The Use of Drone-Collected Evidence in International Commercial Disputes

This blog post is the second in a series adapted from a detailed article co-authored by Sophie Nappert and Sarah Chojecki entitled “Evidence in International Arbitration through the Looking-Glass of the Digital Economy”, and is intended to provide a summary on a number of the issues raised. — Editor

In recent years, the use of drones, or Unmanned Aircraft Systems (UAS) as they are also called, has skyrocketed and their underlying technology keeps improving. According to a 2022 PwC study on the impact of drones on the UK’s economy, by 2030, more than 900,000 drones could operate in the UK’s skies. The study further estimates that drones could contribute £45bn to the UK economy alone, save £20bn in net costs across various sectors of the economy, affect 650,000 jobs positively, and reduce carbon emissions by 2.4M tons.

Drones can collect thermal imaging, temperature, elevation, depth, speed, measurements, volume, detect metals, or perform facial recognition. Compared to other forms of visual media, drones enable the collection of data that is of better quality and previously unavailable, in a way that is safe, credible, cheaper, and automated. Even as far back as 2016, their use in construction projects was beginning to shows its value. Andrew Smith, of The Cincinnati Constructor noted that:

“Construction for the new basketball arena for the Sacramento Kings is using software and drones to monitor lags in progress with the construction. Data is gathered on a daily basis and compared to the architectural design and blueprints to ensure the project is moving along as scheduled. … BP uses drones to inspect the Alaska pipeline using infrared cameras to test for hot spots and other infrastructure faults … We could take a close-up aerial photo of a concrete pour, to document the locations of post-tension cables, conduits and rebar built into the concrete. It’s relatively difficult to document that without drones, so were able to take photos with drones, and within minutes photoshop them over as-built plans to determine exactly what is located in the concrete.”

Given their capacities, they have been rapidly adopted in many other sectors of industry including oil & gas, agriculture, forestry, fishing, real estate, mining, transportation, telecommunications, and utilities.

According to the PwC study, drones are primarily used for the inspection and surveying of sites, “enabling regular reviews of construction progress and offering assurance over the build and its adherence to schedule.” By collecting and processing data that would otherwise be inaccessible, or only at great expense, drones can also be a powerful tool in the resolution of commercial disputes. As Andrew Goddard and Simon Crawshaw explain:

When disputes occur on large construction and engineering projects, the process of agreeing upon the as-built programme can throw up a number of problems  –  records are often incomplete or in limited detail, for example. A disputed or inadequate as-built programme can lead to further difficulties when trying to get to the bottom of the true causes and effects of alleged delays.

This is one instance where drones can be invaluable. Drone evidence gathered from when construction begins can allow progress to be monitored and recorded on a more regular basis.

Expert delay evidence is often criticised for being too theoretical, but drone evidence can help courts and tribunals get a much tighter grip on the objective facts of a case. This could put greater pressure on expert delay analyses to account for what actually happened. In the past, opinions and assessments have instead often relied on partisan accounts of the effects that delays or other events had on progress.

In one recent example of an ongoing project, drones were able to disprove a contractor’s claim that access to a part of the site was impossible. Drone videos showed that the contractor had managed to overcome the problem with a little ingenuity, and this meant there could be no delay caused by access.

Neither current institutional rules nor the 2020 IBA Rules on the Taking of Evidence in International Arbitration (IBA Rules) restrict the use of drone-collected evidence. The main frameworks at this stage come from the application of national regulations, mostly in the context of aviation law and the protection of airspace.

In the UK and the UAE, the trend has been towards increasing regulatory hurdles, giving consideration to privacy and safety concerns. Drones equipped with a myriad of cameras or sensors can raise concerns about privacy and data protection when collecting data outside of pre-defined project locations, such as mines, construction sites etc. Thus, from an evidentiary point of view, the increased use of drones in industry will likely increase the instances of infringement of individuals' privacy rights, particularly if drone operations involve capturing images or collecting personal data. As such, there is a higher likelihood that, depending on the category of drone-collected data, it may be rendered inadmissible in both litigation and arbitration. In these jurisdictions, this type of evidence therefore will have to be handled in such a way as to minimise its potential privacy overreach, in order to maximise its impact before a court or arbitral tribunal.

Another similar issue in relation to drone-derived data is the necessity to establish protocols and standards for its collection, preservation, and authentication. Reliability of evidence in pretty much every technology-enabled medium is always a crucial element and none more so when dealing with unmanned semi-autonomous and autonomous machines such as drones.

In contrast to the UK and UAE approaches, other countries have relaxed their rules for specific categories of drones, mostly for construction-related tasks.

Practically, arbitration practitioners will have to consider the aforementioned security/reliability factors, as well as accessibility issues, from the point of view of extracting valuable evidence from mountains of raw data. They will also have to contend with the additional legal challenges that the increasingly overlapping technologies (for example, AI systems scanning inventory; drone systems specifically designed to create extended reality) could raise.

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