With thanks to Carita Wallgren-Lindholm, Chiann Bao and Jennifer Jones.

1. Going virtual! The first fully virtual meeting of the ICC Commission on Arbitration and ADR

On 8 July 2020, the ICC Commission on Arbitration and ADR (the ‘Commission’) held its first ever virtual meeting, assembling more than 500 members online from around the world.

The 100% physical Spring Commission meeting, originally planned to take place in Paris on 31 March 2020, is an annual gathering which would this year also mark the Commission's 100 years of existence. This physical meeting and celebration was postponed to 8 July following the outbreak of the COVID-19 pandemic, and the inevitable decision to hold a fully virtual meeting allowed for a meeting to be maintained to discuss amendments to the ICC Arbitration Rules proposed by the ICC International Court of Arbitration.

The Commission’s Secretariat identified the specific needs for the Commission when holding such a meeting virtually, which are met naturally when the Commission meets in person. First, Commission meetings are held for members only and its discussions on Rules’ revisions or on Commission Reports carried out by Task Forces are confidential. Second, interactivity and open discussions are paramount for a successful Commission meeting: members¹ must be given the opportunity to comment, share views and propose alternative language to rules provisions or draft Commission reports. Third, Commission meetings give members the opportunity to meet other practitioners, arbitrators, dispute resolution users, engineers, experts and professors from all corners of the world, giving it a significant networking aspect.

The Commission’s last physical meetings in Seoul, Paris, and Rome recorded ever increasing numbers of respectively 149, 371 and 344 participants, coming from all over the world. As a virtual meeting has the potential of attracting an even greater number of participants who could not otherwise attend in person,² organising an efficient and interactive Commission meeting in this new format was challenging.

The Commission’s Secretariat, alongside an ad hoc ICC Online Events Task Force, assessed the various digital tools available in order to:

• best accommodate a high number of virtual attendees;
• allow for members around the globe to connect regardless of any sanctions imposed on some jurisdictions;
• comply with the members-only format; and
• ensure the confidentiality of the meeting.

The Commission’s first ever 100% virtual meeting took place on 8 July 2020, allowing for the largest overall participation in its history: 504 Commission members and National Committee representatives connecting from 75 countries worldwide. The five-hour long session, carefully chaired by Carita Wallgren-Lindholm (Chair of the ICC Commission on Arbitration and ADR) and moderated by the Commission’s Secretariat, used a Q&A function to invite speakers to address questions live, as well as an interactive chat. It resulted in 140 questions being submitted and enabled a truly interactive discussion on the very technical and rigorous subject-matter on the agenda: the 2021 amendments to the ICC Arbitration Rules proposed by the Court.

Since 2017, the Commission’s leadership – then under Christopher Newmark’s reign – has stressed the importance of regular attendance and engagement from its membership (either in person, by conference-call or by commenting in writing). In-person bi-annual Commission meetings call for attendance from members around the globe however raised concerns of time and financial burden as well as environmental concerns. Allowing for the possibility to attend meetings virtually would greatly facilitate participation and make these sessions more globally accessible to all our members. As Barry Leon, a long-time and engaged Commission member commented on LinkedIn immediately after the Commission meeting, this format ‘bodes well for a more level global playing field, and for meaningful diversity in arbitration.’ It is to be hoped that still existing hurdles or drawbacks resulting from a digital world, not the least of which being the unreliability of certain internet connections, will be less constraining on virtual attendance.

Very conscious that a virtual meeting does not replace personal and social interaction, the Commission is therefore looking at ways to hold hybrid commission meetings in the future, by combining an in-person meeting with the possibility for members to connect remotely. The wish for the Commission to be in phase with current modern times and to welcome its next 100 years, was also expressed by Carita Wallgren-Lindholm during the 8 July meeting.

2. Update on current Commission projects

Revision of the ICC Commission Report on the Use of IT in International Arbitration

Given the current use of digital solutions and processes in conducting arbitration and ADR proceedings, in the course of COVID-19, the Commission’s Steering Committee agreed to update the Commission Report ‘Information Technology in International Arbitration’ published in 2017, initially produced by a Task Force co-chaired by Erik Schäfer and David B. Wilson.³

This timely update will provide an overview of today’s most recent experiences in dealing with the use of IT, identify and consider new areas (including cybersecurity, data protection and the use of online dispute resolution platforms). It will also seek to align the previous report with the modifications from the forthcoming 2021 ICC Rules of Arbitration and ICC Court’s Note on ‘Mitigating the Effects of the COVID-19 Pandemic’.⁴

As the initial Task Force had meanwhile been dissolved, a Working Group was created to complete the revision within a short timeframe. A general call for volunteers was made to all Commission members and an engaged and expert group was formed. Stephanie Cohen will lead this Revision and will be joined by Sana Belaid, Mikal Brøndmo, Iuliana Iancu, Anna Masser, Mark Morril, Lars Perhard, Sebastian Salazar-Visconte, Debora Visconte, and Ziang Zhuang. The Co-Chairs of the former Task Force, Erik Schäfer and David Wilson, will continue to play a key role in this update. Melanie van Leeuwen (Vice-Chair to the Commission) is serving as liaison to the Steering Committee.⁵

At the Commission meeting of 8 July, Stéphanie Cohen explained that the intention was to describe the state of the art in 2021 and to introduce new ideas by reference to recent experience with the use of IT in international arbitration. While following the initial structure of the report, she set out where there is room to consider the scope of this revision and shared new areas already identified by the Working Group to be further developed. It is envisaged that the Working Group will submit a revised Report to the Commission at its 2021 Spring meeting.

