Balaji Harish Iyer[1]
INTRODUCTION
The Novel Coronavirus Disease (“Covid-19”) that originated in China in late December 2019 has literally brought the world to a screeching halt. Entire countries have gone into lockdown, trade movements and international supply-chains have been restricted or disrupted[2], and stock markets have tumbled. Closely linked to business, trade and commerce, arbitration has also suffered a hit from this disease.
Arbitral institutions such as the International Chamber of Commerce (“I.C.C.”), Singapore International Arbitration Center, Hongkong International Arbitration Center, and the London Court of International Arbitration, among others, have taken measures[3] to avoid personal meetings. Some institutions have asked arbitrators, counsels and parties to email their queries, submissions and awards, or file them online through specific portals;[4] others have mandated a 14-day self-quarantine for visitors to the centers.[5] The result of such restrictions and stop-gap solutions postponed, delayed indefinitely or cancelled cases.[6] Naturally, this means losses amounting to several millions of dollars.
The solution to this standstill appears to be simple: implement methods to continue arbitrations online and conduct virtual proceedings, and thereby encourage Online Dispute Resolution.[7] The first in an article series, this article is aimed at providing an overview of the benefits of online arbitration; further articles will deal with specific issues that could relate online arbitrations.
CAN PRESENT INSTITUTIONAL RULES MANAGE THE SITUATION?
Not all of the existing institutional arbitration rules envisage a situation such as the one caused by Covid-19. Arbitrators and parties may have to use the applicable existing institutional arbitration rules to delay or extend arbitral proceedings beyond the stipulated date for conclusion; for example, the 2017 version of the I.C.C. Rules of Arbitration empower the Court of Arbitration and the arbitrator to extend the arbitral proceedings[8] beyond the typically prescribed six months[9].
An I.C.C. arbitral tribunal, by application of parties or sua sponte, also may resort to modifying the agreed procedural timetable and communicate such a modification to the Court of Arbitration.[10] The 2018 version of the rules of the German Arbitration Institute (“D.I.S.”) also empower arbitral tribunals to amend the agreed procedural timetable,[11] which can be used by D.I.S. arbitral tribunals to accommodate parties and proceedings that are impacted by Covid-19.
These examples of how such a singular situation may be managed are not to suggest that there are no institutional rules that provide for online arbitrations.[12] Online arbitrations[13], requiring parties to share their respective cases and supporting documents digitally and receive a decision online,[14] has been propagated for a long time. Most examples are of the Business-to-Consumer and e-commerce space. For instance, disputes over domain names have been resolved by the Internet Corporation for Assigned Names and Numbers[15] almost since the idea of the internet; while this is not a true arbitration culminating in a binding award[16], it has nonetheless proven effective. eBay and PayPal follow similar dispute settlement mechanisms.
In the realm of true arbitrations[17], which culminate in binding awards, the International Commercial Arbitration Courts of the Chambers of Commerce & Industries of Russia[18] and Ukraine[19] provide for hearings, examinations of witnesses and experts to happen via video conference, but this is subject to the discretion of the arbitral tribunals constituted under these respective rules; there are no reported cases of arbitral tribunals agreeing to conduct proceedings via video conference.
The I.C.C. has long-established “Netcase”, a secure online arbitration portal which can be used by all parties to conduct proceedings following their assent by signing a statement of acceptance.[20] The I.C.C. also has prescribed a set of standard guidelines[21] for tribunals and parties that wish to adapt technology into the arbitral process in general.
While examples of institutional rules being technology-friendly certainly exist, it appears that the international arbitration community has been relatively slow on its uptake,[22] with one commentator stating that he recalls only one instance, as president of a D.I.S. arbitral tribunal, in which virtual hearings were conducted[23].
This begs the question as to why the international arbitration community has been so slow to adapt I.T. to international arbitration? The answers could range from an inertia towards adapting technology to a lack of awareness; the current operation of online dispute resolution in specific business-to-consumer markets such as domain names, PayPal and eBay;[24] and, issues such as enforceability of awards rendered online[25] and the rules applicable to such disputes.
In other words, there are both legal and non-legal drawbacks to the usage of information technology in international arbitration, none of which in my submission, are fatal to the process; on the contrary, there are sufficient answers and safeguards to the issues raised by bringing in technology to aid international arbitration. This article series will examine each of these issues in turn, in further articles. This particular article will confine itself to embellishing the benefits of bringing in technology to aid international arbitration.
WHAT ARE THE BENEFITS OF TECHNOLOGY IN ARBITRATION?
