy and finally one of the safeguards needed for and principles applicable to dispute resolution on only platforms some questions will be addressed in the discussions that will follow today here you see a list of work that the Secretariat was tasked to implement in the lead up to the commission and also at the commission session to take place in July this year you will see in the first bullet point that the secretary will be reporting to the commission on the preliminary findings of the project at the 56th session coming up in July this year and as we do so we continue to conduct our own research but at the same time we are organizing discussions to seek inputs from different parts of the world so that so as to ensure that the perspectives from different regions are properly reflected and as and as gender is a cross-cutting issue that is of high priority in the implementation of the project we constantly explore areas where gender perspectives may be introduced thank you the straightforward way to think seek inputs from different regions around the world is to go there and so we have embarked on an initiative called the world tour which was started in Tokyo in December last year and then we traveled to New York in February and the latest discussion we had before event today is the one we had earlier this month in Guatemala City so here we see a list of upcoming discussions we the Paris event is taking place just now we have one scheduled in Vienna in May and we are hoping to organize a discussion in midna region and also in sub-Saharan Africa and also uh the one that is starting to take place take shape is one in Oceania so let us just take a quick glance at um what was discussed in previous events I just refer you to the discussions at the Tokyo forum and also the lack event because um the two events both cover all the ass all the aspects of the secretary wish to cover and follow the same pattern three panels were organized and the topics of use of technology and arbitration online mediation and dispute resolution on online platforms were discussed in the respective panels because we are discussing arbitration today I'd just like to draw your attention to what was discussed in panel one on the use of technology and arbitration the specific topics were electronic communication and e-awards case management e-document production new forms of presentation of submissions and evidence online hearings Ai and the decision making the two topics highlighted in yellow I would like to go a little bit further into detail hoping that it might make a good segue into the into some of the discussions that will follow so on electronic communication and e awards what was said in both events where that predominant means of communication and arbitration was electronic and not paper based that is that email and file share and case management platforms were used but at the same time the exception was notice of arbitrary arbitration and also Awards and in support of this statement was a result of a survey shared uh by Professor Mart of gen University I have sought her kind permission to present this again and shared this with you today and here is a pie chart of the result of this survey and she has also kindly provided me with a note on what this actually means you might not be able to see the number of figures in the pie chart but I will just like to uh quickly describe what this uh health so the survey was uh sent to arbitration institutions that are considered living on a global or Regional scale specifically it was sent to 43 commercial arbitration institutions and were responded by 22. um 32 of the institutions responded that they send Awards exclusively on paper form which is the blue part and 10 percent uh which is two institutions uh responded that they issue electronic Originals the majority of the institutions in Orange uh responded that they provide both a paper and electronic version and of these institutions 80 indicated that these electronic versions consist of mostly simple scans of the wit wet Inc Originals so this was the result of the survey and going into the other topic about e-document production at the Tokyo Forum reference was made to the increased use of sophisticated platforms for e-document Productions but at the same time there were concerns raised about the trustworthiness cost access and applicable standards on privilege and confidentiality just to add a small footnote Japan is not a common law system it's a civil law jurisdiction where Discovery does not really take place but we invited a practitioner based in Tokyo who had a extensive experience and practicing in the U.S and in contrast at the lack event what was discussed was that it was pointed out that such concerns regarding e-document production were unique to common law systems and it was also stressed that International arbitration did not have to follow Discovery practice so with this brief overview of some of the discussions that took place I conclude my overview about the project and would like to proceed to the presentations and discussions by the speakers and in doing so I would like to stop my screen sharing and allow me to take a moment to ask my colleague technician to put the right screen while he's doing that remember to sort of be a part of the zoom and when I you need to press the button on the mic in front of you and the camera will follow I just sorry foreign speaker we have in last name alphabetical order Miss yes founding partner of Gaia panipati Misha by a disputes welcome and uh we were supposed to have Mr Harold happy news deputy director of Institute this is justice but um unfortunately due to unforeseen four circumstances he is unable to attend and he wishes his best regards to all and a successful event and we have Mr Las Market partner with necessity mura and Asahi Mr Pietro or tonali or ortolani joining us online professor of digital conflict resolution rabu University Mr Pierre Olivier founding partner of Subway arbitration Mr Alexander ahead of impact in relations with just Mundi and we have for concluding remarks and to share icc's perspective with Francesca Hill head of operations with ICC and again many thanks for being with us so we start with yes to discuss kicking off discussions on the use of possibly Ai and arbitration and other issues surrounding electronic documents and the stages of RCs [Music] in international arbitration there you go when you hear the word decision making the assumption is that we're going to talk about use of artificial intelligence by arbitrators in the process of their decision making and the Fulfillment of their task however if we're looking at AI generally in international arbitration now we really focus my comments on International arbitration you realize that there's other types of decision making which are made by the parties and Council and that we need to discuss because this is an important part of AI in international arbutration so I will address each intern first as regards the use of AI in the party's decision making this is probably the most classic reference to AI in international arbitration and there's thinking about this type of use there's two ways in which artificial intelligence is used in international arbitration there is first a proven use and established use in relation to document production and you referred Takashi to e-document production that's part of it we may discuss that later essentially AI is a tool that arbitration Council and parties use in the management of massive amounts of documents you're all familiar with the number of softwares that exist out there there's a number of also service providers in that regard this is the case in particular where a document production is ordered by tribunal or where simply um looking at the case and if the