Emerging Trends in Technology Disputes: Five Predictions

In the technology disputes space, these issues have also raised intriguing questions and challenges. For instance, courts have had to find ways to bring justice in cases of cryptocurrency fraud where an action is brought for relief against unknown parties. In this article, five predictions are put forward based on emerging trends on the types of technology disputes which we will see in future.

1. When a technology dispute arises, disputing parties will look to the law for a fair resolution. The constantly evolving technology landscape has thrown up a number of disputes which challenge the ability to arrive at just decisions as we continually try to adapt and apply our laws to govern these technology disputes.

2. In the largely unchartered waters of technology disputes, we have seen trends emerging and put forward five predictions of the types of technology disputes we will see in future. As with the law, predictions are not an exact science – we have therefore approached this exercise as an art based on current data. Further, as with any technology product, our predictive output can only be as good as the information and data that we have had the opportunity to consider and analyse.

3. Before diving into our predictions, we pause briefly to consider what makes a technology dispute. There have been various attempts to define a “technology dispute” including for example, the Draft Provisions for Technology-related Dispute Resolution (UNCITRAL Draft Technology Provisions) which proposed: 

“Technology dispute means a dispute arising out of or relating to the supply, procurement, research, development, implementation, licensing, commercialization, distribution, financing, as well as to the existence, scope, and validity of legal relationships of or related to the use of emerging and established technologies.”

4. The definition is arguably so wide as to generally apply to many forms of disputes, technology-related or not. A comment has been made that a dispute involving a plough (being a form of technology) could fall under the proposed definition on the premise that it is a dispute “of or related to the use of emerging and established technologies”.

5. While an agreed definition of a “technology dispute” may remain elusive in the near term, there are at least some disputes which could generally be agreed on as “technology disputes”. These would include disputes involving cryptocurrency (usually involving fraud), disputes following cybersecurity and IT incidents, as well as disputes between metaverse users (such as the theft of digital assets in the metaverse).

Prediction One: Unknown Identities and Digital Identities Will Continue to Feature in Technology Disputes

6. One feature of the new digital economy is the increased ability of individuals to hide their identities or adopt alternative digital identities in their virtual interactions or transactions. This has in turn raised new challenges when seeking to enforce legal rights.

7. This is perhaps best illustrated in cryptocurrency fraud cases which typically involve the victim of a hack or cryptocurrency fraud seeking an injunction against an unknown hacker. The courts in Singapore and other common law jurisdictions have generally undertaken a practical approach to enable the legal pursuit of such anonymous wrongdoers by permitting proceedings against “Persons Unknown”. This is so long as the claimant can identify by description those coming within the class of defendant.

8. Unknown (digital) identities also present associated challenges with effecting service. Traditional (nondigital) methods of direct service on defendants are clearly not possible when their identity or physical location cannot be ascertained. Again, we see how the courts in common law jurisdictions have sought to overcome the peculiar problems in the digital economy by permitting service via digital means. In D’Aloia v Persons Unknown, Binance Holdings Limited & Others [2022] EWHC 1723 (Ch) the English High Court permitted the service of court documents by NFT which would “airdrop” the court documents into the two digital wallets connected with the persons unknown and embed the service in the blockchain.

9. As the metaverse gains popularity, it is inevitable that there will be an increase in the adoption of digital identities through the creation of avatars. This may in turn present questions such as:

• If all that is known of the identity of a defendant is an avatar without any link to an actual identity, will it be (legally) possible to make an order against an avatar?
• Given that a number of digital assets are held by digital identities, could third-party crypto exchanges be compelled to provide relief?

Prediction Two: Businesses and Industry Players in the Digital Assets Ecosystem Will Be at Risk of More Claims

10. As the users of digital platforms and networks increase, it is likely that more claims will be made against business and industry players in the digital assets ecosystem. This includes developers, creators and operators of digital asset platforms and networks. Even where the technology driving such platforms and networks perform as planned, disputes have arisen, and will continue to arise, where these platforms and networks have been breached by third parties or adversely impacted by IT incidents.

11. In Tulip Trading Ltd v Bitcoin Association for Bitcoin SV (BSV) and others [2022] EWHC 667 (Ch), the claimant could not access its digital currency assets allegedly due to a hack. The claimant filed…