Brave New World of Arbitration: Updates from the World’s Major Arbitral Institutions
While the world of arbitration is quickly adapting to the COVID-19 pandemic, it also has a distinct leg-up. As noted in our previous blog post, arbitration has always provided parties with flexible and practical options for dispute resolution. For example, the rules of many major arbitral institutions have long provided parties with flexibility in choosing alternative hearing formats.
In the midst of the pandemic, major arbitral institutions have provided additional guidance to assist parties with navigating their arbitral processes. Below we have summarized the guidance and/or updates provided by several major arbitral institutions (in alphabetical order):
American Arbitration Association and the International Centre for Dispute Resolution (“AAA-ICDR”)
The AAA-ICDR has maintained a COVID-19 update page with information regarding how the institution is “administering disputes under various contingencies that have resulted from COVID-19.”
First, the AAA-ICDR notes that while it remains active and operational, no hearings will take place in AAA-ICDR hearing facilities until at least June 1, 2020. To this end, the AAA-ICDR’s case management staff continue to contact parties and arbitrators to discuss alternative arrangements, including the use of video and teleconferencing, or postponements.
Second, the AAA-ICDR has requested that parties file all arbitration and mediation cases, as well as payments for invoices and statements, online. Additionally, regarding alternative hearing arrangements, the AAA-ICDR notes that it can assist with the use of video conferencing that will allow for remote participation in hearings.
Third, under Article 6 of the ICDR International Dispute Resolution Rules and Procedures, a party may apply for an emergency arbitrator prior to the constitution of the tribunal by submitting a written notice to the Administrator and to all other parties that sets forth the nature of the relief sought, the reasons why such relief is sought on an emergency basis, and the reasons why the party is entitled to such relief.
Finally, the AAA-ICDR has provided extensive guidance regarding in-person hearings that may take place outside of AAA-ICDR facilities. Its guidance includes: (1) parties, arbitrators and mediators should consult with city, state, federal and other applicable regulations to determine their impact on the hearing; and (2) individuals with fever, cough, shortness of breath or other symptoms of an illness, as well as individuals who have been in direct contact with someone known to have COVID-19, are not to attend in-person hearings.
Arbitration Place has launched Arbitration Place Virtual for all manners of dispute proceedings. This service can be used for arbitrations, mediations, motions and procedural conferences, examinations-for-discovery, and settlement conferences.
Arbitration Place Virtual “provides dispute resolution services using an eHearing format – so that proceedings can be conducted in a completely remote fashion, or otherwise conducted in a partially remote fashion, incorporating physical hearing spaces that include required safety precautions.”
Specifically, the Arbitration Place Virtual platform allows for:
- Live document display and sharing for all participants;
- Real-time communication using high definition audio (voice) and video capabilities, as well as the option to join by telephone if preferred;
- Control over who joins the hearing, with the assistance of our Hearing Technology Specialist;
- An option for virtual “breakout” rooms, where arbitrators can conduct private deliberations;
- Space for up to 100 participants in the eHearing room;
- An option to use upgraded hardware equipment, such as high-end rotating cameras and headsets
- The option for real-time court reporting, as well as automatic recording and transcription of hearings.
Chartered Institute of Arbitrators (“CIArb”)
CIArb provided an update regarding its operations on March 18, 2020. Due to remote working conditions, CIArb requests that all applicants to the Dispute Appointment Service submit their applications electronically. Similarly, CIArb asks that parties refrain from sending any cheques or cash in the mail, and instead make any required payments via bank transfer.
Furthermore, on April 8, 2020, CIArb published a Guidance Note on Remote Dispute Resolution Proceedings. CIArb states that this Guidance Note has been offered “to provide parties to existing and future disputes, as well as neutrals, a guide for conducting proceedings in any circumstance where parties to the dispute are unable to meet physically.” In this way, CIArb suggests that the Guidance Principles are intended to be applicable during the ongoing global health crisis and beyond.
The Guidance Note is divided into three sections. Part 1 addresses “technology and logistical matters.” Part 2 deals with “legal matters and procedural arrangements”. Part 3 outlines considerations for institutional and ad hoc proceedings. Finally, the Guidance Note includes a useful “preliminary checklist” for use prior to conducting remote dispute resolution proceedings.
Note that under Appendix I of the CIArb Arbitration Rules, parties are able to make an application for an emergency arbitrator in cases of “extraordinary urgency.” The emergency arbitrator rules apply in cases where: (i) the parties concluded their arbitration agreement before December 1, 2015 and have agreed in writing to “opt in” to the emergency arbitrator rules; or (ii) the parties have not agreed in writing at any time to “opt out” of the emergency arbitration rules. However, parties should be aware that an emergency arbitrator cannot be appointed after the arbitral tribunal has been constituted.
