Digital Transformation and Due Process in the Alternative Dispute Resolution: a balance to bear or an illusion to fear

Abstract

COVID-19 pandemic increased the fear from the inefficiency of the national courts’ proceedings which was alienated during the pandemic. This is not caused only by the usual prolonged procedures, but also by the suspension of hearings during this crisis.  Thus, it is predicted that contracting parties would tend to opt to the Alternative Dispute Resolution mechanisms (“ADR”) to resolve their disputes. ADR possess some qualities and competitive advantages would make them more efficient than normal litigation’s course of action. Thus supports such prediction. Amongst such qualities are their pace and benefits, namely for their flexibility to be virtually conducted.

Despite that multiple arbitration centres were encouraged to amend their rules during the pandemic to englobe the digital transformation of arbitration, the efficiency of such digital transformation is questionable. In fact, being an expedited mechanism by its virtuality would have no value if the product issued by the mechanism is invalid or non-enforceable for lack of due process requirements.

Many constitutions and conventions provided that due process is a condition for any award/court’s decision to be valid / enforceable. De facto, ADR’s virtuality would be an efficient way to conduct ADR, but de jure, it may hinder the due process requirement needed for the validity of the outcome of ADR. Besides, some ADR mechanisms would require a physical interaction, not for its validity but even preliminarily, for its proceedings to ensue, e.g., Dispute Boards.

Motivated by such premises, this paper would examine, by utilizing doctrinal legal analytical methodology, the possibility of embedding the digital transformation in the ADR proceedings, but most importantly its efficiency, and how due process can hinder such transformation.