Working Group Releases Cybersecurity Protocol for International Arbitration (2020)
A Cybersecurity Protocol for International Arbitration (2020) was released today, as part of New York Arbitration Week, with the goal of providing a framework for determining reasonable information-security measures for individual arbitration matters and increasing awareness about information security in international arbitrations.
The Protocol is the culmination of two years of work by a Working Group on Cybersecurity consisting of representatives of the International Council for Commercial Arbitration (ICCA), the New York City Bar Association (City Bar) and the International Institute for Conflict Prevention & Resolution (CPR).
The City Bar was represented on the Working Group, and at the New York launch event, by Stephanie Cohen, Lea Haber Kuck and Mark C. Morril. The City Bar representatives stated, “We are proud that this important work has had its launch during New York Arbitration Week and at the New York International Arbitration Center. New York is one of the most frequently selected locations for international arbitration in the world and the most popular city for arbitration in the United States. New York’s robust arbitration culture is strengthened by the presence of leading arbitral institutions, excellent professional organizations, including the New York City Bar Association and CPR, leading academic institutions, and a deep bench of professionals practicing in the area. NYIAC is one of the world’s leading arbitration centers.”
The Protocol reviews the importance of cybersecurity in arbitration, which has become a largely digital process; the high stakes and the risks inherent in international arbitration, including the cross-border nature of the process, which often involves extensive travel and the use of multiple networks; and factors to be considered in developing reasonable cybersecurity measures. While arbitration is not uniquely vulnerable to data breaches, neither is the process immune to increasingly pervasive cyberattacks against corporations, law firms, government agencies and individuals. The credibility and integrity of any dispute resolution process depend on maintaining a reasonable degree of protection over the data exchanged during the process. The City Bar representatives said “the Protocol provides a pathway for the arbitration community to maintain a culture of awareness and effective security so that arbitration will continue to meet users’ expectations.”
The Working Group publish an initial Consultation Draft in April 2018, together with a request for comments that was sent to more than 240 individual consultees representing arbitral institutions, law firm arbitration practice groups, expert witnesses in arbitration proceedings and non-governmental organizations such as bar associations. The Working Group also solicited feedback at more than two dozen public workshops and other events held around the world. Through this consultation process, the arbitration community conveyed wide support for the Working Group’s initiative and provided thoughtful written and oral comments on the Consultation Draft which have been incorporated into the final version. More information on the consultation process is available here.
The Working Group has adopted an “editioning” approach – thus referring to the document as the “2020 Protocol” – to emphasize that the Protocol will necessarily evolve over time in response to ongoing feedback and to take into account practical experience implementing it, as well as changes to technology, prevailing cyber threats, new or amended laws/regulations (including proliferating data privacy regulation across the globe) and emerging consensus as to best practices.
The Protocol also will be featured at the ICCA 2020 Congress to be held in Edinburgh, Scotland, in May of 2020.
Members of the Working Group
Olivier André, International Institute for Conflict Prevention and Resolution (CPR)
Paul Cohen, 4-5 Gray’s Inn Square Chambers
Stephanie Cohen, Independent Arbitrator
Hagit Elul, Hughes Hubbard & Reed LLP
Lea Haber Kuck, Skadden, Arps, Slate, Meagher & Flom LLP
Micaela McMurrough, Covington & Burling LLP
Mark Morril, Independent Arbitrator
Kathleen Paisley, Ambos Law
Chair: Brandon Malone, Scottish Arbitration Centre; Brandon Malone & Company
Secretaries: Eva Y. Chan and Jesse R. Peters, Skadden, Arps, Slate, Meagher & Flom LLP
For its contribution in developing the Protocol, the City Bar’s representatives consulted its Committees on Arbitration, International Commercial Disputes, and Information Technology & Cyber Law.
Feedback on the Cybersecurity Protocol may be sent to cybersecurity@arbitration-icca.org.
The Cybersecurity Protocol is available here: http://bit.ly/346rY30
About the Association
The New York City Bar Association, since its founding in 1870, has been dedicated to maintaining the high ethical standards of the legal profession, promoting reform of the law and access to justice, and providing service to the profession and the public. The Association, through its 24,000 members, continues to work for political, legal and social reform, while implementing innovative means to help the disadvantaged. Protecting the public’s welfare remains one of the Association’s highest priorities. www.nycbar.org
