Real to Virtual? Measures Adopted by Major International Arbitral Institutions Amid COVID-19

The Authors of the Article are Chandni Dewani, Litigation and Dispute Resolution Associate at Little & Co., Mumbai and Shivang, 3rd-year law student in Dr. Ram Manohar Lohiya National Law University, Lucknow.

Little did one contemplate that something as small as a virus could wreak havoc on the world economy and health systems. On 12^th March 2020, the World Health Organisation declared the spread of COVID-19 as a pandemic. Since then, it has been a turmoil for the entire world including the legal system. Leaving no certainty about its end, COVID-19 has left the judicial system completely baffled qua its normal functioning. Courts and other tribunals all over the world are compelled to accept an unprecedented change of functioning virtually for extremely urgent and important matters.

The primary reason for introducing arbitrations into the dispute resolution system was to lessen the burden on courts. International Arbitral Institutions have been established all over the world to aid and assist the parties in resolving their disputes. Especially in the current scenario, arbitration being a private process has an unarguable edge over the traditional litigation in courts. In order to function efficiently, the Arbitral Institutions have brought about certain changes in their operation amidst these trying times. Majority of these interim changes are buttressed by technology and the internet. Institutions have placed a never before reliance on Video Conferencing, e-filings, virtual hearings etc. But the question that arises is, would these changes suffice the need of the hour and most importantly the needs of the parties to the dispute?

The virtual world comes with its own set of pros and cons in the context of International Arbitrations. Pros being, (a) the parties don’t have to travel to the arbitration venue which in turn saves an additional cost of traveling borne by the parties, counsels, experts, witnesses and the arbitral tribunal; (b) the printing and carrying of bulky pleadings is minimised; and (c) electronic data storage facility saves the physical storage space required to keep these voluminous pleadings etc. Suffice to conclude that conduction of an online arbitration hearing is a cost-effective and time-saving procedure. On the other hand, while analyzing the cons, one could argue that the weight of cons is a little heavier as the problems faced are numerous. From poor-internet connectivity to getting a grasp of the online procedure. From the training of the arbitrators, counsels, clients, witnesses, experts etc., to the security of the online platform on which such a virtual hearing is being conducted are some of the obstacles. Mere possibility of the data of an arbitration hearing being hacked or leaked defeats the entire purpose of an arbitration being a confidential and private dispute resolution system. In the circumstances, let us analyze the measures adopted by the major International Arbitral Institutions worldwide in the wake of COVID-19:

1. International Chamber of Commerce (ICC)

• The ICC has instituted that all the officials and support staff will be working from mobile posts, restricting the gathering of people amidst this crisis.
• Several guidelines dealing with Pre-Hearing plans, Technical issues, Confidentiality, and Privacy have been issued. This also includes directions relating to the examination of witnesses and presentation of evidence. A ‘Checklist for a Protocol on Virtual Hearings’ guides the parties and arbitral tribunals about the essentials involved in a virtual hearing.
• A special group named ‘COVID-19 Response Group’ has been set-up to maintain efficacy and facilitate the staff and clients via ‘Electronic Document Management’.

2. London Court of International Arbitration (LCIA)

• Filing of new cases and proceedings relating to pending cases will be conducted online through the official website of LCIA.
• Awards in pending matters will be delivered via e-mails to the parties. LCIA will be delivering the original and certified copy of the award once LCIA’s office reopens.

3. Singapore International Arbitration Centre (SIAC)

• Emphasis has been laid on the usage of ‘Maxwell Virtual ADR Services’, replacing in-person meetings and conferences along with certain precautionary measures.
• SIAC has also designated and trained a number of counsel in the Secretariat as Remote Technology Specialists and introduced a Live Help Desk feature on the SIAC website for ease of contacting the SIAC Secretariat during the period of workplace closure in accordance with applicable COVID-19 measures.

4. Hong Kong International Arbitration Centre (HKIAC)

• The HKIAC headquarters will remain functional and accessible. But every employee has an option to work remotely. Several high-standard hygiene and precautionary measures are laid by the institution which are to be followed by the employees and staff strictly. This includes temperature check, wearing masks and sterilization of the institution's ambience.
• HKIAC has partnered with leading legal technology specialists, to offer its users a comprehensive range of integrated virtual hearing services. These services include: HD video and audio conferencing, online document repositories (including bundles and electronic presentation of evidence), and transcription and interpretation services.

