Turkey: Effects Of COVID-19 On Arbitral Proceedings: Is The Virus Reshaping The Future Of Arbitration?

COVID-19 pandemic is considered as a health catastrophe that massively affects the world both in health and economical terms. This extraordinary situation and rapid spread of the virus are being felt worldwide and impacting all business sectors. It is a crisis like no other, shutting down factories and schools, closing borders and putting half of humanity under some form of lockdown. It has led to a strong drop in the cash-flow of companies and to a threat of mass insolvencies. Unfortunately, it's not over, with cases continuing to mount worldwide and economies continue to suffer losses.

Considering historical precedents, crisis caused by the COVID-19 is estimated about three times as bad as the global financial crisis of 2008 in terms of GDP decline.¹ But negative effects of the pandemic situation are not limited with economy; the outbreak is triggering multiple impacts, such as social, political, cultural. On the global stage; the outbreak of is also affecting judgment and judicial systems, including both litigation and arbitration.

Through this extraordinary situation, it is difficult to litigate or arbitrate due to safety concerns, public health and travel restrictions imposed to limit or slow down the virus's spread. Mandatory social isolation measures, limited resources and improvised solutions have undermined the capacity to maintain normal levels of access to justice during the outbreak.

Although both litigation and arbitration proceedings are affected by this outbreak, arbitration can adapt to extraordinary situations like COVID-19 better than other dispute resolution methods; because arbitration gives parties and arbitrators substantial autonomy and control over the process which enables arbitration community to continue proceedings. Considering this autonomy and flexible structure of arbitral proceedings, while arbitrating disputes, these adverse effects of pandemic can be minimized or mitigated.

I. ARBITRATION IN GENERAL

In general, judgment is considered as a state-owned function; it is essential that disputes arising between the parties be resolved in state courts.² However, if the parties mutually agree, this jurisdiction that belongs to state courts can be used by arbitrators in certain situations. Arbitration is a system of adjudication conducted as a result of an agreement between the parties on the resolution of disputes arising or may arise between the parties, by means of independent arbitrators who derive their powers from this agreement, instead of solving their disputes with state jurisdiction.³

In contrast with the rigid structure of the state courts, international arbitration is flexible and innovative; because of this reason, arbitration represents a practical and useful alternative to the various difficulties and delays that will likely be experienced in court litigation during the pandemic.⁴ As arbitration is conducted as a result of an agreement between the parties, it gives parties and arbitrators substantial autonomy and control over the process that will be used to resolve disputes.

The flexibility of being able to tailor the dispute resolution process to the needs takes arbitration one step ahead of other adjudication systems in COVID-19 times. Arbitration's key feature party autonomy indicating parties' ability to shape the arbitral procedure based on their agreement, makes arbitration the most suitable dispute resolution mechanism to resolve disputes in the times of Covid-19.

Nowadays, arbitration institutions around the World face the challenge of having to ensure the fairness and efficiency of arbitration while protecting the health and safety of arbitration participants.

II. ARBITRATION DURING PANDEMIC

Considering arbitral proceedings, pandemic situation affects both arbitration applications, pending arbitrations and awards. In addition, this situation also generates new disputes that will be settled through arbitration. Effects of COVID-19 on arbitration occur in various ways, ranging from an increased use of virtual hearings and online document sharing for pending arbitrations, online application and documents-only arbitrations (with no evidentiary hearing) for new applications.

All these changes require the arbitration community, including parties, counsels, arbitral institutions and arbitrators to adapt rapidly to a reality that will continue for a medium or a long period of time. Arbitration community plays an important role to minimize and perhaps even avoid such disruption and difficulty by thoughtful use of case management tools that are either already available. The most important role of the community here is to ensure that proceedings continue on a fair, expeditious, and cost-effective basis. The COVID-19 pandemic puts pressure for the arbitration community to find innovative ways to incorporate greater use of technology, through more use of online dispute resolution or virtual hearings. In addition, the entire community should work in harmony to help each other and make every effort to keep the procedure running smoothly.

If managed successfully, with the help of technological developments and internet, pandemic should not necessarily delay applications, hearings, document presentation, tribunals' deliberations or their preparation of draft awards, as all these activities can be conducted remotely. Furthermore, aside from all the negative effects, this extraordinary situation may have some positive effects on proceedings forcing arbitration community, especially arbitral institutions, to adapt changing world and needs of dispute resolution mechanisms based on technological developments.

III. MEASURES TAKEN BY ARBITRAL INSTITUTIONS

Arbitral institutions provide guidelines and notes to parties, counsel and tribunals on possible measures that may be considered to mitigate the adverse effects of the COVID-19 pandemic. For example, On April 9, 2020 International Chamber of Commerce (ICC) has published a guidance note on "Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic"; this note can be used as a guide to parties and tribunals through ICC arbitrations on measures aimed at mitigating the effects of the COVID-19 pandemic and continuing to progress pending arbitrations.⁵ Measures proposed by ICC focus on two major aspects; the possible prevention of COVID-19 related delays and the organization of virtual hearings.⁶ In addition, ICC constantly organizes online meetings and provides information about the functioning of the arbitration during the pandemic process; these meetings also enable arbitral community to share and exchange ideas that will positively affect the evolve of arbitral proceedings.

