Keywords: Confidentiality, Data, Online

Introduction

Arbitration is one of the alternative dispute resolution mechanisms chosen by parties often  to prevent public scrutiny of their private matters. The idea behind choosing arbitration is the parties’ personal choice – be it a speedy remedy, cost-effectiveness, autonomy to elect rules or  an arbitrator, or, as mentioned above, to keep the matter away from publicity. Many corporations are likely to choose this mechanism as it ensures the selection of institutions and applicable laws. Not only does it conserve reputation in the market after putting its stakes at risk due to the consequences of the dispute, but it also provides assured confidentiality of the matter.

Technology has been introduced to the arbitration to add yet another potential feature: saving travel time to appear before the tribunal or perhaps submitting requisite documentation quickly. Technologies like mail services and video-conferencing are widely used for communication purposes. Such services are deemed to be utilised safely for the transfer of critical data relevant to arbitration proceedings. However, hosting companies providing communication services  can leverage users’ personal data to advance their global strategies for coverage. One disturbing fact is that hosting companies are not even liable for the spreading of personal data due to precautions they take in the form of website wraps, cookies, and terms and conditions. Or else, if liable, the very essence of arbitration gets disrupted against which parties first choose to resolve their dispute for confidentiality.

Analysing Confidentiality in the Technology Era

Technology, while highly resourceful, has become a threat to confidentiality. The repetitive issues of data leaks have concerned human society regarding the extent to which technology is reliable. Such threats have coerced authorities to the extent of deploying data protection tools like Data Protection Officers, frequent auditing, and continuous data impact assessment amongst their own members and employees.

There was no explicit mention of confidentiality of arbitral proceedings in the statute of the country until the 2019 Amendment. Previously, it was recommended that the parties cautiously and explicitly project confidentiality in their arbitration agreement to ensure a high level of privacy in the dispute.

The community has raised the question about threats against confidentiality, not breached by the primary stakeholders involved on the primary basis- arbitrators and parties to the dispute, but by emerging technologies used. The usage of services like emails, video-conferencing applications, and cloud storage offered by giant companies- hosting companies- are potential threats to arbitration. Such threats include third-party access, cybersecurity attacks, data utilisation, etc. It has budded the tussle between confidentiality, which is essential to arbitration, and technology, which is becoming prominent and has conjectured the effectiveness of arbitration.

Cause of tension between Technology and Arbitration

Various arbitration stakeholders are not aware of the usage of the technology, thereby causing a technical gap in executing the potential of technology in arbitration. The following parameters reflect the potentials of emerging technologies popularly used in arbitration and their frequent risks.

1. The usage of email services by Google is widespread, free, and largely provides encryption, but the suitability of its usage in the proceeding is questionable. Under the privacy clause, Google has clearly stated, ‘…will share personal information outside of Google if we have a good-faith belief that disclosure of the information is reasonably necessary’.
2. Cloud Storage, like SCC Online, is popular in the legal field as storing data virtually has made access to data efficient. A service provided by Dropbox for storing data explicitly ticked the box of utilising users’ data for its business flourishment.
3. Video-conferencing is another technology incorporated for conducting proceedings. This mechanism peaked in popularity during the COVID-19 pandemic. Popular platforms like Zoom, Meet, etc., and their terms of service ensure privacy but do not refrain from third-party access to improve for the purpose of improving the services.

The discussed parameters portrayed that arbitration proceedings and measures to ensure their confidentiality are not at par when exposed via the usage of these applications and platforms. There is a building pressure between technology and arbitration confidentiality. Tech giants have popularised end-to-end encryption to ensure the confidentiality of communication between end users, but they have not popularised how encryption does not protect conversations that are not in transit. Also, hosting companies have the discretion to read conversations that are stipulated in their application and are not in transit, even if it is a sensitive matter related to arbitration. Such technical threats put hounds to evidentiary value as well as threats to confidentiality.