documentation is massive Council has to deal with that massive documents a lot of times in millions of documents and Pages submitted by an opposing party or simply Retreat from the client and how they manage that so in such cases what AI does is to help identify relevance so Council will identify a number of relevance criteria we'll create a sample of relevant documents in that regard and will ask the machine to detect the relevant documents from the whole batch which then will be reviewed by Council so that you can make a discrimination between what's relevant and what's not relevant that certainly results in time saving and cost efficiency and that's something that's quite appealing to parties and and companies because it simply is less lawyer time going through documents one by one now as much as it's interesting for time saving cost saving um it does raise a legal question this use of AI which is where do you stop what's the threshold when a party that's requested to produce documents for example and resorts to AI tools to gather the documents that will be produced at what point that part is entitled to stop processing the documents on its own and say I'm done I rely on the machine and these are the documents that are responsive and my responsibility is upstairs and there's a question of an ethical uh use of AI in uh in in this field so I want to raise the question because these are difficult questions um I've been sometimes confronted with that so I think it's important to raise it and even though this proven use is is very helpful again in terms of time and cost efficiency the question does arise as to to what extent Council and parties take responsibility for the use of AI and where it does individual responsibilities stop and start start and stop so that's the first proven use of AI by the parties there's a second use which is still in infancy but which is very important and that is the use of AI in outcome prediction you will have heard and this you will have heard in France in particular in relation to outcome prediction on the actual outcome of a case but what I'm now going to discuss because we're not there yet or we started being there but um but uh it's it's still in infancy what we have seen more of is prediction of outcome in appointment of arbitrators and that is a very important use of AI in in arbitration and I want to say a few words about that um so the use of Aya in that regard is to identify or try to identify the arbitrator who's perceived as the most likely to render a favorable award for the party making the appointment so on this space for example in investment arbitration you want to know who would be the best arbitrator who will decide best issues of jurisdiction or if you have an issue of quantum who will be the most likely to render Awards on Damages in the sense that you're looking um a few years ago there a startup rblex had started really focusing on on this field and was hoping to achieve exactly that and they were using uh massively AI to produce studies that they would then give to law firms and parties to say based on your question we've looked at decisions and this is a list of arbitrators that may be appointed and based on our study this is the list of the three best that we we propose and of the three this one probably is the one you want to appoint there's a complete delegation to the Machining that regard in relation to arbitrary appointment and what was interesting I want to quote what at the time was their motor and this was not long ago this is I'm talking about 2018 2019 not that long ago dog Moto was I quote while the qualitative Judgment of experienced lawyers must and will continue to play an important role in the decision making and over Reliance on experience in this field has led to unnecessary risk cost and error I found this quote baffling personally and they have changed their motor in fact this is the motor that they had at the time when they were trying to sell this product and now they have switched to litigation Finance I'm not picking on a bit of relaxed particularly but I think it's important that we look at the products that exist out there so now they have switched to litigation finance and the motto is that they would use a quote proprietary AI to identify winning cases and connect claim holders with institutional Capital to maximize their chance of success so it's a complete different logic a different perspective they have changed now their business case is more litigation Finance than AI in appointment of arbitrators now I I'm using this to show that you know here we have two words that collide um and and the problems that this raises first there are serious challenges to the use of AI in Arbiter selection by the parties the first challenge is that there's a lack of sufficient data if you look at available Awards mostly these are investment arbitration Awards um most of the known cases perhaps 500 I I don't have maybe Alexander will have a better figure than I but we're talking ballpark 500 Awards known out of one thousand twelve hundred cases that are known um and this is actually something that I will be very interested in in hearing from Alexander about you know how we uh we Face the challenge of sufficiency of data and balancing out the known cases in investment arbitration with no cases in commercial arbitration and I know that there's been a big move by just Mundi with the help of ICC actually retrieving awards from the ICC and having more commercial Awards commercial reputation Awards available still we have the issue of how we make sure that there's sufficient representative data out of which my wanking decisions the Second Challenge is that statistics are skewed and subject to interpretation if no context is provided for example the machine can say that an arbitrator has accepted his or her jurisdiction and 75 of the cases but if you don't know that the reality is that the 75 percent corresponds to three out of four cases you don't have the real picture so this is the this is what I call the skewed statistic with that context because you don't know that the the actual data is very small and three out of four is not the same as a much larger batch of data the next challenge is the existence of biases and biases are everywhere of course and I'm not going to discuss biases in artificial intelligence generally because there's a lot of debate about that including gender bias for that matter but just again focusing on arbitration and the biases in arbitration first of all how can we generalize based on a handful Awards again that's the that's the point I raised earlier um so that that's that's one challenge then how can one determine the views and arbitrary when he or she was not chair in the tribunal so if you just have a reference to arbitrator in a tribunal and the decision was made by that triple how do you know how that arbitrator specifically thinks about the subject sitting on that tribunal relatedly how do you treat um descent opinions you may have a decent opinion is that descent opinion taking into account specifically in relation to a specific subject just as importantly how does one determine the relevance of the factual Matrix of the case and the complexity of the legal issues determined by the travel in each case so it's not enough to say you have four cases or 10 or 20 or 30 if you do not know the difference in all of those cases in the factual Matrix maybe it was a very straightforward case maybe it was a very complex case with a very complex set of facts maybe the legal issues were extremely complex so how do you determine who wins and who loses on what point if a there's a claim for 2 billion and the end result is an award of 100 million the um the the defending party May deem that they have won in fact because