As part of the 2025 edition of the London International Disputes Week (“LIDW”), Osborne Partners, A&O Shearman and Eversheds Sutherland hosted a panel on “Arbitration in Emerging Industries (Tech, Fintech and Crypto): Global Risks and Local Differences”. The panel, moderated by Jonathan Leach (Eversheds Sutherland), comprised Brenda Horrigan (Independent Arbitrator), Sanjeev Kapoor (Khaitan & Co), James Searby (Osborne Partners), and Matthew Skinner (A&O Shearman).
There is no doubt that emerging technologies have profoundly reshaped the way people live, work, and interact. From the explosive rise of generative Artificial Intelligence (“AI”) to the global expansion of digital assets and cloud-based infrastructure, innovation has accelerated at a pace that often outstrips the capacity of regulatory frameworks. Overall, regulation over emerging industries becomes a moving target subject to political agendas (see for instance, “How the crypto industry took over the 2024 election“), or regulatory upheavals after high-profile fraud scandals (the Wirecard Scandal or the FTX Collapse). All in all, an undeniable reality turns apparent: innovation is inherently international, and emerging industries like cryptocurrencies and fintech pose challenges that often span multiple legal systems.
It is in this context that this LIDW panel offered an insightful analysis of the legal and procedural challenges posed by the rapid pace of innovation in emerging industries like fintech, cryptocurrencies, and cloud computing services. Jonathan Leach led the discussion by setting out three key themes: (1) identifying trends in emerging industries, (2) addressing specific legal and practical issues, and (3) evaluating how arbitration can adapt to meet the demands of these industries.
Identifying Trends in Emerging Industries
The panel kicked off by examining the broader trends shaping disputes in emerging industries. Sanjeev Kapoor identified different interactions that shape regulation around these industries. The first interaction is between government or regulatory bodies and the relevant emerging technology. Here, a recurring theme was the regulatory delay as technological innovation outpaces the development of legal frameworks. Regulators often struggle to keep up with emerging industries, leaving businesses to navigate uncertain legal terrain or with the difficult task of adapting their business to subsequent regulation. This covers a variety of different legal issues, but prominently data privacy and competition law. The second interaction pertains to consumers and the technology providers. Social groups fighting for data protection and transparent information on how personal data is (mis)used come to the front of the discussion. The third and final interaction identified by Kapoor pertains to the imbalance between service providers whose main business is built upon the gathering of data (e.g., generative IA and its language models) and the people who provide the data but do not get compensated.
Matthew Skinner switched gears and pointed to the expansion of cloud computing as a key trend, noting that while the market is currently dominated by a few major providers, the proliferation of cloud computing services is likely to generate a new wave of different kinds of disputes. These may involve hidden fees, service interruptions, or data deletion. When cloud infrastructure is hosted across multiple jurisdictions, the challenges become more complex.
But nothing presents more uncertainty than the valuation of emerging industries. A trend that could nevertheless be spotted is that disputes arise particularly from private funding in those emerging industries. On this, James Searby emphasised there is a common feature in these industries: a lack of robust documentation, relying instead on optimistic pitch decks. This makes it difficult to assess risk and value, particularly when investor expectations diverge from commercial realities. The reality is that valuation experts often would need to rely on industry and market expectations or be shackled by their instructions.
Addressing Specific Legal and Practical Issues
With respect to specific legal and practical issues, the panel addressed one of the most pressing issues: data privacy and jurisdictional conflict. Brenda Horrigan raised concerns about the ability to access and use data stored in foreign jurisdictions during arbitration proceedings. As countries impose more barriers for the unfettered flow of information, proving a claim may become increasingly difficult.
Skinner illustrated this with a case involving a UK company whose data was deleted by a foreign cloud provider following non-payment. Thereafter, the UK company fell into bankruptcy, and when the liquidator attempted to retrieve the information from the foreign cloud provider, this was not possible, given the information’s deletion. The case raised questions about liability, particularly when services are provided through intermediaries and the ultimate provider is outside the UK. These challenges have not yet been assessed by English courts, but this may change in the near future.
In the crypto space, the classification of digital assets remains unsettled. Skinner noted that UK courts are taking a proactive role, and regulatory developments such as Property (Digital Assets etc) Bill are in the making. This seems to cement the recognition of digital assets as a third category of property. The practical consequence consists of the application of property law principles, including freezing orders and trust protections to digital assets. In contrast, Kapoor explained that while India is keen on taxing digital assets like cryptocurrencies, it has yet to define them as property. At the forefront, it appears that Hong Kong has become a cryptocurrency hub: Only last month, the Hong Kong Legislative Council passed the Stablecoins Bill, which seeks to introduce some safeguards on the use of cryptocurrencies.
Searby chipped in with the valuation perspective. He explained that forward-looking exercises of valuation are rooted in the investor’s expectation, but that in emerging industries, this is inherently speculative. Horrigan added the arbitrator’s perspective in valuation: one must distinguish between what is likely and what is speculative. The more speculation is found, the more the discount rate is increased. But tribunals ought to consider the timing of the valuation as well—whether the company is at day one of conception or at year five nearing full regulatory approval can significantly affect the valuation analysis.
Adapting Arbitration for Emerging Industry Disputes
With respect to whether arbitration is well-suited to resolving disputes in emerging industries, there were diverging views. Kapoor expressed scepticism about arbitration’s suitability, noting that it does not produce binding precedent and may therefore lack the normative guidance that courts can provide. However, he acknowledged that arbitration offers advantages in terms of confidentiality and the ability to appoint arbitrators who understand the industry in question.
Horrigan underscored the importance of intellectual curiosity for an arbitrator. She opined that effective dispute resolution in these sectors requires decision-makers who are willing to dedicate time to understand not only the technology but also the broader industry context. She advocated for early-stage “teaching” within proceedings, where parties provide foundational information about the technology before any specific technical report. Searby seconded this idea.
At the other side of the spectrum, Skinner voiced support for seeing precedents on emerging industries to be developed by English courts as well. This, in his opinion, provides certainty, which is one of the attractive features of English law. He considered that the English High Court of Justice also has “intellectually curious” decision-makers who may pave the way to resolve legal challenges in emerging industries.
Finally, the panel addressed the generational shift among disputing parties in arbitration and whether this may have an impact. The panel nevertheless agreed that it ultimately depends on the expectations of the industry stakeholder. For instance, while some sectors, like crypto, demand rapid resolution, others—such as medical technology—require longer timelines due to regulatory and testing requirements. Thus, the timing of the arbitration might be more crucial in crypto than in new medical appliances. Horrigan and Kapoor cautioned that while speed may be desirable, it must not come at the expense of due process. Arbitrators must balance efficiency with enforceability.
Conclusion
Emerging industries continue to disrupt people’s lives, and dispute resolution mechanisms must evolve to keep pace. This panel has unveiled some of the complexities surrounding disputes in sectors like fintech, crypto, and cloud computing, including their cross-border nature and their unique technical and commercial realities.
For arbitration to provide a reliable forum for emerging industries disputes, it needs to embrace innovation, refine procedures, and ensure that arbitrators understand the industries behind, the law (or lack thereof), and the quantification challenges. While these emerging industries pose novel challenges like no other industry before, this represents an opportunity to reimagine dispute resolution for the years to come.
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