Introduction I. International Chamber of Commerce II. London Court of International Arbitration III. International Centre for Dispute Resolution IV. International Centre for Settlement of Investment Disputes V. Stockholm Chamber of Commerce VI. Singapore International Arbitration Centre VII. Hong Kong International Arbitration Centre Introduction As a result of the various governmental restrictions issued around the world, including travel bans and stay-at-home orders, the conduct of arbitral proceedings has been affected. Despite these restrictions, most stages of international arbitral proceedings can continue their course without particular interruptions. However, one question that has arisen is whether the parties should continue to hold their hearings remotely or virtually. It is clear that this issue will have to be analyzed on a case-by-case basis. Nevertheless, in the international arena, arbitral institutions have begun to offer various virtual solutions for the continuation of arbitral proceedings online, while other institutions had already made these options available to the parties before the pandemic. Some institutional rules expressly allow the parties to hold Virtual Hearings, while others have not addressed the matter, granting the parties and tribunals the power to conduct the proceedings in the manner they deem most appropriate. On the other hand, some arbitral institutions have issued specific recommendations and guidelines for the conduct of Virtual Hearings, while other institutions have referred to recommendations and platforms of other organizations, and still others have made no particular statement. As of today, it is still not possible to know when the imposed restrictions will be lifted, nor when in-person hearings will be able to resume. Therefore, it is likely that Virtual Hearings will become the new normal, at least for now. With this in mind, arbitration users will need to begin familiarizing themselves with the different virtual services offered by these institutions, so as to be able to choose the technologies that best suit their particular cases, and thereby ensure the continuity of their proceedings. This article compiles information from some of the leading arbitral institutions around the world, in an attempt to answer some of the main questions we have identified regarding the use of these virtual technologies. I. International Chamber of Commerce (ICC) 1. Do the ICC Arbitration Rules permit Virtual Hearings? Under the ICC Arbitration Rules, Virtual Hearings are implicitly permitted, through the interpretation of certain of its provisions: Article 22.2 (Conduct of the Arbitration), which empowers the arbitral tribunal, after consulting the parties, to adopt such procedural measures as it considers appropriate, provided that they are not contrary to any agreement of the parties. Article 24.4 (Case Management Conference and Procedural Timetable) allows case management conferences to be conducted through an in-person meeting, by video conference, telephone or similar means of communication. Article 25.1 (Establishing the Facts of the Case) provides that the arbitral tribunal shall proceed within as short a time as possible to establish the facts of the case by all appropriate means. Article 25.2 (Establishing the Facts of the Case): "After studying the written submissions and documents presented by the parties, the arbitral tribunal shall hear them in an adversarial manner if any of them so requests. In the absence of such a request, it may decide to hear them on its own initiative." It should be noted that the English version of the ICC Arbitration Rules includes different wording for this article ("After studying the written submissions of the parties and all documents relied upon, the arbitral tribunal shall hear the parties together in person if any of them so requests"). The ICC has interpreted this section of Article 25.2, noting that "this language may be interpreted as meaning that the parties have an opportunity for a direct, adversarial exchange, without excluding the possibility that the parties may hold a hearing 'in person' virtually if the circumstances of the case so permit." Appendix IV (Case Management Techniques, Section f): allows the use of telephone or video conferencing for procedural and other hearings where attendance in person is not essential, as well as the use of information technology that enables online communications among the parties, the arbitral tribunal and the Secretariat of the Court. Article 4 of the Emergency Arbitrator Rules allows any meeting with the emergency arbitrator to be conducted by video conference, telephone or similar means of communication. Article 3 of the Expedited Procedure Rules empowers the arbitral tribunal, after consulting the parties, to decide the dispute solely on the basis of the documents submitted by the parties, with no hearing and no examination of witnesses or experts. This same article allows a hearing to be held by video conference, telephone or other similar means of communication. 2. Has the ICC issued guidelines, recommendations or protocols regarding the conduct of Virtual Hearings? The ICC recently issued a "ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic" (the "Guidance Note"), which describes some of the particular measures available to tribunals and parties in an arbitration to ensure the continuity and efficient conduct of the proceedings, including the use of audio or video conferencing for conferences and hearings, where possible and appropriate. To view the ICC Guidance Note, click here. 3. Does the ICC offer its own virtual case-management platform? The ICC does not offer its own virtual case-management platform. 