On 30 March I wrote an article 'Arbitration Hearings and the Corona New Normal: Ten Golden Rules or your Easy Path to a Virtual Hearing". How long ago that seems. Long dreary months of lockdown have at last given way to patchy and fragile promises of some ghostly resemblance of aspects of life pre-COVID, But the future in terms of difficulties of air travel, undesirability of large gatherings in close quarters, and the ever changing kaleidoscope of countries on the 'safe, unsafe, and who knows' quarantine lists means that the medium term future for how we used to conduct international arbitration is unchanged. The New Normal is now and will, for the foreseeable future, be the only Normal.
We predicted back in March that arbitration could and would rise to the challenge and that the initial gloomy reservations voiced in early Webinars about the disadvantages of virtual hearings would be proved wrong and out-dated. We were right. Since March, the arbitration community as a whole and the institutions in particular have mapped out in surprising detail and with commendable speed the landscape of the brave new world. There have been many initiatives, protocols and guidance statements. Three perhaps stand out.
First, a Joint Statement on COVID-19 which was issued by the leading arbitration institutions on 16 April. While in high-level terms, it demonstrated the resolve to take a global and cross-institutional approach to the challenges faced by different sets of rules and different institutional structures.
Second, in June VIAC published the "Vienna Protocol: A Practical Checklist for Remote Hearings": guidance and practice notes which are specifically tailored for the age of fully virtual or virtually virtual hearings. It has the advantage of taking up where the Seoul Protocol on Video Conferencing (in the old world) leaves off and is a protocol which can apply universally and is not tailored to any particular institution or rules framework. This deserves to be a go-to document.
Third, and turning to the practical side, in May three major venue providers (Maxwell; IDRC; Arbitration Place) formed The International Arbitration Centre Alliance to promote and facilitate the rapidly emerging 'hybrid' hearing, with participants grouped in different locations. Expect more venues to join.
The future may not look encouraging for 'the way things were' (in any sphere). But the dynamism and drive of international arbitration in the face of crisis, make the future for arbitration, at least, look an interesting and exciting one (in the good sense).
Originally published 05 August, 2020
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