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Bottlenecks and gaps in current legislation?

Bottlenecks and gaps in current legislation?

The United Nations Commission on International Trade Law (UNCITRAL) recently presented a report on the new digital economy and emerging technology. SCC Head of Business Development Lise Alm, with extensive experience from the cross-section of innovation and digitalization, was part of the expert group which drafted the report. Below she elaborates on some of the issues discussed in the report and by UNCITRAL on its 53rd Commission Session.

• Can robots solve disputes? Should they? Are they already? Are disputes related to high technology a breed of their own?
• Is data a tradable asset, like a house or a horse? If so, who owns it? The potential individuals referenced in the data, or the persons collecting and making sense of the data? Or both at the same time? If it’s not an asset, how do we handle the immense value of it? It is after all the new black gold of trade.

These are some of many questions raised for legislators and policy makers by the new digital economy.

In order to promote emerging technology while protecting certain core legal values and principles, we need to evaluate current legislation to find potential bottlenecks or gaps. First step of this is to define the terminology. What is meant by data, artificial intelligence, distributed ledger technology, digital platforms? What is the relevant taxonomy or terminology to be used to make sure we hit the right target when we legislate?

The digital economy has been one of the focus points of UNCITRAL’s work over the last year. This has included an expert group where I had the opportunity to contribute read more here laying some ground work on the taxonomy of this new digital world. On September 15, our report was presented to the UNCITRAL Commission together with a request for a renewed mandate to continue working on these matters. One of the areas specifically pointed out for further work is dispute resolution.

Read the report here 

UNCITRAL highlights two areas of interest when it comes to the intersection of dispute resolution and emerging technology. Using AI and automated systems to handle complains and resolve disputes, and the use of existing dispute resolution processes for disputes arising out of transactions in the digital economy, including within high-tech industries.

When it comes to the first aspect, UNCITRAL notes:

“Nearly all legal systems presuppose human analysis and judgment as an essential element of recognized dispute settlement mechanisms such as mediation and arbitration. The use of AI and automated systems thus raises a number of issues relating to the application of existing laws, including the UNCITRAL texts on arbitration and mediation, such as the [NY Convention], the [Model Law] and the [Singapore Convention]. Those issues include whether the parties can validly refer terms generated by an AI system to settlement and whether a corresponding agreement would be enforced as an arbitral award or settlement agreement.” 

I addressed the complexity of some of these issues before the UNCITRAL Commission earlier this summer, in an intervention where I focused on the need for on overview of the frameworks of dispute resolution against the backdrop of AI.  (starting at 1 hr 24m) 

From my horizon, the dispute resolution community needs to focus on three main areas ahead; 

  • Learn and take an active part in the development of emerging technology  
  • Use technology as a tool to combat some of today’s challenges to the justice system  
  • Ensure that fundamental principles like access to justice will stand the test also of new technology and methods. 

In the discussion on disputes arising from the new technology, one issue raised was wether these disputes are so specific that they need separate rules. The need for speed, highly specialised expertise and the ability to handled vast, sometimes digital evidence in a short time frame were some of the elements specifically mentioned. 

These are indeed highly relevant and challenging issues. However, it may be questioned whether this wish list is unique to high tech disputes. The SCC and other institutions have previously established separate industry specific rules and processes, but in the experience of the SCC, these have come very close to the general rules and over time the general rules have prevailed also where industry specific rules exist. It will be interesting to follow the development in this area.  

Even if I'm not convinced high tech disputes will require a specific toolbox, I'm convinced that new technology will challenge the frameworks we have today.
Legislators have an important role in both promoting and regulating some of the upcoming technologies ahead, for us all to be able to harvest as much of the benefits and suffer as little of the drawbacks as possible. Therefore, I was encouraged to hear that most member states expressed their sup port for UNCITRAL's continued work in this area. The report is a starting point for the important effort to reach global consensus on terminology, which facilitates the evolution of a global digital economy. It will exciting to follow the development going forward. 

UPDATE - our activities during the pandemic

UPDATE - our activities during the pandemic

Six months have passed since the SCC reorganized operations, moved home and adapted to the new situation caused by the pandemic. Everything changed, yet it has been business as usual.

Isolated but closer. Stressful and relaxed. Business as usual but nothing is the same. These were some of the societal contradictions observed by SCC Secretary General Annette Magnusson as the pandemic unfolded,. As we move into a new phase of the pandemic, they still hold true.

The spread of Covid-19 has currently – at the time of this writing - slowed down in Sweden, but the global crisis due to the pandemic is by no means over. Swedish authorities maintain the recommendation to, when possible, work from home and avoid public transport. At the SCC we therefore continue to work remotely to the largest extent possible. Two staff members at a time will be in the office in person according to a schedule put in place for the rest of the year.

