The outbreak of COVID-19 has significatively impacted our lives, and chances are it will continue to do so. We have no guarantee of how much longer it will take to get “back to normal.” Regardless of the great degree of uncertainty characterizing our current times, there is a point we may all agree upon: now, more than ever, the ability to adapt has become a great asset for people and businesses. To this point, looking back over the past weeks, we can see that the arbitration world so far has been particularly successful at adapting to the new lifestyle the coronavirus imposed upon us and making the best of it.
In a recent piece (here), we discussed how promptly the arbitration world has reacted to the unprecedented conditions, acting from the very beginning of the ongoing health emergency. A few months after a pandemic was declared, we witnessed arbitrators and arbitral institutions swiftly rolling up their sleeves to ensure the continuation of services provided, as well as their mutual efforts to enhance the quality of their services to better deal with the restrictions the pandemic inevitably triggered. In our previous considerations, we acknowledged that it was perhaps too soon to draw conclusions or to foresee the actual impact of the spread of the virus on the dispute resolution realm. Since then, however, we have seen further instances of arbitral organizations worldwide addressing the issue, with the clear aim of containing the harmful effects of the virus.
Other arbitral institutions in addition to those already discussed continue to step up and direct addressing the topic of the impact of COVID-19 on arbitration proceedings. Newly issued statements confirmed the initial trend of arbitral institutions sharing a positive and reassuring message, in the sense that they continue to provide their services and do whatever they can to avoid being affected by the ongoing emergency.[1]
In this respect, a great deal of attention has focused on providing a way to properly administer arbitration proceedings online (so-called Online Dispute Resolution, “ODR”) and to approach virtual hearings. From the beginning, the main concern was obviously to ensure protection of privacy, confidentiality, and the security of activities carried out online. Many cyber-protocols have already been adopted for this purpose, and in just a few weeks others have followed,[2] once again confirming the initial trend. Indeed, arbitral institutions appear on an ongoing basis to be increasingly investing in these protocols and in systems capable of guaranteeing the safe conduct of online proceedings and virtual hearing. Such efforts consist not only of the concrete adoption and implementation of the guidelines set forth above, but also of the promotion of several webinars worldwide.
Clearly, the above opens up the issue to heated debate. However, despite the possible downsides of the digitalization of arbitral proceedings, the investments recently made to address the current situation are consistent and innovative and could easily be utilized and enhanced further even after the pandemic is over.
Indeed, although the virus outbreak demonstrated how hard it is to know what tomorrow will bring, there are some observations that can safely be made at this stage, namely that the need to face the virus inevitably spurred us to rely on new technologies to a greater degree and to invest in conducting proceedings online. This will lead (and, to some degree, already has led) to the development of new issues, such as how to safeguard cornerstone principles in arbitration proceedings and how not to distort the very essence of the dispute resolution system, while also considering the parties’ fears and expectations.
The reactions we have been witnessing from arbitral institutions all over the world are actually very promising—to the point that it is possible that even after the emergency, the solutions adopted will not automatically be completely discontinued. Indeed, if applied to the proper arbitral cases and to the right phases of the proceedings, some of them may actually offer a permanent boost to the modernization and efficiency of the conduct of arbitration, with beneficial effects continuing to reverberate once the pandemic is over.
[1] In addition to the declarations and statements already indicated in our previous contribution, among the newly released declarations from arbitration organizations, the following are worth mentioning: the recent “Announcement of Particular Procedural Features for the Administration of Arbitrations in View of the COVID-19 Pandemic” from the German Arbitration Institute (“DIS”); and the letter from Gary Born in his role as President of the Court of Arbitration for the Singapore International Arbitration Centre (“SIAC”), dated April 28, 2020. Notably, the SIAC also filed a list of Frequently Asked Questions related to dealing with coronavirus on its website (available here: https://siac.org.sg/faqs/siac-covid-19-faqs). Also of note are the statement released by the Finland Arbitration Institute (“FAI”), dated April 28, 2020; and the statement from the London Court of International Arbitration (“LCIA”) on May 14, 2020.
[2] Aside from those already indicated in our previous contribution, the “Protocol on virtual hearings” released by the African Arbitration Academy and the “Guidelines for virtual hearings” issued by the Hong Kong International Arbitration Centre (“HKIAC”) on May 14, 2020 deserve mention. More generally, as far as the conduct of arbitration proceedings online is concerned, it should also be noted that the Arbitration Institution of the Stockholm Chamber of Commerce (“SCC”) recently introduced a new platform for conducting ad hoc arbitration proceedings online (further information available here: https://sccinstitute.com/scc-platform/ad-hoc-platform/).