it's a huge decrease in the amount awarded is that a win is at the loss so how does the machine determine loss and when in that circumstance and again the complexity of the issues and the just the assessment of the outcome is extremely complex itself so this these are challenges and biases that go into the machine and how do we treat those um so that was my first point on the challenges my second Point um and then I will finish on the use of AI by the parties is going back to rblex um I I personally think it's arrogant to claim that as rblex did that it's an over-reliance on experience in this field that unnecessarily leads to unnecessary risk cost and error as we all know arbitrary appointments perhaps the most important decision in an arbitration is an art it is based on years of experience developing an intuition and judgment about the manner in which specific arbitrators approach questions of procedure complex questions of law evidence and so on and so forth it is also based on the understanding of the evolution of the law and the trends and how individual arbitrators are positioned in those Trends and you have to sit in a dynamic way the machine in that context cannot be a substitute for that human judgment it is ultimately a human judgment an intuitive judgment it will just give a Frozen image in the form of decisions without the context and so we have to be clear on on these challenges and look at how we use AI in that context not saying that there's an over-reliance on experience but experience actually is key to how we read the data that we retrieve from the machine this brings me to the second point which is the use of AI in arbitrary arbitrators decision making there are two points I want to make here um and again focusing really on International arbitration the first point is the importance of distinguishing causality and correlation as you know these are two different things and they should not be confused causality is a legal concept as We Know correlation on the other hand which is what AI does by treating and ordering data that one go One Direction or the other and as we know legal decision making requires that the rule be applied to a set of facts through the exercise of causality correlation which is essentially a connection between various situations which may or may not be a result of a coincidence is not enough for that process for example if you say that since the Ukraine war started arbitrator X has always found in favor of investors that can be correlation it's not causality so the difficulty is how Ai and the series of correlations it generates will impact the arbitrary decision making which is based on causality by saying that I don't mean to say that the evolution of technology in order to do decision making is not welcome of course if we look back at the same 70s and 80s databases started making their way into the legal field and made access to data and research much easier and that was extremely welcome and we see that Evolution still continuing today in the 90s when the internet boomed we saw an acceleration our ability to do research at the much larger scale so today's AI and the revolution in that regard takes us to another level with the risk of complex multiple correlations which will need to be carefully identified when applying the rule of law in the decision making and in passing I went and actually this morning um the question was asked by Pierre Olivier whether I was going to discuss the Colombian judge I I want to put that out on a color actually using chat GPT in the drafting of his decision which sounds shocking so so the question really is and a judge or an arbitrator how we use artificial intelligence or the use by the parties of artificial intelligence in the decision making in that case the drafting but again um and that going back to my point it is important to distinguish correlation causality and that the arbitrary task is to work on causality and the application of a rule of law to the facts and to do it on his own and potentially draft his own award in his own decision but I did want to pay tribute to your your example and maybe this is something we can discuss later um my the second point I want to make about arbitrators and having distinguished causality correlation is really the sociological aspects of use of AI by arbitrators and and the consequences of use of AI um so AI is now penetrating all Fields as we know including International arbitration um and this cannot not have an impact on the conduct of the parties the players generally parties arbitrators and all sorts of players and stakeholders in the field the impact will be all the more important that there is a belief in the power of the machine and that is something that we have to be careful about so there I I see three consequences and three risks that I want to just list and I will be done after that the first risk is the risk of legal lymphormism and conventionality as regards to party's decision making on the choice of arbitrators given the parties entrenched conservatism as we know it there will always be more comfortable relying on statistics no matter how skewed or misinterpreted rather than taking a chance on a younger apparently more inexperienced arbitrator in this sense AI has the risk of enhancing and consolidating the conservatism of the parties rather than shaking it off as regards arbitratives and parties exploitation of data AI makes predictions about the future based on past situation hypotheses at the same time AI May identify for a specific situation or hypothesis a solution that is in the minority or that has gone unnoticed so there we move from the risk to an actual potential Improvement which is that the minority Solutions which are good Solutions may find a new life thanks to AI into the mainstream as potential alternative Solutions the second risk that I see is the risk of over-representation of common law jurisdictions to the detriment of civil law jurisdictions I I feel extremely strongly about this this is also something that I want to pay tribute to Professor Gaya who I had discussed this a lot with and this was one of his last battles which I will proudly continue um the uh the world few may know this the world is divided between civil law countries two-thirds in the world and common law countries one-third but the fact is that common law countries because of Simply the system because of the fact that case law in the common countries based on precedence and based on simply the way that the decision is not drafted longer decision full of citation self-citations so that fact will be seized by Ai and by the machine in a in a way that will over represent those decisions as compared to civil law countries where you have maybe fewer cases or shorter cases or much more concise and you have actually to understand what they say you read it three times to understand a court of casation in France um decision so that's the risk of that is that use of AI in the way that parties use it and in the way that arbitrators will use it if there's a question of comparative law for example in an arbitration matter may have the risk of over-representing the solutions coming from common law countries to the detriment of the solutions from the civil law countries and of course they will inevitably have an impact on the outcome of the comparative law analysis which will be more focused on the outcome and solutions coming from the common law countries the third risk is the risk of procedures being burdened by new types of disputes AI has unquestionably resulted in alleviating a large part of the tedious type of work that lawyers do and that's document review there's no doubt about it in the future the trend May reverse and we may have new types of disputes over how data is used and