4. Does the ICC offer its own Virtual Hearing platform? The ICC does not offer its own Virtual Hearing platform. 5. Has the ICC issued any particular recommendation regarding the use of external platforms for Virtual Hearings? In its Guidance Note, the ICC shared a comparative table of the various video conferencing platforms available for virtual hearings ( https://en.wikipedia.org/wiki/Comparison_of_web_conferencing_software ). The ICC has licensed access to the Microsoft Teams, Vidyocloud and Skype for Business platforms, and has noted that platforms such as Zoom, BlueJeans and GoToMeeting have been used in recent cases. The ICC does not endorse or make any representation or warranty with respect to any of the external providers mentioned in its Guidance Note. The Guidance Note recommends that tribunals and parties ensure that any video-sharing platform is licensed and configured with the highest levels of security. 6. Has the ICC issued any particular recommendation regarding the use of external platforms for document sharing? The Guidance Note mentions the following platforms for document sharing: - Opus - Transperfect - XBundle The ICC does not endorse or make any representation or warranty with respect to any of the external providers mentioned in its Guidance Note. As indicated in the Guidance Note, customized or licensed, paid document-sharing platforms may offer greater security, confidentiality and data protection than free, publicly available platforms. 7. Does this institution offer remote technical support services for Virtual Hearings? The ICC offers remote technical support to assist arbitral tribunals in using virtual platforms, whether by joining meetings or hearings, operating audio and video functions during meetings and operating screen-sharing functions. The ICC Hearing Centre in Paris also offers standard technical support and assistance to arbitral tribunals wishing to better understand the options for virtual hearings and electronic bundle facilities. 8. Has this institution issued any recommended procedural order for the organization of Virtual Hearings? In its Guidance Note, the ICC includes an Annex titled "Suggested Clauses for Cyber-Protocols and for Procedural Orders Dealing with the Organization of Virtual Hearings." 9. What are some of the most relevant recommendations issued by this institution regarding Virtual Hearings? Identify whether the entire dispute or specific issues can be resolved solely on the basis of documents, without holding an evidentiary hearing; Identify issues that can be resolved on the basis of written questions from the parties or the tribunal and written answers from the witness or expert; Request that the parties establish an agreed chronology of facts, joint lists of the issues in dispute or other similar jointly prepared documents that help define and narrow the range of issues in dispute; Consider whether the parties would agree to opt for the ICC Expedited Procedure Rules; Consider the different time zones of all participants, total number of participants, use of real-time transcripts or another form of recording, use of interpreters, procedures to verify the presence and identification of all participants, procedures for the taking of witness and expert evidence, use of shared-screen views and use of electronic document bundles; Consider the need for tutorials for participants who are not familiar with the technology and the platforms; Consider the need for contingency measures to be implemented in the event of sudden technical failures, disconnection, power outages, etc. Run a minimum of two mock sessions before the hearing; Obtain written statements from the parties that the platform and technology tested are adequate as tested by the parties; Confirm the parties' agreement to proceed with the Virtual Hearing or identify a legal basis to proceed with the Virtual Hearing in the absence of such agreement by the parties; Agree on whether to allow or prohibit communications between witnesses, experts and the parties and counsel in chat rooms or through hidden channels of communication. II. London Court of International Arbitration (LCIA) 1. Do the LCIA Arbitration Rules permit Virtual Hearings? Article 19(2) of the LCIA Rules expressly permits the conduct of Virtual Hearings: 19.2 The Arbitral Tribunal shall organize the conduct of any hearing in advance, in consultation with the parties. The Arbitral Tribunal shall have full authority under the Arbitration Agreement to establish the conduct of the hearing, including its date, form, content, procedure, time limits and geographical location. As to form, a hearing may be conducted by video or telephone conference or in person (or by a combination of the three) (…). 2. Has the LCIA issued guidelines, recommendations or protocols regarding the conduct of Virtual Hearings? To date, the LCIA has not issued any particular note regarding Virtual Hearings. The "LCIA Notes for Arbitrators" issued in October 2017 contain certain recommendations for the conduct of Virtual Hearings: 33. It may be appropriate, in certain cases, for certain hearings (for example, procedural conferences) to be conducted by telephone or video conference rather than in person. The Arbitral Tribunal should also consider, where appropriate, whether some or all of the persons who must participate in any conference or hearing may do so by video conference rather than in person (for example, where a witness is unable to travel for health reasons). To view the LCIA Notes for Arbitrators, click here. 3. Does the LCIA offer its own virtual case-management platform? The LCIA has developed its own platform for the online filing of Requests for Arbitration, Responses, requests for expedited formation of the tribunal, requests for replacement of an arbitrator, requests for appointment of an Emergency Arbitrator and any supporting documentation. This platform also allows the parties to pay arbitration fees online. To access the LCIA virtual platform site, click here. 4. Does the LCIA offer its own Virtual Hearing platform? The LCIA does not offer its own Virtual Hearing platform. 