On 9 April 2020, the ICC International Court of Arbitration issued its Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic ("Guidance Note"). The Guidance Note provides a comprehensive guidance to parties, counsel and tribunals on measures aimed at mitigating the adverse effects that COVID-19 may have on ICC arbitrations.

Mitigating COVID-19 Related Delays

In light of the COVID-19 pandemic, parties, counsel and tribunals may find difficulty progressing arbitrations (both pending and new) due to safety concerns and public health/ governmental restrictions imposed to control the spread of the virus. It is therefore imperative for parties, counsel and tribunals to work together to consider and implement procedural measures that can mitigate the adverse consequences of COVID-19. The existing case management/ procedural tools as well as the additional steps the ICC International Court of Arbitration is taking to streamline its internal processes should be considered and utilised to ensure fair and efficient arbitration.

To this end, the tribunal should pro-actively consult parties as soon as possible to consider adopting appropriate procedural measures, which may include the following:

  1. dispose expeditiously certain claims or defences;
  2. resolve the issues in dispute in stages by rendering one or more partial awards;
  3. identify whether the entirety of the dispute or discrete issues may be resolved on a documents only basis, with no evidentiary hearing;
  4. consider whether certain issues can be decided either without or with highly limited production of documents;
  5. identify issues that may be resolved without witness and/or expert evidence or on the basis of written questions and answers;
  6. use either audioconference or videoconference for conferences and hearings where possible and appropriate;
  7. request parties to establish an agreed chronology of facts, joint lists of issues in dispute or other similarly jointly produced documents that help define and narrow the range of issues in dispute;
  8. consider whether and how the number and size of submissions can be limited; and
  9. consider opting-in to the ICC Expedited Rules Provisions.

These case management techniques set out above are not new. The ICC has previously issued guidance setting out various tools for ICC arbitrations to be conducted in a fair and time and cost-efficient manner. These include (1) Appendix IV to the ICC Arbitration Rules ("Rules"); (2) the Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration; and (3) reports issued by the ICC Commission on Arbitration and ADR entitled "Controlling Time" and "Effective Management of Arbitration - A Guide for In-House Counsel and Other party Representatives".

Further, in the wake of the COVID-19 pandemic, the ICC Secretariat has also implemented measures1 to promote efficiency and to avoid COVID-19 related delays, where as a general rule, ICC had strongly advised that all communications with the Secretariat of the ICC Court / ICC ADR Centre, including the filing of requests for arbitrations, applications for emergency arbitrators, should be conducted and filed by email. Tribunals and parties are also encouraged to sign the Terms of Reference in counterparts and electronic form and to agree where possible the use of electronic means for communication for the submissions and exhibits to the full extent.

Guidance On Organisation Of Virtual Hearings

Given that most countries affected by the COVID-19 pandemic have implemented movement and/or travel restrictions, in-person hearings may not be possible in this time and possibly, for some time after cross-border travel restrictions are uplifted. This presents an opportunity to the parties, counsel and tribunals to put to test presently available technology, such as online platforms for virtual hearings, as well as the procedural safeguards that needs to be put in place, with a view of continuing and increasing its use post-COVID-19.

In deciding on the appropriate procedural measures to proceed with the arbitration in an expeditious and cost-effective manner, a tribunal should take account of all the circumstances, including those that are the consequence of the COVID-19 pandemic, the nature and length of the conference or hearing, the complexity of the case and number of participants, whether there are particular reasons to proceed without delay, whether rescheduling the hearing would entail unwarranted or excessive delays, and the need for the parties to properly prepare for the hearing.

There may of course be cases where the parties take the position, and tribunal determines, that convening in a single physical location is indispensable. In such cases, to the extent that it is impossible for parties to convene during the outbreak, the tribunals and parties should make every effort to reschedule the hearing or conference in a way that minimises delay. If it is agreed that it is possible to convene despite the current conditions, the tribunal and parties should discuss and agree the specific rules and advisory guidance at the physical location of the hearing to ensure appropriate health and safety measures are implemented.

In the event that the tribunal determines to proceed with a virtual hearing without party agreement, or over party objection, the tribunal should carefully consider the relevant circumstances, assess whether the award will be enforceable at law, and ensure proper reasons for the determination are provided. In this regard, tribunals may take note of its broad procedural authority to, after consulting the parties, "adopt such procedural measures as [the tribunal] considers appropriate, provided that they are not contrary to any agreement of the parties"2.

If the parties agree, and tribunal determines, to proceed with a virtual hearing, the tribunal should consider issuing a procedural order/ direction for the following:

  1. cyber protocol; and
  2. procedural issues.

The tribunal should consult with the parties to implement a cyber protocol to comply with the applicable data privacy regulations. This protocol would deal with the privacy of the hearing and the protection of the confidentiality of electronic communications within the arbitration proceeding and any electronic document platform.

The tribunal should also take into consideration the following to ensure that parties are treated with equality and each party is given a full opportunity to present its case during the virtual hearing:

  1. the different time zones in fixing the date and time of the hearing;
  2. the logistics of the location of the participants including the total number of participants and number of remote locations;
  3. the use of real-time transcript or another form of recording;
  4. the use of interpreters;
  5. the procedures for verifying the presence and identifying all participants, including any technical administrator;
  6. the procedures for the taking of evidence from factual witnesses and experts to ensure the preservation of integrity of any oral testimonial evidence;
  7. the use of demonstratives, including through shared screen views; and
  8. the use of electronic hearing bundle hosted on a shared document platform that ensures access by all participants.

Annex I of the Guidance Note comprehensively sets out a checklist for protocol on virtual hearings, which include (1) pre-hearing plan, scope and logistics; (2) technical issues, specifications, requirements and support staff; (3) confidentiality, privacy and security; (4) online etiquette and due process considerations; and (5) presentation of evidence and examination of witnesses and experts.

Further, Annex II of the Guidance Note also sets out suggested clauses for cyber protocols and procedural orders dealing with the organisation of virtual hearings to provide for (1) the list of participants; (2) technical issues specifications, requirements and support staff; (3) confidentiality, privacy and security; (4) online etiquette and due process considerations; (5) presentation of evidence and examination of witnesses and experts. These suggested clauses are extremely useful for tribunals in the drafting of procedural orders/ directions with regard to virtual hearings.

Conclusion

While the Guidance Note was issued by the ICC specifically in relation to ICC arbitrations, it would also be extremely useful for all other arbitration and ADR proceedings. The Guidance Note and its recommendations are certainly welcomed in the current uncertain climate, to minimise the disruption of the COVID-19 pandemic to arbitration and ADR proceedings and to ensure that disputes continue to be resolved in a fair, expeditious and cost-effective manner. The Guidance Note provides insightful guidance on how one can consider achieving this whilst ensuring that the principle foundations of the arbitral process remain intact.

This Article was written by Ms Sharon Chong (sharoncty@skrine.com), Partner, and Muhammad Suhaib b. Mohamed Ibrahim (md.suhaib@skrine.com), Associate, of the Arbitration Practice of Skrine.

Sharon is the current President of the Malaysian Institute of Arbitrators and Suhaib is a Council Member.

Footnotes

1 These can be found in the ICC Secretariat's communication of 17 March 2020.

2 Article 22 of the ICC Arbitration Rules; note that the Rules and practice guidance has progressively acknowledged the possibility of virtual hearings, including Article 24(4) of the Rules (case management conference), Article 3(5) of Appendix VI of the Rules (Expedited Arbitration) and paragraph 77 of the The Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration (dispositive issues).

Originally published April 20, 2020.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.