interpreted and I want to take an example which I know well which is the eucos case against Russia as some of you may know in the annulment case which was dismissed Russia argued that the award had not been drafted by the chair Mr Fortier but had been drafted by Mr valasek who was the secretary to the tribunal in order to actually show that and prove that they took an expert who said who used the machine AI I use AI I put the data in the machine I take all of the writings put them in a machine I take all of Alaska's writings I put them in the machine I took the other arbitrators as well and then I what what's happened and here's the outcome and that's what the expert for Russia says to the the Dutch courts if you look at the outcome is that well Mr valasek based on AI and the Machine Mr valastic has draft drafted the vast majority of the award especially the substantive part of the award and Mr forty has written the procedural history and the facts which you know for those who are you know experts in a petition no it's a fantasy and it's pretty ludicrous so so then what happens you is it enough to say this is ludicrous how can you even consider that Mr Fortier would write the procedural history and Mr Vanessa would draft the the um the substantive part even not discussing the fact that you know arbitrators just as judges rely on secretaries and in no way the use of secretaries is a delegation of decision making but even even if we're not discussing that the problem is that when you have that and you have to fight that argument you may have to bring your own expert and your own expert will look at again the data I put the same things in the machine I put the same data and I look at the data I come out with a different solution so you know how do you use the machine what data have you used what you know how do you use artificial and then you have a battle of experts about how you use data how do I use the the artificial intelligence tool so that actually has the risk of you know future disputes over this type of of arguments and um and the treatment of data so um this may mean that simply we're moving also to a new type of disputes within the world of arbitration about simply the use of data and the use of artificial intelligence I will stop here I wanted to put all of those out for possible thinking and discussion and I thank you again for having me here thank you thank you yes for the excellent presentation and I believe that there were very important issues and comprehensive presentation on the AI and I understand that uh Alexander you may have had a kind invitation sir well thank you thank you very much is it working yes um this excellent turduism at two two points I noticed that I that I wanted to comment on first of all on the uh rblex switch from one business model to another one that was very interesting I wasn't aware of it and uh what is interesting is nowadays um there are people which are actually doing that but through human I'm thinking about arbitra this is a actually a service that they are now doing uh and so this kind of qualitative judgment that was not necessary for rblex is actually quite a quite a a good business model at least for them and this is a service that they are actually providing to law firms to actually make a qualitative assessment of the right arbitrator for a right case etc etc uh on but I'll um on on the question that that you raise on the the lack of sufficient Awards um out there obviously this is a uh our mission and this is our task um and also more precisely the question enough sufficient representative data and I think that the importance is here again diversity is a a theme throughout the Paris arbitration week and this is also one of the value at yosemundi that we have very briefly the way we do it and while you were presenting I I just went quickly on our database to see what's the latest figure we we have right now uh about 1700 investor States Awards and related documents on yusmundi and we have more than 5 000 commercial arbitration Awards so this is obviously the largest collection ever so it's not that those awards were not there they were simply just not collected and there was just simply not disseminated in the way that we're we're doing it now um how do we face this challenge of sufficiency of data and of awards obviously the first task that we started to to to do is really to analyze which jurisdiction after which jurisdiction those Awards became public and we we did that around the world and we realized that actually many jurisdiction um released publicly the awards afterwards and that was the first process that we we started to to be able to sort of feel this lack of sufficient uh awards at least in commercial arbitration that was partly filled uh within the investor State arbitration uh system um the second step and that was more a step that was taken by institution and at the Forefront of which the ICC has been pioneered in making this movement uh happening followed by many other institutions like Camilla and I see Stefano here Etc what happened first is that they decided to publish composition of tribunal and that will be also very relevant to the conflict of interest and the technology applied to it that I'm going to discuss later so this already gave a huge insight into the the arbitration at least the composition at least the human aspect of it and they've been taking even Bolder efforts by deciding to publish full Awards and this is where we've started to partner our first partnership with with the ICC where we actually are able to publish those Awards applying Ai and machine learning on those we pseudonymize and make sure that confidentiality respected those words full parties agreement under the relevant institutional rules and this comes the representative data parts that you were mentioning yes is what what we are trying to ensure is that all the jurisdiction have a voice and how the jurisdiction have a say and all the institutions are represented and this is why we've been going around the world and showing and and sort of educating about the trust that they can be in the in the in the technological process about pseudonymizing and today we have more than 17 partnership pretty much in all the region around the world this is again something very important to us from Africa to APAC to Latin America obviously West Europe of course and so we're partnering at different level to publish those composition of tribunals to publish Awards whenever the institution are ready to make sure that we have representative data from all different parts of the world not only from um uh you Western Europe or or United States and again we need time from the time that those Partnerships are secured and the data are coming but we are seeing uh really an increase in availability and the other part is also to be able to publish them in their own language so we obviously publish in Chinese in Arabic in uh and not only in French or English Etc so that's the way at least we try to address the lack of sufficient data and the lack of sufficient representative data foreign thank you Alexander for your input in your in presenting on your efforts to address some of the risks that we're referred to and I do invite uh I would like to invite Francesca we are fortunate to have you from ITC thank you for the invitation and thank you to Yaz and to Alexandra to be able to follow up I think the point about the lack of data makes a very sort of carves out an obvious Niche for ICC as we are now heading towards our 27 500th case so we are sitting on a sheer quantity of case history that if properly exploited um can of course speak very directly to this lack of data availability and begs a lot of questions about how we could use it um going forward um and I think our challenge