The London Court of International Arbitration (LCIA) also took steps to ensure that the arbitration proceedings proceed smoothly. LCIA confirmed that, although they expect to remain operational through this situation, in order to deal with matters as usual, they have requested that all further interactions be done online or over the telephone. LCIA applied precautionary measures in order to maintain service, while safeguarding the welfare of staff and arbitration community. In its "Guidance Note for Arbitrators", the LCIA acknowledges that it may be appropriate for hearings to be held by telephone or by videoconference rather than in person.⁷ LCIA also published a "Service Update" informing the staff and community about the events, hearings, cases and awards.⁸ In addition, the Institution provides regular updates through its website to inform community about ap to date changes and regulations.

Other institutions like the Arbitration Institute of the Stockholm Chamber of Commerce (SCC) and Singapore International Arbitration Centre (SIAC) also provide guidelines to ensure continuity of proceedings without any delay during COVID-19 period. President of Court of Arbitration of SIAC, Gary Born, has published a note for practitioners and arbitrators stating that SIAC continues to provide uninterrupted administration of international arbitrations. He also emphasized that efficient and effective case management remain first priority of the Institution and SIAC is fully operational including the SIAC Court of Arbitration and the Secretariat.⁹ In addition, SIAC provides periodical updates on COVID-19 measures. SCC also continuously informs arbitration community relating the procedures and measures during COVID-19 through notes on its website.¹⁰ These notes include information about operations at the SCC, checklists for online procedures, events and seminars.

International Centre for Settlement of Investment Disputes (ICSID) released a message through the Centre's website.¹¹ Centre stated that the situation involving COVID-19 continues to evolve quickly and the well-being of ICSID staff as well as all participants in ICSID cases remains utmost priority. Although the ICSID Secretariat is fully-operational from remote work-stations and coordinating with Tribunals and parties to minimize disruption to cases, ICSID reminded users that new requests for arbitration or post-award applications may be filed electronically only. ICSID also encouraged parties and Tribunals to implement electronic-only filing of written pleadings.

Moreover, collaborations between different institutions are also emerging; such as the formation of the International Arbitration Center Alliance ("IACA"), a collaboration of physical, technical and professional resources, aiming to eliminate the distance, time-zone and other challenges associated with the international hearings during unprecedented times. Additionally, a joint statement on arbitration and COVID-19 ("Joint Statement") issued by thirteen arbitration institutions.¹² The Joint Statement asks arbitral tribunals and parties to mitigate the effects of any impediments to the largest extent possible while ensuring the fairness and efficiency of arbitral proceedings.

Considering all these notes and guidelines, it can be concluded that during COVID-19 times arbitral institutions focus on online resources to ensure that proceedings continue on a fair, expeditious, and cost-effective basis. This shows the importance of technology and technological developments on arbitration. Institutions have to adapt these changes rapidly and become technology-friendly; this situation can be a chance for them to finish all the compliance process.

IV. INFORMATION TECHNOLOGY IN ARBITRATION AND ITS EFFECT ON PROCEEDINGS DURING COVID-19

In recent years, information technology has nearly invaded the legal profession; use of information and communication technologies has developed rapidly with progress in those technologies. Dispute resolution, especially arbitration, is one of the most rapidly developing fields of IT usage. Recently, international arbitration faces new developments of IT and try to take full advantage of them. Effective usage of IT in arbitration can help reduce time and cost constraints, also improve the outcomes of an arbitration by serving fair judgement.

However, until COVID-19 times, it was not be possible to state that the arbitration community including arbitration institutions have fully absorbed these developments and used them effectively. Usage of technologies in arbitration become more critical with the emerge of COVID-19 pandemic. This inevitable chance and development help arbitration community to function effectively to mitigate the adverse effects of pandemic.¹³ Having considered the various uses of IT for arbitration and all the advantages, it remains to be seen in which specific situation these benefits may be put to use.¹⁴

The most fundamental technological developments for arbitration are case management tools (websites) and videoconferencing. Case management tools affect document and information management, while videoconferencing bridges distances by permitting a new form of presence in situations where the physical presence of all participants is not indispensable.¹⁵

1. Virtual Hearings

Potentially, most critical effect of COVID-19 on a core feature of the arbitral procedure may be the in-person hearings; almost all arbitration centers moved towards "virtual hearings". Due to safety concerns, mandatory social isolation measures and travel restrictions imposed to slow down the virus's spread; virtual hearing can be regarded as the only way for the arbitration proceedings to continue. In addition, if the situation does not get better, it may be impossible for some time to conduct in-person the hearings currently scheduled or soon to be scheduled.

