How have major Arbitration Institutions addressed Video Conferencing?

Date: 19.05.2020

Since its inception, arbitration has been known as a flexible and adaptable mechanism which can assist participants in solving their disputes and achieving practical solutions.

Major arbitral institutions have responded swiftly and proactively to adapt to the demands of remote working and virtual hearings since the outbreak of the virus. Some examples:

1. Chartered Institute of Arbitration (CIArb)
   On 8 April 2020, CIArb published a “Guidance Note on Remote Dispute Resolution Proceedings” (https://www.ciarb.org/news/ciarb-releases-new-remote-procedures-guideline-for-dispute-resolution-during-covid-19-restrictions/) The Guidance Note is divided into three sections:
   Part 1 addresses “technology and logistical matters.” Part 2 deals with “legal matters and procedural arrangements”. Part 3 outlines considerations for institutional and ad hoc proceedings. Finally, the Guidance Note includes a useful “preliminary checklist” for use prior to conducting remote dispute resolution proceedings.
   
   
2. Hague Conference
   On 16 April 2020, the Hague Conference on Private International Law published its “Guide to Good Practice on the Use of Video-Link under the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters” (https://assets.hcch.net/docs/569cfb46-9bb2-45e0-b240-ec02645ac20d.pdf)
   and outlines best practices for the use of video technology during remote proceedings and guidelines to address the primary practical issues that typically arise in such proceedings. The scope of the Guide is principally limited to the use of video-link in the taking of testimonial evidence.
   
   
3. HKIAC Guidelines
   The HKIAC recently published the “HKIAC Guidelines for Virtual Hearings” (https://www.hkiac.org/sites/default/files/ck_filebrowser/HKIAC%20Guidelines%20for%20Virtual%20Hearings_0.pdf)
   
   
4. International Chamber of Commerce (“ICC”)
   As early as 2017, the ICC Commission Report – Information Technology in International Arbitration was drafted. The goal of the report is to provide an analytical framework that will assist parties, counsels and arbitrators when they evaluate whether a particular form of information technology should be used and if so, how it can be utilised in a cost effective, fair and efficient manner (https://iccwbo.org/content/uploads/sites/3/2017/03/icc-information-technology-in-international-arbitration-icc-arbitration-adr-commission.pdf). The ICC has also produced a “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). The note provides guidance on the organisation of virtual hearings. Annex I provides a Checklist for a Protocol on Virtual hearings. Annex II lists suggested clauses to include within cyber protocols of procedural orders to deal with the organisation of virtual hearings.
   
   
5. Conflict Prevention & Resolutions (CPR)
   The ICCA, NYC Bar and CPR published an instructive “Protocol on Cybersecurity in International Arbitration” (the “Protocol”; https://www.arbitration-icca.org/publications/ICCA_Report_N6.html). The Protocol is intended to provide a framework to determine reasonable information security measures for individual arbitration matters which includes procedural and practical guidance to assess security risks and identify available measures that may be implemented. It also aims to increase awareness about information security in international arbitrations. Therefore, adherence to the Protocol may facilitate compliance with data protection legal regimes such as the European Union General Data Protection Regulation.
   
   
6. International Centre for Settlement of Investment Disputes (ICSID)
   On 23 March 2020, ICSID released “A Brief Guide to online Hearings at ICSID” (https://icsid.worldbank.org/en/Pages/News.aspx?CID=362). The Guide outlines various features of ICSID’s online hearings such as the ability to conduct for hearings of any size - from a handful to hundreds of participants. These online hearing services and technology are available in all ICSID cases at no extra charge.
   
   
7. Korean Commercial Arbitration Board (KCAB)
   KCAB recently announced a revised version of the Seoul Protocol on Video Conferencing in International Arbitration (the “Protocol”; http://www.kcabinternational.or.kr/user/Board/comm_notice_view.do?BBS_NO=548&BD_NO=169&CURRENT_MENU_CODE=MENU0025&TOP_MENU_CODE=MENU0024)
   The succint Protocol spanning 7 pages intends to serve as a guide to best practices to ensure that such conferencing is effective, fair and efficient. It addresses the issues on video conferencing’s venue, technical requirements of the hardware and software, test conferencing and audio conferencing back up, recordings and etc.