In light of the ongoing coronavirus (COVID-19) pandemic, the ICC on April 9 released a guidance highlighting a number of measures that parties, counsel, and tribunal members can take in order to avoid extensive disruption to arbitral proceedings.
This may be by utilizing case management tools already available or additional measures that have been implemented by the ICC International Court of Arbitration in response to the pandemic.
The International Chamber of Commerce’s (ICC) “Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic” highlights that notwithstanding the effects of the COVID-19 pandemic:
Increasing the Efficiency of the Arbitral Procedure
In order to increase the efficiency of arbitral procedures in light of the COVID-19 pandemic, the guidance reminds parties to refer to existing ICC guidance and the ICC Arbitration Rules, including:
The guidance suggests a number of “appropriate procedural measures” that may be considered by the participants, and emphasises the need for the tribunal and parties to communicate proactively in this regard. These include, but are not limited to:
Service of Documents and Notifications
The ICC Secretariat “expressly requires” that at present any new requests for arbitration and supporting documents are filed in electronic form. All communications with the Secretariat and other document or exhibit submissions should also be in electronic form.
In addition, and subject to mandatory legal requirements, parties and tribunals are encouraged to sign the terms of reference or any award, in counterpart and/or in electronic form. Parties are also encouraged to agree to electronic notification of an award, and the Secretariat generally will not do so unless agreed to by the parties.
Where tribunals are required to sign originals of an award, they should notify the Secretariat promptly in order to obtain details of the office to which the originals should be sent.
Means of Conducting Conferences or Hearings
In determining the means of conducting a conference or hearing, consideration should be given to all factors relevant to the case, which may include the nature and length of the hearing, the complexity of the case, the number of participants and their need to properly prepare, and any reasons to proceed without delay.
Should the parties agree or the tribunal determine that “convening in a single physical location is indispensable yet impossible under current circumstances,” they should endeavour to reschedule the hearing or conference in a way that minimizes delay, and should seek to continue to progress the case in the interim.
Alternatively, if “convening in a single physical location is indispensable and … doing so is possible despite current conditions,” the parties and tribunal should ensure that specific rules and guidance at the location of the hearing are followed, including any appropriate measures required to safeguard the health of all participants.
Otherwise, if the parties agree or the tribunal determines to conduct a virtual hearing, they should “openly discuss and plan for special features of proceeding in that manner” (as discussed below), and will be assisted by the Secretariat in this process.
Where parties agree to a virtual hearing, the guidance requires that the tribunal and parties consult with the aim of implementing a “cyber-protocol” that will deal with issues of data privacy, privacy of the hearing, and protecting the confidentiality of electronic communications and document platforms. Annex II of the guidance provides a number of suggested clauses.
The guidance also flags a number of procedural issues, which should be considered when arranging a virtual hearing, including:
A full checklist is provided by the ICC at Annex I to the guidance.
Videoconference and Document-Sharing Platforms
The guidance advises all parties to conduct their own due diligence when selecting third-party videoconference or document-sharing vendors; however, it flags that “customized or licensed fee-based platforms may offer greater security, confidentiality, and data protection.”
The ICC currently has licensed access to Microsoft Teams, VidyoCloud, and Skype for Business and can provide remote technical support on these platforms.
Other videoconference platforms that may be considered (and have been recently used) include Zoom, BlueJeans, and GoToMeeting. Document-sharing platforms that might be considered include Opus, TransPerfect, and XBundle.
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