A virtual hearing is an arbitral hearing conducted by audio-visual means, where cases are progressed without the need for participants to attend the hearing in person. Virtual hearings allow arbitrators, attorneys/representatives, witnesses and other participants to attend hearings online.¹⁶ With the help of virtual hearings and IT, participants will no longer have to travel to a hearing site to attend their hearing. That type of a hearing envisages that the proceeding will be conducted only by online platform which will be used to conduct the virtual hearing.

Technology is advancing and there are several service providers, apps and programs that enable arbitration community to perform virtual hearings. Programs like Teams, Zoom or Skype help arbitration community to carry out virtual hearing. In addition, service providers such as Epiq and Opus are working in conjunction with centres such as Maxwell Chambers, the HKIAC and the LCIA have made strides in addressing the technological challenges of virtual hearings. They are now offering more comprehensive solutions involving dedicated operators participating remotely to manage the video link and deploy the documents from electronic hearing bundles.

Virtual hearings are not unknown to international arbitration community and may prove valuable tools in the quest for time and cost-efficient arbitrations. Practitioners are familiar with remote participation for in-person hearings where it is impossible or impractical for one or more of the witnesses or participants to attend in person.¹⁷ However, the challenge in COVID-19 times is different; it is impossible or imprudent in most arbitrations for any of the participants to be in the same room, even if some are in the same city. With the emerge of COVID-19, virtual hearing become more important and took arbitration one step ahead of litigation through this process. Autonomy and flexible structure of arbitral proceedings enables community to perform virtual hearings. Considering that participants no longer have to travel to a hearing site, the obstacle in front of the proceedings to be carried out on the scheduled date and time is removed.

Most of the institutional rules have acknowledged the possibility of virtual hearings; they have the necessary rules and capacity to conduct virtual meetings, so the spread of the virus does not hinder or prevent arbitrators from conducting hearings. For example, ICC had already several tools available to assist parties, their representatives and arbitrators in effectively managing arbitrations through virtual meetings, including its NetCase platform.¹⁸ When virtual hearings are concerned, the LCIA Rules also cater for the possibility that proceedings do not need to take place in person. Article 19 of arbitration rules that entails "Oral Hearings" provides that "as to form, a hearing may take place by video or telephone conference or in person".

The ICC Commission on Arbitration and ADR had issued reports in 2004¹⁹, 2007²⁰ and 2011²¹ that provide users the means to conduct procedures in an effective and cost-efficient manner; these means are also useful for virtual hearings. These reports provide helpful standards on issues to be considered, such as common technical ability, electronic exchange of documents, data integrity issues, and issues to be considered for videoconferencing including directions that the tribunal needs to give to the parties after consulting them. The report published in 2007 recommended that telephone and videoconferencing may be considered to avoid the need for parties and arbitrators to travel to hearings.²²

As discussed before, after the emerge of COVID-19, ICC has published a guidance note on "Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic" to be used as a guide to parties and tribunals through ICC arbitrations. This Guidance Note provides information for the assistance supplied to arbitrators and parties about issues they need to consider when organizing a virtual hearing. The Guidance Note requests tribunals to take into account all circumstances, including those caused by the pandemic, the nature and length of the conference or hearing, the complexity of the case, number of participants and the need for the parties properly to prepare for the hearing. If a tribunal decides to proceed with a virtual hearing, arbitrators and parties should discuss and plan for special features of proceeding in that manner.²³

On March 24 ICSID also provided a Guide to help parties, counsels and tribunal through online hearings.²⁴ According to this Guide, last year about 60 per cent of the 200 hearings and sessions organized by ICSID were held by video-conference; but with the unprecedented disruptions to travel caused by Covid-19 have spurred further interest in online hearings. The Guide further explains that ICSID's video-conferencing platform does not require special hardware or software, thereby allowing participation from any location. A computer with an internet connection and webcam is sufficient for effective and secure participation. Where internet connectivity is poor, participants may also join by telephone. In addition, Centre held webinars aimed to provide practical insight and guidance from the perspective of arbitrators, counsel and the secretariat.

There are also different notes published by different platforms to guide virtual hearings and further online proceedings. For instance, "Guidance Note of Remote Dispute Resolution Proceedings" as published by CIArb to be taken into consideration to help participants in arranging remote procedures.²⁵ The Guidance Note is intended for use in conjunction with and adjusted to any governmental and arbitral institutions' advice with reference to any dealings during the COVID-19 pandemic or other circumstance that prevents physical meetings and any laws applicable, including public policy provisions of the possible place(s) of enforcement.

Virtual hearings are also used in emergency arbitrator (EA) proceedings. In one of SIAC's most recent EA applications, after the EA was appointed, the EA swiftly scheduled a video case management conference to establish a schedule for consideration of the application. In the course of the hearing, counsels relied on various documentary evidence using e-bundles. Subsequently, the EA decision was submitted to SIAC for scrutiny and the decision was transmitted within the 14-day period as mandated under the SIAC Rules.²⁶

1.1. Tribunals' Power to Decide on Virtual Hearings

Tribunals' power to decide on remote hearings is not without limitation. There most important limit is the parties' agreement. If the parties agree on a certain conduct, like holding a remote hearing or not, arbitral tribunals should follow the parties' agreement. In contrary, where one party requests a remote hearing while the other insists on a physical hearing, arbitral tribunals have to balance the parties' right to be heard and treated equally, in consideration with its obligation to conduct the proceedings in an efficient and expeditious manner. If tribunals do balance parties' rights, it may prevent the enforcement of an award or the award may be annulled.

