Working Group on Cybersecurity in International Arbitration Releases Draft Protocol

Draft is now open for public review and comment

New York, NY—Citing the importance of identifying “reasonable cybersecurity measures to protect the information exchanged” while conducting international arbitration in the digital landscape, the Working Group on Cybersecurity in Arbitration (the “Working Group”)—consisting of the International Council for Commercial Arbitration (ICCA), the International Institute for Conflict Prevention and Resolution (CPR) and the New York City Bar Association—announced the promulgation of a Draft Cybersecurity Protocol for International Arbitration (the “Protocol”).

The Working Group is chaired by Brandon Malone (Chairman of the Scottish Arbitration Centre and the principal of Brandon Malone & Company). Its members include Olivier André (CPR), Paul Cohen (4-5 Gray’s Inn Square Chambers), Stephanie Cohen (independent arbitrator), Hagit Elul (Hughes Hubbard & Reed), Lea Haber Kuck (Skadden, Arps, Slate, Meagher & Flom LLP), Micaela McMurrough (Covington & Burling), Mark Morril (independent arbitrator), Kathleen Paisley (Ambos Law) and Eva Y. Chan (Skadden, Arps, Slate, Meagher & Flom LLP) as Secretary to the Working Group.

Presented on April 15 at the ICCA Congress in Sydney, Australia, the draft Protocol is open for public review and comment through the end of the year. As stated in the document:

“The consultative period will last until 31 December 2018. All interested parties are encouraged to provide detailed thoughts and comments on the draft protocol, or to provide general feedback. The Working Group will hold a number of public workshops in different parts of the world to solicit and discuss the views of interested parties. In addition, the Working Group welcomes written comments from interested parties which should be submitted no later than 30 September 2018, through the Working Group’s page on ICCA’s website at <http://www.arbitrationicca.org/projects/Cybersecurity-in-International-Arbitration>. 

In anticipation of the public consultation, which the Working Group anticipates will include input from a variety of sources with differing views, the draft Protocol refrains in Schedule A from offering specific cybersecurity measures for possible inclusion in arbitration agreements or procedural orders. Instead the Protocol suggests a procedural framework for developing specific cybersecurity measures within the context of individual cases, recognizing that what constitutes reasonable cybersecurity measures will vary from case-to-case based on a multitude of factors. Depending on the feedback received, the final Protocol may or may not include such proposed measures in Schedule A. 

Following the consultation period, the Protocol will be revised, refined, and finalized in accordance with the input and comments received. After that time, the Working Group anticipates that there will be an ongoing review and revision process, as cybersecurity issues will evolve with changing technology, new cyberthreats, changing laws and regulatory schemes, and emerging consensus as to best practices.” 

In 2017, CPR also announced the launch of a new Cyber Panel comprising experts in cyber-related areas such as data breaches and subsequent insurance claims. CPR President and CEO Noah Hanft described that panel as guiding the “critical effort” by businesses to “prevent and/or resolve cyber-related disputes in a manner that best protects operations, customers and reputation.”

About CPR: CPR is an independent nonprofit organization that has helped global businesses prevent and resolve commercial disputes effectively and efficiently for more than 40 years. Our membership consists of top corporations and law firms, academic and government institutions, and leading mediators and arbitrators around the world. CPR is unique as: (1) a thought leader, driving a global dispute resolution culture; (2) a developer of cutting edge tools and resources, powered by the collective innovation of its membership; and (3) an ADR provider offering innovative, practical arbitration rules, mediation and other dispute resolution procedures, and neutrals worldwide. For more information, please visit www.cpradr.org.

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