Now that COVID-19 has spread throughout the world, a number of countries, including the largest arbitration centres, are taking different measures to mitigate the spread of Covid-19, such as travel restrictions, office, city or country lockdowns, self-quarantine recommendations for individuals and the like. This being the case, as a practise that gathers the parties, the arbitrators and those other participants of the hearings from different locations, international arbitration is one of the practise areas mostly affected by the Covid-19 outbreak and the measures being taken against it.
Moreover, some arbitration centres have already suspended all the pending arbitral proceedings. For instance, Milan Chamber of Arbitration (CAM) announced that any procedural deadlines, including the time limit to file arbitral awards, as well as any other deadline provided for in the Arbitration Rules are suspended from 16 March 2020 until 15 April 2020. Likewise, due to the current full lockdown in France, the ICC has postponed or cancelled all hearings and other meetings scheduled at the ICC Hearing Centre in Paris until 13 April 2020.
On the other hand, some institutions adopted a more pragmatic and flexible approach. For example, International Centre for Settlement of Investment Disputes (ICSID) has released an announcement stating that the ICSID Secretariat is fully-operational from remote work-stations, and coordinating with Tribunals and parties to minimize disruption to the cases, reminding the users that the new requests for arbitration or post-award applications may be filed electronically only (unless the hard-copies are requested by the other party), encouraging the parties and the Tribunals to implement electronic-only filing of written pleadings. Likewise, London Court of International Arbitration (LCIA) has moved to remote working and is handling the most of their operations electronically (including the commencement of new arbitrations). Moreover, Hong Kong International Arbitration Centre (HKIAC) and Singapore International Arbitration Centre (SIAC) are encouraging the parties to consider using their virtual hearing services.
Despite those increasing restrictions that are being placed and those precautionary measures that are being taken, some arbitral procedures might be proceeded through the use of technology. With the use of electronic platforms, the way to receive applications and to send the case files electronically has been opened. While some centres work with electronic platform interfaces, many other centres use the method of accepting applications and/or documents via their e-mail addresses, including the Istanbul Chamber of Commerce Arbitration and Mediation Centre (İTOTAM).
Since the adjournment of the hearings creates uncertainty for the parties, the parties may consider virtual hearings. The advanced arbitration centres have long launched virtual hearing platforms with an interface allowing to upload the entire file of case documents in electronic format. The most recent attempt to develop guidance on virtual hearings is the Seoul Protocol on Video Conferencing in International Arbitration (Protocol), published by the Korean Commercial Arbitration Board. This Protocol offers a guidance for the best practice for planning, testing and conducting video conferences in international arbitration, which could be useful for virtual hearings and meetings during the outbreak. London Maritime Arbitrators Association (LMAA) working group, which is working on a guidance on the arrangements for the virtual hearings, is recommending the use of the Protocol during the outbreak, until it develops its own protocol.
However, questions remain as to whether remote hearings would be suitable for all cases. First and foremost, the parties should take the technical difficulties into consideration. For instance, if the dispute involves multiple witnesses and experts, if the documents are not available electronically or not capable of being converted to an electronic format easily, or if there is a need for cross examination, then remote hearing may not be a viable solution. Another point to be considered is whether the decision will be subject to appeal later, as a result of the transition to a virtual hearing. To avoid such an outcome, all related parties must consent to any procedural changes to be made in advance.
This note is intended for general information purposes only and should not be relied upon as a source of legal advice. Independent legal advice should be sought before taking any action based on information contained within this note for each particular case.