One question that arises is whether arbitrators can proceed with the virtual hearing if one or both parties object. In normal circumstances, tribunals are often inclined to hold at least one face-to-face hearing on the merits to ensure that each party is afforded procedural fairness. However, the pandemic may mean that it is not possible to hold a face-to-face hearing in a reasonable time. Waiting until it becomes possible may cause unwarranted and even prejudicial delay in the arbitration proceedings.

Tribunals typically have the power to order remote hearings over the opposition of one party; but the exercise of that power requires careful consideration. Such an exercise must contain a multi-factorial approach, including, for instance assessing the reason for and content of the remote hearing, as well its envisaged technical framework. The envisaged timing for the hearing and any potential delay if it is held physically and a comparison between the costs for a remote hearing and a physical one might also be relevant.²⁷ "Justice delayed is justice denied". Arbitrators need to carefully consider and balance the parties' right to present one's case and arbitrators' overriding duty to conduct the arbitration in an expeditious and cost-effective manner.²⁸

1.2. Advantages and Disadvantages of Virtual Hearings

Virtual hearing is relatively a new concept that has to evolve and develop. In this stage, virtual hearings have pros and cons that has to be discussed. First of all, it may be argued that a face-to-face hearing is necessary for a party to fully present its case. A party may have difficulty to represent claims or possible objections when the hearing is online. Here tribunals play an important role ensuring procedural fairness in the context of a virtual hearing.

Also, cross-examination of a witness maybe best conducted in person in order to see the facial expression and body language of the witness to test his/her credibility. May be as simple as poor internet connection in one country of participants, as, for example, handling cross-examination, which is complicated to administer through video conference. In such, it is nearly impossible to ensure that the fact witness is not accompanied by someone unauthorized in the room during the hearing.²⁹ The Seoul Protocol on Video Conferencing in International Arbitration represents an initiative in response to the advent of videoconferencing in arbitration. The provisions in the Seoul Protocol directly address the need for fairness and impartiality³⁰

In another aspect, some arbitrators are unfamiliar with virtual hearings. They may have experiences in cloud-based document sharing or videoconferencing, but the concept of hearings conducted with everyone in different locations is unknown to them. The Queen Mary University of London's "2018 International Arbitration Survey" found that 78% of arbitrators had never or only rarely used online video conferencing platforms.

Another concern here is confidentiality and security. It is imperative to ensure all participants feel secure about the confidentiality of the information they disclose in a remote hearing. As a form of IT, videoconferences also may be intruded or breached upon in the absence of appropriate measures to ensure confidentiality and security. Although today's videoconferencing technology is much more advanced than before it is still sensitive to cybersecurity breaches. In addition, when service providers of the videoconferencing service fail to uphold security duties, arbitration community may face various risks. In particular, Zoom, the popular videoconferencing service provider had serious security deficit that caused third parties to receive confidential information.³¹

Related to confidentiality, cybersecurity is crucial in arbitration as the credibility and integrity of the dispute resolution process depends on it. When an arbitration hearing is conducted virtually, it is important for arbitrators to consult with the parties with the aim of implementing a cyber-protocol to comply with any applicable data privacy regulations, such as the European Union General Data Protection Regulation.³² Another protocol that provides guidelines on how to adhere to a high standard of information security during an international arbitration is the ICCA-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration.³³ Also The ICC Note includes suggested clauses for cyber-protocols and procedural orders dealing with the organization of virtual hearings.

There are other important technical and practical issues that need to be considered to ensure the quality of the virtual hearings. The ICC Note suggests the tribunals to ensure any video sharing platform used for virtual hearings is licensed and is set to maximum security settings. Also, Seoul Protocol provides more detailed guidance on best practice in this context, including the logistical and technological guidelines to ensure quality of video conferencing.³⁴

Other practical and technical issues could also arise if a hearing is shifted fully online such as accessibility of internet connection or other technological limitations. In practice, day before the hearing the participants take part in a "dry run" to test the screen sharing, audiovisual, and other aspects of the virtual hearing will minimize the connection risks in the actual virtual hearing. A well-organized dry run will work to ensure that participants have an uninterrupted experience on the hearing day.³⁵

To minimize or eliminate the disadvantages of virtual hearings, tribunal or institutions shall ensure that virtual hearings are effectively designated. Also training a number of counsels in arbitral institutions as "remote technology specialists" or introducing a "live help desk" may help proceedings to continue without any delay. In addition, parties shall liaise with each other and explore methods of conducting conferencing by way of a video facility. The parties also shall identify and agree on a service provider. If managed properly and applied in appropriate disputes, virtual hearings can save considerable time and costs.

