In this brief note we shall revise how the principal arbitration institutions have reacted to the COVID-19 pandemic, and we shall consider whether the measures adopted are here to stay.
The matter of remote or on-line arbitration is an issue that has been analysed for several years now in forums in the arbitration community.
In a survey regarding the evolution of international arbitration carried out by the Queen Mary University those surveyed were asked to indicate how often they used five different forms of information technology (IT) in international arbitration: videoconference, technology in hearing rooms, cloud storage, artificial technology (AI) and on-line hearing rooms.
The majority of those surveyed advocated carrying out hearings and meetings by videoconference or other means of communication, which do not require the physical presence of the participants, substantially bringing about savings in terms of time and money. Others, both lawyers and arbitrators, were reticent regarding questioning witnesses or listening to the conclusions of the parties via videoconference.
Be that as it may, with the arrival of COVID-19 and the restrictions on movement, which have been imposed on a global level, the international community has become obliged to take a step forward in the incorporation of new technologies in the arbitration procedure.
Thus, we should take note of some of the soft law recommendations published by different arbitration institutions (which, in spite of not being
mandatory, should serve as a good practice guide both for arbitrators, as well as lawyers and parties):
- Guidance note from the International Chamber of Commerce regarding Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic. (ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic)
- Guides on good practices for virtual hearings for personnel, arbitrators, lawyers and parties of the American Arbitration Association – International Centre for Dispute Resolution (AAA-ICDR® Virtual Hearing Guide for Arbitrators and Parties)
- Guidelines from the Kong International Arbitration Centre for virtual hearings (HKIAC Guidelines for Virtual Hearings)
- Brief guide to on-line hearings from the International Centre for Settlement of Investment Disputes (ICSID) (Brief Guide to Online Hearings at ICSID)
- Seoul Protocol on Video Conferencing in International Arbitration
At national level, the recently created Madrid International Arbitration Centre (MIAC), resulting from the merger of the international arbitration activity of the Madrid Court of Arbitration (MCA), the Civil and Commercial Arbitration Court (CCAC) and the Spanish Arbitration Court (SAC), announces that technology shall have a fundamental role in this institution, where their IT systems will allow them to carry out all of their activity without filing any physical paperwork and where they grant considerable access to their users, who may decide if they prefer presence-based or on-line hearings.
Likewise, the Barcelona Arbitration Court (BAC), in the face of the foreseeable multiplication of conflicts derived from contractual relationships due to the situation caused by COVID-19 has put into operation an agile procedure, which shall be processed electronically for those needing a quick and definitive solution, even when there is no prior arbitration agreement, with an anticipated duration of some 60 days as from the filing of the initial application (the so-called “Fast Track”).
Nonetheless, it seems that on-line arbitration is here to stay, which will present significative advantages in terms of time and money. The intervening agents in the arbitration proceedings will continue to familiarise themselves with the newly available information technologies, thus guaranteeing in any case the principles of equality, hearings and contradiction which govern arbitration, while at the same time maintaining confidentiality.
Carla Villavicencio
Vilá Abogados
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24th July 2020