Working Group on ‘Resolving Intellectual Property Disputes through Arbitration and ADR’

The ICC Intellectual Property Roadmap, the flagship publication of the ICC Commission on Intellectual Property, was approved by the ICC Executive Board on 6 October 2020.⁶ The new 2020 edition maintains most of the structure and the content of the 2017 version, while introducing some important changes to keep this publication up to date and relevant to business, and addressing new developments such as the growing importance of artificial intelligence and data flow.

Initially published in 2000, the Roadmap has been updated 14 times with input from the ICC Commission on Arbitration and ADR, BASCAP, ICC National Committees, as well as from several hubs of the ICC Knowledge Solutions department. Intended as a reference guide on intellectual property issues, it will serve as a useful document for navigating the complexity of intellectual property law and its interactions with other policy areas.

The ICC Commission on Arbitration and ADR and its Working Group were key in updating the Section C.II entitled ‘Resolution of Intellectual Property Disputes by Arbitration or Mediation’. After a call for volunteers to all Commission members, a small working group was constituted to update the section in a relatively short period of time over summer 2020. Their input was carefully reviewed, and the resulting document was shared with the ICC Commission on Arbitration and ADR, the IP Commission and all ICC National Committees.

The group was led by Annet van Hooft and Hélène van Lith as ‘Coordinators’ who were joined by Natalia Gulyaeva, Adrian Howes, Sameer Jain, Claire Morel de Westgaver, Tilman Niedermaier, Flip Petillion, Rogier Schellaars, Sven Schilf, and Tuuli Timonen.

The IP Roadmap will be launched on 16 November 2020 during the meeting of the ICC Commission on Intellectual Property, with incoming WIPO Director General Daren Tang as keynote speaker.

Task Force ‘Addressing Issues of Corruption in International Arbitration’

Following the unfortunate but necessary cancellation of the last scheduled meeting in April, this Task Force jump-started its work with a virtual meeting on 2 November 2020. The Task Force discussed two working documents prepared on the basis of feedback received from its members on the scope of the Task Force as well as on the issues to be addressed. In addition to its regular meetings, the Task Force is also launching a series of monthly and members only TED Talk-style Speaker Series to address targeted topics and current events of interest to the Task Force.

The Task Force is chaired by Sophie Nappert, who initiated this project by submitting a proposal through ICC Canada, as well as by José Ricardo Feris and Vladimir Khvalei. Caline Mouawad, Vice-Chair to the Commission, serves as liaison to the Steering Committee.

3. Status Report Task Force on ‘ADR and Arbitration’

The Commission’s most recently established Task Force on ‘ADR and Arbitration’ kicked off in June this year. Its mandate is to address ways to resolve disputes by using ADR techniques including settlement facilitation, dispute avoidance, (legal) expertise and mediation. The latter means that it is crucial for this Task Force to be driven by in-house counsel and, for that reason, it was important to include a significant percentage of in-house counsel from various jurisdictions to the Task Force’s membership.

Although the creation of this Task Force was approved by the Steering Committee prior to the pandemic, the needs of dispute resolution users in times of the COVID-19 pandemic add a new dimension to the work of the ADR TF.

This Task Force is chaired by Chiann Bao and includes Gabrielle Kaufmann Kohler (Chair of the advisory board), Jenni Lukander and Susanne Gropp-Stadler (Vice-Chairs of the Commission and liaisons to the Steering Committee).

In addition, four ‘Tracks’ focus on specific areas and are each led by three members of the Task Force, one of which is an in-house counsel.

• Track 1: ‘Decision Trees and Disputes Resolution Protocols’ led by Pierrick LeGoff (France), Donny Surtani (Canada) and Ulrich Hagel (Germany).
• Track 2: ‘ADR Services’ led by Lindy Patterson (UK), Sara Aranjo (Lebanon, based in UAE) and Eric Franco (Peru).
• Track 3: ‘Settlement in Arbitration’ led by Anke Sessler (Germany), Kelvin Poon (Singapore) and Andres Romero-Delmaestro (Venezuelan, USA).
• Track 4: ‘National Courts and ADR’ led by Adrian Cole (UK, based in UAE), Funmi Roberts (Nigeria) and Valentina Wong (Austria).

Virtual in-house counsel Open-Mic sessions. A weekly ‘Virtual in-house counsel Open-Mic session’ series has also been established within the Task Force, which focuses on the needs of companies as users of dispute resolution services especially in light of the COVID-19 pandemic. These sessions, moderated by Task Force members Aisha Nadar and Kathleen Paisley, are exclusively for in-house counsel, and by invitation only. Fourteen meetings will have been held between 1 September and 1 December 2020. To date, over 100 in-house counsel from 34 jurisdictions have been invited and 51 (from 26 jurisdictions) have attended.

These sessions aim at providing a forum for in-house counsel to share experiences and perspectives in an informal environment under the Chatham House Rule.⁷ Discussions so far have included issues companies have faced during the pandemic and the means deployed to address them, as well as ways to avoid escalation of disputes, such as multi-tiered clauses, dispute management plans and settlement opportunities during the arbitration process.

Monthly Task Force meetings and user survey. Taking advantage of the use of video conferencing, the Task Force convenes monthly meetings which generally include: updates from each track to all Task Force members, updates on the Open-Mic sessions for in-house counsel, TED-style talks on a specific topic (speakers and topics to be proposed by track leaders or members themselves) and an update on the work of the survey.

A user survey, led by Marlen Estevez Sanz and Tuuli Timonen, is intended to gather data regarding the current and desired use of ADR systems separate from or as part of the arbitral process, the goal being to understand the future needs of companies. The survey will be disseminated both within the Task Force as well as more broadly to the in-house community and ICC National Committees. The outcome of the survey will be included into the Task Force’s Final Report.

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