Since arbitration involves an exchange of documents in online mode, cloud storage is required to pool information in one place. Such pursuit ensures easy access to relevant documents in a quick go. Several companies offer such services that make case and management approaches easily tailored to the effectiveness demands of effectiveness. No big institutions like the International Court of Arbitration, Singapore International Arbitration Centre, London Court of International Arbitration, etc, have touched upon the implication of discerning issues related to cloud storage.

Foregrounded by the COVID-19 pandemic, the shift of physical presence settled to the video-conferencing. To ensure the practice of the parameters of arbitration, guidelines and standards refer to how arbitration users shall address concerns of confidentiality and data security, but at least at the core, it is about protecting online hearings against illicit access by third parties. The guidelines are less strict on secrecy and privacy, while arbitration is conducted outside public sessions. Thus, the recommendation is that tribunals and parties agree on access to arbitration communication subject to confidentiality agreements signed by all participants in an arbitration hearing.

Delimiting Threats against Arbitration Confidentiality

Arbitration stakeholders are often not well-versed with the threats of information and communication technologies. Traditional rules and regulations of arbitration do not address contemporary threats arising from the usage of technology. Although laws of arbitration have ensured privacy and confidentiality of the issues in disputes, emerging technologies have caused doubts. However, institutions are trying to figure out norms to address the challenges. Note that the purview of technology usage does not lie in the hands of arbitration. This aspect requires the whole set of educated individuals and groups to delimit the existing and potential threats.

This power is tied to the institutions that, can bud the ideas of frameworks by deciphering their concerns and causes. For example, a 2022 edition report by the collaborative response of the International Council for Commercial Arbitration, the New York City Bar Association and the International Institute & Conflict Prevention and Resolution pitched ideas for information security. The measures under the reports are encryption, physical and environmental security, and access controls, among others. This approach can help create a safe environment for proceedings to cohabit in the technology landscape and ensure confidentiality.

On August 31, 2023, the Silicon Valley Arbitration and Mediation Centre assumed the leadership in developing draft guidelines on using AI in arbitration. The AI Guidelines address the uses, limits, and risks of AI applications in relation to confidentiality protection. This approach respects the integrity of proceedings evidence and due process and procedural issues.

On 8 September 2023, the New Zealand Ministry of Justice published a draft of the Guidelines for the Use of Generative Artificial Intelligence (AI) in Courts and Tribunals. After researching its potential applications, the recommendations are meant to guide participants on the informed and ethical use of AI in arbitration. The suggestions point to the rising use of AI in arbitration and are a good reference point for parties looking to employ AI capabilities safely.

Such strategic approaches, by way of guidelines, empower the arbitration as a mechanism and its stakeholders to restore the essence of its belief, protect our concern and confidentiality, and keep up with emerging threats. The suggestion here does not question the capability of stakeholders to build a foundation to prevent confidentiality threats but to encourage more frameworks to tackle the challenges.

Another way to delimit threats is by creating customised technologies to practice arbitration mechanisms online at an international scale. Instead of using widely used platforms, deploying personalised applications and platforms will best serve the community. A 2021 survey reveals that the usage of professional emails will promote accountability and efficiency online. Along with it, a specific regulation to govern these technologies will better promote the utilisation of technologies.

Conclusion

This article analyses the issue of arbitration confidentiality getting hampered in the age of technology and confronts the lack of efforts to rejuvenate the same. Technology is an evolving phenomenon, whereas law is not rigid, but it takes a hefty process to adhere to evolving dynamics. Both aspects need to be balanced to achieve better outcomes.Confidentiality is an essential aspect of arbitration, and the emergence and deployment of technology in the arbitration world has raised the risk of a threat to confidentiality. Traditional arbitration laws have encouraged confidentiality by delimiting the threats posed by, for example, postal misplacement, misappropriation of information, misleading, etc. Their extent did not cover today’s threat. Therefore, it is by way of this article encouraged to assemble rules to tackle emerging issues against confidentiality.

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Authors’ Bio

Aishwarya Gautam, is pursuing LL.M. in specialisation of Technology & Law at Hidayatullah National Law University, Raipur and completed B.A. LL.B. from Dr. Ram Manohar Lohiya National Law University, Lucknow.