Lee Gluyas, Charlotte Sanderson and Stephanie Woods, from CMS, summarise the current thinking round tech disputes aired at the recent SCL Technology Disputes Masterclass
How are technology disputes currently being resolved? Are traditional methods of dispute resolution suitable for resolving technology disputes? To what extent should new forms of dispute resolution be adopted to resolve disputes arising from new forms of technology? These questions were all considered as part of the round table discussions at the recent SCL Technology Disputes Masterclass on 6 March 2025.
The background to that round table discussion was the results of a survey first published in November 2024 in CMS’s Technology Transformation: Drive innovation, mitigate the risks report[1]. As part of that survey over 500 GCs, senior in-house counsel and risks managers globally were surveyed in respect of their experiences and expectations relating to the use of new technologies and their approach to managing the risks of the same. That survey had first been conducted in 2022 and was re-run in 2024, allowing the identification of key trends and changes in dispute resolution preferences over time.
The round table provided a forum to discuss those trends, and s predictions for the future. We set out below a number of key takeaways from both the report and those roundtable discussions in relation to current trends and future predictions for the resolution of technology disputes.
Current trends
The report highlighted an increase in the popularity of litigation as a means of resolving technology disputes. In 2022 24% of survey respondents ranked litigation as one of their top two processes for resolving technology disputes. By 2024 this had increased to 29%. During the same period preference for arbitration had remained static at 29%. Further, in EMEA specifically, 34% of respondents ranked litigation in their top two forms of dispute resolution, a 14% increase from 2022, while the preference for arbitration fell from 36% to 28% in the region.
Conference attendees were surprised by this popularity of litigation, with many commenting on the advantages of arbitration for resolving technology disputes. In particular, the confidentiality and procedural flexibility offered by arbitration (including the ability to build in time to “teach” the tribunal about the technology in dispute) was noted as an attraction (although the perceived need for confidentiality by businesses can often depend on the nature of the dispute). In addition, memorial pleadings in arbitration were noted by some attendees to lend themselves better to resolving technology disputes than the approach to the exchange of evidence taken in court proceedings.
Concerns were raised by some conference attendees about the focus and expertise of arbitrators, although it was acknowledged that the ability to have the same arbitrator(s) appointed for the lifetime of a dispute was an advantage over litigation where this was not guaranteed.
Ultimately whether litigation or arbitration is utilised depends on the contractual dispute resolution mechanism. Those mechanisms often provide for a form of negotiated dispute resolution and non-adversarial dispute resolution processes remained popular amongst survey respondents. 25% of survey respondents placed mediation in their top 2 preferred methods of dispute resolution, followed by dispute escalation procedures with 23% and negotiation without a mediator at 20%.
It was recognised in the round table discussions that the SCL was well positioned to assist businesses with such forms of negotiated dispute resolution through the SCL Mediation Scheme, which is intended to help achieve consensual resolution of technology disputes.[2]
There was also some discussion around the utilisation of expert determination and adjudication for the resolution of technology disputes. The ability to obtain a quick decision in a short time frame was seen as a strong advantage of both, allowing businesses to resolve issues and continue to progress projects. Speed of decision was also noted to be useful in circumstances where there were discrete issues within a wider dispute that could be referred to either expert determination or adjudication, allowing a decision to be obtained on those discrete points and potentially putting the parties in a better position to subsequently engage in any negotiation or mediation.
It is understood that provisions are being included in contracts providing for applicable disputes to be referred to the SCL Adjudication Scheme. It is hoped that as further references are included in contracts for its use, there will be an increase in adjudications under the scheme.[3]
Future Predictions
Looking to the future, the report identified that 57% of survey respondents believed that new forms of dispute resolution will be needed for disputes relating to new technologies. Whilst the precise forms of new dispute resolution mechanisms were not covered by survey respondents, the round table discussions considered a number of new and predicted developments in dispute resolution.
Unsurprisingly, conference attendees anticipated that AI will have a role to play in future forms of dispute resolution. Whilst the precise nature of such role is uncertain, it was noted that arbitral institutions were taking steps to prepare for the wider use of AI. For example, JAMS, the private dispute resolution specialists, offer specific arbitral rules for AI disputes and the American Arbitration Association of the International Centre for Dispute Resolution has launched an AI tool to use in arbitral panel selection.
Discussion was also had around the opportunities for new online platforms for dispute resolution and the speed in which a decision could be reached by parties using the same. By way of example, the online dispute resolution service PinqDR provides an online process to obtain a binding arbitral awards within 6 to 8 weeks.
A further area where technology may be used to speed up dispute resolution is through the use of blockchain to automate ADR: whether that be by way of an “on-chain” arbitration (e.g. where parties make available certain assets on the chain against which any arbitral award can be automatically enforced) or “off-chain” mechanisms (e.g. where certain procedural elements such as the appointment of arbitrators are automated but the arbitral award itself is not automatically enforced on chain).
It was also noted that whilst there had been a number of technology specific arbitral rules published by institutions over the past few years (e.g. the Digital Dispute Resolution Rules amongst others), uptake and usage of the same remained low suggesting that bespoke rules for technology disputes, on their own, may not be sufficient to meet the needs of disputes relating to new technologies.
Conclusion
As technology continues to evolve, so too will the landscape of technology disputes. Whilst it is unlikely that traditional forms of dispute resolution will be replaced entirely, it is clear there is appetite for new forms of and approaches to dispute resolution. What format those new approaches will take waits to be seen. However, like new technology, new approaches to dispute resolution are under development and coming to market. To the extent technology specific rules or schemes have been published, these as a matter of course will take time to come into use, not least because the relevant provisions first have to be included in the underlying documents at the point of contract. It is hoped that once disputes have successfully been through these new rules or schemes, this will encourage other businesses to utilise such mechanisms to resolve their technology disputes.
Lee Gluyas is a partner in the Litigation and Arbitration team. He specialises in the resolution of disputes, particularly disputes arising out of IT projects, outsourcing agreements, software licenses and contracts relating to the provision of telecommunications services.
Charlotte Sanderson is an associate in the Litigation and Arbitration team based in London with a particular interest in the technology, media and gaming sectors.
Stephanie Woods is a Stephanie Woods is a Senior Associate in the Litigation and Arbitration team specialising in commercial dispute resolution and pre-litigation strategic advice for disputes relating to IT projects, data breaches and software licence disputes.
[1] Technology Transformation: Drive innovation, mitigate the risks
[2] SCL Mediation Scheme (SCLM) – Society for Computers & Law
[3] SCL Adjudication Scheme (SCLA) – Society for Computers & Law
