1 Introduction
There has been a sharp rise in virtual hearings or completely online proceedings in the aftermath of covid-19. The coronavirus outbreak has accelerated the digitalization of certain disputes.1 Despite the pragmatism of alternative dispute resolution (adr) methods, some challenges have arisen, for instance, the management of virtual hearings or cross-examination. The former requires a different approach of advocacy than for physical hearings, and the latter is about command. Thus, online dispute resolution (odr) can be effective, but not easy, particularly in cross-border disputes2 where new challenges and several other factors enter the paradigm of resolving the dispute. Yet, adr has proven to be quite resilient to such changes; hence, many arbitral institutions have started to report on the increased use of such methods in the wake of the pandemic.3
Challenges brought by the pandemic have raised issues that are worthy of analysis, especially because online adr seems likely to persist through the present-day reality. This chapter provides an overall picture of the current situation with respect to virtual arbitration, i.e., where the application of technology is intrinsic to the dispute process itself and where odr is a stepping-stone to virtual dispute resolution, particularly in light of the current pandemic. The response of global arbitral institutions to the pandemic, in terms of enactment of substantive and/or adjective laws, is scrutinized; specific issues relating to the implementation and quality of odr are also discussed; and technology, as a powerful toolbox, is examined, in particular with respect to how it can
2 odr vs adr
All authors would accept that alternative dispute resolution is a private procedure for settling disputes outside of the courtroom. Such procedures typically include arbitration, mediation, conciliation, or negotiation. adr usually allows the parties to come up with more creative outcomes that a court may not be legally allowed to impose.
The term odr is more recent; its meaning is not as uniform as adr. For some, odr and adr are fundamentally the same4, and for others, odr is not always adr but can be adr.5 Albeit confusing, there are many reasons for such opposing views.
What may differentiate odr from adr is the use of technology, but does adr use technology? Certainly; however, for some, the difference is that odr focuses exclusively on resolving the dispute(s) via the internet. Even though odr provides new opportunities for dispute resolution, it does not create a new framework for resolving a dispute. Theoretically, odr performs the same function as adr, but with additional or different tools.
Mediation is considered an alternative dispute resolution method even though it is different from other adr methods. The most notable difference between mediation and arbitration is that arbitration produces a binding and enforceable award, and the arbitrator(s) is empowered to decide. Despite this, mediation is still part of the adr umbrella as it is a private means of resolving disputes and employs a neutral third party to resolve the dispute.
The reason why odr is for some academics and practitioners a separate branch from adr is because its use has increased over the years, especially during the current pandemic. Some agreements contain a so-called “multi-tier” dispute resolution mechanism, which provides for arbitration only after other contractually-prescribed procedures have been exhausted. These provisions are also referred to as “escalation clauses,” “steps clauses,” or “mdr clauses.” These provisions can include “cooling-off” or “waiting” periods; negotiations
Mediation, conciliation and negotiation are methods that also exist in odr but are handled differently, i.e., technology is the principal means to carry out the resolution of the conflict, either through specific websites or electronic tools specifically created for this aim. Regarding adr, technology may be essential, but it is not essential.
The above suggests that parties often agree to exhaust other means before relying on arbitration. Although odr has deserved its spot over the years, it is not yet considered, individually, as an adr method; both adr and odr are private means for resolving conflicts and exclude litigation. The odr movement is a derivative of adr. odr has its own place and may be another route to reach adr.
3 Overview of the Use of odr during the covid-19 Pandemic
covid-19 has catapulted the use of odr. During the current pandemic, arbitration hearings have been suspended. Alternatively, if it was not possible to hold an in-person hearing, videoconferencing was used. Many arbitral institutions have started to report on the increased use of such tools since the beginning of the pandemic.7
The emergence of the pandemic accelerated the use of electronic filing systems, document exchange and storage, and communications services. Remote or virtual models, as well as hybrid (a mixture of online and physical or in person) models were adopted in many jurisdictions to adjust to the exceptional circumstances created by the pandemic.