is one of scale actually as an institution we're very proud to be in our Centenary year and to be collaborating with Partners such as use Monday to be able to work towards these transparency goals with a hundred year history I think the challenge is also that our archiving of um our case finals looks very much as you would imagine it it's very different today as it was even a few short years ago and with the arrival of case connect and the ability to have the centralized case records for the first time it's really changing what we can do so um again we're extremely uh proud of what's being achieved in under the heading of transparency with use Monday and um I think the the objective is always to see what we could be doing better and what we could be doing more of in future so our first challenge is one of scale and making sure that the quantity of not only documents but also all of the corresponding data that would allow you to contextualize those documents in the context of ICC cases we're looking right now at how we can actually store and manage all of that data and case history and essentially our Legacy to be able to keep up with advances in technology that are definitely coming in the next few years and from a more practice or policy perspective I think one of the other challenges we're facing is in public forum such as sort of um the events we're seeing this week there is a clear Collective wish to move towards more transparency for such academic purposes but what we actually see playing out in cases is a definite reluctance at a case level for people to be um opting in to having their Awards published to like we're still seeing by different regions quite a resistance towards the desire to have tribunal names published on the website so I think ICC also as an institution has a responsibility and collectively in groups such as this to to answer those questions as to how we can move towards parties and Council actually opting in to have in anonymized form their Awards and their their case information being put at the service of the public good thank you thank you thank you Francesca and I would have loved to continue on with this fascinating discussion but I think in the interest of time we have to maybe proceed to the next topic but before I do so I would like to just invite us to make some concluding officer versions if you wish to please thank you feel to be said on on maybe just one point on how the use of the data from ICC because you know knowing how ICC looks at cases and um the Secretariat actually may have data on the complexity of cases how that will be taken into account when it goes into the machine so that that becomes the general context of how we're going to interpret the data not only the award itself but also all of the contexts surrounding the case and I think that there's also data at the ICC which is good would be a humongous work but how that would be retrieved to put back in the context of how we look at the data themselves thank you thank you yes and thanks to all the other speakers who have contributed and now I proceed to the topic of electronic Awards and I have Pietro and would like to invite him to share thoughts on this topic of electronic Awards Pietro you have the floor thank you so much Takashi and thanks for the invitation it's a huge honor to be here with you at least digitally so thank you very much uh maybe a clarification is in order before I start I will focus on the situation where the tribunal renders an award in digital form only so I'll focus on digital originals not to take away the Practical importance of digital courtesy copies but because the data that Takashi has shown us that resonates with anecdotal experience shows that the practice of a digital original award is by no means non-existent and Francesca has demonstrated once again how the ICC is a veritable Trailblazer in this field but nevertheless it is a minoritarian practice so my question for you today for our discussion is how come it's still a minority of tribunals that render a digital award a digital only award so to speak are there bottle next in the current legal framework of international arbitration and more importantly with reference to this panel what could antitrol do to overcome the obstacles and the bottlenecks well I would say the explanation clearly cannot be that the arbitration Community is innovation averse I think the remarks of Alexandra already demonstrate how Innovation uh enthusiasts arbitration practitioners can be and maybe sometimes we even run too far ahead as yasu's remarks with regard to rblex demonstrate though there might be other reasons and I will try to go on the hunt for them together with you today with a specific reference to of course uncontrolled position I will divide my remarks in the next eight minutes or so in two parts I will look at the digital award at the seat of arbitration and then at the life of this award outside of the seat of arbitration now starting with the first prong um there are two uh Usual Suspects and those are the requirements for the written form of an arbitration award and the requirements for the signature of an arbitration award so the first obvious question is is that the bottle is that the obstacle um well if we have a comparative look around the world uh many lacks arbitrary many laws uh arbitration statutes around the world do not expressly uh provide that a digital Award complies with written form requirements and that is for example the case for article 31 of the model law there are exceptions like Dutch law I'm currently based in the Netherlands and the dash code of civil procedure expressly provides for that my question is is that a problem if the law of the seat does not contain an Express arbitration specific exception and my answer would be uh typically no in the sense that even in the absence of an arbitration specific provision there might well be and there will often be a general provision that ensures that a digital award has the equivalent effect of a paper-based original by the way that is also the case for the Mother-in-law article 31 of the Mother-in-law does not uh provide anything with respect to uh digital uh Awards but uh the modern law on arbitration shouldn't be read in isolation it should be read in light of its International character under article 2A of the mother of Law and that means of course also in light of the model on electronic Commerce and article 6 of the model of electronic Commerce essentially gives us the reassurance we need so I would say in and of itself even in the absence of an arbitration specific provision in other law the seat that is not enough to conclude that a digital original does not comply with written form requirements very very often it will comply with written form requirements and I would say the same analysis or a similar analysis applies to a signature requirements once again the Dutch are very explicit and they put it right in their code of civil position sure but even in jurisdictions where such a specific provision does not exist there might be a general provision that allows arbitrators to sign an award digitally and ensures that for example a qualified electronic signature has the same effect as a wet signature that is article 25 paragraph 2 of the EI dysregulation in the European Union just to make an example so if those are not the bottlenecks then at the seat of arbitration the question comes how come there are so few uh or relatively few uh outwards uh issued in electronic formats only um and I think we need a reality check and it's a bit of a humbling uh question to ask but assuming that there is a digital original a digital original Awards the uncomfortable questions are what can the parties do with it for example can the award creditors serve the award