5. Arbitration Institute of the Stockholm Chamber of Commerce (SCC)

• The SCC has launched a secure online platform called ‘The Ad Hoc Platform’ in association with Thomson Reuters for ad hoc arbitrations globally, which provide free platforms for arbitration hearings to take place during the pandemic. Further, no fees will be charged for the storage and handling of the data on this platform during the crisis.
• Working of the institution is made completely remote for securing the health of its employees.

6. American Arbitration Association/ International Centre for Disputes Resolution (AAA/ICDR)

• All hearings and meetings that were scheduled till 1st June 2020 have been cancelled due to the corona virus outbreak. However, alternate arrangements such as video conferencing are being promoted.
• Multiple guidelines have been released with respect to in-person hearings by the association. These guidelines include various essential precautionary health measures to be followed stringently.
• Every possible attempt is made by the organization to resolve as and by way of a cooperative mechanism, the concerns and limitations of the clients and the staff pertaining to any on-going matter.
• For an efficient functioning, several virtual guides have also been uploaded to assist arbitrators and parties such as Virtual Hearing Guide for Arbitrators and Parties, Virtual Hearing Guide for Arbitrators and Parties utilizing Zoom and Orders and Procedures for a Virtual Hearing via Videoconference. 

7. Australian Centre for International Commercial Arbitration (ACICA)/  Australian Disputes Centre (ADC)

• The Australian Disputes Centre (ADC), in which ACICA’s head office sits, has suspended all new bookings for arbitration till 18^th May 2020 and has urged all employees to work from home.
• They have launched services named ‘ADC Virtual’ to manage current bookings and conduct arbitration proceedings with the help of webinars.
• ACICA had requested that all new filings from 19th March, 2020 until staff returns to the office, be made through the ACICA eFiling system (which allows payment directly by credit card) or by email to the ACICA Secretariat (secretariat@acica.org.au). Hard copies will be required to be provided to ACICA once the office reopens.
• ACICA is also providing a 25% discount on registration fees for cases commenced between 1st May, 2020 and 31st October, 2020

8. International Centre for Settlement of Investment Disputes (ICSID)

• ICSID is fully functional and working from various remote work stations with an objective of minimizing the disruption to pending cases.
• Officials have requested the clients to file ‘Request for application’ and ‘Post-award application’ electronically. It has been mentioned that the hard-copies will also be issued at the request of the opposing party.
• The ‘Conciliation’ and ‘Fact-finding proceedings’ will take place online and if in case any issue arises, the secretary will help in resolving them.

9. International Institute for Conflict Prevention and Resolution (CPR)–

• A new Dispute Prevention Panel has been launched consisting of neutral individuals which will facilitate the resolution process as a jury.
• CPR is promoting remote and online proceedings to ensure the well-being of the personnel involved in the process.
• The organization has urged to adopt mediation for an efficient dispute-resolution process

On 16th April, 2020, a joint statement was published by thirteen arbitral institutions, focusing on the importance of resolving disputes even during the COVID-19 outbreak, “Collaboration is particularly important as each of our institutions looks to ensure that we make the best use of digital technologies for working remotely.” It is quite apparent that major arbitral institutions have welcomed this virtual change. However, to understand the viability of this solution, it would be necessary for arbitral hearings to be indeed conducted virtually. Only then it would be easier to determine as to what further changes are to be brought about in the current online procedure to make it an infrangible system.

What seemed like a far-fetched thought or whay would have taken at least a few decades for its execution, now seems possible to be implemented within a span of just a few months. The judicial system is to be applauded for its willingness to adapt as per the pressing priority. One important point to be acknowledged is that the technology is here to stay. Even after the pandemic ends, courts and especially arbitral institutions all over the world should make an endeavour to contrive this technology to aid them in resolving various disputes. Small procedures which do not require the physical presence of counsels or parties or the issues which are not very fact intensive should be tried and shifted to an online procedure. For e.g. Interim applications which are not very witness-oriented or which do not require any evidence can be resolved virtually. This will not only save a lot of time but also the costs involved in an arbitration hearing.