3.1 Asia: The Philippines
The courts of the South Asian archipelago of the Philippines issued some interesting decisions with respect to odr. Concerning the courts system, the Supreme Court issued Administrative Matter No. 20-12-01-sc or the 2020 Guidelines for the Conduct of Court-Annexed Mediation (cam) and Judicial Dispute Resolution (jdr)8 to ensure that hearings via videoconferencing would be
One of the concerns about remote hearings is oral examination of witnesses. The Guidelines foresee this circumstance and state that where litigants and witnesses are testifying from remote locations, there must be technical personnel present in these remote locations to assist and address technical issues that may arise during the videoconference. Notwithstanding, the Guidelines anticipate the possibility that stakeholders may not be able to connect and immediate solutions for connectivity issues seem to be unknown, as hearings are sometimes cancelled due to poor internet connectivity.
The adjournment of hearings was a temporary solution when it was unclear when the situation would return to normal. The spread of the Covid-19 virus and the restrictive measures imposed by many governments made it impossible for many parties, counsel, witnesses and arbitrators from different parts of the world to attend in-person hearings. Thus, tribunals and parties to ongoing proceedings had the choices proposed by their governments, which typically included adjourning hearings, agreeing to “documents only” proceedings or holding entirely virtual hearings.
The Philippines certainly exploited the use of technology. Pursuant to their Guidelines, the conduct of videoconferencing shall closely resemble in-court hearings with remote locations viewed as extensions of the courtroom. The widespread misconception that human beings will soon be replaced by robot lawyer look-alikes is still far from feasible. Perhaps automatizing existing systems or procedures is the key answer for adr.
The aim of the Guidelines was to propose a general relief to the current pandemic. The Philippines neither launched a revolutionary platform to hold online hearings nor created an innovative platform. Instead, the archipelago took advantage of the resources and enhanced existing technological tools preserving all principles of adr. Moreover, as part of the court proceedings, parties were referred to the Philippine Mediation Center to encourage them to settle their disputes through mediation. The Guidelines will continue to be applicable even after the crisis is over.
While litigation received much of the government’s attention, there were no major changes to laws regarding arbitration. Local arbitral institutions nevertheless addressed the problem. The Philippine International Center for Conflict Resolution (piccr) offered, through its website, a set of instructions
- –For arbitration commencing proceedings stakeholders were encouraged to communicate with piccr Secretariat via email and submit the request for arbitration. The Respondent may file its Answer to the Request or make any appropriate requests (e.g., extension of time) within the period provided under the piccr Rules.
- –Emergency reliefs should be similarly filed via email.
The piccr also issued a Guidance Note10 intending to regulate the conduct of virtual hearings during the pandemic. Although the Guidance Note sets out useful key points for the holding of online hearings, it always allows parties to choose how to conduct proceedings. The Guidance Note states, for instance, that if a party becomes unable to participate due to technical issues, the party shall immediately notify the arbitral tribunal of the technical issue, by any means of telecommunication on which the parties have previously agreed and which is approved by the arbitral tribunal, and identify the last piece of information that was transmitted.11
The Philippine Dispute Resolution Center (pdrci), the primary arbitral institution that administers arbitration proceedings in the Philippines12 also announced measures to its users.13 These measures focused primarily on online meetings, the conduct of virtual hearings, case management recommendations, etc.
3.2 Europe: Sweden
In Europe, Sweden’s iconic arbitral institution, the Arbitration Institute of the Stockholm Chamber of Commerce (scc) launched, in 2019, the scc Platform – a secure digital platform for communication and file sharing between the scc, the parties and the tribunal.14 The Platform is mandatory for any communication
Case management has been digitalized since 2013, thus, the scc body did not make paramount changes to its operations in the midst of the pandemic. Cases are initiated in the same manner as they used to be before covid-19.16 The Platform introduced in 2019 provides for the filing of materials for the case, procedural orders, submissions and exhibits. Only participants in the arbitration are granted access to the Platform. In parallel, the scc launched, in May 2020, the Ad Hoc Platform which provides the same benefits as the principal Platform for ad hoc arbitration proceedings. The parties and appointed arbitrator(s) are responsible for uploading relevant material and information onto the Platform, which remains accessible for one year after the termination of the arbitration unless otherwise agreed with the scc.
Sweden is among the well-established seats for arbitration17 and the scc is one of the country’s premier institutions. Despite that popularity, the scc continues to propose amendments to its rules, announcing seminars and tours in order to further the legacy. The scc response to the pandemic was quite modest due to their robust provisions and infrastructure. It remained fully operational nonetheless, with certain team members of the Secretariat on site for necessary procedures related to arbitral proceedings.
The prominence of the scc stems from various factors. First, the Chamber administers arbitration under both scc rules and other rules agreed to by the parties, and secondly, it is known for keeping its rules short but comprehensive.
