The first questionnaire (I) sent in the framework of the update of the Report on the Use of Information Technology in International Arbitration aims at receiving feedback about potential legal issues concerning technological aspects of the revised 2021 ICC Arbitration Rules and related ICC practices. In particular, the 2021 ICC Rules include provisions that (i) encourage electronic submissions and notifications (Arts. 3(1), 3(2), 4(4)(b), 5(3), and Art. 1(2) of Appendix V); and (ii) expressly empower tribunals to conduct evidentiary hearings by videoconference (‘virtual hearings’) or other appropriate means of communication (Art. 26(1)). In addition, the ICC’s Note to Parties and Arbitral Tribunals on the Conduct of Arbitration (1 January 2021) invites parties and tribunals to consider whether Terms of Reference,1 as well as awards and other decisions,2 may be manually signed in counterparts,3 scanned and assembled into one file for communication to the Secretariat, and then notified by e-mail.

The second questionnaire (II) sent by the Task Force on ‘ADR & Arbitration’ intends to learn about court initiatives or innovative projects from national legislators or institutions on the use of ADR in different jurisdictions regarding (i) the use of ADR techniques by national courts, (ii) any procedural efforts or innovations which promotes the use of ADR techniques (including referring the parties to mediation or arbitration), and (iii) more generally, specific dispute resolution needs in the National Committee’s jurisdiction.

The Commission is looking forward to receiving feedback from its broader ICC Global Network.

I. National Committee Questionnaire on Use of Information Technology in International Arbitration

Electronic notifications

  1. Are you aware of any mandatory law or rules in your jurisdiction that may preclude using e-mail or other means of telecommunication that provides a record of sending to:
    1. commence an international arbitration;
    2. serve other notifications or communications during an arbitration proceeding; or
    3. notify Terms of Reference, an arbitral award, or other arbitral decision (such as a decision on interim measures)?
  2. Are you aware of any relevant court decisions in your jurisdiction?

Electronic signatures

  1. Are you aware of any mandatory law or rules in your jurisdiction that may preclude the recognition and enforcement of Terms of Reference, an arbitral award, or other arbitral decision in an international arbitration if:
  2. signed manually in counterparts and then scanned and assembled into one electronic file; or
  3. signed by other electronic means (e.g., using a digital signature)?
  4. Are you aware of any relevant court decisions in your jurisdiction?

Virtual hearings

  1. Are you aware of any mandatory law or rules in your jurisdiction that may preclude recognition and enforcement of an international arbitration award if videoconference or other remote means of communication are used to:
    1. administer a witness oath or affirmation;
    2. take witness testimony outside of the physical presence of an arbitrator; or
    3. hold an evidentiary hearing (x) in any circumstances, (y) over the objection of a party, or (z) where there is a defaulting (absent) party?
  2. Are you aware of any relevant court decisions in your jurisdiction?

II. Task Force on ‘ADR and Arbitration’: National Committee Questionnaire on National Courts and ADR

1. ADR in your jurisdiction

1.1 What methods of ADR are common in your State. Please indicate for each whether (1) Frequent; (2) Sometimes; (3) Rarely

  1. ADR / conciliation
  2. Adjudication / Dispute Adjudication Boards (DABs)
  3. Expert determination
  4. Med-Arb
  5. Others (please specify)

2. Legal promotion of ADR

2.1 Does the law (civil procedure or law on justice) promote ADR in your jurisdiction?

2.2 If yes, please identify what initiatives and whether they are successful?

2.3 Is it mandatory to start ADR prior to referring a dispute to Courts?

2.4 If yes, in what fields of dispute?

2.5 Are there any fields of dispute that the law does not allow to be referred to ADR?

2.6 If ADR is mandatory, which are the consequences/sanctions imposed by law:

  1. for not having commenced ADR (either at the outset or during the course of proceedings)?
  2. if one of the parties refuses to utilise ADR methods?

2.7 Has consideration been given to the creation of a specialist court, or section of the judiciary, or other public body or authority, for the oversight of the ADR process?

2.8 If ADR is not mandatory, is the agreement of the parties required before ADR can be initiated?

3. Court promotion of ADR

3.1 Do the courts of your jurisdiction promote ADR?

3.2 Can the court impose ADR on the parties against their will?

3.3 What does the court do to promote ADR?

3.4 Do the courts train Judges in ADR?

3.5 Is there a legal requirement for the courts/judges to propose ADR?

3.6 Is ADR conducted by the court itself or are parties referred to service providers?

3.7 Is there a presence in courts of ADR practitioners and or ADR institutions available to assist parties in need? If not, where are ADR practitioners appointed from?