digitally and the parties produce the award in setting aside proceedings digitally and the award be produced digitally in the context of enforcement proceedings can the award be used as a title in the filing of a notice in a land registry or in a registry of security rights and if the answer to all of those questions is no and very often it will be no unfortunately depending on National Law then uh the question is what is the added value of digitalization if you need to go through paper for all of those purposes now tribunals might not see that added value for good reasons I would say and they might be reluctant to avoid paper when paper makes the award more easily enforceable and of course understandably trigunous institutions and parties care about frictionless as much as possible enforceability and that is probably one of the reasons why for example The Sire guidance note or remote proceedings says in a quote that it's advisable for a tribunal to render a paper-based original that is one of the exceptions uh to the general digitalization of arbitration proceedings that tekashi was mentioning in the beginning so from that point of view I think the position of uncitro is not the easiest one because those bottlenecks often will not be arbitration specific and it is not something that you can necessarily fix by reviewing the modern law for example because they are something they have to do with for example how a public registry works or about how National civil procedure Works in outside of arbitration or for example how a bailiff um so it's a very ambitious digitization challenge ahead of us but uh for the position of uncitrol the second prong of my analysis is maybe more promising and interesting and that is what can you do with the award outside of the seat of arbitration and of course to be more specific the focus here will of course be for the time being on the New York convention I will not really spend any time in the interest of time on article one paragraph one of the New York convention that have been in the literature some voices that argue that there might be a doubt as to whether a digital original can qualify as an arbitration award at all for newer convention purposes I think this is mainly an academic concern um first of all because Article 1 does not contain brands for refusal so we should not stretch it to refuse recognition and enforcement in any way but most of all if you look at the um cases where in practice course have disagreed as to whether something counts as an award or not irrespective of whether that is an autonomous notion or not which is a t issue admittedly but those are all cases that have to do the content of the decision or the relief granted by the Tribunal for example a court that says well it might say award but to me that is a provisional measure and it doesn't count as an award those are not cases that have to do with the four of the decision so when it comes to form I think the main suspect and it's something that Takashi already mentioned in the introduction is Article 4 paragraph one if we read article 4 paragraph one and the evidential requirement once again not the ground for refusal but an eventual requirement for the award Predator to produce a newly authenticated original award or a duly certified copy thereof well of course at the time the provision was written people had in mind uh paper-based Awards and to be sure I am not arguing that we should apply the New Year convention in 2023 in the same way as it would have been applied in the 50s and by no means an originalist and by the way that is not how you should apply a treaty but of course understandably uh when tribunals and in general arbitrator actor arbitration actors uh think about enforceability they do prepare for bad weather so the question is what is the worst possibly worst or at least least arbitration friendly interpretation of article 4 paragraph one um and in that sense it is that you need a paper dot either a paper original or a paper uh copy and the question is Complicated by the fact that you need to find the law applicable to authentication which in and of itself is a challenge and that law might once again require you to go through a paper copy of a digital Regional for example which in turn largely uh takes away the benefit of having a digital original as opposed to a digital course as a copy of a paper-based origin um so in other words the article 4 paragraph one of the newer convention does show its age a little bit even though of course an evolutionary digital friendly interpretation is uh absolutely uh um commendable and preferable um and there might be also campgrounds for refuse over that might sometimes be relevant for example uh in a case where the parties have chosen a set of rules that requires a paper or Regional arguably article 34 of the Swiss rules does that then a failure to provide a paper origin of course might be a grant for refusal under article 51d and of course in existence or invalidity of the award at the seat may be around for refusal under article 51e so that is maybe one of the reasons why um the arbitration Community is very cautious when it comes to uh digital originals and the question for answer is should something be done about it and what should be done about it now when I look at the model law I think there's not so much left to do in the sense that the monologue already when reading connection with the model on electronic Commerce does essentially allow electronic Originals there might be a point in confirming that that is the case in the model or International arbitration mainly for enacting States they are not also in acting states of the model on electronic Commerce and secondly as a signaling device right to make things very easy and and clear for all tribunals and parts apart from that article 35 paragraph 2 which mirrors article 4-1 of the New Year convention already deleted the need for authentication or for an official copy so from that point of view I think at the level of more favorable treatment on the national law the modern law had done what it could do largely apart from the need for an arbitration specific reassurance that digital originals are possible beyond that could something be done at the level of international law that is an open question that I want to put to the floor and I'll conclude on this point I don't want to scare you um I won't even touch upon the reform or revision of the New York convention because I think there's no appetite for that for very good reasons the real question is whether that could be an additional treaty a complementary treaty if you will at the very least obliging the Contracting states to afford a more friendly evidentiary treatment for the awards creditor as to as compared to the one afforded by article the four progress one of the New Year convention so basically essentially an elevation of article 35 paragraph two of the modern law to the level of international law with specific reference to digital Origins that is uh admittedly a very modest goal but maybe more achievable than the more ambitious ones such as for example the hashification and blockchain verification of awards that have been fantasized about in recent years and that is I think an open uh question for all of us and for answer with this I conclude my remarks and I thank you very much once again for having me thank you thank you so much prietoro for your excellent presentation and your observations in a very structured Manner and I already have a request for the floor and comments from Lars so please thank you very much I'll I'll just have two uh brief comments uh and the first one is in a way I I fully agree with Pietro um the the issue that we don't have digital Awards is not so much a reluctance to innovate but it's really a