Coronavirus & Arbitration: Institutional Responses, Challenges and Practical Tips (Part One)

Introduction

The ongoing global pandemic created by Covid-19 ('coronavirus') has led to unprecedented restrictions on how we conduct our professional lives. In a matter of weeks, businesses around the world have had to make adjustments which, under different circumstances, would have been made over years – or not at all. The dispute resolution sector is no different.[1]

In this series of two posts[2], we look at how the international arbitration community is responding to the challenges posed by the current crisis and how the work being done today can provide a template for the future. Across these posts, we argue that international arbitration is exceptionally well-suited to providing effective dispute resolution in these times and beyond: although there are challenges ahead, institutions are already pushing forward with new guidance and protocols for practitioners and the flexibility which arbitration as a process offers means that it is likely to continue to be the ideal forum for parties in these times.

In today's post, we consider the following question: how have some of the leading international arbitration institutions responded to the present outbreak?

Response of Arbitral Institutions

In a time of unparalleled crisis, institutions have adapted quickly and proactively, facilitating a move to electronic and remote working. At the time of writing, all major international arbitration institutions are operating remotely and have taken a number of steps to make the move to remote working easier for users.[3] In broad terms, institutions have taken three broad categories of steps to support users of international arbitration:

Facilitating a Move to Going Electronic (for Case Management & Hearings)

First, various institutions have emphasised that they are fully operational, even if they have closed their physical premises and that they have made provision for remote working.

For instance, the International Chamber of Commerce (ICC) advised[4] that all offices of the Secretariat of the ICC Court and the ICC ADR Centre are operational and 'Staff members are healthy and working remotely via mobile posts. Special arrangements have been put in place and will likely remain in force for the immediate future'. Similar statements have been issued by the Singapore International Arbitration Centre (SIAC)[5], the Korean Commercial Arbitration Board (KCAB)[6], the Hong Kong International Arbitration Centre (HKIAC)[7] and the Arbitration Foundation of Southern Africa (AFSA)[8].

The Milan Chamber of Arbitration, located in the Lombardy region of Italy which has been one of the worst affected areas of Europe in the last two months, announced on 9 March 2020 that it was fully operational.[9] In an article by Alison Ross for the Global Arbitration Review first published on 7 March 2020 and re-posted by the Milan Chamber of Arbitration on 30 March 2020,[10] the director general of the centre Stefano Azzali was quoted as saying:

'This is almost the second week of the emergency. During the first week we had to cancel almost all arbitration and mediation hearings and two training programmes. This week, the cancellations have been fewer, which indicates users of our services have got over the shock and are adjusting to the emergency situation'

Beyond these messages, institutions have facilitated remote working, by opting for virtual hearings and moving to electronic means to process new requests for arbitration and to conduct case management of existing disputes.

For instance, LCIA announced that parties were to file all requests in new cases through the online filing system or by email, that all other questions, documents and correspondence to LCIA be conducted by email only and that with respect to awards, arbitrators were to deliver them by email. Similarly, the Dubai International Arbitration Centre announced that it will only accept submissions in soft copy[11] and SIAC has emphasised that it remains their top priority to 'ensure that your case management needs are promptly and efficiently attended to' and all communications with it should be done via email[12]. HKIAC has also outlined the virtual hearing services which it can offer, including cloud-based video conferencing which it says is compatible with all major video conferencing platforms.[13]

Protocols and Guidance for Virtual Hearings

Secondly, various institutions have taken steps to provide detailed guidance to arbitrators and practitioners for how virtual hearings could operate.

For example, KCAB announced recently a revised version of the Seoul Protocol on Video Conferencing in International Arbitration ('Seoul Protocol')[14]. Amongst other things, the Protocol sets minimum standards for the venue at which a video conference is to be held, rules for which persons can be present in the remote venue where the witness is giving evidence as well as rules for the documents which the witness is to use during the hearing.

Equally, ICC has produced a 'Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic'[15]. The Note includes principles and suggestions to ensure continued effective case management (such as identifying issues which may be resolved without witness and/or expert evidence). Section III of the Note gives guidance on the organisation of virtual hearings, Annex I to the Guidance gives a checklist for a Protocol on Virtual hearings and Annex II lists suggested clauses to include within cyber protocols of procedural orders to deal with the organisation of virtual hearings.

