ROLE OF TECHNOLOGY IN MAINTAINING CONFIDENTIALITY OF ADR PROCEEDINGS

This article is written by Divy Prabhat Gupta of City Group of College (Affiliated from University of Lucknow).

ABSTRACT

Historically, arbitration relied on confidentiality and anonymity, even before the digital age. This essay examines how arbitration stakeholders, including institutions and organizations, arbitrators, attorneys, and business users, have lost control over secrecy and privacy in international commercial arbitration by utilizing digital technology supplied by the Internet behemoths such as Microsoft, Google, Dropbox, and Zoom. Arbitration Institutions and Users have, often unwittingly, defined confidentiality and privacy broadly to encourage the wider usage. Using email, online storage, and video conferencing technologies to conduct arbitration procedures. However, they have disregarded how the usage of digital technology exposes private and provide sensitive information to third parties, including but not limited to Big Data. They’ve also placed unwarranted confidence in the capability of Internet companies that control the Internet protects delicate arbitration hearings, which are commercialized by giants to get public attention, particularly in arbitration disputes. In response to this distressing truth, the paper looks at how to improve secrecy and privacy in arbitration by enhancing existing protections contained in international regulations and standards, as well as selecting domestic venues that support such rights. It also encourages arbitration stakeholders to revise the rules and their application to arbitral proceedings. Responding to both intentional and unintentional abuses of business and personal data. This technique compresses redressing the downstream dissemination of harmful data particularly by choosing and creating legal venues to prevent the use of intelligence to breach private and secret data.

INTRODUCTION

Without privacy and secrecy, international commercial arbitration would cease to serve its intended purpose. These qualities are fundamental to the arbitration process itself.

Developments in information and communications technologies (ICTs) brought about by Internet giants like Microsoft, Google, Dropbox, and Zoom. These developments have extended the scope of mass communication, while regrettably also extending the redirection, misuse, and abuse of that communication. These threats are becoming more protracted in the face of ever more complex digital technologies using artificial intelligence (AI) beyond traditional machine learning and applying them to smart and automated programs. These difficulties have grown more severe during the COVID-19 pandemic, since lockdowns and travel restrictions have compromised the once-essential in-person hearings and sessions for dispute resolution. The automated solution to this problem is to use dispute communication, which is controlled by extremely advanced AI, including dependence on smart codes that power blockchain intelligence and smart computing, rather than by phones and airmail. Growing dependence on “remote international arbitration” is one aspect of these technical advancements, and this practice is probably here to stay far beyond the pandemic.

Maintaining a workable cybersecurity and data governance environment in the face of enduring and expanding risks to individual privacy and business in confidence in arbitration is a major concern for parties involved in the process. This problem goes beyond stopping the abuse of early technology like email, podcasts, and video recordings; it also involves thinking AI. Even in the face of flaws and misuse in the application of such technologies, users of international commercial arbitration cannot reasonably be asked to forgo the financial advantages of technological advancements in the operation of their company and in the settlement of disputes. It makes sense that arbitration institutions would like to see fast and effective ways for disputes to be resolved through arbitration. They value the quality of being user-friendly in boosting market influence and customer satisfaction with their offerings. Additionally, users of arbitration are encouraged to embrace digital technology for conflict resolution in order to save costs associated with disputes and expedite the gathering, storing, and sharing of data both inside and outside of official arbitral procedures. In this mega-data age, arbitration users are unlikely to envision taking part in arbitration procedures without accessing the Internet. In an effort to keep the information transferred, processed, and stored secret, arbitrators, arbitration administrators, attorneys, and clients communicate with one another and submit documents containing private and sensitive information. However, the uncontrolled movement of personal data to Internet firms and perhaps downstream users presents cybersecurity issues that tarnish this new digital era seeking competitive advantage, and can involve cyberstalking, mischief, or malice. Serious concerns have also been expressed for those who employ arbitration, particularly big businesses who depend on it to settle international conflicts. Are they able to employ international commercial arbitration, which is extremely sensitive to data misuse, to secure critical trade secrets and sensitive personal data at the level that we consider typical in the era of information technology? In what way are they able to forbid the pilfering of written pleadings, materials generated during disclosure before tribunals, hearing transcripts, arbitration submissions, and the verdicts that follow?