Hong Kong International Arbitration Centre (“HKIAC”)
HKIAC issued a press release on March 27, 2020 outlining certain measures “to prioritise the health and safety of guests and staff at HKIAC, and to ensure no disruption to the services we provide.”
First, HKIAC’s case management team remains operational. For cases under HKIAC’s auspices, documents may be delivered by email or other electronic means pursuant to the applicable rules. While the service of hard copy documents remains possible, parties are asked to advise their case manager or HKIAC reception in advance to ensure that visitors are aware of necessary precautions.
Second, HKIAC noted that it has partnered with various technology specialists to offer a range of virtual hearing services, including: “HD video and audio conferencing, online document repositories (including bundles and electronic presentation of evidence), and transcription and interpretation services.”
Third, while HKIAC’s premises remain open for hearings and meetings, parties who attend the premises are required to follow certain precautionary measures.
Finally, HKIAC has launched a webinar series in English, Mandarin, Korean and Russian to ensure that parties “remain connected to developments at HKIAC and other arbitration-related matters.”
International Chamber of Commerce (“ICC”)
The Secretariat of the ICC International Court of Arbitration (the “Secretariat”) and the ICC International Centre for ADR (the “ADR Centre”) released an update to the dispute resolution services community on March 17, 2020. The update was divided into certain key topics: general rules; new requests for arbitration/ADR; pending proceedings; and other.
First, regarding general rules, the ICC is requesting that all communications with the Secretariat and the ADR Centre be conducted by email. The same rule applies for case management purposes “and any other activity.” Furthermore, as of the date of this blog post, the ICC’s Arbitration Rules in effect since March 1, 2017 remain current.
Second, the ICC has advised that requests for arbitration, applications for an emergency arbitrator, and requests in other ADR proceedings should be filed with the Secretariat or the ADR Centre by certain emails, as applicable. This requirement also applies to pertinent exhibits.
Third, regarding pending proceedings, the ICC has asked that parties who need to send any correspondence, including awards and ADR decisions, in pending proceedings by courier or post, should notify the case management team prior to dispatch.
Fourth, the ICC noted that as of March 17, 2020:
- Hearings and other meetings scheduled to take place at the ICC Hearing Centre in Paris until 13 April 2020 have been postponed or cancelled;
- All business travel by staff members has been suspended; and
- Meetings scheduled to take place at their offices are being conducted virtually.
On April 9, 2020, the International Court of Arbitration (the “ICC Court”) published a Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic. This Guidance Note provides parties, counsel and tribunals with guidance on possible measures that may be considered to mitigate the adverse effects of the COVID-19 pandemic on ICC arbitrations. Importantly, the Guidance Note reiterates that the COVID-19 pandemic does not change the fundamental principle by which the ICC Court operates, including that:
- pursuant to Article 22(1) of the ICC Rules, tribunals and parties have the duty "to conduct the arbitration in an expeditious and cost-effective manner”; and
- pursuant to Article 25(1) of the ICC Rules, tribunals have the additional duty to proceed within as short a time as possible to establish the facts of the case by all appropriate means.
The Guidance Notes also provides information regarding measures that parties may take, under the ICC Rules, to increase the efficiency of arbitral hearings, as well as information regarding the service of documents and notifications. Finally, the Guidance Note provides direction on organizing and conducting virtual hearings, including a checklist for creating a protocol for virtual hearings, and suggested clauses for cyber-protocols and procedural orders.
The ICC has also released a COVID-19 Business Continuity Guide which “serves as a high-level guide to business continuity to assist your business in weathering COVID-19, based around four key principles: plan, adapt, monitor and asses.” In short, the COVID-19 Business Continuity Guide provides for various considerations and strategies for business responses depending on the impact level of the pandemic.
Finally, parties should also be aware that in March 2020 the ICC updated its model Force Majeure and Hardship Clauses for the first time since 2003. These new rules are summarized and analyzed in detail in our recent blog post.
International Centre for Settlement of Investment Disputes (“ICSID”)
As of a March 18, 2020 News Release, the ICSID Secretariat remains fully operational. Importantly, ICSID previously issued a News Release on March 12, 2020 stating that as of March 16, 2020, the following default procedures will apply:
- ICSID requires only an electronic copy of a request for arbitration or post-award application (i.e. a request for a supplementary decision or rectification, or an application for interpretation, revision or annulment) and any accompanying documents. The same applies for a request for conciliation or fact-finding proceeding.
- ICSID encourages parties to submit all written submissions, and any supporting documentation, including witness statements and expert reports, electronically. Arbitrators, conciliators and ad-hoc Committee members are also encouraged to use electronic copies of case-related documents.
ICSID noted that these default electronic filing measures “build on ICSID’s ongoing commitment to leverage information technology to make its proceedings more efficient and environmentally friendly.”