It should be noted that the scc has been one of the few institutions that has issued publications, guideline, notes, and announcements to provide
3.3 United States of America
Historically, the United States of America (US)’s major cities maintained local chambers which administered international arbitrations. Within the US, New York, Miami, and Houston have emerged as the most popular arbitral seats.19 Among these cities, New York is considered the leading center for international arbitration. The American Arbitration Association (aaa), founded in 1926 by the merger of two New York arbitration institutions, and the International Centre for Dispute Resolution (icdr), founded in the early 1920s,20 are two of New York’s most prominent institutions. The aaa is among the institutions that administer the highest number of arbitral disputes in the world,21 while the icdr, the international division of the aaa, has administrative faculty in New York and manages cases outside the US.
The aaa treated technology as an inherent factor in arbitration within their proceedings before the covid-19 pandemic.22 The aaa-icdr issued the Model Order and Procedures for a Virtual Hearing via Videoconference as a model guideline to parties and arbitrators regarding different ways to address issues that may arise during a virtual hearing. The model, which is online-focused, fits
Despite these technological provisions, the aaa-icdr does not have a platform to conduct hearings. Video hearings or proceedings are conducted through third-party platforms and are subject to the platform’s terms and policies. As such, the aaa-icdr equipped its users with a set of rules that may be followed on a consensual basis. During the 2020 peak of the pandemic, the aaa-icdr registered a total of 9,538 cases,24 in contrast with the 2019 caseload of 9,737.25
The aaa-icdr provided uninterrupted services during a very unpredictable year while also issuing soft measures, such as the above model, to its arbitral community. Significantly, the dollar value of cases for 2019 totalled $18.4 billion in claims and counterclaims, while the dollar value in 2020 was $18 billion, which, given the circumstances, is remarkable. As far as new regulations, the 2021 update marks the first time the aaa-icdr’s arbitration and mediation rules have been revised since 2014.
3.4 Latin America and Chile
The Latin American countries have many features in common due to their Ibero-American heritage, such as their language and culture, but perhaps the most important similarity is their legal system. The Latin American region is still a developing market when it comes to arbitration, perhaps due to the long-lasting issues in many Latin countries: the corruption and lack of transparency in their court systems, not only for litigation proceedings, but also arbitration.26
Despite this, Chile has been able to make some substantial changes to its existing legislation. On April 2020, the Chilean National Assembly enacted Law No. 21,226, which established a legal exemption for judicial processes and hearings and also suspended evidentiary terms due to covid-19. Law 21,226 extends to arbitration, providing that those tribunals (including arbitral tribunals) outside of the judicial scope may suspend hearings and should reschedule for the nearest possible date after the global emergency.27 Law 21,226 also regulates technology by allowing virtual hearings. Article 6 imposes the suspension of evidentiary terms across the country, meaning a procedure can only move forward until it reaches the evidentiary phase, at which point it would have to be suspended. The scope of Article 6 has sparked a heated debate among commentators and raised questions as to whether this article is necessary or whether arbitration proceedings should be allowed to continue following an agreement of the parties. No clarification of this issue was made from the legislative branch.28
Law 21,226 does not expressly indicate whether it applies only to local and not international arbitration; however, given that no clear distinction is made between the two forms of arbitration, there is no reason to believe it does not apply to international arbitration, especially since the Chilean capital, Santiago, is an attached member of the International Chamber of Commerce (icc).
Chile is also known for having the only center in Latin America with its own rules on the use of online dispute boards.29 Since 2013, these rules have allowed online case management of proceedings and allow parties to perform activities similar to the scc (i.e., submission of documents, management of online processes, etc.). Chile’s response to the global pandemic covered many relevant legal aspects. First, legislation was enacted to provide guidance to Chilean nationals. Second, the local and international chamber, the Centro de
Chile’s pro bono mediation proceedings for small and medium enterprises (smes) raises another topic: technology may be the best ally for small and medium businesses since it provides low-cost adr procedures. The use of technology may also minimize the cost of adr proceedings for smes.
For smes, binding online arbitration or mediation may present major advantages, especially when the parties are far apart or are relying upon a quick decision.
