Data mining, text analytics and international commercial arbitration

Law has never been at the forefront of innovation. Perceived as a “mirror of society” that reflects its norms and morals, law often follows in the wake of changes that have already taken place in society. This reflection applies to the legal industry itself, which is rather conservative and cautious in welcoming new developments. However, the use of technology in international commercial arbitration (and law in general) proves to be slowly but steadily an increasing phenomenon, only boosted by the COVID-19 pandemic. This is also true with the use of data mining and text analytics in international commercial arbitration. Arbitral practice shows that such technology is currently being used; whether and how the law keeps up with this reality will be discussed in this paper.

This Chapter, therefore, focuses on the use of data mining and text analytics throughout the lifecycle of international commercial arbitration (hereinafter: “ICA”) proceedings. (4) As the definitions of the concepts of data mining and text analytics would not differ in commercial arbitration and investor-state arbitration (hereinafter: “ISA”), this Chapter relies upon and benefits from the theoretical underpinning canvassed by Alschner and Charlotin in Chapter 8. (5) The potential application of these tools, however, might be different considering the private nature of ICA (as opposed to the broader publicity of ISA). The first two sections will briefly explain the concepts of data mining and text analytics (section 2) and the current legal framework to deal with these tools, or rather the lack thereof (section 3). What follows is a handful of reflections regarding the use of data mining and text analytics by parties/counsel (section 4) and the arbitral tribunal (section 5).