2. Case Management Tools

Facilitating the efficient documentation and document sharing, namely the management of documents, is a critical component of arbitration. With the use of case management tools, documents submitted in a particular case run exclusively through a single platform. Particularly, the parties can file their submissions through the platform and can upload all exhibits there as well. In addition, the tribunal and the institution can communicate with the parties exclusively through such platform. Using a case management tool can prevent many of the problems associated with email communication like size constraints. A further benefit of such a document management system would be that it automatically ensures that the record of the arbitration is clear and in order.³⁶

Case management tools enable parties to manage and transmit large number of long, interrelated documents in a convenient and effective way. With the emerge of COVID-19 pandemic, these tools became even more important. Using of case management tools prevent hardcopy document sharing which may cause the spread of virus. Additionally, using case management tools make proceedings faster and help parties to receive their requested goals easier. With the pandemic, courier services have also faced problems while delivering documents; online document sharing, so the case management tools, will help prevent all these problems.

Arbitral institutions also encourage arbitration community to effectively use the case management tools. For example, ICC Secretariat's communication of 17 March 2020 expressly requires that new requests for arbitration (including pertinent exhibits) and other initiating documents be filed with the Secretariat in electronic form. Tribunals and parties are encouraged to sign the Terms of Reference in counterparts and electronic form, as described in the Note. To mitigate the current difficulties for the submissions of hard copies, tribunals should also encourage the parties to use electronic means of communication for the submissions and exhibits to the full extent possible. The Note expressly requires that communications with and from the Secretariat be in electronic form.

V. OTHER TRENDS DURING COVID-19

In addition to the shift to online platforms, the tribunals have, on a case-by-case basis and subject to the circumstances of any particular dispute, adjourned some hearings for a later date or have extended timelines for written submissions or witness statements. In some cases, parties have jointly requested for the suspension of the proceedings to hold without prejudice settlement talks. But this does not conform to the aim and purpose of the arbitration. Perhaps the most important reason for the parties to choose arbitration is the slow functioning of the litigation and the prolongation of the periods contradicts the core of the arbitration.

Due to the current situation, some parties might ask for an open-ended extension of time for their filing deadlines for responsive memorials. Some of the cases during the so-called Arab Spring may illustrate the impact of such requests. In one of the cases, the State requested the suspension of the procedural calendar due to political unrest, but the request was denied. However, the second request for suspension was granted due to the escalation of the political unrest.³⁷ In less complex cases, parties have requested the tribunal to dispense with the oral hearing and decide the dispute based on documents alone.³⁸

VI. CONCLUSION

When we take into an account that the COVID-19 with its statement in the form of the World Health Organisation, as a global epidemic, it can be envisaged that it could hold on more power currently in which our new normal has to adapt to this extraordinary situation. Through this extraordinary situation, it is difficult to litigate or arbitrate due to safety concerns, public health and travel restrictions imposed to limit or slow down the virus's spread.

In contrast with the rigid structure of the state courts, international arbitration is flexible and innovative; because of this reason, arbitration represents a practical and useful alternative to the various difficulties and delays that will likely be experienced in court litigation during the pandemic. However, arbitral proceedings are also affected from COVID-19. Effects of COVID-19 on arbitration occur in various ways, ranging from an increased use of virtual hearings and online document sharing for pending arbitrations, online application and documents-only arbitrations (with no evidentiary hearing) for new applications.

These effects can be mitigated if parties effectively use information technology including virtual hearings and case management tools. Due to safety concerns, public health and travel restrictions imposed to limit or slow down the virus's spread arbitration community should be in line with technological developments and benefit from these developments in full in order to overcome this process with the least damage and mitigate the adverse effects.

Besides, there is no doubt that these developments will shape the future of arbitration. New technologies will most likely replace physical meetings, while ensuring accurate and adequate face-to-face interactions between parties, witnesses and arbitrators in near future. We will see the drafting of notices, submissions, correspondence, pleadings, statements, and applications, which are traditionally document-only tasks, made just through online platforms in near future.

Perhaps the arbitration world should be able to use this process to its advantage and make an effort to make arbitration a more preferable dispute resolution method. Parties, counsel, and arbitrators must adapt to the new reality of conducting proceedings in the face of travel restrictions and social distancing measures. But the most important, parties shall liaise with each other and explore methods of conducting proceedings online with the help of information technology.

References

Ahmed Bakry, 'The COVID-19 Crisis and Investment Arbitration: A Reflection From the Developing Countries' (Kluwer Arbitration Blog, 21 April 2020) (http://arbitrationblog.kluwerarbitration.com/2020/04/21/the-covid-19-crisis-and-investment-arbitration-a-reflection-from-the-developing-countries/) accessed 11 October 2020.

Chahat Chawla, 'International Arbitration During COVID-19: A Case Counsel's Perspective' (Kluwer Arbitration Blog, 4 June 2020) (http://arbitrationblog.kluwerarbitration.com/2020/06/04/international-arbitration-during-covid-19-a-case-counsels-perspective/) accessed 11 October 2020.

David Collins, An Introduction to International Investment Law (Cambridge 2017).