CONFIDENTIALITY, PRIVACY AND DIGITAL TECHNOLOGIES

The significance of privacy and secrecy in arbitration is acknowledged by researchers and stakeholders alike. Furthermore, it is generally agreed that there is a problem with the inadequacy of privacy and confidentiality protections, particularly when it comes to technology. Regulations have emphasized how important it is to address the significance of cyber security in preventing and resolving arbitration conflicts. Under the auspices of the International Council for Commercial Arbitration (ICCA), the New York City Bar Association (NYC Bar), and the International Institute for Conflict Prevention and Resolution (CPR), a noteworthy development is the adoption of the ICCA-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration. The protocol’s goal is to establish and implement reasonable cybersecurity measures to prevent cyber misuse and abuse in a mediation. Furthermore, the 2018 International Arbitration Survey emphasized the importance of maintaining anonymity; 36% of participants stated that privacy and confidentiality together rank among the top three benefits of international arbitration. Confidentiality in international business arbitration is deemed “very” or “somewhat” significant by 87% of respondents overall.

The Survey further emphasized that parties to arbitration procedures were by default obligated to maintain secrecy and privacy by the norms of some arbitration organizations. It made clear that anonymity and secrecy are still seen as crucial benefits of international arbitration procedures that must be maintained.

The reason this development is concerning is because mega-data service providers want more people than only arbitration participants to have access to their services. In terms of technology, they are also in a good position to capitalize on the public’s interest in business and client finances, acquisitions, mergers, bankruptcy, and insolvency procedures. Additionally, they are well-positioned to do so since they have access to arbitration proceedings, even if the interests of international commercial arbitration parties sacrifice the privacy and secrecy they desire. These concerns extend to conventional publishers such as newspapers seeking ‘newsy’ tales concerning disagreements related to delicate confidences which they enable to translate into media sensationalism. A rush to serve a sensationalized audience of supplicants grows as a result. The outcome of the costs of this compounded data transfer might be borne by arbitration parties whose economic interests and privacy are jeopardized.

CONFIDENTIALITY

Although they work in tandem, confidentiality and privacy are theoretically and operationally distinct from one another. Viewed literally and theoretically, secrecy comprises the restriction of exposing arbitration-related material to third parties who are not parties to the arbitration. Third parties are not permitted to attend or have access to arbitral hearings due to privacy. Combining privacy with confidentiality, we may say that “the confidentiality of the arbitration proceedings and the award that results from them is inclusive of the degree of privacy over personal information granted to a party during those proceedings.” Subsections that follow show additional differences in the definitions and applications of confidentiality and privacy, despite the fact that ideas of arbitral privacy are largely consistent throughout country legal frameworks and institutional guidelines. The laws and regulations controlling the privacy and confidentiality of arbitral proceedings share the functional inadequacy of addressing the extensive use of ICT services in international commercial arbitration and the functional implications of such use for the privacy and confidentiality of arbitral proceedings.

PRIVACY

Similar to the issue of confidentiality, institutional standards rather than national legislation regulate the privacy of arbitral procedures. The UNCITRAL Model Law does not guarantee the confidentiality of international commercial arbitration, which is the main reason why national legislation typically remain mute on the participation of third parties in arbitral procedures. On the other hand, the presumption of privacy for arbitral proceedings is explicitly provided for in the norms of arbitration organizations. For instance, the arbitral tribunal “shall be in full charge of the hearings, at which all the parties shall be entitled to be present,” according to article 26(3) of the ICC Rules. Unless authorized by the arbitral tribunal and the parties, those who are not parties to the proceedings may not be admitted’. SIAC, HKIAC,

LCIA and CIETAC further confirm that the arbitral proceedings are by default private under their regulations.

DIGITAL TECHNOLOGIES IN INTERNATIONAL COMMERCIAL ARBITRATION

As described in the last section, there are contradictions between digital technologies employed in international commercial arbitration and ideas of arbitral secrecy and privacy that are given for arbitration rules and guidelines. The lack of understanding and readiness among arbitration stakeholders—arbitration organizations, associations, practitioners, and users—to resolve those conflicts is covered in this section. The use of email, cloud storage, and video conferencing systems in arbitral proceedings is the main topic of this section. The extent to which different default norms and guidelines on the use of digital technologies help arbitration stakeholders become more aware of the risks of ICT service providers violating confidentiality or privacy in international commercial arbitration is also taken into consideration. In this section, the degree to which the in order to prevent the rules regulating arbitral processes from becoming overly complicated or extended, secret and private arbitration data may be exposed to third parties that have access to these ICT service providers.