risk adversity on the part of tribunals and Council um I would as an arbitrator I would love to not have to chase my co-arbitrators for signatures and set up the process and then wait for a week until have everything collected but that's the way it is like you don't want to be set aside or you don't want to have the award not enforced because of an issue and if I'm a council and my colleagues come back and say well we actually don't know whether this is valid or creates a problem and then we're it's clear like we end up with a paper copy um there's the second practical uh point I wanted to make is when it comes to electronic signatures or digital signatures I think digital signatures is the the interesting thing even if you were able to comply with the requirements and probably those of the seat of the arbitration the reality is that very often none of the three arbitrators actually are at the seat of the arbitration and you would have whatever the the seat requires a little digital box with a little card to so the the seat that the law under the seat accepts this is about a digital signatures and none of the three arbitrators have those and also they're not prepared to to get those to to comply with the the requirements for a proper digital signature of a completely different country and again I feel that that is a practical issue so um I think there's a lot of work for ancestral to do a lot of thought to to be put in angulars and now I invite Pierre Olivia thanks thank you Takashi and thank you Pietro for the uh excellent presentation I just wanted to to jump on on one point which is um the link to the enforcement laws which I think is uh is very important uh I have some enforcement practice in France others have much more than I do but I have enough to know that if you show up at the registrar uh and show up to go see the Registrar of the who's responsible for um the registration of the execution of of international awards at the the judicial tribunal in Paris and you bring her um an electronic award without an original signature you will have question marks in her eyes she will give you her little note that she gives all the lawyers who don't bring enough copies of Originals uh and I see people laughing in the room some people may have gone back to their offices to get more copies and you know have you know interactions with with the registry in terms I'm I I would be very interested to know if anyone has ever successfully uh you know uh recognized a digital award in France uh from you know the little practice that I have I would be surprised but but perhaps not but I think it also goes to something that I've I've mentioned in previous discussions with Takashi which is I think that enforcement laws are are very important to this project so that you can you can understand the various aspects of arbitration and how they they kind of interact with um uh with how the award will be recognized and forced in in the domestic jurisdictions and and without you know knowing the the details which probably changed from one jurisdiction to another you won't necessarily uh you know understand the full implications of what you're doing and I think that the example of of the electronic award is is a is a very interesting one thank you thank you Pierre Olivia for making the additional point in our discussion on the matter will continue so now I proceed to the next topic I have Alexander uh to present on just Mundy's conflict Checker please thank you so much Takashi thanks to NC Troll and thanks for tuition spook for having us um so I I will um discuss uh the impact of technology on the issue on of um conflict of interest and disclosure um I think it was particularly fitting um as the drde project aims to monitor the changing landscape and the disruptive aspect and also the enabling aspect of it and I think a tool such as the the conflict Checker that we've created is disruptive in a sense that uh it changes the way we are conducting a search on on conflict of interest but it's also enabling because it really is cost efficient and we're seeing more and more in-house console using those kind of tools as a preliminary step before handing over to lawyers and also having a say and actually helping on the decision and the selection process so obviously um users consider Independence and impartiality as one of the key elements and indispensable element for fur arbitration and obviously trust in a neutral panel to address um carefully and review the dispute and adjudicate the dispute is obviously the arbitration one of the key reason we we select arbitration is also to avoid this sort of so-called home court advantage and so the neutrality is obviously a part of the selection of arbitration now user expects that we do pay a careful attention on potential conflict of interest and it is if you're missing a conflict because you have a faulty database that's an issue especially when it's discovered later now user of course expects arbitrators to be full and Frank in their disclosure now the trends I'm going to to to discuss is really through use Mundy's experience how the use of technology is re slowly reshaping that issue quickly for those of you who don't know your smoothie we are a search engine and a database created in 2019 and our mission is really to promote the rule of law and Global Justice as a whole and we do so by making legal documents uh accessible worldwide and legal professional visible um I'll while I'm talking hopefully it will appear at some point I don't know why it's hold on let me try I will try to uh hopefully make you some live example uh which may be a little bit more entertaining that my uh uh very old law knowledge um so what um why did we create that tool first of all uh one of the many evolution in our database was a search functionality that we created we created actually a party and arbitrator filter which I can show you right now and what we realized we realized actually that parties were using that filter to make conflict check so I can give you a quick example for example if I'm taking a lawyer here um very randomly I know a friend of mine is in is in the audience so I'm just taking her as my uh use case so Dior as a yeva for example she's a a partner in Dentons in New York and so okay parties usually we're using those filters to find relationships so while I'm clicking here I can see all the arbitrator that she has been appearing in front of and so for example if I want to see in which case she has been appearing in front of Philip sounds I just click both Dior on the parties filter and on the lawyer filter and the arbitrator and I can see all the cases in which um uh Jorah has appeared before Phillips on so that was the first um part of the construction of our conflict Checker we realized and we had feedback from user that they were actually using those filters to try to make relationship between parties and arbitrator Etc in between that moment and the the building of the conflict Checker what happened is what we discussed earlier what happened is institutions starting to share composition of tribunal what happened is institutions starting to partner and have Fuller words anonymize Etc and so as of today we have the large collection of arbitrary world but also mostly important all the case information that we have been able to collect on public sources around the world and with that we decided that one of our brainstorm session that it was perhaps time to create something a little bit more deep with the real intention of being able to spot a different relationship um so what the what the search engine was uh enabling us to do was to see direct relationship of people actually appearing in the same case I was just see with for example with Jorah and Philip sense but we didn't have the