The most obvious benefits of adapting technology into arbitrations, conducting virtual hearings and online arbitrations are achieving savings on cost and time.[26] Online arbitration is potentially cost-effective because of the speed of the process and only a partial assumption of operating costs (such as travel and venue costs) by the parties. The instantaneous availability of information reduces the time taken for an arbitration. This advantage has been best espoused as follows:
“The fabulous advantage of online disputes is that distances are abolished. A dispute is resolved in the same manner as the contract was entered into – and performed …. …. …. As far as online justice is concerned, if the competent court is located far away from the claimant’s home, [online arbitration] will guarantee access to justice that might otherwise be impracticable. This is all the more necessary as on the Internet people and businesses whose paths would never have crossed offline now enter into contracts with each other.
The advantage of [online arbitration] in overcoming geographical limitations holds true until it comes to enforcing the outcome of the […] procedure.”[27]
Disputes can be settled remotely, without requiring parties or counsels to be physically present; most people would have to connect through videoconference with the arbitral tribunal or in certain instances through their chosen organisations. Physical meetings could be replaced by electronic media, resulting in at least a partial elimination of physical presence.
While there have been comments on the requirement of significant technological resources for organizing virtual hearings[28], in reality, it would not cost much or be overly complicated to organize hearings through software such as Skype, Zoom[29] or Google Meets. Other objections have been raised as to the equality of parties in organizing videoconferences arising out of differences in qualities of internet connections;[30] while this objection will be dealt with in a subsequent article in this series, suffice it to say that such problems were things of the past and with the advent of unlimited 4G, high speed and fiber technology, are unlikely to occur.
Document transfers and correspondence takes place online. The cost involved is modest, in comparison to the need to photocopy or print out bulky documents. The tribunal, parties and counsels can do keyword searches within documents to minimize time and effort. Statements of claim, defence, and witness statements could be digitally signed and ratified.
CONCLUSION
Given the current standstill that international business and dispute resolution have achieved, there is a case to be made for resorting to online arbitration and adapting technology into the arbitral process. It is not denied that there are legal issues such as determination of the seat of arbitration, confidentiality, equal treatment of parties and enforceability of awards; these aspects will be dealt with individually in further articles in this series; despite these potential drawbacks, it is submitted that these drawbacks can be overcome and technology can serve to aid the arbitral process. In sum, perhaps the time is ripe for the world to adopt online dispute resolution and online arbitration in particular.
[1] Balaji Harish Iyer is an advocate practising before the Bombay High Court. His focus is on arbitration and alternate dispute resolution. Balaji is an alumnus of the Humboldt University of Berlin, where he pursued an LL.M. in International Dispute Resolution, and National Law University, Delhi. Email: balaji@georgerebello.com, Mobile: +917349360143. [2] Gary L Benton, How Will the Coronavirus Impact International Arbitration?, Kluwer Arbitration Blog (2020), http://arbitrationblog.kluwerarbitration.com/2020/03/13/how-will-the-coronavirus-impact-international-arbitration/ (last visited Apr 1, 2020). [3] See Id.; See also Raid Abu-Manneh et al., Impact of Covid-19 in International Arbitration, Mayer Brown (2020), https://www.mayerbrown.com/en/perspectives-events/publications/2020/03/impact-of-covid19-in-administered-arbitrations (last visited Apr 2, 2020); See also Asmita Singh, Impact of Coronavirus on International Arbitration, The Arbitration Workshop (2020), https://www.thearbitrationworkshop.com/post/impact-of-coronavirus-on-international-arbitration-asmita-singh (last visited Apr 2, 2020). [4] See, COVID-19: Urgent Communication to DRS Community, (2020), https://iccwbo.org/media-wall/news-speeches/covid-19-urgent-communication-to-drs-users-arbitrators-and-other- neutrals/. (last visited Apr 1, 2020); See also, LCIA Services Update: COVID-19, (2020), https://www.lcia.org/lcia-services-update-covid-19.aspx (last visited Apr 1, 2020); See also, COVID-19 Information for SIAC User, , https://www.siac.org.sg/images/stories/press_release/2020/[ANNOUNCEMENT] COVID-19 Information for SIAC Users.pdf (last visited Apr 1, 2020). [5] See, Precautionary Measures at HKIAC in Response to COVID-19, , https://www.hkiac.org/our-services/Facilities (last visited Apr 1, 2020). [6] See specifically on the impact Gary L Benton, supra note 1; See a report on requests for adjournment by parties to arbitral tribunals, Aishwarya, Coronavirus: Indian Arbitration Forum urges Arbitral Tribunals to view requests to adjourn proceedings leniently to minimise health risks (2020), https://www.barandbench.com/news/coronavirus-indian-arbitration-forum- urges-that-requests-to-adjourn-arbitral-proceedings-be-considered-to- minimise-health-risks (last visited Apr 1, 2020). [7] Nils Schmidt-Ahrendts, Virtual Hearings in times of COVID-19 (2020), https://www.linkedin.com/posts/nils-schmidt-ahrendts-95ba8336_virtual-hearings-in-times-of-covid-19-activity-6650814927810383872-j7k7 (last visited Apr 1, 2020); See also Asmita Singh, supra note 2. [8] ICC Rules of Arbitration 2017, 31(2) (2017), https://iccwbo.org/dispute-resolution-services/arbitration/rules-of-arbitration/ (last visited Apr 1, 2020). [9] Id. at 31. [10] Id. at 24(2) & 24(3). [11] DIS Arbitration Rules 2018, 27.6 (2018), http://www.disarb.org/en/16/rules/-id38 (last visited Apr 1, 2020). [12] See Chen Zhi, The Path for Online Arbitration: A Perspective on Guangzhou Arbitration Commission’s Practice, Kluwer Arbitration Blog (2019), http://arbitrationblog.kluwerarbitration.com/2019/03/04/the-path-for-online-arbitration-a-perspective-on-guangzhou-arbitration-commissions-practice/ (last visited Apr 2, 2020); See also Jana Herbeczkova, Certain Aspects of Online Arbitration, 4, https://www.law.muni.cz/sborniky/dp08/files/pdf/mezinaro/herboczkova.pdf (last visited Apr 2, 2020). [13] See some permutations and combinations in Farzaneh Badiei, Online Arbitration: Definition and Its Distinctive Features, 684 CEUR Workshop Proceedings 87–93, 92 (2010). [14] See the example in Jana Herbeczkova, supra note 11 at 4–5. [15] Gabrielle Kaufmann-Kohler, Online Dispute Resolution and its Significance for International Commercial Arbitration, 693 Global Reflections on International Law, Commerce and Dispute Resolution 437–456, 441 (2005); See also Course on Dispute Settlement in International Trade, Investment and Intellectual Property, , in International Commercial Arbitration: Electronic Arbitration, 5. [16] See Gabrielle Kaufmann-Kohler, supra note 14 at 440; See also Course on Dispute Settlement in International Trade, Investment and Intellectual Property, supra note 14 at 5; See also Jana Herbeczkova, supra note 11 at 7. [17] See Gabrielle Kaufmann-Kohler, supra note 14 at 441. [18] The Rules of Arbitration of International Commercial Disputes, 30(6) (2017), https://mkas.tpprf.ru/en/documents/ (last visited Apr 1, 2020). [19] See The Rules of the International Commercial Arbitration Court, 47(2) (2018), https://icac.org.ua/wp-content/uploads/Rules-of-the-ICAC-at-the-UCCI.pdf (last visited Apr 1, 2020). [20] ICC Netcase: A Secure Online Environment for ICC Arbitration, (2005), https://iccwbo.org/content/uploads/sites/3/2016/11/NetCase-Pamphlet-English.pdf (last visited Apr 1, 2020). [21] See the entire Operating Standards for the Use of IT in International Arbitration, (2004), https://library.iccwbo.org/content/dr/COMMISSION_REPORTS/CR_0029.htm?l1=Commission%20Reports&l2= (last visited Apr 1, 2020). [22] Nils Schmidt-Ahrendts, supra note 6 at Bullet (3); See also Gabrielle Kaufmann-Kohler, supra note 14 at 455 where the author states, “The amounts at stake will not act as an incentive to replace live hearings with e-mails and chat rooms”; See also Course on Dispute Settlement in International Trade, Investment and Intellectual Property, supra note 14 at 6–7; See also Section 9 in Jana Herbeczkova, supra note 11 at 11. [23] Nils Schmidt-Ahrendts, supra note 6 at Bullet (3). [24] Pablo Cortes, What is Online Dispute Resolution? 1 (2011), https://www.law.ox.ac.uk/sites/files/oxlaw/dr_pablo_cortes.pdf (last visited Apr 2, 2020). [25] Gabrielle Kaufmann-Kohler, supra note 14 at 453–54; See also Jana Herbeczkova, supra note 11 at 10–11. [26] Farzaneh Badiei, supra note 12 at 90–91. [27] Gabrielle Kaufmann-Kohler, supra note 14 at 453. [28] Course on Dispute Settlement in International Trade, Investment and Intellectual Property, supra note 14 at 33. [29] Nils Schmidt-Ahrendts, supra note 6 at Bullet (7). [30] Course on Dispute Settlement in International Trade, Investment and Intellectual Property, supra note 14 at 36.