Elliot Smith, 'Global Stocks Head for Worst Week Since the Financial Crisis Amid Fears of a Possible Pandemic' (CNBC, 28 February 2020) (https://www.cnbc.com/2020/02/28/global-stocks-head-for-worst-week-since-financial-crisis-on-coronavirus-fears.html) accessed 11 October 2020.

Emmanuel Gaillard, Savage John, Fouchard Gaillard Goldman on International Commercial Arbitration (Kluwer 1999).

F. Imbert and E. Huang, 'Dow Falls 350 Points Friday to Cap the Worst Week for Wall Street since the Financial Crisis' (CNBC, 27 February 2020) (https://www.cnbc.com/2020/02/27/dow-futures-fall-100-points-after-another-massive-rout-amid-coronavirus-fears.html) accessed 11 October 2020.

J Hong and J H Hwang, 'Safeguarding the Future of Arbitration: Seoul Protocol Tackles the Risks of Videoconferencing' (Kluwer Arbitration Blog, 6 April 2020) (http://arbitrationblog.kluwerarbitration.com/2020/04/06/safeguarding-the-future-of-arbitration-seoul-protocol-tackles-the-risks-of-videoconferencing/) accessed 11 October 2020.

J Poudret and S Besson, Comparative Law of International Arbitration (Sweet & Maxwell 2007).

Julian D. M. Lew, Loukas Mistelis and Stefan M. Kröll, Comparative International Commercial Arbitration (Kluwer 2003).

Kun Fan, 'The Impact of COVID-19 on the Administration of Justice' (Kluwer Arbitration Blog, 10 July 2020) (http://arbitrationblog.kluwerarbitration.com/2020/04/21/the-covid-19-crisis-and-investment-arbitration-a-reflection-from-the-developing-countries/) accessed 11 October 2020.

Margaret L. Moses, The Principles and Practice of International Commercial Arbitration (Cambridge 2008).

Maxi Scherer, 'Remote Hearings in International Arbitration - and What Voltaire Has to Do with It?' (Kluwer Arbitration Blog, 26 May 2020) (http://arbitrationblog.kluwerarbitration.com/2020/05/26/remote-hearings-in-international-arbitration-and-what-voltaire-has-to-do-with-it/) accessed 11 October 2020.

Mireze Philippe, 'Offline or Online? Virtual Hearings or ODR?' (Kluwer Arbitration Blog, 26 April 2020) (http://arbitrationblog.kluwerarbitration.com/2020/04/26/offline-or-online-virtual-hearings-or-odr/) accessed 11 October 2020.

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Footnotes

1. Elliot Smith, 'Global Stocks Head for Worst Week Since the Financial Crisis Amid Fears of a Possible Pandemic' (CNBC, 28 February 2020) (https://www.cnbc.com/2020/02/28/global-stocks-head-for-worst-week-since-financial-crisis-on-coronavirus-fears.html) accessed 11 October 2020; F. Imbert and E. Huang, 'Dow Falls 350 Points Friday to Cap the Worst Week for Wall Street since the Financial Crisis' (CNBC, 27 February 2020) (https://www.cnbc.com/2020/02/27/dow-futures-fall-100-points-after-another-massive-rout-amid-coronavirus-fears.html) accessed 11 October 2020.

2. The judicial system offers litigation as a mechanism to resolve disputes. Litigation is described as, a "publicly funded" and "socially acceptable" method for resolving disputes. Richard D. Freer, Introduction to Civil Procedure (Aspen 2006) 3.

3. Jean-François Poudret, Sébastien Besson, Comparative Law of International Arbitration (Sweet & Maxwell 2007) 121; Margaret L. Moses, The Principles and Practice of International Commercial Arbitration (Cambridge 2008) 1.; Julian D. M. Lew, Loukas Mistelis and Stefan M. Kröll, Comparative International Commercial Arbitration (Kluwer 2003) 129; Ziya Akinci, Milletlerarasi Tahkim (Yetkin 2007) 29; David Collins, An Introduction to International Investment Law (Cambridge 2017) 218. For more definitions in different legal systems see Emmanuel Gaillard, Savage John, Fouchard Gaillard Goldman on International Commercial Arbitration (Kluwer 1999) 10-12.

4. Following the emergence of the coronavirus, court buildings around the world began to close in response to the rapid spread. Although, national courts and jurisdiction has a more rigid structure than arbitration, in some countries, alternative ways of delivering court service were put in place. The uptake of various technologies, especially video, was accelerated in the justice systems of numerous countries. For instance, China is at the frontlines of the use of technology in court services. It is encouraging digitization to streamline case-handling within its sprawling court system using cyberspace and technologies like blockchain and cloud computing. Millions of legal cases are now being decided by internet courts that do not require citizens to appear in court. (The Hangzhou internet court was established in August 2017, followed by Beijing internet court and Guangzhou internet court established in September 2018.) However, this is only a very small part of the general practice. For more details see Kun Fan, 'The Impact of COVID-19 on the Administration of Justice' (Kluwer Arbitration Blog, 10 July 2020) (http://arbitrationblog.kluwerarbitration.com/2020/04/21/the-covid-19-crisis-and-investment-arbitration-a-reflection-from-the-developing-countries/) accessed 11 October 2020.