4. Institutional promotion of ADR

4.1 What institutions or organisations promote ADR in your jurisdiction?

4.2 How active are these institutions or organisations?

4.3 What initiatives have they been taking to promote ADR?

4.4 What interaction is there between ADR institutions and the Courts in the promotion of ADR?

4.5 Are there incentives / penalties created by rules of procedure for parties to settle disputes?

4.6 If yes, what are these incentives / penalties and how do they apply?

5. Contractual ADR

5.1 Do contracts in your jurisdiction typically provide for ADR?

5.2 Are these contracts standard form or bespoke?

5.3 What types of contracts typically provide for ADR

  1. Sale of Goods
  2. Employment
  3. Services
  4. Real Estate
  5. Banking
  6. Construction
  7. Shipping
  8. Insurance
  9. Others (please specify)

5.4 Are ADR practitioners typically selected by the parties or by an institution or other organisation?

6. ADR and counsel

6.1 Is there a duty/professional obligation for legal counsel to propose and or advise ADR to their clients prior to commencing proceedings?

6.2 Does the local bar promote ADR?

6.3 If so, how does it do this?

6.4 Does your jurisdiction allow foreign lawyers to act as party counsel in ADR concerning international parties?

7. ADR practitioners

7.1 Are there specific legal requirements to qualify or practice as an ADR practitioner in your jurisdiction?

7.2 Are there lists of qualified ADR practitioner registered with national courts?

7.3 Do parties typically use such lists or do they find ADR practitioners by other means?

7.4 If so, what means typically are used to find ADR practitioners

7.5 Other than ensuring natural justice and complying with procedures agreed with the parties, are DR practitioners required to conduct ADR in any particular way by the law of your jurisdiction?

8. ADR settlements

8.1 Do courts in your jurisdiction enforce settlements reached in ADR?

8.2 What legal requirements are there or practice to submit ADR settlements to national courts to secure their enforceability?

8.3 What is the status or prospect of execution/ratification of the Singapore International convention on ADR in your jurisdiction?

9. Innovation and technology

9.1 Are there online ADR schemes operating in your jurisdiction?

9.2 If so, please describe them?

9.3 who administers such schemes?

9.4 Do the courts have an electronic file system and/or electronic communication system?

9.5 Do the courts allow the use of technology to help parties in assessing their potential disputes and available dispute resolution options (e.g. decision tree analytic tools for litigation/dispute resolution…)?

10. Miscellaneous

10.1 Is there any data basis in your jurisdiction recording details of ADR cases and their results If yes, what are the latest statistics?

10.2 What is the average time required to obtain a judicial decision in civil/commercial disputes before a Court of first instance? Before the Court of Appeal?

11. Measures in response to the COVID-19 pandemic

11.1 Have the courts of your jurisdiction issued new guidelines, or procedural directions, in response to the COVID-19 pandemic?

11.2 If so, what form have these guidelines or procedural directions taken? Do they encourage and recommend indicative behaviours, or are they binding measures on users of the national courts?

11.3 Are these guidelines or procedural directions issued in response to the COVID-19 pandemic permanent or temporary in nature?

11.4 Do these guidelines or procedural directions issued in response to the COVID-19 pandemic promote, or require, the usage of ADR prior to the referral of the dispute to the national courts?

11.5 What are the primary types of ADR that have been promoted in response to the COVID-19 pandemic?

11.6 In encouraging the use of ADR in response to the COVID-19 pandemic, have any steps been taken by national courts to further ensure the enforceability of decisions reached through ADR?

1
Para. 196 of the‘ICC Note to Parties and Arbitral Tribunals on the Conduct of Arbitration under the ICC Rules of Arbitration (1 Jan. 2021)’ provides: ‘Subject to any applicable mandatory law requirements, and unless the parties agree otherwise, (1) the Terms of Reference may be signed by each party and member of the arbitral tribunal in counterparts, and (2) such counterparts may be scanned and communicated to the Secretariat pursuant to Article 3 by email or any other means of telecommunication that provides a record of the sending thereof. An original of the signed Terms of Reference must be provided to the Secretariat.”

2
Paras. 198-200 of the Note provide: ‘198. Unless the parties have agreed to electronic notification of the award (see paragraph 199), the arbitral tribunal must provide the Secretariat with the required number of originals (unbound) requested by the Secretariat. The arbitral tribunal must also provide the Secretariat with a PDF of the signed original by email. The Secretariat will send a courtesy copy of the PDF of the award to the parties by email ahead of the notification of originals. The sending of a courtesy copy by email does not trigger any of the time limits under the ICC Rules of Arbitration. 199. Subject to any applicable mandatory law requirements, the parties may agree that (1) any award may be signed by the members of the arbitral tribunal in counterparts, and/or (2) such counterparts may be assembled in a single electronic file and notified to the parties by the Secretariat by email or any other means of telecommunication that provides a record of the sending thereof, pursuant to Article 35. 200. Paragraphs 197 to 199 apply mutatis mutandis to additional awards, addenda, and decisions’.

3
A ‘manual’ signature refers to a physical, ‘wet ink’ signature in handwriting.