5. Has the LCIA issued any particular recommendation regarding the use of external platforms for Virtual Hearings? The LCIA has not issued any particular recommendation on this matter. 6. Has the LCIA issued any particular recommendation regarding the use of external platforms for document sharing? The LCIA has not issued any particular recommendation on this matter. 7. Does this institution offer remote technical support services for Virtual Hearings? The LCIA has not made any particular statement on this matter. 8. Has this institution issued any recommended procedural order for the organization of Virtual Hearings? The LCIA has not made any particular statement on this matter. 9. What are some of the most relevant recommendations issued by this institution regarding Virtual Hearings? N/A. III. American Arbitration Association - International Centre for Dispute Resolution (AAA-ICDR) 1. Do the ICDR Rules permit Virtual Hearings? Article 20(1) empowers the tribunal to conduct the arbitration "in whatever manner it considers most appropriate, provided that the parties are treated with equality and that each party has the right to be heard and is given a fair opportunity to present its case." Article 20(2): "In establishing the procedures for the case, the tribunal and the parties may consider how technology, including electronic communications, could be used to increase the efficiency and economy of the proceedings." Article 23(5) permits the examination of witnesses "through means that do not require their physical presence." Article 6(3) empowers the emergency arbitrator to conduct the proceedings by telephone, video, in writing, or by any other means suited to the needs of the case, as alternatives to in-person hearings. Article E-9 of the International Expedited Procedures provides that hearings "may be in person or by video conference or other suitable means, at the discretion of the arbitrator." 2. Has the AAA-ICDR issued guidelines, recommendations or protocols regarding the conduct of Virtual Hearings? The AAA-ICDR has issued the following documents: - "Virtual Hearing Guide for Arbitrators and Parties" (Click here to view the document). - "Virtual Hearing Guide for Arbitrators Using ZOOM" (Click here to view the document). - "Model Order and Procedures for a Virtual Hearing via Videoconference" (Click here to view the document). 3. Does the AAA-ICDR offer its own virtual case-management platform? The AAA-ICDR had already developed its own online document filing system for arbitration and mediation proceedings as well as for the payment of fees. Click here to access the AAA-ICDR virtual platform site. 4. Does the AAA-ICDR offer its own Virtual Hearing platform? The AAA-ICDR does not offer its own Virtual Hearing platform. 5. Has the AAA-ICDR issued any particular recommendation regarding the use of external platforms for Virtual Hearings? The AAA-ICDR does not endorse any platform over another; however, it has issued a specific guidance note called "Virtual Hearing Guide for Arbitrators Using ZOOM," which includes a variety of practical considerations and recommendations on the use of the Zoom platform (Click here to view the document). 6. Has the AAA-ICDR issued any particular recommendation regarding the use of external platforms for document sharing? The AAA-ICDR has not made any particular statement on this matter. 7. Does this institution offer remote technical support services for Virtual Hearings? The AAA-ICDR does not offer any particular remote technical support for Virtual Hearings. 8. Has this institution issued any recommended procedural order for the organization of Virtual Hearings? Yes. Click here to view the "Model Order and Procedures for a Virtual Hearing via Videoconference." 9. What are some of the most relevant recommendations issued by this institution regarding Virtual Hearings? Basic recommendations such as the use of good-quality video cameras and adequate lighting conditions; Determination of the best methods for audio quality, background-noise reduction, etc.; Use of platforms with a unique, automatically generated identification for each Virtual Hearing and with password protection; Use of secure internet connections; Keeping a list of participants; Use of available security features to prevent ex parte communications with the arbitrators; Disabling the "private chat" function; Conducting a test hearing with the tribunal, counsel and anyone in charge of providing technical support before the hearing. IV. International Centre for Settlement of Investment Disputes (ICSID) 1. Do the ICSID Rules permit Virtual Hearings? Neither the ICSID Convention nor its Rules of Procedure Applicable to Arbitration Proceedings (Arbitration Rules) make express mention of Virtual Hearings. 2. Has ICSID issued guidelines, recommendations or protocols regarding the conduct of Virtual Hearings? ICSID has organized the conduct of Virtual Hearings for years. However, on March 23, 2020, ICSID published a document called "A Brief Guide to Virtual Hearings at ICSID," which provides an overview of its Virtual Hearing services. Click here to view the publication. 