Guidance documents

Of course, not all arbitrations require a hearing and, indeed, many arbitrations work on documents only. However, hearings do remain the norm. A number of guidance documents have been issued by a range of bodies, including those within the ASEAN +6 region and they should be consulted, both in relation to the present global difficulties, but also as a means of making international arbitration more time and cost effective going forward.

The principal guidance includes the following documents/initiatives:

1. The ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic (9 April 2020).
2. The International Council for Online Dispute Resolution Video Arbitration Guidelines (April 2020).
3. The Seoul Protocol on Video Conferencing in International Arbitration (18 March 2020).
4. The CIAarb Guidance Note on Dispute Resolution Proceedings (2020) (Guidance Note).

The working group’s draft protocol, referred to above, should be consulted and, in particular, within its annexes, appropriate use should be made of the checklist of considerations for platform adoption for parties, the platform provider data security questionnaire and the draft procedural order.

There is sometimes confusion about, on the one hand virtual hearings and, on the other, online dispute resolutions (ODR). A virtual hearing is not the same as an ODR. Evidence has often been given in arbitration proceedings (and indeed litigation) by virtual means. It is not the same, however, as having the procedure itself conducted online by ODR.

For the avoidance of doubt, ODR is the use of communication platforms and information technology to arbitrate (or, indeed, mediate or negotiate as the case may be) and to settle the dispute entirely or almost entirely online. A platform that assists in achieving that is an ODR platform, whereas a platform (such as Zoom or Microsoft Teams) is not an ODR platform and, of course, is not a dedicated arbitration or dispute resolution platform. Indeed, some formal definitional guidance is provided by the UNCITRAL Technical Notes on Online Resolution (2017), which inter alia provide that ODR is “a system for dispute resolution through an information technology-based platform and facilitated through the use of electronic communications and other information technology”. It should be noted that for some time, mediation has been conducted by some mediators as an online process; arbitration, however, has been slower to adapt.

Bearing in mind the distinction between virtual hearings and full ODR, many facilities and procedures are already in place and in use both by arbitral institutions and by parties in ad hoc arbitrations that facilitate remote conduct of at least some aspects of the arbitral proceedings. Thus, the preliminary or preparatory conference/meeting between the parties and the tribunal is now routinely conducted by way of a conference call and, of course, electronic service of written documents and submissions and communications generally between the parties themselves, and between the parties and the tribunal are commonplace. Added to this, witnesses are heard by video link, a tribunal will issue a procedural order remotely, and arbitrations that do not involve a hearing and are “documents only” are, in reality, in large part remote.