bratschi arbitration blog: Arbitration and ICT conflicts – a match? Yes, and there is more to come!
Information and communication technology (ICT) projects are typically of long duration, involve a high degree of complexity and require substantial investment, both in human and other resources. Partly because of this, many ICT projects encounter difficulties during their performance period. Some of them are of a minor nature, but others are often cross-border cases and involve several countries with different jurisdictions.
Hence, litigating ICT disputes before a state court is challenging and burdensome. As a result, in the last couple of years several alternative dispute resolution procedures, which this blog post will shed a light on, have emerged and are to be considered as a valuable alternative to state court litigation.
«Classic» Commercial Arbitration or Specialized ICT Arbitration?
ICT disputes can, of course, be resolved by means of "classic" arbitration as provided under the ICC or Swiss Rules. However, and depending on the complexity but also on the rapidity a dispute needs to be resolved, parties often wish a forum with specific ICT expertise, as those «classic» procedures continue to be too time-consuming and expensive despite the fact that expedited procedures under various institutional rules are on the rise.
This is why specific ICT arbitral procedures become more and more popular. The big advantage of arbitration compared to state court procedures is that the arbitrators are specialized and are familiar with the specific problems in the ICT sector. Consequently, arbitration panels consist of top-class lawyers with considerable experience of procedural law and ICT conflicts on the one hand, and leading ICT experts with many years of experience in information technology on the other hand. Currently, there are several institutions which offer to parties involved in ICT disputes their services, e.g.:
Conciliation Rules of the German Association of Law and Informatics e.V.
An example of a specialized conciliation procedure is provided by the German Association of Law and Informatics e.V. (Deutsche Gesellschaft für Recht und Informatik e.V., DGRI e.V.). This procedure is suitable for small and medium cases and the fees charged can be considered as not expensive taking into account the dispute at hand.
More information can be found here > «Deutsche Gesellschaft für Recht und Informatik - Schlichtungsstelle IT» (HTML, German)
SGOA ICT Arbitration and Mediation
SGOA (Stichting Geschillenoplossing Automatisering, or «foundation for the resolution of ICT disputes») offers a specialized ICT Arbitration and Mediation procedure with mainly ICT experts sitting as arbitrators. In addition to the classical arbitration proceedings, they offer summary arbitral proceedings, which take only a short time of around 3 months and are aimed at reaching a ruling relatively quickly in urgent matters. This is particular important in cases where in an ongoing project a dispute needs to be settled quickly to continue.
More information can be found here > «SGOA - experts in IT conflict management» (HTML)
ITDR Experts in IT and data conflict management
Last but not least, in Switzerland, the association ITDR - experts in IT and data conflict management -will shortly realize a specialized ICT arbitration and mediation program in cooperation with SGOA (Association for ICT Conflict Management) and SCAI (Swiss Chambers' Arbitration Institution) within the beginning of the next year. This project will further enhance the resolution of ICT disputes by arbitration, with a particular focus on the particularities of information and communication technology market and their requirements. We are happy to report the further developments of this newest project in Switzerland in one of our next blogs.
Binding Expert Opinion on ICT issues
In many cases, only a single technical or legal issue needs to be resolved. Such cases do not require an arbitration procedure, not even a specialized ICT arbitration, but can be solved by a binding expert opinion. Such an opinion is simpler and faster than a dispute over the entire contract. In the case of long-term contracts for ICT services, an expert opinion can be a way of agreeing on a binding third opinion in the event of disagreement on facts or developments.
More information can be found here > «SGOA - experts in IT conflict management» - expert report (HTML)
EU online dispute settlement platform
In addition to the voluntary alternative dispute resolution options, it should be noted that such procedures are also prescribed in the area of e-commerce. These are in the form of Online Dispute Resolution (ODR).
Since 2016, online merchants in the EU have been legally obliged to refer to the EU online dispute resolution platform on their websites. They are obliged to indicate whether they themselves wish to participate in online dispute resolution or whether they are legally obliged to do so.
The ODR regulation (ODR = Online-Dispute-Resolution) applies to the out-of-court settlement of disputes about contractual obligations from online sales contracts or online service contracts between consumers and entrepreneurs (Regulation EU No. 524/2013 on Online Dispute Resolution in consumer matters).
The purpose of the Regulation is to achieve a high level of consumer protection in the European digital internal market. The possibility of online dispute resolution (OS) is intended to provide a simple, efficient, fast and inexpensive out-of-court solution for disputes arising from online trade.
The dispute settlement platform can be reached via the following > link (HTLM)
In conclusion, arbitration and in particular specialized ICT arbitration is very well suited to deal with ICT conflicts and there is still more to come as for instance the specialized ICT arbitration and mediation program in Switzerland to be introduced by the ITDR in cooperation with SGOA and SCAI.