Message from the President

Alexis Mourre

I cannot start this editorial without expressing the Court’s most sincere words of grief and condolences to all those who have fallen victim to the Covid-19 pandemic across the world in the past months. The pandemic has been an unprecedented catastrophe, which has not only thrown the world into the most severe recession since 1929, but has plunged hundreds of thousands of families into mourning and many more into distress.

Arbitration has a role to play, as modest as it may be, in assisting the much-needed global recovery. By ensuring that justice continues to be made in international disputes, that decisions are not delayed and that unnecessary costs are spared to the parties, the arbitration community can bring its contribution to the recuperation of the world economy, so that the pain that is now inflicted on millions of workers and entrepreneurs may soon be alleviated.

The Court, as many institutions, has taken immediate measures to ensure that the impact of the pandemic on ongoing arbitrations be as limited as possible.

First, the internal work of the Court and the Secretariat has been immediately reorganized, with remarkable efficiency, so as to allow all Secretariat members to work remotely, and all Court sessions to take place by videoconference. Technology has not failed ICC: during the Covid-19 period, starting in March 2020, a total of over 50 Court sessions were held remotely and attended by over 50 participants on average. Over the same period, the Court scrutinized 170 draft awards remotely, decided 22 challenges, and made 641 other procedural decisions in virtual sessions; at the same time, 117 requests for arbitration were processed and six emergency arbitrator applications administered across the different offices of the Secretariat. It is safe to say that in spite of the pandemic, the work of the Court proceeded without added delays to the parties. For this, the Court is indebted to the dedication and proactivity of its Secretary General, Alexander G. Fessas, his Deputy Ana Serra e Moura, the Managing Counsel, Ziva Filipic, and all members of the Secretariat.

Second, on 9 April 2020 the Court adopted and published its Guidance Note on Possible Measures Aimed at Mitigating the Effects of the Covid-19 Pandemic, which is reproduced in this issue of the Bulletin. The Note insists on the many existing tools available to parties in ICC arbitrations to enhance the time and cost efficiency of their procedures, including those in Appendix IV to the Rules, the Note to Parties and Arbitral Tribunals on the Conduct of ICC Arbitration, the Commission’s Report on Controlling Time and Costs in ICC Arbitration and the Guide for In-House Counsel and Party Representatives.

An important part of the guidance provided by the Court’s Covid-19 Note is the insistence on the need for parties and arbitrators to consider and adopt, whenever possible, procedures to hold hearings remotely. We all know how disruptive the postponement of a hearing can be, in particular with three-member tribunals composed of busy arbitrators. There are many reasons, however, why the parties might prefer to suffer a delay for the sake of maintaining the ability to hold a physical hearing. The technical challenges posed by the complexity and number of participants to the hearing is of course one. The quality of the interaction between the tribunal and the parties, their representatives, the witnesses and the experts is another. These considerations should of course not be underestimated, in particular for long and fact-intensive hearings involving a large number of witnesses and experts. Notwithstanding, the advantages of holding a virtual hearing are significant. Months of delays can so be avoided, and the costs of holding a hearing online is a fraction of those of a presential one.

As arbitrators and parties become more familiar with technology, and as technology itself improves, we can predict that virtual hearings will become the normal solution for cases that do not involve complex and lengthy evidentiary procedures, and for cases involving limited amounts in dispute. In ICC expedited arbitrations, I submit that videoconferences will soon become the normal way of taking oral evidence.

Another important evolution that we are already seeing, in all cases, however large and complex as they may be, is that the possibility of holding one or more of the hearings virtually will become a systematic point for discussion in case management conferences.

Key to the success of a virtual hearing is, first of all, the choice of a proper platform amongst the many available. The selection of the platform has to be made according to the particular needs of each hearing, including the level of confidentiality protection offered, the ability of the platform to accommodate simultaneous or consecutive interpretation and live transcription, access to a consolidated list of exhibits, the functionality of the use of demonstratives, and the ability of the arbitrators to dispose of multiple screens, to control the camera and to interact safely between themselves. The availability of technical support as well as the organization of a proof session may also be key to the success of the hearing. All these technical aspects of the organization of a remote hearing need to be discussed between the tribunal and the parties with sufficient advance notice and, when appropriate, to be memorialized in a carefully drafted cyber-protocol. The ICC Hearing Center can provide state of the art support to parties and tribunals willing to organize an online hearing, with or without the physical presence of the tribunal. The ICC Covid-19 Note provides useful guidance in this respect as well.

Holding a hearing online should no longer be considered an exception or a departure from normal procedures. It will more and more be considered on the same footing as a physical hearing, and parties and tribunals will consider both options in light of the specific characteristics of each case. Beyond that, it can safely be predicted that in the post Covid-19 world, arbitration will move decisively away from its pervasive culture of paper. ICC will soon offer, as other institutions do, the appropriate platform allowing parties to upload and manage their submissions and exhibits on a common platform accessible online. Becoming greener is another way for arbitration to contribute to a better future for the world.