One of the discernable impacts of the Covid-19 pandemic on arbitration has been the exponential rise of virtual hearings. By and large, the arbitration community is rapidly shifting towards digital platforms to address swift legal changes. Whilst the transition from in-person hearings to virtual hearings has been largely seamless, it has brought into focus the aptitude of international arbitrators in navigating the challenges presented by the Covid-19 era. According to Queen Mary University of London’s 2018 International Arbitration survey, most arbitrators are unfamiliar with virtual hearings, and the majority have never or rarely used them. While some have had sporadic experiences with video conferencing and cloud-based document sharing, a hearing in which all participants are geographically dispersed is uncharted territory. Moreover, their experience with video conferencing is often plagued by technical failures, making them wary of further increasing their dependence on technology.
With an increasing need to harness technology to resolve emerging disputes, it is becoming patently clear that the new era demands new skill sets and qualifications from adjudicators all across the board. As a result, the market for international arbitrators will most likely be shaped by those who are poised to adapt to the emerging paradigm and operate effectively in the face of a new reality. To this end, some may suggest that a new breed of arbitrators who are equipped with the skills and knowledge to succeed in a rapidly changing sector and provide more accurate and faster results will enter the field.
However, a cursory look into the current state of affairs of arbitrator appointment shows that the process centers on past precedent and informal networks in which parties resort to word-of-mouth inquiries to research arbitrators’ experience and track records. This is largely due to the confidential nature of the field which prevents parties from getting information pertaining to disputes that those arbitrators have adjudicated over. Alternatively, parties seek advice from legal counsels who are more inclined to nominate arbitrators that they know. These counsels who are also part of a transnational network of community, as Cotterrall described, usually favor the “old boys” in advising clients on potential arbitrators.
Information disseminated through this network of community is based on interpersonal trust, anecdotes, personal account, and hearsay. Such an ineffective cycle of soliciting feedback reinforces the information asymmetry within this network. The result of this is that parties rely on subjective information rather than objective and quantifiable data to select an arbitrator. The lack of objective information could lead to the faulty selection of an arbitrator whose poor or mediocre performance may have a wide-reaching impact on the reputation of international arbitration as a system of alternative dispute resolution. This is of substantive importance because arbitrators carry the excessive burden of being the most visible players, as opposed to judges and the courthouse, which are often considered the personification of the judicial system. Ultimately, arbitrators are the ones whom most frustrations are directed at.
Therefore, in these turbulent times, which will most likely witness an increase in lower- and mid-value cases, the ability to make an informed and fact-based decision when identifying arbitrators is of utmost importance. This is especially true in the era of social distancing, during which face-to-face feedback and interactions are no longer viable.
Consequently, the need to narrow the gap by providing accurate, reliable, and relevant information regarding the details of arbitrators’ decision-making is crucial. In a digitized era where most information is distributed and circulated via the Internet, Arbitrator Intelligence, an online platform which publishes depositories of information with regards to arbitrators’ past decision-making and track record, helps bridge the information gap.
Arbitrator Intelligence is a start-up that aims at increasing access to critical information about arbitrators and their decision-making. In doing so, it facilitates systematic collection of quality feedback at the end of each arbitration regarding information about the arbitrator’s case management and decision. This feedback highlights the arbitrator’s conduct on important practices such as ordering interim measures, document production, case management, and the timeliness of issuance of award.
Particularly in the absence of a rigorous screening process and readily available data about the track record of a potential arbitrator, this platform allows parties to carefully vet their candidates and choose one based on the specifications of their case.
In addition, it will save time by providing this data in a centralized and consolidated fashion. In turn, it will obviate the need to get to numerous inquiries and solicit feedback from players of transnational networks who can only provide subjective information.
In conclusion, Arbitrator Intelligence is an innovative and much-needed platform that is making information about arbitrators more readily available to all stakeholders in international arbitration. In the Covid-19 era in particular where users of international arbitration are predominantly canvassing virtual solutions, this platform provides reliable, relevant, and objective information to those parties who may suffer from information asymmetries.
Naimeh Masumy presently serves as a legal counsel and research fellow at the Arbitration Center of Iran Chamber. She represents clients in matters related to sanctions, international trade, and regulatory compliance. Her private practice focuses on energy-related disputes and joint ventures. Before, she worked for a leading firm on Islamic finance, project finance, and investment disputes.