CPR Appoints New Cyber Panel Ahead of Anticipated Increase in Data Security Disputes

By Kate Wilford, Hogan Lovells (London)

The International Institute for Conflict Prevention and Resolution, a New York-based organisation offering Alternative Dispute Resolution (ADR) services, has recently announced the launch of a new specialised panel of neutrals, commissioned to deal with cybersecurity disputes. The Cyber Panel is composed of experts in cyber-related areas such as data breaches and subsequent insurance claims. In a press release, Noah Hanft, President of CPR, described the new 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” due to attacks now occurring with increased frequency and sophistication.

CPR’s decision to establish a specialist cyber panel addresses a perceived need for arbitrators and mediators with relevant expertise, given that data protection and security breaches are regarded as an increasingly common cause of technology, media, and telecommunications (TMT) disputes, and therefore a significant growth area for commercial dispute resolution. According to the 2016 International Dispute Resolution survey on TMT disputes conducted by the School of International Arbitration at Queen Mary University of London, respondents predicted a 191% increase in disputes related to data/system security breaches, the largest growth area identified by the survey.  Despite the fact that only 9% of respondents had encountered such disputes over the last five years, 79% of respondents thought that they were either likely or very likely to arise over the next five years. The survey also suggested that data breaches are most often caused by employee action, followed by malicious third party attacks, with both being more common than breaches caused by system failures.

Given the significant reputational and financial damage that can result from a data security breach, it is crucial to resolve subsequent disputes through the use of a reliable procedure which is tailored to the wider commercial context. This is why TMT companies are increasingly often turning to international arbitration which, as the survey shows, was respondents’ preferred mechanism for resolving disputes in the sector. Compared to the 43% of respondents who expressed a preference for arbitration, only 15% chose court litigation as their most favoured option. However, at present, litigation remains the most used mechanism in practice, used in relation to 44% of TMT disputes over the last five years. In that regard, the authors of the survey add that many of these disputes arise from contracts which were concluded long before arbitration grew in popularity and consequently, they do not include an arbitration clause. If this is true, we are likely to witness a significant increase in the number of TMT arbitrations. Indeed, 82% of respondents believed that there was likely to be a general increase in TMT arbitrations.

In general, the survey suggests that TMT companies may require more confidence in international arbitration in order to make this theoretical preference a reality. One way in which this could be addressed is by increasing the number of arbitrators with specialist knowledge of the sector and the specific issues in dispute. This approach appears to correspond with the views of the respondents to the Queen Mary University of London survey, which identified the technical expertise of the decision maker as an important aspect when deciding on a dispute resolution mechanism, as well as decision makers. In light of this conclusion, it was a logical step for CPR, which already has a series of specialist panels in other areas, to appoint a specialised Cyber Panel which may appeal to parties faced with disputes relating from data security breaches. More generally, there seems to be a wide consensus that cybersecurity-related arbitration is going to be an area of future growth.

Kate Wilford is a Senior Associate in Hogan Lovells’ London office. She represents international companies in large-scale, international commercial disputes. Her practice focuses on international arbitration (most frequently under the ICC, LCIA and UNCITRAL rules) and associated court litigation, including challenges to and enforcement of arbitral awards. Ms. Wilford’s full bio can be accessed HERE.

This post was originally published at http://www.hldataprotection.com/2017/08/articles/cybersecurity-data-breaches/cpr-appoints-new-cyber-panel-ahead-of-anticipated-increase-in-data-security-disputes – the Hogan Lovells Chronicle of Data Protection blog. It was also republished on the firm’s international arbitration blog, ARBlog and is republished here with permission.

CPR Launches New Cyber Panel Focused on Security Disputes and Related Insurance Claims

A cyber security breach occurs, possibly exposing consumer or other sensitive information. What happens next, at the corporate level?

Certainly underlying any serious cyber event are the questions of who is responsible, who is going to do what to remedy it and who is going to pay for it, including related insurance issues that will arise.

“With attacks occurring with both greater frequency and sophistication, smart companies and their counsel are adopting proactive strategies to prevent and/or resolve cyber-related disputes in a manner that best protects operations, customers and reputation,” said CPR President & CEO, Noah J. Hanft.

With CPR’s announcement, today, of a new CPR Cyber Panel, now those strategies can even more squarely include CPR, as well as thoughtful options outside of traditional litigation. The CPR Cyber Panel contains neutrals who are expert in data breaches and other cybersecurity issues, as well as those experienced in handling related insurance coverage disputes.

“Mediation of cyber security disputes and insurance claims if done by the right individuals can drive substantial value to all parties,” said Daniel Garrie, a longtime CPR Distinguished Neutral, Editor-in-Chief of Law & Cyber Warfare and CPR Cyber Panel member. “Of course, it is critical that your mediator have the mediation experience and real-world technical cyber expertise to ensure the right outcome. If done by the right individual supported by a quality ADR organization with strong rules and protocols, an entity will be able to realize the benefits a cyber security neutral.”

In the Law360 article, “Growing Demand for Mediation of Data Breach Disputes,” Barton LLP Partner and CPR Cyber Panel member Kenneth N. Rashbaum stated, “For reasons of financial savings, efficiency and plain peace of mind, those who prepare agreements in technology areas have increasingly turned to mediation and other dispute resolution clauses and this, in turn, has created a demand for mediators with backgrounds that comprise multiple practice areas, including cybersecurity, privacy, technology transactions and litigation. And they should open to dispute-mitigation alternatives. For example, arbitration clauses have been around for a very long time but newer and possibly less expensive modalities include ‘cooling-off and mediation’ provisions that require the aggrieved party to notify her counterpart of the disputed matter and then, only after a certain period of time, the parties will proceed to mediation and can only go further, to arbitration or litigation, if mediation fails.”

“One of the things CPR has particularly prided itself on, over its 40 year history, is being both tuned in and highly responsive to the needs of our members and the ADR community as a whole,” said CPR’s Helena Tavares Erickson, Senior Vice President,
Dispute Resolution Services and Corporate Secretary. “CPR’s new Cyber Panel is a perfect example of that dynamic in action: We were told about increasing cyber-related dispute resolution needs, and we acted. We encourage the community to let us know its needs as we are ready to act.”

CPR’s Panels of Distinguished Neutrals comprise those among the most respected and elite mediators and arbitrators in the world. They include prominent attorneys, retired state and federal judges, academics, as well as highly-skilled business executives, legal experts and dispute resolution professionals who are particularly qualified to resolve all business disputes including those involving multi-national corporations or issues of public sensitivity.

Focusing in more than 20 practice areas, CPR’s esteemed arbitrators and mediators have provided resolutions in thousands of cases, with billions of dollars at issue worldwide. Admission to one of CPR Panels occurs only after an individual is reviewed and approved by CPR and/or a select panel of high-end users, peers and/or academics. Candidates are screened for their ADR expertise and training, and candidate references are asked to comment specifically on the applicant’s qualifications to serve on complex commercial disputes. Qualification to the CPR roster is demanding and available openings are limited.

“Once again, Noah Hanft and CPR are leading the way in dispute resolution,” concluded Steven J. Antunes, Senior Litigation Counsel at AEGIS Insurance Services, Inc. “As the law regarding cyber security evolves and the claims become more sophisticated , the most cost effective manner in which to resolve cyber-related disputes may very well be through mediation.”