31 May Contribution to ICC Canada Newsletter: Reflections on arbitration practice in a post pandemic world.

– Author, Alison Bond

The COVID-19 pandemic was a catalyst for change in international arbitration. When the world shut down in March 2020, arbitral institutions and practitioners adapted to a new normal that embraced technology in ways not seen previously. After all, even though office towers were empty and centres were vacant, notices of arbitration continued to be served, procedural timetables were in place and hearings were in the diary. As the saying goes, the show must go on – and it did.

The flexibility of international arbitral rules coupled with arbitrators and practitioners embracing technology in ways not seen before allowed arbitral cases to progress despite global shutdowns. Coming out of the pandemic, arbitrators and practitioners are increasingly comfortable with deploying technology to make matters more efficient.

Over the next few years, it will be interesting to see how technology is used in a post pandemic world where many will be keen to return to certain pre-pandemic norms, such as in person hearings, which were the default before the world shut down. Arbitrators, parties and witnesses would travel all over the world to attend in person arbitral hearings. Some minor procedural matters were dealt with by telephone but any procedural matters of substance and hearings concerning liability and/or quantum were often conducted in person with materials for those hearings circulated in electronic and hard copy format in advance.

Over the course of the pandemic various arbitral institutions, including the International Chamber of Commerce (“ICC”), updated their rules to give the Tribunal discretion for arbitral hearings to be conducted virtually. In January 2021, the ICC issued its 2021 Arbitration Rules. Article 26 of those rules codified the practice of remote hearings, which had become commonplace by that time. Under the 2021 rules, parties can ask the Tribunal to exercise its discretion to hold a hearing virtually. Article 26 allows the Tribunal, having consulted with the parties and taking into account the relevant facts and circumstances to hold a hearing in person, via video conference or via telephone.[1]

Over the course of the pandemic, virtual hearings were critical to progressing arbitration timetables and ensuring parties were not left without a resolution to their matter for months or years. Parties and arbitrators became familiar with making arguments, examining witnesses and showing documents using various video conferencing platforms. But with lockdown restrictions lifted and borders open, many practitioners are thinking about the conduct of their hearings going forward.

Despite having become comfortable with remote hearings over last few years, many arbitrators and practitioners agree that there is still an important place for in person hearings. Many would likely similarly agree that compared to pre-pandemic, they are increasingly comfortable with virtual hearings. Over the next few years, parties might be content for certain arbitral hearings or aspects of those hearings to be heard virtually. For example:

(a) procedural matters, such as document production issues, may be more likely than substantive issues of liability and quantum, involving many fact witnesses and experts, to be heard virtually;

(b)  parties might be open to a virtual arbitral hearing where the primary issue to be determined involves a question of law; and/or

(c)  it may be more efficient for certain fact witnesses or experts to testify virtually during a hearing that is otherwise in person.

In addition to virtual hearings, over the course of the pandemic, arbitrators and parties became more comfortable with their arbitrations being paperless (or near paperless). This is a trend that is likely to continue in the years to come especially as it becomes easier to mark up and review documents on tablets and laptops. In keeping with this trend, for example, the ICC recently launched digital case management software, Case Connect.[2] Parties to an ICC arbitration can upload documents related to the arbitration to Case Connect for access by all parties, the Tribunal and the ICC Secretariat.

Only time will tell what learnings from the pandemic regarding the conduct of arbitrations will stick and those which will be forgotten or less relevant. At the very least, technology is here to stay and has a role to play in the future of the conduct of international arbitrations.

[1] Article 26, 2021 ICC Rules, https://iccwbo.org/dispute-resolution-services/arbitration/rules-of-arbitration/#article_26

[2] https://iccwbo.org/dispute-resolution-services/arbitration/file-your-request-via-icc-case-connect/#def-case-connect