New Arbitration Rules for a Post-Pandemic World
JORGE ARTURO GONZÁLEZ | LEGAL JARGON WRITER The COVID-19 pandemic impacted international arbitration in many ways. As a starting point, travel restrictions and “social distancing” rules challenged the standard of holding in-person hearings. In this context, two leading arbitration institutions —the London Court of International Arbitration (“LCIA”) and the International Court of Arbitration of the International Chamber of Commerce (“ICC”)— recently amended their respective arbitration rules. Although many of the amendments to the rules concern issues not related to COVID-19, others provide some helpful clarifications regarding the latter. 2020 LCIA Arbitration Rules The 2020 LCIA Arbitration Rules have been in force since 1 October 2020. Regarding remote hearings, article 19.2 (“Conduct of Proceedings”) of the Rules provides the following: The Arbitral Tribunal shall organise the conduct of any hearing in advance, in consultation with the parties. The Arbitral Tribunal shall have the fullest authority under the Arbitration Agreement to establish the conduct of a hearing, including its date, duration, form, content, procedure, time-limits and geographical place (if applicable). As to form, a hearing may take place in person, or virtually by conference call, videoconference or using other communications technology with participants in one or more geographical places (or in a combined form). The references to conference calls and videoconferences are a welcome clarification, although not game-changers on their own. The authority of an arbitral tribunal to conduct proceedings as it deems fit, which includes the possibility to order hearings to be remote, has been consistently recognised across different jurisdictions for a long time. A very relevant, but different, question is whether a tribunal should order a hearing to take place remotely, when one of the parties insists on the hearing being held in person. In such cases, a tribunal must balance different concerns (e.g. the efficiency of proceedings, and the feasibility of presenting evidence remotely). Considering other changes fostered by the pandemic, one field in which the new LCIA Arbitration Rules are at the forefront is the e-signing of awards. Article 26.2 (“Award(s)”) states: The Arbitral Tribunal shall make any award in writing and, unless all parties agree in writing otherwise, shall state the reasons upon which such award is based. The award shall also state the date when the award is made and the seat of the arbitration; and it shall be signed by the Arbitral Tribunal or those of its members assenting to it. Unless the parties agree otherwise, or the Arbitral Tribunal or LCIA Court directs otherwise, any award may be signed electronically and/or in counterparts and assembled into a single instrument. The above provision expressly enables e-signing an award. In contrast, other arbitration rules frequently refer to signing the award in wet ink, and sending the signed award to the institution administering the proceedings. From the author’s viewpoint, it is somewhat surprising that e-signing an award could even be an issue, when the rest of the world is increasingly relying on digital means for signing contracts and other legal documents. The reasons behind this technological conservatism relate mostly to the procedure for the enforcement and recognition of international awards, which requires the prevailing party to provide the court at the place of recognition and enforcement with the “duly authenticated original award or a duly certified copy thereof”, according to article IV(1)(a) of the NY Convention. Hopefully, the widespread adoption of e-signing software will prompt State courts to recognise awards signed exclusively through electronic means. 2021 ICC Rules of Arbitration The new ICC Rules of Arbitration will enter into force on 1 January 2021. Regarding remote hearings, article 26(1) provides the following: The arbitral tribunal may decide, after consulting the parties, and on the basis of the relevant facts and circumstances of the case, that any hearing will be conducted by physical attendance or remotely by videoconference, telephone or other appropriate means of communication. Again, this is a welcome clarification regarding remote hearings. In the case of these rules, however, there are no provisions expressly enabling the e-signing of awards. Relevance for companies As the users of international arbitration, companies have witnessed first-hand the “COVID-19 revolution”.  Although many COVID-19 restrictions have been gradually lifted, in some cases the preference for remote hearings may remain. When shopping for counsel, companies may conclude that having offices in the main arbitration hubs probably does not add as much value to a law firm as it once did. Global competition between arbitration practices may increase, and fully remote settings may represent an opportunity for newcomers.  International Arbitration and the COVID-19 Revolution (Edited by Maxi Scherer, Niuscha Bassiri, Mohamed S. Abdel Wahab) Jorge Arturo González Jorge Arturo is a trainee lawyer at a Latin American law firm, having graduated from Universidad de Costa Rica. During his studies, he completed an exchange program in Utrecht University (Netherlands), participated in international moot competitions, and interned in corporate law firms, a startup incubator and the Costa Rican Congress. He is interested in tech law, international business law and dispute resolution. 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