On September 3, 2020, University of New South Wales (“UNSW”)’s China International Business and Economic Law (CIBEL) (https://www.cibel.unsw.edu.au/) held an online conference on COVID-19 and Digitalization of Dispute Resolution. The conference was moderated by Professor Kun Fan of UNSW and drew more than 100 online participants from all of over the world.
The theme of the conference centers around how rapid digitalization of dispute resolution methods impacted access to justice in China, a long evolving field undergoing some rapid changes due to drastic pandemic-led behavioral changes. The 90-minute conference was structured into three sessions, covering Mediation/ODR, Arbitration, and Digital Courts respectively. During the first session, I covered some thoughts on the different roles played by states and legal professionals in shaping development paths of online mediation of the United States and China. These differences, combined with divergent perceptions of justice and ADR in Western and Eastern societies, leading to dissimilar online mediation focus points in two of the world’s biggest economy. My presentation is based on my new paper co-authored with Dr. Wenli Guo (Hangzhou, China) and Mr. Charles Ho Wang Mak (Glasgow, UK) that is forthcoming in the COVID-19 special issue of the World Arbitration and Mediation Review (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3605801).
The arbitration panel had three speakers, Dr. Tietie Zhang (Sheffield, UK) covered his general observations of the arbitration “New Normal”, and proposed a concept of “blended arbitration” that characterizes partially digitalized arbitration processes in the foreseeable future. Mr. Guillermo Garcia-Perrote (Sydney, Australia) offered his thoughts on the pandemic’s impact on arbitration proceedings from a counsel’s perspectives. He mentioned different levels of push-backs among common law and civil law arbitration counsels on the legitimacy of virtual hearings, especially on due process grounds. Mr. Yuan Fang (St. Louis, United States) summarized main innovations of institutional rules to accommodate virtual hearings in China and discussed those changes with references to their conflicts with existing PRC Arbitration Law.
During the third session, Professor Mimi Zou (Oxford/Reading, UK) and Ms. Amma Al Owais (Dubai, UAE) discussed their research and firsthand experiences participating in digital courts construction products, in China (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3552895) and Dubai. Both of them also mentioned possible ethical concerns challenging technological advancement of courts, such as technological competence of judicial and legal professionals, algorithm bias and confidentiality/security.
In general, these thought-provoking discussions challenge current notions of access to justice in China and a variety of other jurisdictions where courts and ADR forums are rapidly digitalizing. Just like Professor Kun Fan remarked, “the greater and better use of technology in the administration of justice is an inevitable trend, and the current pandemic may have significantly pushed the digitalization process much forward, leading to more e-mediation, e-arbitration, online courts and the use of AI in the future.” However, “Justice delayed is justice denied”. While taking advantages of technological advancement, ethical rules and platform regulations are also needed to ensure user confidence in these systems.
Carrie Shu Shang is an Assistant Professor of Business Law at California State Polytechnic University, Pomona. She obtained her J.D. from University of Southern California School of Law, and her B.A./B.S. (with High Honors) from University of California, Berkeley. Prior to joining the academia, she was the Chief Representative of Hong Kong International Arbitration Centre’s PRC Office (2017-18). She is admitted to the New York (2013) and California Bar (2019), and is qualified to practice law in the People’s Republic of China. She is a practicing mediator and an UDRP panelist of several ICANN accredited providers. She’s also on the Membership Committee of the Silicon Valley Arbitration and Mediation Center (SVAMC).