ICC Guidance Note on COVID-19: the overview

On 9 April, the ICC introduced a number of measures aimed to minimise the negative effect of the COVID-19 pandemic on arbitration. One of the main ideas was a desire to preserve fair and expeditious procedure on cost-effective basis.

Among the possible measures, the ICC names deciding potentially dispositive issues (such as the application of a contractual limitation of liability or the inclusion of a non-signatory in the proceedings) without a phase for the production of documents,  resolving some issues without witness and/or expert evidence or on the basis of written questions from the opposite party or the tribunal and written answers from the witness or expert; replacing site visits or inspections by video presentations; limiting size and number of submissions; using either audioconference or videoconference for conferences and hearings. Such measures are taken only after  consultations with the parties. The tribunal should take account all the circumstances, including the consequence of the COVID-19 pandemic, the complexity of the case and analysis whether rescheduling the hearing would entail unwarranted or excessive delays.

It is worth noting that time efficiency is one of the cornerstones of the arbitration and one of the reasons why parties may decide to chose this dispute resolution method. However, in the current circumstances, parties may face different problems, which will gradually influence their ability to prepare for the case and the ability of the tribunal to reach a fair decision. The reluctance to postpone the hearings due to the COVID-19 may affect the efficiency of arbitration as a dispute resolution method.

Moreover, it may be challenging to guarantee confidentiality and privacy if the hearings are held virtually.  Video conferencing services such as Zoom raise more and more security concerns. In addition, cross-examination of the witnesses is much more effective when arbitrators and parties’ representatives can see each other in person.

To sum up, the ICC seems to be the most prepared arbitration institution and the measures seem to be very reasonable. However, it is worth noting that the tribunal should carefully analyze all the pros and cons to ensure that the efficiency of arbitration is not affected.

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