COVID-19: Arbitration – Where to?

Popovici Nitu Stoica & Asociatii | View firm profile

The COVID-19 pandemic has shaken the globe and virtually all sectors have had to
adapt to an increasingly contact-free environment. The world of arbitration is
no exception, and in the past weeks we have seen a series of adjustments and
solutions targeted at both safeguarding the health of participants and
preserving the continuity of the process.

The COVID-19 pandemic has shaken the globe and virtually all sectors have had to
adapt to an increasingly contact-free environment. The world of arbitration is
no exception, and in the past weeks we have seen a series of adjustments and
solutions targeted at both safeguarding the health of participants and
preserving the continuity of the process.

As a natural reaction, medium and large scale events were postponed (but
importantly, not cancelled), such as the ICCA 2020 Congress in Edinburgh, the
Fourteenth Annual Investment Treaty Arbitration Conference in Washington DC
organised by Juris, or the LCIA Asia Pacific and European Users’
Councils’ Symposium in Instanbul, to name a few.

Arbitral institutions around Europe have remained operational, and have promptly
transitioned to administering the arbitral proceedings remotely. The ICC, VIAC,
SCC, as well as the Court of International Commercial Arbitration attached to
the Chamber of Commerce and Industry of Romania (CICA-CCIR), are encouraging
the parties, arbitral tribunals and other neutrals conduct all communications
by email and to hold meetings online.

In these times, the institutions with digitalized case management systems are
particularly well-placed to tackle the impending changes. The SCC has recently
introduced its SCC Platform for communication and file sharing in September
2019, and was (at least until now) in the process of a „world tour” for
promoting the digitalization within arbitration. The ICC was one of the
pioneers of such a system, unveiling the NetCase platform as early as 2005.
Unfortunately, due to insufficient interest form parties and arbitral
tribunals, the system did not see much use.

However, times are changing and we expect to see a revival and modernisation of NetCase
in due course, as well as a step up from other arbitral institutions in this
direction.

The arbitration hearings scheduled for this period were probably the most affected
by the COVID-19 pandemic. Many of them were re-scheduled, relocated or
cancelled until further notice, in the advent of travel restrictions and the
participants being unwilling or unable to physically engage in the
process.

In reaction to these concerns, Delos Dispute Resolution has prepared a
particularly useful Checklist on holding arbitration and mediation hearings in
time of COVID-19. The parties and arbitral tribunals are encouraged to discuss
the questions raised in the checklist in a pre-hearing conference call. More
information and the content of the checklist may be found at the link
below. https://delosdr.org/index.php/2020/03/12/checklist-on-holding-hearings-in-times-of-covid-19/

It is now too early to predict how the COVID-19 situation will unfold, and to what  extent it will affect the arbitration world. Nonetheless, we anticipate a surge of disputes from the ongoing projects which will be affected by the pandemic, as well as from the likely impending economic crisis, especially in sectors such as construction, energy, transportation and infrastructure.  The arbitration practitioners around the world will adapt, the institutions will
innovate, and the proceedings will be conducted. We trust that the present
experience will end up being a great opportunity that will embolden the
arbitration community to embrace a more modern way of doing arbitration, more efficiently and less costly.

By Raluca Petrescu and Alexandru Stan

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