Of note, ICSID has advised that last year approximately 60% of its 200 hearings and sessions were held by videoconference. On March 23, 2020, ICSID released A Brief Guide to Online Hearings at ICSID. The Brief Guide outlines various features of ICSID’s online hearings:
- ICSID’s video-conferencing platform does not require special hardware or software, thereby allowing participation from any location. A computer with an internet connection and webcam is sufficient for effective and secure participation. Where internet connectivity is poor, participants may also join by telephone;
- ICSID’s platform allows for hearings of any size—from a handful to hundreds of participants. All participants have the ability to share audio and video, as well as content such as PowerPoint presentations. A virtual chat function allows participants to communicate individually amongst each other or with the entire group;
- A virtual court stenographer provides a real-time transcript of the proceeding, visible to all participants on the video-conference;
- ICSID’s online hearing services and technology are available in all ICSID cases at no extra charge, as well those conducted under UNCITRAL and other non-ICSID procedural rules; and
- ICSID invests the same level of planning and support in its online hearings as it does with those held in person. The ICSID hearings team works with the tribunal and parties to ensure everyone is comfortable with the technology and able to perform their role with confidence. Dedicated IT professionals are present throughout the hearing to ensure it runs smoothly.
International Institute for Conflict Prevention & Resolution (“CPR”)
The CPR notes that it is no longer accepting paper documents. Instead, materials are to be filed online. All payments must also be electronic.
Given the unprecedented nature of the COVID-19 pandemic, the CPR notes that there may be opportunities for early intervention to facilitate conflict management and to solve the deluge of business problems that is presumably coming. To this end, the CPR has also announced a Dispute Prevention Panel.
Having canvassed their panel “for those with experience and expertise in facilitating such situations”, this Panel comprises arbitrators, mediators and facilitators, including former in-house counsel, engineers, law firm practitioners and others experienced in commercial disputes “ranging from banking and financial services to technology.” CPR members can download a current list of the Dispute Resolution Panel here.
London Court of International Arbitration (“LCIA”)
The LCIA provided a Services Update on March 18, 2020 stating that while precautionary measures have been taken, the institution remains operational. Specifically, the Services Update addressed two key issues: new or pending cases, and awards.
First, regarding new or pending cases, the LCIA states that parties should fill all Requests through an online filing system or by email (with payment of registration fees to the LCIA’s bank account or by credit card). Parties are specifically asked to provide Requests in word format. Parties who intend to make an expedited or emergency application under LCIA Article 9 are asked to notify the LCIA in advance, via email, so that any necessary arrangements can be made. Furthermore, Parties and arbitrators are asked to submit all questions, documents and correspondence to the LICA by email only, and should avoid contact by telephone.
Second, the LCIA requests that arbitrators deliver their awards by email, and that if this is not possible, the LCIA should be notified. In all but exceptional cases, the LCIA will transmit awards to parties electronically, with originals and certified copies to follow.
Singapore International Arbitration Centre (“SIAC”)
SIAC has posted two information letters regarding the impact of COVID-19. In short, SIAC remains operational, but has asked users to consider the following procedures:
- All communication with the SIAC Secretariat should be via email;
- Any queries relating to an existing case may be directed, via email, to the relevant SIAC Case Counsel;
- Should a party wish to commence a case with SIAC, SIAC requests that any Notice of Arbitration be filed via email;
- Applications for emergency interim relief under the SIAC Rules should similarly be filed via email, and, if practicable, parties should notify SIAC in advance of any intended application so that they may make the necessary arrangements to ensure that the application is processed promptly;
- All payments to SIAC are to be made via electronic bank transfer only; and
- All communications from SIAC, including Awards issued by the Registrar, will first be transmitted via email, with original copies to follow (where applicable).
On April 6, 2020, SIAC stated that its offices would be closed from April 7, 2020 onwards, per additional measures announced by the Singapore government on April 3, 2020.
SIAC is also encouraging users to follow the precautionary measures stipulated by Maxwell Chambers if in-person meetings or hearings are scheduled. Alternatively, SIAC recommends parties consider using the Maxwell Chambers Virtual ADR Services.
In closing, a significant majority of the arbitral institutions discussed above have offered resources, policies and protocols to assist parties with navigating their arbitral process, with the new reality of COVID-19. Even in these days of great uncertainty, what is clear is that it is still possible for parties to resolve disputes efficiently through arbitration.
 For instance, Article 19.2 of the LCIA Rules allow a hearing to take place “by video or telephone conference or in person (or a combination of all three).”; Article 23(5) of the ICDR Arbitration Rules allows witnesses to be examined “through means that do not require physical presence.”; and Article 28(4) of the UNCITRAL Model Law states: “The arbitral tribunal may direct that witnesses, including expert witnesses, be examined through means of telecommunication that do not require their physical presence at the hearing (such as videoconference).”
 LCIA Arbitration Rules (2014), Article 9A – Expedited Formation of Arbitral Tribunal; 9B – Emergency Arbitrator; 9C – Expedited Appointment of Replacement Arbitrator.
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