Towards a common response to COVID-19 from the arbitration world: A call to arms

Readers may recall that in the March 2020 edition of our Newsletter our feature article looked at how the public health crisis caused by COVID-19 could provide  the catalyst to revolutionize international arbitration and boost and strengthen its advantages compared to domestic court litigation.

Later, our April and May Newsletters considered the different measures that had been adopted by arbitral institutions in Latin America and China, respectively, to offer the best alternatives to adapt to the “new normal”. We have  also regularly reported on the diverse, and sometimes opposing, approaches some arbitral institutions were adopting in other parts of the world.

In this article, we summarise the different actions taken by arbitral institutions and assess the need for a uniform response from the arbitration community to promote arbitration as the most flexible alternative dispute resolution mechanism in a post-COVID-19 era.

1. The current (individualistic) approach of arbitral institutions to COVID-19

The flexibility, versatility and efficiency of international arbitration has enabled it to emerge as the most appropriate dispute resolution mechanism in the context of a pandemic crisis.

Since most international arbitral institutions were already prepared to move to towards more virtual ways of working (for example, electronic filling and similar practices), the COVID-19 crisis has meant that those measures have been embraced, further implemented and immediately (rather than progressively) accepted, adopted and implemented.

However, the current approach seems to vary from one institution -and jurisdiction- to another, and is affected (directly or indirectly) by measures decreed in each jurisdiction in relation to COVID-19.

This individualistic approach has led to varying (and sometimes conflicting) decisions, some of which are summarized in the table below:

2. The need for a common response

The different, and sometimes changing decisions, adopted by each arbitral institution, has inevitably lead the arbitration community with uncertainty and the need to periodically revise the state of each individual proceeding, which in turn has somehow diluted one of the main advantage of arbitration as compared to judicial proceedings: To ensure that proceedings continue and services are available, effective and efficient. The Singapore International Arbitration Centre (SIAC), for instance is working on a summary report to assess all the different protocols which are now in place, which includes, amongst other measures, establishing own online platforms for case filing, recommendations to the parties to send documents (requests, defenses, evidence, etc.) via email and the suggestion to hold virtual hearings.

Some other arbitral institutions have proposed a common response. For instance, ICSID and a number of other  leading arbitral institutions have issued a Joint statement in response to the concerns raised by the COVID-19 pandemic. In this statement, arbitral tribunals and parties are asked to mitigate the effects of any impediments to the largest extent possible while ensuring the fairness and efficiency of arbitral proceedings.

The arbitration community as a whole has generally faced the COVID-19 pandemic in a supportive way, and has reacted quickly to tackle and limit its impact. Although international arbitrations are not associated with any particular jurisdiction, there are matters that do depend on national jurisdictions and have inevitably affected the proceedings, mainly by suspending or prohibiting face-to-face hearings. Additionally, judicial proceedings (such as appeals to set aside or enforce arbitral awards) will inevitably be affected by state measures in each jurisdiction, too.

In order to definitively boost arbitration as the most flexible dispute resolution mechanism, all stakeholders  must work to provide a common response that enables international arbitration to deliver some degree of certainty in a volatile post-corona climate.