THE PANDEMIC: OBSTACLE OR OPPORTUNITY FOR INTERNATIONAL ARBITRATION?

The pandemic has been a challenge, but not an obstacle, for international arbitration. Even before coronavirus (COVID-19), remote proceedings were common in arbitration. Arbitral tribunals conducted witness and expert examination through videoconferencing (with studies of arbitration practitioners indicating that more than half of all participants had used such procedures frequently). Likewise, case management conferences, procedural hearings and applications for interim relief were frequently heard by either telephone or videoconference.

However, the pandemic has made the use of technology both more necessary and much more prevalent in international dispute resolution. Social distancing, travel restrictions and other regulatory and social responses have made traditional in-person meetings difficult or impossible in many parts of the world. Like national courts, arbitral tribunals and institutions have been forced to conduct most or all arbitral process remotely, using various forms of technology. Unlike many national courts, however, the arbitral process has adapted relatively quickly and seamlessly to the pandemic environment.

Many arbitral institutions have issued detailed guides on conducting remote hearings. Examples include the International Chamber of Commerce (ICC) ‘Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic’ and the Singapore International Arbitration Centre’s (SIAC’s) ‘Taking your Arbitration Remote’. Likewise, arbitral tribunals moved quickly to conduct remote proceedings, in which the entire evidentiary hearing was conducted remotely, with all participants being in different physical locations, but present on a single technical platform. Arbitral institutions reported increased case filings (again, made online) and increased numbers of arbitral awards and other decisions. In contrast, in many countries, national courts curtailed judicial processes, with hearings occurring infrequently and only for specified categories of cases.

Jan-Mar 2021 issue

Wilmer Cutler Pickering Hale and Dorr LLP