
Das Schiedsgericht für die IT IT-Projekte haben eine lange Laufzeit und erfordern erhebliche Investitionen. Dies führt zu komplexen Beziehungen zwischen verschiedenen Akteuren.
See Press ReleaseConflicts or situations that are threatening to turn into conflicts and are not being managed can get out of hand, sometimes deteriorating to such an extent that they endanger a project’s success. So prevention is better than cure.
ITDR has developed a new instrument for this: ICT conflict prevention.
The aim of ICT conflict prevention is to identify and tackle irritation, friction and impending conflicts at an early stage in the project and thus avert possible escalation. The approach gives priority to defusing the situation and preventing it turning into a legal battle. The ICT conflict moderator deployed by ITDR, working on the basis of ‘customized’ agreements made with the parties involved, will endeavour to create a climate for the execution of an ICT project in which there is no room for irritation, disputes and similar problems. Attention is given not just to commercial and technical interests but also to the personal positions of the project managers and staff involved.
This includes personal characteristics such as empathy, the ability to listen, good communication skills and the ability to deal with conflicting interests, stress and the threat of the project falling apart. The ICT conflict moderators deployed by ITDR are particularly strong in these areas thanks to their professionalism and specific expertise.
Mediation is a form of conflict intervention in which the mediator or mediation team assists the parties in their negotiations to help them reach a result, based on their individual interests, that is the best possible outcome for each party and that enjoys the support of all parties. The joint solution is documented in a settlement agreement between the parties.
Mediation involves the resolution of a conflict through negotiations and conciliation. Mediation is most appropriate when the parties are prepared to look for a solution together and want to maintain their relationship, or stop it from deteriorating further. This can be the case, for instance, if the parties involved have a long-term business relationship; then renegotiation is often preferable to ending the contract. Another common situation is where parties have shared interests as well as conflicting interests: for example, reducing losses, avoiding publicity or completing the project as soon as possible. The first step is to list all the interests of the parties involved, doing so in a cooperative spirit (something the mediator in particular can achieve). Those interests do not just have to relate to the conflict; they can also include the parties’ future relationship, which often helps create an opening for a wider range of options.
It is not the mediator’s task to impose a binding ruling concerning the conflict on the parties involved. The parties themselves are responsible for finding a solution, which means they remain in control throughout the mediation.
There are a number of other advantages to using mediation. First, mediation is a relatively fast, cheap option. ITDR’s experience in recent years has shown that nearly every ICT mediation can reach settlement within weeks. A precondition for successful mediation is that the parties cooperate of their own free will and that they remain responsible for the solution. 92% of the ICT mediation cases reported to and dealt with by ITDR resulted in a successful outcome (that is, a signed settlement agreement).
The mediation procedure always starts with an ‘Application’. The request can be submitted by just one of the parties, but it is also possible for the parties involved in the dispute to submit a joint request. The request can be recorded in a basic letter. You will find a basic model below to help you in compiling an application. This model is for an application for ICT mediation submitted by one of the parties to the dispute.
WHEN IS MEDIATION APPROPRIATE
WHEN IS MEDIATION NOT APPROPRIATE?
Arbitration is a form of justice recognized and guaranteed by law in which private arbitrators arrive at a ruling based on a formal legal procedure with associated legal documents. The parties can agree to submit their conflict to arbitration. This means they undertake to submit their dispute to arbitrators, who give a ruling on the case that is binding for the parties involved.
An arbitration ruling has the same force of law as a ‘normal’ ruling. After the arbitrators have drawn up and signed the ruling, it is registered with the court. After that, one of the parties can engage a bailiff, who can for example seize the property of the other party in order to enforce implementation of the ruling. Arbitration is an internationally recognized form of conflict resolution. Many countries have signed the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
The big advantage of arbitration compared with the regular courts is that the arbitrators are specialized; in the case of ITDR, they are specialized in problems that are specific to the ICT sector. Consequently, arbitration boards are multidisciplinary. At ITDR, they consist of top-class lawyers with considerable experience of procedural law and ICT conflicts on the one hand, and leading ICT experts with many years of experience with information technology on the other hand.
ITDR is known for the speed with which it can carry out arbitration. It has short completion times of no more than three to four weeks. The sessions of the arbitration board chosen by the parties involved can take place in the Netherlands or abroad, at a time of their choosing. In urgent cases, arbitration can be arranged in a matter of days. That also applies to disputes where a temporary measure needs to be taken. This is far from uncommon in ICT projects where there cannot be any interruption to progress but at the same time such a measure is needed. These cases are usually handled in summary arbitral proceedings. Summary arbitral proceedings are similar to normal arbitration, except that the proceedings can be completed in only a few days.