5. International Chamber of Commerce, 'ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic' (https://iccwbo.org/content/uploads/sites/3/2020/04/guidance-note-possible-measures-mitigating-effects-covid-19-english.pdf) accessed 11 October 2020.

6. The ICC's note further provides that the tribunal may adopt appropriate procedural measures or modify the procedural timetable by means of a further case management conference or otherwise. These measures include, resolving the issues in dispute in stages by rendering one or more partial awards, identifying whether the entirety of the dispute or discrete issues may be resolved on the basis of documents only with no evidentiary hearing, identifying issues that may be resolved by agreement between the parties, organizing mid-stream procedural conferences in order to assess the most relevant issues and most efficient means to resolve those issues, identifying issues that may be resolved without witness and/or expert evidence, considering whether site visits or inspections by experts can be replaced by video presentations or joint reports of experts.

7. LCIA Notes for the Parties (https://www.lcia.org/adr-services/lcia-notes-for-parties.aspx ) accessed 28 October 2020.

8. LCIA Services Update: COVID-19 (https://www.lcia.org/lcia-services-update-covid-19.aspx ) accessed 28 October 2020. This update provides instructions about memberships, events, new or pending cases, online filing system, correspondence methods and awards.

9. Arbitration at SIAC during COVID-19 (https://www.siac.org.sg/images/stories/press_release/2020/%5bOpen%20Letter%20from%20SIAC%20Court%20President%5d%20Arbitration%20at%20SIAC%20during%20%20COVID-19.pdf) accessed 28 October 2020. Mr. Born further stated that institution is designating and training a number of counsels in the Secretariat as Remote Technology Specialists and introducing a Live Help Desk feature on the SIAC website for ease of contacting the SIAC Secretariat during the period of workplace closure in accordance with applicable COVID-19 measures.

10. Information From The SCC Relating To COVID-19 (https://sccinstitute.com/about-the-scc/information-from-the-scc-relating-to-covid-19/) accessed 28 October 2020.

11. Message Regarding COVID-19 (https://icsid.worldbank.org/news-and-events/news-releases/message-regarding-covid-19-update) accessed 29 October 2020.

12. Joint Statement on Arbitration and COVID-19 (https://sccinstitute.com/media/1658123/covid-19-joint-statement.pdf) accessed 29 October 2020.

13. Arbitration Institute of the Stockholm Chamber of Commerce, 'Innovation in Arbitration' (2020) (https://sccinstitute.com/media/37112/innovation-in-arbitration_the-report.pdf) accessed 29 October 2020.

14. Thomas Schultz, Information Technology and Arbitration: A Practitioner's Guide (Kluwer Law International 2006) 18.

15. Schultz 28.

16. It is important to distinguish between different types of remote hearings. For instance, fully remote hearings, in which every participant is in a different location, raise additional questions compared to semi-remote ones, in which a main venue is connected to one or several remote venues. On the other hand, there can be partially remote hearings, where some of the participants like witnesses or experts join the hearing through online platforms while others have face-to-face interaction sharing a same venue.

17. Applications for interim relief in arbitration hearings are frequently heard and decided on the papers or by telephone/video hearing. Likewise, procedural conferences for arbitrations are usually held by telephone.

18. Article 25(2) of the ICC Rules of Arbitration 2017 does not preclude a hearing taking place "in person" by virtual means if the circumstances so warrant. Also, appendix IV of the ICC Arbitration Rules specifies that one of the recommended case management techniques is precisely the use of telephone or videoconferencing for procedural and other hearings where attendance in person is not essential.

19. Information technology in International Arbitration-Report of the ICC Commission on Arbitration and ADR (https://iccwbo.org/publication/information-technology-international-arbitration-report-icc-commission-arbitration-adr/) accessed 29 October 2020.

20. ICC Arbitration Commission Report on Techniques for Controlling Time and Costs in Arbitration (https://iccwbo.org/publication/icc-arbitration-commission-report-on-techniques-for-controlling-time-and-costs-in-arbitration/) accessed 29 October 2020.

21. Techniques for Managing Electronic Document Production (https://library.iccwbo.org/content/dr/COMMISSION_REPORTS/CR_0043.htm?l1=Commission+Reports) accessed 29 October 2020.

22. Mireze Philippe, 'Offline or Online? Virtual Hearings or ODR?' (Kluwer Arbitration Blog, 26 April 2020) (http://arbitrationblog.kluwerarbitration.com/2020/04/26/offline-or-online-virtual-hearings-or-odr/) accessed 11 October 2020.

