The 2019 novel coronavirus disease (COVID-19) pandemic has affected all aspects of our lives in ways unimaginable. Dispute resolution is no exception. Several arbitration institutions, organisations and practitioners have identified tools for adapting the dispute resolution process to the new reality, including through the use of technology that offers to replace physical hearings with virtual ones.
The International Chamber of Commerce (ICC) has been at the forefront of these efforts. On 9 April 2020, the ICC Court issued a guidance note on possible measures aimed at mitigating the effects of the COVID-19 pandemic.
In the guidance, the court takes account of the COVID-19 challenges while reminding parties, counsel and arbitrators of their overarching obligation to “conduct the arbitration in an expeditious and cost-effective manner”.
In that spirit, the court initially observes that some aspects of the arbitration process may not be materially affected by COVID-19. These include:
- Initial stages of the proceedings.
- The final stages, such as tribunals’ deliberations (which may be held remotely) or award drafting.
The time limit for the submission of draft awards to the court, as well as the ICC’s policy to reduce arbitrator fees in case of unjustified delays, remains in effect.
For those aspects of arbitration that will likely be affected by COVID-19, the court stated that “the adverse consequences of the COVID-19 pandemic make it more critical than ever” to use the panoply of case management tools available. The recommended tools include:
- Disposing expeditiously of certain claims or defences.
- Resolving the issues in stages by rendering partial awards.
- Resolving disputes when possible on a documents-only basis.
- Identifying issues that can be solved by parties’ agreement (including with experts’ assistance).
- Using virtual hearings.
Regarding hearings, the court invites parties and tribunals to consider if a hearing should be postponed, conducted in-person with special precautions, or held as a virtual hearing. In deciding on whether to hold a virtual hearing, the guidance advises the tribunal to consider “all the circumstances,” including:
- The nature and length of the hearing.
- The complexity of the case and number of participants.
- Whether there are particular reasons to proceed without delay.
- Whether rescheduling would entail unwarranted or excessive delays.
- The parties’ need to prepare for the hearing.
Importantly, the guidance recognised that a tribunal may order a virtual hearing without the parties’ agreement, or even over a party objection (although such decision will need to be reasoned and the tribunal should assess whether the award will be enforceable). The ICC noted that Article 25(2) of the ICC Rules (the tribunal “shall hear the parties together in person if any of them so requests”) does not absolutely preclude virtual hearings. Rather, “whether the arbitral tribunal construes Article 25(2) as requiring a face-to-face hearing, or whether the use of video or teleconferencing suffices, will depend on the circumstances of the case”.
If the parties or the tribunal choose to use a virtual hearing, the guidance offers detailed suggestions about how it may be organised and conducted, including a checklist for a protocol on virtual hearings and a draft cyber protocol with recommended clauses.
In addition to the guidance, other institutions, organisations and users have also published protocols that may help parties overcome the challenges of the COVID-19 pandemic.
Amongst the notable examples are:
- The Chartered Institute of Arbitrators (CIArb)’s guidance note on remote dispute resolution proceedings.
- The Seoul Protocol on video conference in international arbitration.
- The Hogan Lovells Protocol for the use of technology in virtual international arbitration hearings.
The guidance is also not the only ICC publication that may be relevant to parties who seek to overcome the difficulties posed by the COVID-19 restrictions.
First, in October 2017, the ICC Commission issued a report on the use of information technology in international arbitration. That report aimed at helping parties control time and cost. But it addressed how parties can use technology,including videoconferencing, in ways that may assist in the present situation.
Second, in direct response to the pandemic, in March 2020 the ICC published the coronavirus guidelines for business, which identified how businesses can limit the virus’s spread, and recommended replacing in-person meetings with virtual meetings.
Third, parties may also benefit from advice contained in the ICC Commission’s report on techniques for controlling time and costs in arbitration and effective management of arbitration: a guide for in-house counsel and other party representatives, which explain in greater detail some aspects of case management techniques that are recommended in the guidance.
Much of the technology that we are now using for virtual hearings has been around and available for years. However, parties, counsel, arbitrators and institutions did not make very great use of it. While some procedural conferences might take place by phone, and the occasional witness might give oral testimony by video, it was practically unheard of to have fully virtual hearings.
Now, arbitration participants may be expected to conform to a new norm and conduct entire hearings through videoconference, with each participant in a different location. While some may welcome that development and consider it long overdue, such a sudden change in long established practices necessarily entails some risks. Those risks include potential technical issues, questions of etiquette and even concerns about preserving due process. The guidance offers helpful tools for mitigating those risks and ensuring that the process remains fair as well as efficient.
Longer term, more frequent and widespread use of technology during the COVID-19 period may present an opportunity for participants to break old habits and adopt new ones. If virtual hearings work well and deliver the same quality of justice, with greater efficiency than physical hearings, then we may see huge increase in virtual hearings. But even if virtual hearings do not become the new normal and many revert to physical hearings once COVID-19 restrictions cease, it seems likely that the arbitration community will at least have experienced “proof of concept” for virtual hearings, and that those hearings will be a more realistic option in the future than they have been in the past.