The collaboration – launched by Herbert Smith Freehills in conjunction with Ashurst, CMS, DLA Piper, Hogan Lovells and Latham & Watkins – has been in the works since May 2019. It aims to identify ways to “remove the confusions” that arbitral participants face about how they can meet obligations pertaining to data handling and cyber security, in both a practical and cost-effective way.

The joint approach comes at a time when the use of tech and the digitisation of arbitration are changing how dispute resolution practices operate, the firms said in a statement.

“Arbitral tribunals are also giving greater focus to enhanced [cyber security] and data protection measures, as arbitral institutions are reviewing and revising their procedural rules to require tribunals to do so, together with implementing new online data hosting platforms to improve data security procedures,” they said.

Taking this into account, the six firms have produced guidance that they say will “[help foster] greater understanding and a consistent approach within the arbitration community”.

“As the protocol will have global application, it is designed to be flexible and take into account all jurisdictions, covering commercial and investment arbitration, institutional and ad hoc arbitrations. The protocol will act as guidance for parties to an arbitration, their lawyers, tribunal members and arbitral institutions. It will also aid technology developers and providers to tailor their solutions and ensure their products are [well suited],” the firms said.

According to HSF senior associate and digital law lead in the UK Charlie Morgan – who chairs the collaborative working group – the protocol will “[help drive] discussion and consensus within the arbitration community and with relevant technology providers about the need for and functionality of online platforms in arbitration”.

Given the fantastic input from various arbitral participants to date, this guidance will support more informed, streamlined and effective decision-making about the adoption and use of online platforms in international arbitration. It will also herald the development of more sophisticated platform options that continue to meet the evolving needs of arbitration users,” he said.

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Ashurst senior international arbitration lawyer Myfanwy Wood added that the initiative has the ability to fundamentally change the future of arbitration.

“New technologies have a critical role to play in improving the efficiency, cost-effectiveness, security, transparency and to widen access to the arbitration process. Having an industry-wide protocol to act as a reference point for parties on key issues to consider when adopting new digital case management platforms will accelerate this process significantly,” she said.

“As parties are increasingly moving arbitration processes to the digital realm, with that trend accelerating yet further in response to COVID-19, there has never been a more important time to secure consistency of approach on these issues.”