3. Does ICSID offer its own virtual case-management platform? No. 4. Does ICSID offer its own Virtual Hearing platform? ICSID has made its own video conferencing platform available to everyone. No particular hardware or software is required to use it. If the internet connection is slow, participants can join by mobile phone. This platform allows the conduct of hearings of any size (up to hundreds of participants). All participants can share audio, video and other content. A virtual chat allows participants to communicate with one another or with all participants. A virtual stenographer offers real-time transcription services, visible to all participants. ICSID's Virtual Hearing services are available at no extra cost, even for arbitrations conducted under the UNCITRAL rules and other non-ICSID proceedings. 5. Has ICSID issued any particular recommendation regarding the use of external platforms for Virtual Hearings? No. 6. Has ICSID issued any particular recommendation regarding the use of external platforms for document sharing? No. 7. Does this institution offer remote technical support services for Virtual Hearings? When using the ICSID platform, IT professionals will be present during the hearing to ensure its proper functioning. 8. Has this institution issued any recommended procedural order for the organization of Virtual Hearings? No. 9. What are some of the most relevant recommendations issued by this institution regarding Virtual Hearings? N/A. V. Stockholm Chamber of Commerce (SCC) 1. Do the SCC Rules permit Virtual Hearings? Article 28(2) (Case Management Conference and Procedural Timetable) states that "the case management conference may be held in person or by any other means." Article 32 (Hearings) makes no specific mention of the possibility of conducting hearings virtually. 2. Has the SCC issued guidelines, recommendations or protocols regarding the conduct of Virtual Hearings? To date, the SCC has not issued any particular note regarding Virtual Hearings. 3. Does the SCC offer its own virtual case-management platform? In September 2019, the SCC launched a platform for the administration of arbitrations. The SCC Platform serves to communicate and submit case materials (procedural orders, evidence, submissions, etc.). The site also includes a calendar and an announcements board for the tribunal to communicate practical information to the parties, as well as an archiving service for the tribunal once the case has concluded. Access to and use of this platform is included in the SCC administrative fee (unless the parties require storage memory that exceeds the limit available with the administrative fee). The SCC Platform has its own rules, which are available to participants in SCC arbitrations, directly on its platform. The SCC Platform is powered by "HighQ," a provider of digital solutions for the legal profession. Documents uploaded to the platform are stored in the cloud in high-security facilities, with several backup facilities in different locations. All information is encrypted using military-grade encryption and all documents are scanned to detect any malware or viruses when downloaded. The platform has several security systems and is designed to minimize the risk of human error compromising security or confidentiality. To access the SCC Platform site, click here. Since May 2020, the SCC has also made a platform available for ad hoc arbitrations. This platform will be free of charge for the parties in ad hoc arbitrations during the Covid-19 crisis. To access the SCC Platform site for ad hoc arbitrations, click here. 4. Does the SCC offer its own Virtual Hearing platform? In April 2020, the Stockholm International Hearing Centre (SIHC) launched its own virtual platform for "digital hearings." The SIHC will send an email directly to participants who wish to connect to a hearing. This Virtual Hearing platform allows the parties or the tribunal to hold private and encrypted conferences when the hearing is not in session. In addition, it allows the online examination of witnesses and has stenographers. This platform uses the Microsoft Teams server. To view the full publication concerning the SCC Platform for Virtual Hearings, click here. 5. Has the SCC issued any particular recommendation regarding the use of external platforms for Virtual Hearings? The SCC has not issued any particular recommendation on this matter. However, on its website it has shared the Seoul Protocol on Video Conferencing in International Arbitration and the Delos protocol on hearings in times of COVID-19 (click here to access the Seoul Protocol and here to access the Delos protocol). 6. Has the SCC issued any particular recommendation regarding the use of external platforms for document sharing? The SCC has not made any particular statement on this matter. 7. Does this institution offer remote technical support services for Virtual Hearings? The SIHC technical staff is available to participants to offer remote support before, during or after a Virtual Hearing. 8. Has this institution issued any recommended procedural order for the organization of Virtual Hearings? No. 9. What are some of the most relevant recommendations issued by this institution regarding Virtual Hearings? N/A. VI. Singapore International Arbitration Centre (SIAC) 1. Do the SIAC Rules permit Virtual Hearings? Article 19(1) of the SIAC Rules provides that the Tribunal may conduct the arbitration in such manner as it considers appropriate, after consulting the parties to ensure a fair, expeditious, economical and final resolution of the dispute. Article 19(3) empowers the Tribunal to hold a preliminary conference with the parties, in person or by any other means. Article 24 (Hearings) makes no specific mention of the possibility of conducting hearings virtually. 