23. The Guidance Note further explains if a tribunal decides to proceed with a virtual hearing without party agreement or over party objection; tribunal should carefully consider all relevant circumstances, assess whether the award will be enforceable at law and provide reasons for such a determination. After consulting the parties, arbitrators may use their broad procedural authority, under Article 22 of the Rules, to adopt procedural measures as they consider appropriate, provided that they are not contrary to any agreement of the parties. According to Article 25, the tribunal shall proceed within as short a time as possible to establish the facts of the case by all appropriate means and shall hear the parties together in person if any of them so requests. The Guidance Note further indicates that Article 25(2) is structured to regulate whether the tribunal can decide the dispute based on written submissions and documents only or whether there must also be a live hearing. It does not preclude a hearing taking place in person by virtual means if the circumstances so warrant. The Secretariat's Guide to ICC Arbitration also notes that whether the arbitral tribunal construes Article 25(2) as requiring a face-to-face hearing or whether the use of video or teleconferencing suffices will depend on the circumstances of the case.

24. A Brief Guide to Online Hearings at ICSID (https://icsid.worldbank.org/news-and-events/news-releases/brief-guide-online-hearings-icsid) accessed 11 October 2020.

25. Guidance Note on Remote Dispute Resolution Proceedings (https://www.ciarb.org/media/8967/remote-hearings-guidance-note.pdf) accessed 12 October 2020.

26. Chahat Chawla, 'International Arbitration During COVID-19: A Case Counsel's Perspective' (Kluwer Arbitration Blog, 4 June 2020) (http://arbitrationblog.kluwerarbitration.com/2020/06/04/international-arbitration-during-covid-19-a-case-counsels-perspective/) accessed 11 October 2020.

27. Maxi Scherer, 'Remote Hearings in International Arbitration - and What Voltaire Has to Do with It?' (Kluwer Arbitration Blog, 26 May 2020) (http://arbitrationblog.kluwerarbitration.com/2020/05/26/remote-hearings-in-international-arbitration-and-what-voltaire-has-to-do-with-it/) accessed 11 October 2020.

28. Kun Fan.

29. Ahmed Bakry, 'The COVID-19 Crisis and Investment Arbitration: A Reflection From the Developing Countries' (Kluwer Arbitration Blog, 21 April 2020) (http://arbitrationblog.kluwerarbitration.com/2020/04/21/the-covid-19-crisis-and-investment-arbitration-a-reflection-from-the-developing-countries/) accessed 11 October 2020.

30. According to Seoul Protocol, the Parties shall ensure that any and all Venues meet the logistical and technological requirements as stated in this Protocol. The video conferencing system at the Venue shall allow a reasonable part of the interior of the room in which the Witness is located to be shown on screen, while retaining sufficient proximity to clearly depict the Witness. The Witness shall give his/her evidence sitting at an empty desk or standing at a lectern, and the Witness's face shall be clearly visible. As a general principle, the Witness shall give his/her evidence during the course of the hearing under the direction of the Tribunal. Only under exceptional circumstances and subject to the direction of the Tribunal would evidence from a Witness be given/conducted outside of the hearing. A computer with email facilities and a printer should be located at all Venues. The parties shall ensure that an agreed translation of the oath to be administered is placed before the Witness in the remote hearing room. The Tribunal may terminate the video conference at any time if the Tribunal deems the video conference so unsatisfactory that it is unfair to either Party to continue.

31. J Hong and J H Hwang, 'Safeguarding the Future of Arbitration: Seoul Protocol Tackles the Risks of Videoconferencing' (Kluwer Arbitration Blog, 6 April 2020) (http://arbitrationblog.kluwerarbitration.com/2020/04/06/safeguarding-the-future-of-arbitration-seoul-protocol-tackles-the-risks-of-videoconferencing/) accessed 11 October 2020. There are guidance to provide confidentiality through virtual hearings. The ICODR's Guide to Video Arbitrations provides some guidance to secure confidentiality, such as a written commitment of no recording of audio or video, nor screen shots of the hearing, and locking the rooms once all parties have joined. It also recommends the use of a secure videoconferencing platform with end-to-end encryption. The CIArb Guidance Note on Remote Dispute Resolution Proceedings suggests circulation of full names and roles of all participants to a remote proceeding as well as their allocated virtual hearing and breakout rooms between parties and neutrals in advance and strict adherence to it.

32. Kun Fan. For European Union General Data Protection Regulation see https://gdpr.eu.

33. For ICCA-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration (2020 edition) see https://www.arbitration-icca.org/media/14/76788479244143/icca-nyc_bar-cpr_cybersecurity_protocol_for_international_arbitration_-_print_version.pdf.

34. The Seoul Protocol on Video Conferencing in International Arbitration ("Seoul Protocol") http://www.kcabinternational.or.kr/user/Board/comm_notice.do?BD_NO=172&CURRENT_MENU_CODE=MENU0015&TOP_MENU_CODE=MENU0014.

35. For further details and case study, please see Chahat Chawla.

36. Schultz 29; S Lange and I Samodelkina, 'Digital Case Management in International Arbitration' (Kluwer Arbitration Blog, 13 August 2020) (http://arbitrationblog.kluwerarbitration.com/2019/08/13/digital-case-management-in-international-arbitration/) accessed 13 October 2020.

37. Bakry.

38. Chahat.

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