ability to find indirect relationship that might occur with uh within the arbitration community and participants so how did we conceive the conflicts Checker so we had to address two questions the first question we had to address was a legal question what are we going to consider a relation so if we look at obviously the IBA guidelines we have the objective approach that any circumstance that may may be disclosing the eyes of any reasonable third party or we have the subjective approach which is that circumstances may be important evident in the eyes of the party and would give rise to a justifiable Reasonable Doubt as to the arbitrators in partiality and Independence so those two are the legal kind of criteria so far in terms of disclosing we decided on purpose that it was not for us to enter that debate and we decided that we would step out of the question of the legal meaning of a relationship or not so we stepped out from that and what we are seeking to do is just to give objective data as to relation and so we give those objective data an arbitrator and Council will just select those that they deem relevant to an arbitrator would select those data that it deems relevant for its own disclosure Council and hen house will find in a conflict Checker a very powerful due diligence tool When selecting an arbitrator or even later to verify whether the arbitrator is discharge properly to the um of disclosure again I think and that's we can make an analogy with what yes was saying earlier and that's the for example the difference that she was mentioning between causality and correlation again here there is a difference between conflict and relation we're not saying that what we are providing our conflict we're just saying that their relation and what the machine is doing with our artificial intelligence and the algorithm that we've been building are just making link they're not saying this is a conflict or not and again this is where a lawyer still remain indispensable now the second question we had to address in building that tool was a tech question how do you code relation how do you explain to a computer uh which relation what is the different type of relation Etc that was a very tricky question um and it took us some time but technically we create a specific database for that which is called a graph database and basically all the social networks like are kind of based on those database which actually for example on the search engine um we the structure uh we we index people by their profession Etc on on our main database on this one we index people through their relationship and that's how we are able to connect people um among them quick example to show you um so you'll see on the product you have here the conflict checker so I'm gonna make a very quick example uh with somebody that we all know who is our keynote speaker this week um so if I'm taking yes and I want to see for example I want to appoint yes in a case and the opposing party has already appointed Gabrielle Kaufmann color so I want to see if what kind of relationship that has been between yes and Gabrielle and I want to see whether she's a suitable candidate uh the conflict Checker allows you basically to either see relationship between individuals a relationship between individual and firms relationship between individual and States so here I see for example recorded occurrence where I can see from the description that yes was canceled for a party and Gabriel Kaufman color was a president in in in in the case and these are cases which are reported on yospundi of course by no means there are all the cases but at least these are the publicly available cases that we have and these are direct relationship if I look at indirect relationship I have many different type of relationship which of of course will need to be assessed but for example if I'll take the first case I know that Gabrielle Kaufman color was an arbitrator and David Ernst was a council for the claimant and I know yes and David at some point worked at Sherman and Sterling is this sufficiently a conflict or not probably not but this is again we're just giving kind of relationship between firms et cetera Etc second example uh in one case I can see that yes was Council for respondent shallenberg was the opposing a council the company Checker allows me to see that Gabriel Kauffman color at some point worked for Schellenberg and Whitmer Etc et cetera these are this is the sense of indirect relationship and again there is a it is for the parties then to assess which kind of relationship might give rise to justifiable doubts or not if I'll just take another example I have I want to point Yaz and in front of me I have the team from Squire pattern books I can do that uh I want to see what kind of relationship well I can see like for example in one case Yaz was canceled for the Clayman and Squire was in front Council for the respondent again I can go and look for uh indirect relationship I can do the same with States for example Egypt very random choice I want to point yes in a case where Egypt so most likely she will be representing Egypt but in any case when the conflict Checker is saying is that she has been representing Egypt in in a number of exit cases and so I at least I have in a very quick way all the relationship and all the occurrences and all the cases in which I can easily verify that and again I can have indirect relationship again so this is a very and we can that can be a little bit more refined we can have secretary we can use expert Etc et cetera that was a very sort of uh uh a basic overview but this can be used in a very much more refined way and in a in a in a granularity that that allows and we've seen and we had a lot of feedbacks that have allowed people to actually spot before uh going to arbitration some very potential uh disturbing conflict of interest no um how does the conflict Checker answer the needs of the arbitration so we've seen and we we've discussed it already there is a lack of information on perspective uh arbitrators and we were before those tools relying on sort of some Arcane Reliance on bits and pieces of information uh here and there on people and that was clearly a drawback um and we've been witnessing and again thanks to a Pioneer institution such as the ICC the cam Milan who have decided to actually publish the composition of tribunal vehicle so as follows suit and many other institutions now in Latin America are also publishing composition of tribunal those data are fueling the conflict Checker those data allow us to see who is sitting with whom who is appearing in front of whom etc etc allowing for a much more um systematic uh actually approach to those relations another uh problem that we we've seen and how we see the conflict Checker is addressing those issue is really that even the sophisticated traffic light system that we have in the IBA or even um you know the a little bit more robust approach taken by the ICC they do not capture all the um various type of relationship as the indirect relationship are trying to capture and this is where we believe uh there is a need that is that is answered and again another point and we're discussing a lot about double heading uh especially at on Central right now uh again the conflict Checker is really allowing you to see when a person has been sitting in a case or as a council or has been deciding an issue in such a in such a way uh or has been advocated that issue in another way Etc again this is a need that we think is answering I will conclude um with a preliminary assessment of the conflict Checker and the criticism that we've that have been raised um so it is now a great success and we are seeing a growing percentage of our users actually subscribing to use Mundi not really for the database