The International Centre for Settlement of Investment Disputes ('ICSID') also published recently a guide to online hearings at the ICSID wherein it noted that its video-conferencing platform does not require special hardware or software, allows for hearings of any size with a virtual chat function to enable communication with specific individuals or the whole group and that a virtual stenographer will provide a real-time transcript of the proceeding visible to all participants.[16]

Webinars & Knowledge Sharing

A number of institutions have also been running webinars to assist practitioners get to grips with the new working environment.

For instance, ICC is running the 'ICC Arbitration & ADR Technical Webinar Series – Road to Digitalisation', which is aimed at sharing information and knowledge about best practice in virtual hearings whereas SIAC is offering a series looking at the future of international arbitration with a focus on strategies, case management issues, interim measures and issues arising out of COVID-19. HKIAC has converted what would ordinarily have been a seminar series looking at broad issues in international arbitration into a webinar series running in four different languages.

Further, DELOS Dispute Resolution has set up a resource page on contractual and legal issues arising from the impact of COVID-19 which contains a 'selection of English language client guidance published by law firms and practitioners that may be of initial help with thinking through' some of the potential questions which parties may be considering (such as issues of impossibility or frustration); this is organised by jurisdiction and theme.[17]

Conclusion

Arbitral institutions have acted quickly and effectively to the crisis, establishing procedures and protocols for remote working and virtual hearings and creating webinar series and resource pages to share knowledge.

In our next post, we will consider what the challenges are for remote working in the arbitration and international arbitration context and what practical steps practitioners can take to overcome these hurdles.

[1] For instance in England and Wales, see the Bar Council Guidance at https://www.barcouncil.org.uk/resource/updated-guidance-on-attending-hearings.html. The Guidance has been that practitioners should not attend civil hearings in person unless the hearing is genuinely urgent and cannot be done remotely (with a note that 'such a hearing will be a rare occurrence'). Equally, see the more recent guidance of HM Courts & Tribunals Service at https://www.gov.uk/guidance/hmcts-telephone-and-video-hearings-during-coronavirus-outbreak?utm_medium=email&utm_source=

[2] Adapted from an article distributed on 20 April 2020, 'Coronavirus & Arbitration: Institutional Responses, Challenges & Practical Tips'

[3] Additionally, there are heart-warming examples of the international arbitration community coming together on its own initiative and showing its spirit. For instance, the Willem C. Vis International Commercial Arbitration Moot was able to move its entire competition online at a very short notice through the collaborative efforts of the organisers, participants and volunteer arbitrators. See, also, the 'Arbitration Kitchen series' organised by The Russian Arbitration Association.

[4] https://iccwbo.org/media-wall/news-speeches/covid-19-urgent-communication-to-drs-users-arbitrators-and-other-neutrals/

[5] https://www.siac.org.sg/images/stories/press_release/2020/[ANNOUNCEMENT]%20ENHANCED%20COVID-19%20MEASURES%20AT%20SIAC.pdf

[6] http://www.kcabinternational.or.kr/user/Board/comm_notice_view.do?BBS_NO=546&BD_NO=173&CURRENT_MENU_CODE=MENU0027&TOP_MENU_CODE=MENU0024

[7] https://www.hkiac.org/news/hkiac-service-continuity-during-covid-19

[8] https://arbitration.co.za/

[9] https://www.camera-arbitrale.it/en/news/remote-access-to-cam-services.php?id=927

[10] https://www.camera-arbitrale.it/en/news/the-coronavirus-what-impact.php?id=935

[11] http://www.diac.ae/idias/

[12] https://www.siac.org.sg/images/stories/press_release/2020/[ANNOUNCEMENT]%20ENHANCED%20COVID-19%20MEASURES%20AT%20SIAC.pdf

[13] https://www.hkiac.org/content/virtual-hearings

[14] http://www.kcabinternational.or.kr/user/Board/comm_notice.do?BD_NO=172&CURRENT_MENU_CODE=MENU0015&TOP_MENU_CODE=MENU0014

[15] https://iccwbo.org/content/uploads/sites/3/2020/04/guidance-note-possible-measures-mitigating-effects-covid-19-english.pdf