Over the last 8 years BCLP’s International Arbitration Group has conducted a number of surveys to obtain the views of users of international arbitration on issues affecting the arbitration process1. This year we wanted to consider the issue of cybersecurity. 

Electronic documents and other information are introduced into international arbitration proceedings in vast quantities. Are participants in those proceedings sufficiently aware of the need to protect that data against unauthorised access by third parties, and should more be done to promote risk assessment and the taking of active steps to enhance data security?

There has been a dramatic increase in cyber-attacks on corporates, governments and international organisations. Law firms and arbitration proceedings are not immune from these threats.  Disputes referred to international arbitration have characteristics that can lead to an increased level of risk and adverse commercial consequences in the event of a data security breach. These developments have led to debate about the need for reasonable cybersecurity measures in individual arbitration proceedings, and how best to go about initiating and organising those measures.  

We would like to obtain the views of our professional colleagues on this topic by requesting their responses to our survey questions. All responses will be treated as confidential.

A report and editorial on the results of the survey will be circulated to all participants.

If you have any queries in relation to the questions posed, please contact Carol Mulcahy or George Burn.
 
1Perceived Conflicts of Interest; Delay in the Arbitration Process; Document Production in Arbitration; Choice of Seat; The Use of Tribunal Secretaries; Are We Getting There? Diversity on Arbitral Tribunals; Unilateral Arbitrator Appointments

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* 1. Please indicate the nature of your involvement in international arbitration. Please tick as many boxes as appropriate.

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* 2. In what region/s do you work? Please tick as many boxes as appropriate.

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* 3. In your opinion, is cybersecurity in international arbitration an important issue? Please tick one box.

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* 4. In your opinion, on a scale of 1 to 5, how desirable is it for parties to an arbitration to consider at an early stage in the proceedings whether it is appropriate to put in place reasonable security measures to protect electronic documents and other information in the arbitration from unauthorised access?  (1 means you consider it very desirable; 5 means you do not consider it desirable at all)

1 5
i We adjusted the number you entered based on the slider’s scale.

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* 5. In your opinion, who should take the lead in initiating discussions on the need for data security measures? Please tick one box.

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* 6. Which of the following data security/mitigation steps to protect electronic documents/information have been agreed between the parties or imposed by the tribunal in an arbitration in which you have been involved? Please tick as many boxes as appropriate.

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* 7. In your opinion, which of the following data security steps to protect electronic documents/information is it desirable to adopt in an arbitration? Please tick as many boxes as appropriate.

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* 8. In your opinion, which of the following factors should be taken into account when deciding on the nature of measures (if any) that should be put in place to protect the security of electronic documents/other information in an individual arbitration? Please tick as many boxes as appropriate.

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* 9. In your opinion, to be effective, who of the following would need to observe any security measures agreed/imposed? Please tick as many boxes as appropriate.

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* 10. In your opinion, on a scale of 1 to 5 (1 is very easy; 5 is very difficult), how easy or difficult would it be to obtain an agreement to observe security measures (and ensure compliance) from the following:

  1 2 3 4 5
Arbitrators
Parties to the arbitration
Arbitral institutions
Expert witnesses
Fact witnesses
Data hosting agencies
Third party service providers

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* 11. In your opinion, where parties cannot agree on the nature of appropriate data protection measures, should an arbitral tribunal have the power to impose measures on them? Please tick one box

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* 12. In your opinion, should the arbitral tribunal have power to impose sanctions on a party that breaches data security measures that have been agreed or ordered? Please tick one box

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* 13. In your opinion, how should any additional cost burden of security measures ordered by an arbitral tribunal be addressed? Please tick one box

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* 14. In your opinion, which of the following resources would be useful in order to improve cybersecurity in international arbitration? Tick as many boxes as are appropriate.

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* 15. Would you be more or less likely to use the arbitration rules of an institution that was able to provide advice and assistance on appropriate data security measures for the arbitration? Please tick one box.

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* 16. Would you (or where appropriate, your client) be willing to pay a higher fee to/incur an additional cost with an arbitration institution that provided advice and assistance on appropriate data security measures and/or provided a secure platform (or similar) on which all communications and data sharing/storage took place? Please tick one box.

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* 17. In your opinion is the need to consider cybersecurity measures in an individual arbitration an administrative matter best handled by the supervising arbitral institution (assuming there is one) or a procedural matter best handled by the arbitral tribunal after hearing submissions from the parties? Please tick one box

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* 18. Has there been a breach of security (i.e. someone was able to obtain unauthorised access to electronic documents/other information in the arbitration) in any arbitration in which you have been involved? Please tick one box

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* 19. Please enter your email address here if you would like to receive a copy of the report.

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