Arbitration has proven to be resilient during the pandemic and technology has been an important component of this durability. As a result, odr emerged from the amalgam of adr and technology, with a major advantage of circumventing distance-related issues. Under odr, resolving disputes is generally more cost-effective and time-efficient (depending on the merits and value of the claim), even when compared to arbitration. odr may also enhance inclusion. For example, the Chilean experience demonstrated that adr can be used by small corporations to the same extent as multinational corporations and States for investment treaty claims. Small businesses do not have to be deprived of arbitration proceedings because of the cost; there are similar results with fewer resources as in a normal arbitration. For example, in small claims cases, parties can agree to use ad hoc arbitration and determine all aspects of the arbitration process themselves.
Ad hoc arbitration is less expensive than institutional arbitration31 because parties only pay fees for the arbitrator(s) and lawyers; another option to reduce costs may be to select a sole arbitrator instead of a tribunal. Undoubtedly, online arbitration, which guarantees access regardless of the geographical location of participants, also reduces costs significantly.
4 Challenges and Issues with odr
Some users find that videoconferencing is not a perfect substitute for in-person interactions,32 even though the use of technology is generally encouraged regardless of which alternative mechanism is implemented. Nonetheless, counsel and parties are often reluctant to use online hearings and prefer to rely on technology in other areas of the arbitration proceeding.
Technology provides many useful resources, but also many challenges. It is important to highlight that technology cannot be one hundred percent reliable. There are still many issues with technology, such as technological failure or lack of access to high-quality internet. Overall though, it improves efficiency in the arbitration process by providing useful advantages, especially for low-cost procedures or during unforeseen circumstances that preclude the possibility of physical meetings.
One concern with online arbitration involves witness examination, which play an essential role in arbitration. When examining a witness, counsel either seeks to convince the tribunal that the witness is credible or seeks to discredit the witness. Thus, declarations made by witnesses must be clear and consistent with the other evidence on record. In most cases, examinations are time-limited, and when held online, examining a witness may be challenging because every minute counts. Moreover, analyzing the demeanor of witnesses through a screen may be difficult for the arbitrator.33
While odr has an advantage in overcoming geographical limitations, this advantage does not exist when enforcing the outcome of the procedure. If the outcome is a binding award, the winner will have to apply for an exequatur, possibly on the other side of the globe, as online award enforcement is still far away. If the outcome is an unperformed settlement, then the situation is more
International legal instruments appear to require that awards be in writing and signed by the arbitrators. The New York Convention in its fourth article requires that the party seeking recognition or enforcement of an award must produce the duly authenticated original award. When an original is required, the production of an electronic document is sufficient if a secure electronic signature guarantees its integrity and attribution to the arbitrators. The general recognition of electronic documents and electronic signatures by many States often allows the formal requirements of local arbitration law to be respected. The difficulties that remain are often practical ones arising at the time of communication of the electronic award.35
5 Conclusions
The coronavirus outbreak brought an acceleration of digitalization attempts for certain disputes; however, despite how pragmatic adr methods may be, some challenges, such as the ones explored in this paper, have arisen, i.e. with respect to the management of virtual hearings and cross-examination of witnesses. The management of virtual hearings requires a different approach of advocacy than the approach adopted for physical hearings. The cross-examination of witnesses is about command. Thus, odr can be very effective, yet not an easy task particularly in cross-border disputes where new challenges and several other factors, as outlined in this chapter, enter into the paradigm of dispute resolution. Yet, adr has been quite resilient to such changes.
Although dispute resolution procedures may use some form of odr,36 this research explores a more holistic application of odr, where technology is intrinsic to the dispute process itself and where odr is a stepping-stone to virtual dispute resolution, particularly in light of the current pandemic. Ultimately, continued learning from parties, counsel, and arbitrators will be needed to minimize the risks associated with the use of odr.
Sanjna Pramod, “Covid-19 and the Rise of Online Dispute Resolution,” dh Deccan Herald, July 14, 2020,
Esther van den Heuvel, “Online Dispute Resolution as a Solution to Cross-Border E-Disputes,” oecd, accessed April 22, 2022,
“‘Necessity is the Mother of Invention’: COVID-19 Dramatically Accelerates Digitalisation of Arbitration Processes,” Herbert Smith Freehills, July 10, 2020,
Colin Rule, “Is ODR ADR? A Response to Carrie Menkel-Meadow,” International Journal on Online Dispute Resolution 3, no. 1 (May 2016): 8.
“ADR and ODR – what’s the difference?” Disputes EFiling, June 11, 2019,
Gary B. Born, International Commercial Arbitration (The Hague: Kluwer Law International, 2021), 305.