With digitized systems already in place, the SCC has maintained its usual routines a normal work pace. The case management is operating as usual. The requests for arbitration have continued to come in steady numbers, and now there are signs of an increase.

Our guiding principles in these unusual times are the same as before. 

We seek to safeguard the health of our employees and partners. We secure all SCC operations. And we focus on our societal responsibility to contribute to the greatest extent possible to reducing the spread of the virus. 

Ad Hoc Platform – free of charge

In a joint initiative to support online administration of all proceedings in these challenging times, the SCC and Thomson Reuters offer a special version of the SCC Platform to ad hoc arbitrations. Use of the Ad Hoc Platform ( is still free of charge from start to finish for any ad hoc arbitration commenced during the COVID-19 outbreak.

We hope to see you on SCC Online Seminars

As the SCC’s aim is to maintain an active and value-creating dialogue with our stakeholders in the business world and the legal communities around the globe we continuously will offer a series of online seminars. A schedule for a new set of SCC Online Seminars will soon be posted in our digital channels.

Simplifying secure communication from request to award

Learn more about how the digital administration at the SCC Platform works.

Request for arbitration are filed using: arbitration@chamber.se
Application for the appointment of an emergency arbitrator is made using: emergencyarbitration@chamber.se

 

Values, sailing and the Covid-19 response

Values, sailing and the Covid-19 response

Secretary General Annette Magnusson in SCC Forecast #6/20: The Covid-19 journey is not over yet. Adopting a sailor’s mindset could add that extra layer of resilience we all need.

When Covid-19 struck in March 2020, for most of us, there were no checklists. We did not have any policy to pull out titled “What to do in the event of a pandemic”. No pre-designed emergency plan. No previous experience to fall back on. But this did not mean that there was no guidance to be found or that the response became passive. On the contrary. In the past six months we have seen an inspiring and impressive demonstration of resilience, responsibility, and innovation from colleagues all over the world. Everyone has found their own unique way to chart new maps when the old ones no longer worked.

For us at the SCC, the road through the crisis so far has had two major sources of inspiration. Values. And the art of sailing.

Our journey of significance.  As an arbitral institution we are fueled by a desire to build value for society at large. We see efficient, impartial, and neutral access to justice as an immensely valuable building block for strong and healthy societies, using the common principles we know as international arbitration. A vision we share with all leading arbitral institutions.

Why was this relevant for our covid-19 response?

Because it told us what to do, despite absence of checklist and policies. Our values led us to outreach and collaboration. It was the DNA of international arbitration which led institutions to take leadership and provide guidance and tools to parties, counsel and arbitrators - to be able to move cases forward, but with respect for the challenges caused by the crisis both at a personal a professional level. It was the DNA of the arbitration community that led arbitrators and counsel to engage in discussions, share personal experiences and find practical solutions. It was the DNA of our own organization which had directed us towards digital solutions before the crisis, and which now propelled also new initiatives

Our values thus had a tremendous importance for us in navigating the crisis. But even if we know what we stand for as an organization, and even if there is a strong sense of purpose, there were times when the whole situation was quite daunting, both from a professional and personal standpoint. How will this end? Will stores run of supplies? Is my family safe? What will society look like two weeks from now?

This is when I started to think about sailing.

On the importance of sailing. At the height of the Covid-19 crisis my husband and I independently of each other both made the same reflection; the whole situation made us think of sailing. As a family we have spent a lot of time together sailing in every imaginable weather, and now we found ourselves adopting a mindset like that which you would on a boat. Stay calm, act wisely and responsibly. There is no use to worry about the weather two weeks ahead. Just solve the issues you have right in front of you. Today and tomorrow.

Everyone who has been sailing knows there is only so much you can prepare, or control. In the end, force of nature will govern the terms of your journey and you must respond accordingly, regardless if this means changing your course with a last-minute tack or getting up at 3 AM to adjust your moorings. Whatever happens, Mother Nature is in charge. Which is part of the charm. A dramatic shift of weather could be a challenge, but also a source of excitement for a crew working in concert to adjust sails, re-analyze the course, or take any other necessary action to master the new conditions. Hard work for sure, but also pure joy when you can steer your boat steadily through a wild sea with rain hitting hard on the waves. Or when that shift of moorings at 3 AM did its job.

The Covid-19 journey is not over yet. We do not know yet when we will be able to lower our sails and take a rest from the pandemic. If a second wave of the storm is coming. For some of us, it appears alarmingly close.  But we have a solid foundation from where we can continue drawing our charts. We know our mission, and what we seek to accomplish. Adopting a sailor’s mindset could add that extra layer of resilience we all need. And stay safe.

Annette Magnusson

Secretary General

 

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