Thur 11 June 2020
By Associate Professor Kun Fan
In addition to the serious implications for people’s health and public healthcare services, COVID-19 is having and will continue to have a significant social and economic impact, which also imposes challenges for the administration of justice.
Businesses may need to focus on rebuilding their business relationship, re-negotiating the contract, or finding alternative paths to resolve their conflicts, rather than insisting on strict enforcement of contractual terms. This may lead to more demand for mediation, conciliation and other amicable methods of dispute resolution, as well as the combination of different modes.
The pandemic of COVID-19 is also exerting greater pressure for the arbitration community to reduce costs and improve efficiency and to find innovative ways to incorporate greater use of technology in arbitral process. While digital submissions and remote hearings are not new to international arbitration, the current pandemic has accelerated the digitalisation of arbitration proceedings.
In the circumstances of the current pandemic leading to the closure of offices of arbitration institutions worldwide, electronic submissions are becoming the default means of filing and correspondence. The COVID-19 pandemic may also mean that the only viable solution to avoid excessive delay of the proceedings is to conduct the entire evidentiary hearings virtually. This will lead to a number of issues, such as access to justice and due process, confidentiality and privacy, cybersecurity and data protection, fairness/impartiality/neutrality, language and interpretations, and other practical and technical considerations. Arbitrators need to carefully consider and balance the parties’ right to present one’s case and arbitrators’ overriding duty to conduct the arbitration in an expeditious and cost-effective manner.
Various institutions have provided guidelines and protocols to guide arbitrators and parties to mitigate the effects of any impediments to the largest extent possible while ensuring the fairness and efficiency of arbitral proceedings, including the Joint Statement on Arbitration and COVID-19, ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic, ICODR’s Free Guide to Video Arbitrations, CIArb Guidance Note on Remote Dispute Resolution Proceedings, the Seoul Protocol on Video Conferencing in International Arbitration, the HKIAC Guidelines for Virtual Hearings, the Delos Checklist on Holding Arbitration and Mediation Hearings in Times of COVID-19, the African Arbitration Academy Protocol on Virtual Hearing in Africa, ICCA-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration, ICCA-IBA Roadmap to Data Protection in International Arbitration. We also see more collaborations between different institutions during this crisis, such as the International Arbitration Center Alliance (“IACA”), formed by three leading arbitration bodies.
The greater and better use of technology in arbitration is an inevitable trend, but the current pandemic may have fast forwarded the digitalisation of arbitration. Arbitrators, counsels, parties and arbitration institutions should prepare themselves to such evolution and make best efforts to facilitate the just resolution of disputes as quickly, inexpensively, and efficiently as possible.