UKJT Digital Dispute Resolution Rules

• United Kingdom

• Financial services disputes and investigations
• Litigation and dispute management
• Technology
• Financial services - Digital Financial Services

18-05-2021

After extensive consultation, on 22 April 2021 the UK Jurisdiction Taskforce (the “UKJT”) published the finalised Digital Dispute Resolution Rules (the “Rules”). These Rules underpin an arbitration procedure aimed at facilitating the rapid and cost-effective resolution of commercial disputes, particularly those involving novel digital technology such as smart contracts, distributed ledger technology, and fintech applications. A key distinction between the Rules and more traditional arbitration is the flexibility in the procedure, which allows parties to tailor the procedure to the characteristics of specific technologies, while encouraging swift resolution and the use of technology.

While the Rules are intended to apply to disputes relating to novel digital technologies, they may be adopted and applied to any dispute subject matter.

The finalised Rules are largely unchanged from the draft published in February 2021 (which was covered in our earlier article on 25 February 2021) but provide further clarity and guidance on certain aspects of the process.

Incorporation of the Rules

The Rules do not apply automatically – the parties must agree to incorporate the Rules in writing before or after a dispute has arisen. The Rules have provided suggested wording that can be incorporated into a contract, digital asset or digital asset system in either electronic or encoded form: “Any dispute shall be resolved in accordance with the UKJT Digital Dispute Resolution Rules”.

The parties may also agree to incorporate preferences for the implementation of the Rules; examples of which were largely similar to those specified in the draft Rules. However, the finalised version additionally provides that parties can agree to any modifications to the application or operation of the Rules, emphasising the flexibility of the process.

Commencing arbitration proceedings

A claimant commences proceedings by giving a notice of claim to each respondent and to the appointment body. The notice of claim must include the following details:

a) the claimant’s identity details

b) electronic contact details for the claimant and each respondent

c) brief details of the claim, including the remedy sought

d) brief explanation of why the Rules apply to the dispute (newly added to the finalised Rules)

e) details of any preferences agreed between the parties when incorporating the Rules

f) proposals for paying or securing the fees of the appointment body and the tribunal

The notice of claim may also include supporting documents, supporting digital material, witness statements, arguments and any proposals as to the procedure to be adopted.

In order to facilitate a rapid process, the respondent has three days from receipt of a notice of claim to send an initial response to the claimant, each other respondent and the appointment body. The respondent’s initial response must include the respondent’s identity details and electronic contact details, and may include comments on or other material relevant to the claim.

However, the finalised Rules also permit parties to provide for anonymous dispute resolution. This would absolve the need to include identity details in a notice of claim or initial response. Instead, once the appointment body has appointed a tribunal, the parties can provide the identity details confidentially to the tribunal.

Procedure and Evidence

The finalised Rules confirm that the appointing body refers to the Society for Computers and Law (the “SCL”). The SCL is not an arbitral institution, and its role is simply to manage the appointment of arbitrators and experts, and to publish anonymised decisions in appropriate cases. However, the parties can agree for another body to manage the appointment of arbitrators or experts.

The appointing body will appoint a tribunal as soon as reasonably practicable after receipt of the initial responses, and it is anticipated that the SCL will develop its own panel, selecting arbitrators and experts based on their expertise in relevant technologies. While the appointing body will consider any preferences specified by the parties, they are not bound by them. The finalised Rules also expressly provide that the appointing body and the tribunal are not obliged to act, or to continue acting, unless reasonable arrangements have been made to pay or secure their fees.

The finalised Rules pertaining to procedure and evidence are identical to the draft Rules. In brief, once appointed the tribunal has complete discretion over the arbitration procedure (subject to fairness and impartiality) and the submission or form of evidence. Notwithstanding this discretion, the tribunal will consult with the parties to tailor the arbitration process to the parties and the dispute. Examples provided in the finalised Rules include altering the timescales set out in the Rules, agreeing that certain procedural steps will take place, or agreeing that certain evidence be given particular weight.

There is no right to an oral hearing and the tribunal has the discretion to determine the dispute on the basis of written submissions only. Absent any agreement to the contrary, the Tribunal shall use its best endeavours to determine any disputes within 30 days from its appointment. Any decision must be in writing and will be final, and can only be appealed or challenged as permitted under the English Arbitration Act 1996. Where a decision involves an action to be taken on a digital asset, the Tribunal also has the power to implement its decision directly onto the digital asset, or to direct a party to do so.

Anonymity

The finalised Rules provide extra guidance on how parties can opt for anonymity under this process. While it is possible for parties to remain anonymous to each other (reflecting the fact that any digital transactions such as blockchain may have taken place anonymously), the parties must provide details and evidence of their identity to the tribunal’s reasonable satisfaction of the parties’ identities. Examples given by the UKJT include details for the purposes of complying with laws against money laundering or the avoidance of international sanctions.

Comment

The finalised Rules are largely unchanged from the draft published in February 2021. Any changes add to or clarify the Rules rather than making substantive amendment. Given that the Rules do not apply automatically, we expect boilerplate provisions will soon start to reflect the express adoption of the Rules, where appropriate and in respect of the use of digital assets. This will be of relevance to companies in the tech sector and generally, as the prevalence of digital technology among firms continues to grow.

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