ITDR offers arbitration among its services. A precondition for starting arbitration via ITDR is that the parties to the dispute have entered into a written agreement in which it has been agreed that any disputes that need resolving will be submitted to ITDR for arbitration. This agreement is termed the arbitration agreement.
In addition to the standard arbitration proceedings, ITDR offers the option of summary arbitral proceedings. Summary arbitral proceedings take only a short time and are aimed at reaching a ruling relatively quickly regarding an urgent matter in which a decision is required in short order. You can consider requesting a provisional arrangement through summary arbitral proceedings if you are unable to wait for the case to be dealt with in standard arbitration proceedings. You will find a basic model below to help you in compiling an application.
WHEN IS ARBITRATION APPROPRIATE
WHEN IS ARBITRATION NOT APPROPRIATE?
An expert report is a report by an independent expert (usually an ICT specialist) that gives answers to questions posed by the judge(s), arbitrators or directly by the parties involved. In the latter case, this is usually because the parties involved want a joint picture of how an external expert views their conflict before taking legal action.
There is a distinction between an expert engaged by a party and an independent expert appointed jointly by both parties (or the court or the arbitrators). As ITDR aims to operate exclusively from a neutral and independent position, such reports will always constitute an independent opinion on the case being submitted. Given its status, ITDR will never serve as an expert for one specific party; it will only provide expert reports on the orders of all parties involved, doing so in accordance with the ITDR Rules of Procedure for expert reports.
At the request of the courts, arbitrators or parties involved, ITDR will act as an intermediary in finding an expert. In expert reports for the courts, the expert will focus on those questions that the court has formulated for the specific case.
ITDR is involved in dealing with, resolving and settling disputes and conflicts to do with the protection of personal data and information security. ICT security is of increasing importance as actions of legislators in the European Union and Switzerland shows. To combat the violation of data abuse, the EU introduced the General Data Protection Regulation (GDPR), the European privacy rules which businesses and organizations must comply with from 25 May 2018. In Switzerland, the parliament revises the Swiss Data Protection Code (“Datenschutzgesetz”, “DSG”) at the moment. It should come into force in January 2021. The aim is, inter alia, to at minimum equalize the Swiss data protection and ICT security with the GDPR.
Thanks to the GDPR, the privacy of citizens in Europe is attracting a great deal of attention. The GDPR affects all of society, from large companies to small and medium-sized enterprises. ICT companies too, such as software suppliers, Cloud providers, hosting companies and other ICT service providers, in view of the interest their clients have in ensuring that personal data is properly protected, are giving their full attention to the GDPR. The GDPR also extends to private and public organizations.
For the Swiss market, it is important that the SDPL will be acknowledged as equal to the GDPR. Therefore, one of the most important guidelines for the Swiss parliament during the current revision is to keep up with the standards of the GDPR. However, the approach in Switzerland is to protect privacy which is why the parliament wants to include a so-called profiling with high risk. Profiling with high risk means the systematic processing of combined personal data to draw conclusions about different areas of a person's life. In case of a profiling with high risk, it is planned to ask for explicit consent of the person whose data is processed. The special handling of profiling with high risk could put the equivalence decision of the EU at danger. Until the new data protection law comes in force, however, the Swiss Data Protection Law of 1992 stays in force.
Failure to comply with the statutory rules and contractual provisions concerning privacy and security can lead to complex conflicts and disputes. ITDR can call on experts with many years of extensive practical experience in privacy and security matters, both lawyers and ICT experts.
A significant advantage of having ITDR deal with disputes in this area is the total confidentiality and secrecy that is guaranteed under the ITDR regulations. This is different when the regular courts are involved, as they act in the public domain. By their very nature, the security policy and security measures of an organization must hardly ever be exposed to the general public. With this in mind, engaging ITDR is an obvious choice.
ITDR is fulfilling its social responsibility to play, even more clearly than before, a professional, independent and impartial role in dealing with disputes and conflicts. A dispute or conflict can be submitted to ITDR on the basis of existing ITDR rules. The associates of ITDR all have extensive and in-depth experience in this area.
Privacy and security disputes come in all shapes and sizes. Among the issues dealt with are:
Das Schiedsgericht für die IT IT-Projekte haben eine lange Laufzeit und erfordern erhebliche Investitionen. Dies führt zu komplexen Beziehungen zwischen verschiedenen Akteuren.
See Press ReleaseITDR cooperates with the Swiss Chambers’ Arbitration Institution (SCAI), which has long-time experience in the administration of arbitration and mediation proceedings.
See press release