Editor's Note: The Second Seminar of the International Commercial Expert Committee of the Supreme People's Court and Appointment of New Members of the International Commercial Expert Committee was held successfully on December 8, 2020. The theme of this seminar is the Latest Developments of International Commercial Dispute Resolution Mechanism and the Research on Relevant Issues on International Law. The participants, on site or virtually, had discussions on the two topics, the Development of International Commercial Dispute Resolution Mechanism: New Situation and New Challenges and the Research and Application of International Law Related Issues in the Post-Pandemic Era, respectively. The texts of speeches delivered by the participants would be posted on the CICC's website. 

New Technologies in Arbitration

Emmanuel Gaillard

President of the International Arbitration Institute (IAI)

Mr. Chief Justice, honorable judges, dear colleagues, dear friends, 

You have asked me to discuss the topic of new technologies in arbitration. Obviously, it's a topic which I cannot do justice to in just a few minutes. What we can do in a few minutes is to describe the way we have experienced arbitration and practiced arbitration in the past few months, due to the pandemic, and share views as to what we expect to last, or not, after the pandemic. 

The pandemic forced us to use new technologies massively. The new technologies were there; we could have used them before, but they were not widely used. The pandemic simply forced all of us, even the most reluctant players, to use the new technologies, and that's what is new and interesting. The pandemic, like every disruptive event, was a huge accelerator of change. 

I want first to describe my own practice in the past few months. And then, I want to venture a few ideas as to how arbitration can use new technologies post-pandemic. 

During the pandemic, I personally conducted eight virtual hearings as counsel, two virtual hearings as arbitrator and, as counsel, a semi-virtual hearing. Most hearings lasted a week.

In the semi-remote hearing, half of the players were in a room in Paris and the other half in another room in Douala (Cameroon). The two rooms were connected through computers, videos and cameras. I have to say, in all these cases, it worked well, to my surprise. Obviously, one can deliver a final argument properly in a remote way, but for cross-examinations, it was not so obvious. You feel that you need to have your witness close, to establish a relationship, it's a bit harder through a computer. 

In fact, it worked very well in all cases. We had simultaneous interpretation in many cases, from Chinese, from German, from Russian into English. It slowed down the cross-examinations further but did not disrupt them. 

In fairness, you must adapt the style of advocacy. You must be crisper, shorter, no long speeches, to the point. But it works. After all, maybe it's even better to be crisper and to the point than to deliver long speeches, and, if technology forces us to do so, this may not be a bad thing. 

However, we had one thing which was not remote, we had all the lawyers on each side in the same room. With three computers each, one for the transcript, one to see the other players, and one for the documents you want to show to the witness or to the tribunal. But it worked after all; so it's not a disadvantage. And the cost savings were enormous. As opposed to gather everybody in Singapore, in Paris or London, you stay at home and you can prepare for the next day once you are done for one day. 

For the planet, the savings are enormous, in terms of travel and production of massive binders. You are obliged to provide everything electronically, you cannot give in to the temptation which we have all had, even recently, to reproduce all the documents ten times for ten different witnesses in ten different cross-examination binders. All of that disappeared and that is much better in terms of the environment. 

Another lesson is that it's much better also in terms of flexibility. You have a witness who is not available on a given day. You can reconvene two weeks later. You can reconvene whenever you want. You just find a common date, but not a common date in Paris, London, or Beijing. It is very flexible. 

Against the background of this practice in the past few months, what is going to happen to arbitration in the years to come? I would say three things with respect to the use of technology.

One, virtual hearings are here to last, because clients will continue to like the time savings and the cost savings. It's also much more flexible. This flexibility has not yet been fully used to the extent it offers, because you don't have to gather everybody in one city, you can divide the hearings in a more adequate manner. Instead of having a solid block of hearings for three or four weeks somewhere, you can have ten different hearings at different times if it's more convenient of two or three days each. In construction arbitration for example, you can have hearings on different topics, two or three days per month. And that's much easier to digest than if you have a solid month to deal with miscellaneous topics at the same time. That's the first benefit. 

The second use of technology in arbitration is data management. Huge savings can be achieved through proper use of artificial intelligence to gather the data which are responsive to document production requests in particular. 

The third field where technology can be used is the selection of arbitrators. Here you have several tools which claim to be called artificial intelligence to choose the right arbitrator for your case based on decisions which have already been rendered by the same arbitrator. I have some doubts as to the ability of such tools to replace human judgment. But what it does is that it provides all the information that is in the public domain in a very fast way. And that, in and of itself, is very useful. 

To conclude, I think that post-pandemic arbitrations will be conducted in a very different way. And I am convinced it will be for the best. Thank you.

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*The original text is Chinese and has been translated into English for reference only. If there is any inconsistency or ambiguity between the Chinese version and the English version, the Chinese version shall prevail.