ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic
On 9 April 2020, the ICC International Court of Arbitration released a guidance note outlining measures that can be taken to mitigate the adverse effects of the coronavirus pandemic on arbitral proceedings (“COVID-19 Guidance Note”).
The COVID-19 Guidance Note contains 13 pages of advice for parties, counsel and tribunals to ensure fair, expeditious, and cost-effective dispute resolution before the ICC court that remains open for business.
The COVID-19 Guidance Note indicates that the Coronavirus pandemic “will both disrupt many pending ICC arbitrations and generate new disputes that may themselves be more difficult to progress due to safety concerns and public health restrictions imposed to limit or slow the virus’s spread. However, parties, counsel and tribunals can minimise and perhaps even avoid such disruption and difficulty by thoughtful use of case management tools that are either already available through the ICC arbitration rules … or by the additional steps the ICC International Court of Arbitration is taking to streamline its internal processes”.
Under article 22(1) of the ICC Rules tribunals and parties are required to conduct cases in an expeditious and cost-effective manner, these principles remain unchanged in the context of the coronavirus pandemic.
Available procedural tools
The COVID-19 Guidance Note outlines various existing procedural tools allowing the control of time and cost of arbitration proceedings and effective case management in the current coronavirus context.
Such measures, that may be taken by tribunals after proactively consulting the parties, include the following:
- Disposing expeditiously of certain claims or defences in the case;
- Resolving the issues in dispute in stages by means of one or more partial awards;
- Resolving the dispute on the basis of documents only, without evidentiary hearing;
- Resolving issues on the basis of written questions to experts;
- Replacing site visits and inspections with video presentations;
- Limiting the size and number of submissions in cases; and
- Opting in to the ICC’s Expedited Rules Provisions.
Service of documents and notifications
In addition, the COVID-19 Guidance Note outlines the steps taken by the Secretariat of the Court to streamline its processes to promote efficiency and avoid COVID-19 related delays.
Since the 17 March, new requests for arbitration are to be filed with the Secretariat in electronic form and tribunals and parties are encouraged to sign the terms of reference and to exchange submissions electronically “to the full extent possible”.
Organisation of virtual hearings
The COVID-19 Guidance Note highlights the possibility of organising virtual hearings and conferences during the coronavirus outbreak as health and safety considerations and travel restrictions “may make it impossible to convene physically in a single location”.
When faced with such a situation, parties, counsel and tribunals should consider whether a hearing should be postponed, if it can be conducted by physical presence with special precautions (distance between participants, face masks, disinfectant gel available) or if it should be held virtually. Decisions should be made based on the length of the required hearing, the complexity of the case, numbers of participants and delays in the event of rescheduling.
“While tribunals have often erred on the side of caution and decided to hold at least one face-to-face hearing on the merits if a party so requires, the covid-19 pandemic may mean that it is not possible to hold a face-to-face hearing in reasonable time and that waiting until it becomes possible would produce unwarranted and even prejudicial delay” the COVID-19 Guidance Note states.
Importantly, the COVID-19 Guidance Note emphasises that the purpose of Article 25(2) of the ICC rules, under which a tribunal “shall hear the parties together in person if any of them so requests” is to ensure that “a live adversarial exchange” takes place. If the circumstances warrant it, this exchange can therefor take place “in person” or “by virtual means”.
Further, the COVID-19 Guidance Note includes suggested clauses to be inserted in a cyber protocol so as to ensure that the virtual hearing complies with applicable data privacy regulations and the privacy of the hearing and the protection of electronic communications.
The ICC Hearing Centre in Paris can offer technical support and assistance to tribunals operating virtual hearing and electronic bundle facilities, the COVID-19 Guidance Note says.
In addition, the ICC has licensed access to various videoconference platform options, including Microsoft Teams, Vidyocloud and Skype for Business, Zoom, BlueJeans and GoToMeeting.
As many national jurisdictions are currently limiting their activities to urgent and essential matters only, especially in criminal cases, commercial disputes will suffer delays. The efficiency of international arbitration proceedings is especially important in the midst of the current coronavirus pandemic.
This article has been prepared for informational purposes only. It is not a substitute for legal advice addressed to particular circumstances. You should not take or refrain from taking any legal action based upon the information contained herein without first seeking professional, individualized counsel based upon your own circumstances. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
Information by ALARIS AVOCATS, English speaking lawyers in France (Paris) specialized in French labor law, especially any kinds of Social Plans, dismissal procedures and labor contract clauses.