ICC Issues Guidance on Possible Measures to Mitigate Effects of COVID-19

In light of the ongoing coronavirus (COVID-19) pandemic, the ICC on April 9 released a guidance highlighting a number of measures that parties, counsel, and tribunal members can take in order to avoid extensive disruption to arbitral proceedings.

This may be by utilizing case management tools already available or additional measures that have been implemented by the ICC International Court of Arbitration in response to the pandemic.

Mitigating Delay

The International Chamber of Commerce’s (ICC) “Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic” highlights that notwithstanding the effects of the COVID-19 pandemic:

• The ICC remains open and able to progress pending and new arbitrations.
• The ICC, parties, counsel, and tribunal remain bound to the duty to “conduct the arbitration in an expeditious and cost-effective manner” as per the ICC Rules of Arbitration and should therefore actively seek to mitigate delay.
• Tribunal deliberations and/or preparations of draft awards should not necessarily be delayed, as they can be prepared remotely. In addition, the time limit for submission of draft awards, as well as the court’s policy to reduce arbitrator fees where there is unjustified delay, will remain in effect (albeit consideration will be given to delays genuinely attributable to COVID-19).

Increasing the Efficiency of the Arbitral Procedure

In order to increase the efficiency of arbitral procedures in light of the COVID-19 pandemic, the guidance reminds parties to refer to existing ICC guidance and the ICC Arbitration Rules, including:

• “Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration Under the ICC Rules of Arbitration.”
• “Controlling Time and Costs in Arbitration” – ICC Commission on Arbitration and ADR.
• “Effective Management of Arbitration – A Guide for In-House Counsel and Other Party Representatives” – ICC Commission on Arbitration and ADR.
• Guidance in Appendix VI to the ICC Arbitration Rules.
• Article 24(3) of the ICC Arbitration Rules, according to which the guidance states “the tribunal may adopt appropriate procedural measures or modify the procedural timetable” to ensure ongoing effective case management.

The guidance suggests a number of “appropriate procedural measures” that may be considered by the participants, and emphasises the need for the tribunal and parties to communicate proactively in this regard. These include, but are not limited to:

• Disposing expeditiously of certain claims or defences.
• Resolving the issues in dispute in stages by making one or more partial orders.
• Determining whether the dispute or issues may be resolved on the papers.
• Identifying issues that might be resolved by agreement between the parties.
• Organizing procedural conferences to assess the most relevant issues, and efficient ways to resolve them.
• Considering whether issues can be decided without, or with highly limited production of documents.
• Identifying issues that may be decided without the need for expert and/or witness evidence, or which can be dealt with on the basis of written questions and answers.
• Considering whether site visits or expert inspections can be replaced by video presentations or joint expert reports.
• Considering whether the use of tribunal-appointed experts, as opposed to party-appointed experts, may be appropriate (numerous experts are available for appointment by the ICC International Centre for ADR, at no cost to ICC tribunals).
• Considering using audioconference or videoconference technology.
• Considering producing an agreed chronology of facts, list of issues, or other joint documents that can narrow the issues.
• Considering whether and how the number and size of submissions can be limited.
• Considering whether to opt-in to the ICC expedited rules provisions.

Service of Documents and Notifications

The ICC Secretariat “expressly requires” that at present any new requests for arbitration and supporting documents are filed in electronic form. All communications with the Secretariat and other document or exhibit submissions should also be in electronic form.

In addition, and subject to mandatory legal requirements, parties and tribunals are encouraged to sign the terms of reference or any award, in counterpart and/or in electronic form. Parties are also encouraged to agree to electronic notification of an award, and the Secretariat generally will not do so unless agreed to by the parties.

Where tribunals are required to sign originals of an award, they should notify the Secretariat promptly in order to obtain details of the office to which the originals should be sent.

Virtual Hearings

Means of Conducting Conferences or Hearings

In determining the means of conducting a conference or hearing, consideration should be given to all factors relevant to the case, which may include the nature and length of the hearing, the complexity of the case, the number of participants and their need to properly prepare, and any reasons to proceed without delay.

Should the parties agree or the tribunal determine that “convening in a single physical location is indispensable yet impossible under current circumstances,” they should endeavour to reschedule the hearing or conference in a way that minimizes delay, and should seek to continue to progress the case in the interim.

Alternatively, if “convening in a single physical location is indispensable and … doing so is possible despite current conditions,” the parties and tribunal should ensure that specific rules and guidance at the location of the hearing are followed, including any appropriate measures required to safeguard the health of all participants.

Otherwise, if the parties agree or the tribunal determines to conduct a virtual hearing, they should “openly discuss and plan for special features of proceeding in that manner” (as discussed below), and will be assisted by the Secretariat in this process.

Cyber-Protocol

Where parties agree to a virtual hearing, the guidance requires that the tribunal and parties consult with the aim of implementing a “cyber-protocol” that will deal with issues of data privacy, privacy of the hearing, and protecting the confidentiality of electronic communications and document platforms. Annex II of the guidance provides a number of suggested clauses.

Procedural Issues

The guidance also flags a number of procedural issues, which should be considered when arranging a virtual hearing, including:

• Different time zones, start and finish times, breaks, and length of each day.
• Logistics of the participants’ locations, including total number of participants, whether participants will be in the same physical locations, and whether there is availability and control of breakout rooms.
• Use of real-time transcription or other forms of recording.
• Use of interpreters.
• Procedures for verifying the presence and identities of all participants (including any technical administrators).
• Procedures for taking oral witness and/or expert evidence.
• Use of demonstratives, including shared screens.
• Use of electronic hearing bundles. 

A full checklist is provided by the ICC at Annex I to the guidance.

Videoconference and Document-Sharing Platforms

The guidance advises all parties to conduct their own due diligence when selecting third-party videoconference or document-sharing vendors; however, it flags that “customized or licensed fee-based platforms may offer greater security, confidentiality, and data protection.”

The ICC currently has licensed access to Microsoft Teams, VidyoCloud, and Skype for Business and can provide remote technical support on these platforms.

Other videoconference platforms that may be considered (and have been recently used) include Zoom, BlueJeans, and GoToMeeting. Document-sharing platforms that might be considered include Opus, TransPerfect, and XBundle. 

Coronavirus COVID-19 Task Force

For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. We also have launched a resource page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

London
David Waldron