E-MAILS

There isn’t any clear research indicating which email service arbitration practitioners prefer. However, 47 per cent of the respondents in the 2021 Arbitration Survey supported the use of secure or professional email accounts for arbitrators, instead of web-based (free) email services like Gmail and Hotmail (now Outlook.com). This finding suggests that email systems, both web-based and secure, are employed in international business arbitration. Therefore, in this subsection, we’ll be looking at these two kinds of email correspondence. Examining regulations and guidelines on the use of email in arbitral procedures comes after the debate.

CONCLUSION

Not only has digital technology altered our daily lives, but it has also had an impact on international commercial arbitration. Stakeholders in arbitration no longer have to wait weeks for mailed letters to arrive by exchanging emails. By using cloud storage, they can store hundreds of case bundles with thousands of pages, requiring less physical space. By using video conferencing platforms, they may lower their carbon footprint by minimizing the number of foreign trips needed to plan, conduct, and oversee in-person arbitration procedures. A consequence of these virtual communication benefits is that a limited number of dominant tech companies collect, store, and transmit data, making it difficult to uncover claims of confidentiality and privacy violations during arbitral procedures. collection, storage, processing, and distribution. Unlike violations privacy and secrecy, The (mis)use of personal data by IT businesses has grown exponentially since the invention of the Internet and is sometimes difficult to identify. One disadvantage is that parties to arbitration often lack awareness of the scope of the breaches of their private information and the damage those breaches create. Furthermore, when these stakeholders sign subscription agreements with ICT service providers, they frequently unwittingly consent to those providers accessing their personal data for possible misuse. But it would be unfair to hold all parties involved in arbitration accountable for their failure to shield users of arbitration from emerging technologies that can compromise their privacy and confidentiality. Additionally, it is irrational to hold tech companies alone responsible for the difficulties faced by arbitration parties who want to benefit from the new, technologically driven global order. Abuse of privacy and confidentiality affects more than just tech companies and parties involved in arbitration those who gather and process data and then utilize it for their own or their company’s benefit. The issue still exists, though, in that arbitration groups and institutions have not yet updated their pre-Internet policies and procedures to address the growing risks to the privacy and confidentiality of personal information.

There are practical and effective approaches to address these shortcomings. Stakeholders in arbitration may change their rules and procedures to release them from accountability for any abuse of data by ICT service providers. They can create advising procedures to warn arbitration participants about the dangers of giving their permission for the use of their private and business information. By selecting a service provider and implementing safer sharing and more secure data transmission practices in virtual environments, they may also provide arbitration users a practical way to prevent such abuse. The market dominance of some service providers, who are hard for the general public to escape, nonetheless places restrictions on such counsel. Stakeholders in arbitration can determine the advantages of personal data self-storage and limiting its virtual transfer, but these advantages are outweighed by today’s document-intensive arbitration, when parties and arbitrators exchange hundreds of emails with sensitive and important information. Ultimately, policy discussions on the preservation of arbitral privacy and secrecy between ICT service providers and arbitration parties are necessary. Costs will increase if similar projects are launched globally. They will also require continuous cooperation between parties involved in arbitration, especially in addressing differences in how different legal systems safeguard private and secret information in a decentralized global order.

These international endeavours will need acknowledging that, in the absence of financial incentives, technological behemoths like the Big Five are unlikely to readily engage in such projects encouragement, or group pressure from powerful commercial organizations. It is a difficult and urgent duty for arbitration bodies and institutions to securitize private and sensitive information. Failing to act promptly poses a risk of lessening the vulnerability of arbitration stakeholders to a damaging international market for private information, where its commercial exploitation has developed into extremely lucrative ventures. Nonetheless, the first step need to be for parties involved in arbitration to publicly acknowledge the unsettling and continuous conflicts they encounter while defending the private and secrecy of arbitrations. As far as Big Tech is concerned, that endeavour amounts to a fruitless hunt for an invisible problem. Stakeholders in arbitration view this endeavour as a difficult but important effort to safeguard consumers in an unresolved digital order.

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