Herbert Smith Freehills, supra note 3.
“Re: Proposed Guidelines on the Conduct of Videoconferencing,” Supreme Court of the Philippines, accessed July 14, 2021,
“piccr Advisory – Our services are available online,” Philippine International Center for Conflict Resolution, accessed July 14, 2021,
“piccr Guidance Note on Virtual Hearings,” Philippine International Center for Conflict Resolution, accessed July 14, 2021,
Id.
Raquel Wealth A Taguian et al., “The International Arbitration Review: Philippines,” The Law Reviews, July 4, 2021,
“Guidelines on Online Meetings and Virtual Hearings,” Philippines Dispute Resolution Center, Inc., August 3, 2020,
“SCC Platform – Simplifying Secure Communication From Request to Award,” Arbitration Institute of the Stockholm Chamber of Commerce, accessed August 10, 2021,
On November 21, 2018, the Swedish legislature passed a revised Arbitration Act, intended to make the arbitration process more efficient. The revision aims at making Swedish arbitration law more easily accessible, especially for non-Swedish parties, and to ensure that Stockholm continues to be an attractive venue for international dispute resolution. The changes entered into effect on March 1, 2019.
“Contact Us,” Arbitration Institute of the Stockholm Chamber of Commerce, accessed April 22, 2022,
White & Case, llp, “2018 International Arbitration Survey: The Evolution of International Arbitration,” Queen Mary University of London, May 9, 2018,
See “Checklist on Holding Hearings in Times of covid-19,” Arbitration Institute of the Stockholm Chamber of Commerce, March 16, 2020,
Claudia Salomon and Irina Sivachenko, “Choosing an arbitral seat in the United States,” LexisNexis, accessed April 22, 2022,
Ian Macneil, American Arbitration Law: Reformation, Nationalization, Internationalization (Oxford University Press, 1992), 38–41.
“aaa-icdr’s Annual B2B Caseload Continues to Increase, Along with Level of the Diversity in Arbitrator Roster & Appointments,” aaa-icdr, February 26, 2020,
aaa website has services such as “Cybersecurity and Data Protection”, “Technology Disputes Capabilities”, and “aaa-icdr Software & Online Tools.” See “Cybersecurity & Technology,” aaa-icdr, accessed April 22, 2022,
“aaa-icdr Model Order and Procedures for a Virtual Hearing via Videoconference,” aaa-icdr, May 9, 2020,
“2020 b2b Caseload Data Shows aaa-icdr Provided Uninterrupted adr Services in Difficult Year,” aaa-icdr, February 11, 2021,
“2019 b2b Dispute Resolution Infographic,” aaa-icdr, accessed April 22, 2022,
See scandals cases that took place in the Republic of Peru as of 2019 to date, which are related to allegations of corruption brought against several Peruvian arbitrators by Odebrecht company, for example, Laura Bunt-MacRury, “Peru’s House of Cards: Odebrecht scandal has engulfed the country’s political class,” The Conversation, June 27, 2019,
Art. 2, Law 21.226.
Liat Tapia and Pablo Correa, “Are the Judicial Procedural Rules Issued During the Pandemic Applicable to International Arbitrations Seated in Santiago?,” Kluwer Arbitration Blog, October 7, 2020,
“Regulations on Dispute Boards,” Centro de Arbitraje y Mediación, effective as of January 1, 2015,
“Informativo cam Santiago,” cam Santiago de Chile, accessed August 11, 2021,
Claimants have to pay an approximately of $usd2,000 to $usd5,000 just to initiate arbitration in an arbitral institution. Such amount is considered as filling fee.
Gabrielle Kaufmann-Kohler and Thomas Schultz, “The Use of Information Technology in Arbitration,” Weblaw, December 5, 2005,
Gopika Nambiar and Kumar Karan, “Examination and cross-examination of witnesses in arbitral proceedings via video-conferencing: Challenges and the road ahead,” BarandBench, October 4, 2020,
Gabrielle Kaufmann-Kohler, “Online Dispute Resolution and its Significance for International Commercial Arbitration,” icc Publishing, November 2005, accessed August 7, 2021, 443,
“Dispute Settlement: International Commercial Arbitration, 5.9 Electronic Arbitration,” United Nations Conference on Trade and Development, New York and Geneva, accessed April 22, 2022,
Videoconferencing, email and other electronic communications between the parties, hearing rooms, cloud-based storages.