2. Has the SIAC issued guidelines, recommendations or protocols regarding the conduct of Virtual Hearings? No. However, the SIAC has issued a communication encouraging the parties to consider the measures issued by Maxwell Chambers, should the conduct of Virtual Hearings be agreed. 3. Does the SIAC offer its own virtual case-management platform? No. 4. Does the SIAC offer its own Virtual Hearing platform? No. 5. Has the SIAC issued any particular recommendation regarding the use of external platforms for document sharing? The SIAC has recommended the use of the services offered by Maxwell Chambers for the conduct of virtual hearings or conferences. Maxwell Chambers offers a platform for case preparation and virtual hearing rooms for the parties and tribunals. It is a secure cloud-based platform. Maxwell Chambers also offers assistance for the conduct of hearings through its platform, including remote transcription, interpreters and other digital solutions. To access the Maxwell Chambers virtual services website, click here. 6. Has the SIAC issued any particular recommendation regarding the use of external platforms for document sharing? No. 7. Does this institution offer remote technical support services for Virtual Hearings? The SIAC has designated and trained a number of counsel in its Secretariat as remote-technology specialists, and has incorporated a real-time assistance service on its website to be in contact with the Secretariat. 8. Has this institution issued any recommended procedural order for the organization of Virtual Hearings? No. 9. What are some of the most relevant recommendations issued by this institution regarding Virtual Hearings? N/A. VII. Hong Kong International Arbitration Centre (HKIAC) 1. Do the HKIAC Rules permit Virtual Hearings? Article 13 (General Provisions) empowers the arbitral tribunal to "adopt suitable measures for the conduct of the arbitration in order to avoid unnecessary delay or expense, having regard to the complexity of the matter, the amount claimed and the effective use of technology, provided that such measures ensure the equal treatment of the parties and afford the parties a reasonable opportunity to present their case." Article 22 (Hearings) makes no express reference to Virtual Hearings. However, Article 22.5 empowers the arbitral tribunal to determine the manner in which a witness or expert will be examined. 2. Has the HKIAC issued guidelines, recommendations or protocols regarding the conduct of Virtual Hearings? The HKIAC recently published its Guidelines for Virtual Hearings. Click here to view the document. 3. Does the HKIAC offer its own virtual case-management platform? No. 4. Does the HKIAC offer its own Virtual Hearing platform? The HKIAC offers its own Virtual Hearing services, which include: - An encrypted IP-based video conferencing system with the capacity to support up to 8 different locations. It is a cloud-based system, compatible with most available video conferencing platforms (Zoom, Cisco Webex, Microsoft Teams, Bluejeans); and - An audio-conferencing system with the capacity to support up to 30 lines. The HKIAC also offers electronic bundle services, electronic presentation of evidence, transcription and interpreter services through external providers. To learn more about the virtual services offered by the HKIAC, click here. 5. Has the HKIAC issued any particular recommendation regarding the use of external platforms for document sharing? The HKIAC has not made any particular recommendation on this matter. } 6. Has the HKIAC issued any particular recommendation regarding the use of external platforms for document sharing? The HKIAC has not made any particular recommendation on this matter. 7. Does this institution offer remote technical support services for Virtual Hearings? The HKIAC can arrange for the participation of its IT specialists in Virtual Hearings. 8. Has this institution issued any recommended procedural order for the organization of Virtual Hearings? No. 9. What are some of the most relevant recommendations issued by this institution regarding Virtual Hearings? Contact the HKIAC as soon as possible to agree on the hearing dates and the Virtual Hearing services required, and complete the online form; Agree to carry out testing with all participants in advance of the hearing. Use LAN/Ethernet connections rather than WiFi networks; Coordinate the participation of an IT specialist at all times during the hearing. Put all devices on silent or airplane mode and disable alerts; Ensure the confidentiality and security of the Virtual Hearings (using password-protected video conferencing platforms, preparing a list of participants, etc.); Mute all microphones except that of the person speaking; use specific gestures to signal that a person wishes to speak; avoid several people speaking at the same time; avoid the use of backlighting; position the camera at eye level; look at the camera and not the screen; use headsets with a built-in microphone; avoid the use of face masks when using cameras with facial-motion recognition; Coordinate, where possible, for a person to be present in the same room as the witness or expert, in order to guarantee the integrity of the location; or coordinate the use of 360-degree cameras; Ensure that evidence and other documents to be shared virtually are made available to the external provider in advance of the hearing. For additional information, contact our experts: Claus von Wobeser, Partner: +52 (55) 5258 1011 | cvonwobeser@vwys.com.mx Adrián Magallanes, Partner: +52 (55) 5258 1077 | amagallanes@vwys.com.mx Montserrat Manzano, Partner: +52 (55) 5258 1018 | mmanzano@vwys.com.mx Diego Sierra, Partner: +52 (55) 5258 1039 | dsierra@vwys.com.mx
