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Law firms collaborate on industry first to accelerate tech adoption

DLA Piper is amongst six international law firms which have developed a Protocol to help deliver a globally consistent approach to the use of online case management platforms in international arbitration. It is anticipated that the Protocol will be of significant value to arbitration practitioners, parties to international arbitrations and to arbitrators as they adapt to the increasing use of technology in dispute resolution, a development which has been accelerated by the COVID-19 pandemic.

The Protocol, which is a product of collaboration between DLA Piper, Herbert Smith Freehills, Ashurst, CMS, Hogan Lovells and Latham & Watkins, has been in development since May 2019. It aims, amongst other things, to improve arbitral participants’ ability to meet their obligations relating to data handling and cybersecurity in a way which is both practical and cost effective. It is also intended to facilitate efficient and secure document sharing.

The initiative to produce the Protocol reflects a common need that had been identified by lawyers who are engaging directly with a changing legal landscape in which the use of technology and digitisation are assuming ever growing prominence. Particular features of that in international arbitration include the greater focus which Arbitral tribunals are having to give to cybersecurity and data protection, the recognition following the pandemic that much if not all of the arbitral process can be done virtually and the revisions which arbitral institutions are making to their procedures as, for example, they look at the ways in which they can operate through online data hosting platforms.

With this Protocol the six firms have worked together to produce guidance that will help to foster greater understanding of those and other issues, and assist the arbitration community to take a consistent approach. It is of global application, deliberately flexible in approach, and relevant to all forms of international arbitration. In addition to providing guidance to parties to an arbitration, their lawyers, tribunal members and arbitral institutions, it is hoped that it will also contribute to the way in which technology developers and providers tailor their legal tech offerings and develop new products.

Maria Scott, Senior Associate at DLA Piper, and member of the Protocol’s working group, commented: “DLA Piper is proud to be a part of this collaborative initiative, which aims to drive real and beneficial change in the way proceedings are managed around the world. This fits well with our firmwide radical change agenda which addresses the increasing role that technology and innovation is playing within the legal sector. It was, therefore, a natural step for us to work with other firms to develop this comprehensive and practical guidance to assist arbitral users in navigating the online case management options available to them when seeking to store, share and manage data securely.”

Charlie Morgan, Senior Associate and Digital Law Lead (UK) at Herbert Smith Freehills, who chairs the collaborative working group, added: “This 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.”

James Carter, Partner at DLA Piper, also commented: “The guidance set out in the draft Protocol will help to drive the effective and consistent use of sophisticated new technologies in international arbitration in a way which not only delivers efficiency of process but contributes to the confidence which parties have in arbitration as a method of dispute resolution. If it is to remain such a popular method of dispute resolution, international arbitration must adapt and embrace new practices, particularly as regards the use of technology. This Protocol will materially contribute to that by providing valuable guidance to users of international arbitration around the world.”

An enhanced platform for international arbitration

Eversheds Sutherland has further strengthened its Litigation & Disputes practice with the appointment of Wesley Pang as Partner in the Arbitration team. Wesley joins the Hong Kong practice on 6 January 2020.

Wesley has broad experience in advising global corporate clients on major, cross-border disputes. He also acts for clients on investor-State cases, on both contentious and non-contentious issues.

He joins the Eversheds Sutherland practice from the Hong Kong International Arbitration Centre where he was Managing Counsel . Wesley’s arrival comes at an important time; arbitration is the preferred dispute resolution mechanism for clients in the energy and projects sectors and Asia’s share of these markets continues to grow, and increased activity is accompanied by demand for experienced disputes lawyers.

The arbitration market in Hong Kong is growing, and more generally across Asia. This sector-driven demand emanates in part by Chinese state owned enterprises (SOEs) and other Chinese organisations. Disputes in the energy and construction sectors are also increasing, in part as a result of China’s ‘Belt and Road’ initiative. Wesley is well-placed to advise these and other Asia-based and multinational organisations that are active in the region and globally.

Stephen Kitts, Managing Partner Asia, commented:

“This is a strategic hire for Eversheds Sutherland. With Wesley’s arrival we can now offer our clients a full-service disputes offering, something very few other international practices in Hong Kong have achieved.”

“Wesley’s significant experience across a number of the global practice’s priority sectors, including energy, infrastructure and projects. His experience in advising on disputes in these sectors matches our transactional expertise, particularly in working with Chinese SOEs and corporates. Wesley is also a respected figure in the arbitration community, where he is a regular speaker at international conferences and seminars.”

Paul Worth, Co-Global Head of Litigation & Dispute Management, added:

“Clients expect the highest quality legal advisers. Wesley’s unique background combines experience on major arbitrations with a well-developed understanding of the arbitration market.”

“He joins the Hong Kong team on the same day as Mark Hughes, who joins from Slaughter and May. Their arrival is a very clear demonstration of our commitment to develop our Asia practice. This follows a number of other significant, strategic hires globally during the calendar year for 2019, as we build on our existing platform as the 7th largest disputes practice in the world.”

If you would like to find out more information, please visit: https://www.eversheds-sutherland.com/

ARB PHOTO

Does Arbitration fit Agribusiness?

The flexibility and duration of the proceedings are commonly appointed as advantages of arbitration as a dispute resolution method. However, as it is also known, not every dispute has in arbitration its best arena. That said, and noticing the little use of arbitration in conflicts related to the agribusiness, the question title of this article is posed.

It is important to stress that agribusiness involves much more than what is done on the farms. The whole chain of the agribusiness (term coined in 1957 by Goldberg and Davis) includes agrichemical, breeding, crop production, distribution, farm machinery, processing, seed supply, marketing and retail sales, not to mention the international commodities trade.

Analysing the diversity of legal and commercial relationships that can come from this complex chain, it turns clear that many of them fill the arbitrability condition. Besides this, specially nowadays, very specific knowledge is needed in order to resolve the issues arising from this field. For instance, contract farming has peculiarities that are not found in other type of contracts. It is enough to remember that UNIDROIT has already elaborated a document concerning this subject. Even diverse financial operations were created to fit this market, in which is not rare that the “currency’ is the farm production itself. All this meaning that there is a wide range of possibilities for the arbitration, and other ADRs methods, to be adopted in agribusiness, as an alternative to the State courts.

Furthermore, the agricultural production development is seasonal, what means that the duration and costs of the proceedings must be very well administrated. In conclusion, I would say that not only arbitration fits agribusiness, but also agribusiness needs arbitration, in order to reach better results in terms of dispute resolution.