1 Introduction1
In this Chapter, we highlight two of the most significant changes in international arbitration procedure as a result of the covid-19 pandemic: (1) the transition to electronic-only submissions, and (2) the increased use of virtual or remote hearings. We note some of the benefits and limitations of these changes, and consider how these procedural issues may continue to evolve in the future, as pandemic-related restrictions are eased and lifted.
As is now familiar history, instances of the covid-19 virus first were reported in Wuhan, China, in December 2019.2 The virus thereafter quickly spread throughout China and the greater Asia-Pacific region and, on January 30, 2020, the World Health Organization (“who”) declared a Public Health Emergency of International Concern.3 By the end of February 2020, at least 38 countries
Notwithstanding these measures, the virus continued to spread across the globe, with over 118,000 cases reported across 114 countries as of March 11, 2020.5 In mid-March 2020, the who declared that the covid-19 virus had reached the status of a pandemic.6 By the end of March 2020, the United States had declared a state of national emergency,7 over 250 million people were quarantined throughout Europe,8 and more than 100 countries had issued lockdown orders.9 In a survey conducted by the Global Business Travel Association from March 18–21, 2021, over 95 percent of survey respondents reported that their companies had canceled or suspended all or most business trips to China, other Asia-Pacific countries, Europe, the Middle East, and Africa, while 86 percent of respondents reported that their companies had instituted work-from-home policies.10 With billions of people subject to quarantine orders and
International arbitration, by definition, involves parties – as well as arbitrators, counsel, and other participants – based in multiple jurisdictions. Those in the international arbitration community immediately felt the impact of quarantine orders and restrictions on international travel. Many no longer could travel abroad for hearings or meetings, nor could they access their offices, limiting the ability to work with pleadings and other documents in hard copy.
Without knowing when the pandemic would end or when quarantine orders and restrictions would be lifted, the international arbitration community was required to adapt swiftly to this evolving situation and to implement measures that would allow proceedings to continue in a timely fashion, while preserving the due process rights of all parties.
2 The Transition to Electronic-Only Submissions
One of the primary effects of the covid-19 pandemic on international arbitration procedure has been the adoption of electronic-only submissions. As detailed below, while electronic submissions and electronic case management systems have been used by many arbitral institutions for years,12 the pandemic has accelerated the move away from hard-copy submissions.
The submission of pleadings and other documents in international arbitration is governed by rules that differ based on the stage of the proceeding: the submission of the request for arbitration and corresponding notification to the respondent(s) prior to the constitution of the tribunal generally is governed by the applicable arbitration rules and/or the applicable treaty or agreement, while the submission of pleadings and other documents following the constitution of the tribunal generally is governed by the procedural rules set by the tribunal and/or agreed between the parties.
Other institutions, such as the Hong Kong International Arbitration Centre (“hkiac”), the London Court of International Arbitration (“lcia”), the Singapore International Arbitration Centre (“siac”), the German Arbitration Institute (“dis”), and the World Intellectual Property Organization (“wipo”), allow the request for arbitration to be submitted in electronic and/or hard-copy form in rules published before the onset of the pandemic.16
In some instances, a party would request, and the tribunal would order, the production of documents in hard copy. In Gami Investments v. Mexico, for example, the tribunal ruled that the parties must provide hard copies of each
In early March 2020, arbitral institutions quickly recognized the impact of quarantine and lockdown orders on hard-copy filing requirements. On March 13, 2020, icsid announced that it was “taking further steps to reduce reliance on paper-filings in its cases” and that it would require “only an electronic copy of a request for arbitration . . . and any accompanying documents.”23 icsid also “encourage[d] parties to submit all written submissions . . . electronically,” with arbitrators “also encouraged to use electronic copies of case-related documents.”24 As icsid Secretary-General Meg Kinnear commented at the time, “[g]iven the state of information technology – and the ease with which participants in icsid cases have adapted to online file sharing in recent years – it made sense to make electronic filing the norm.”25
Shortly thereafter, the icc issued a similar “urgent communication” to “strongly advise” that all communications with the icc Secretariat be conducted by email, and that all requests for arbitration also be filed with the Secretariat by email.26 In July 2020, dis likewise announced that electronic submissions were the preferred method for all filings, observing that it “already foresees transmission to the dis electronically as the standard procedure.”27
In October 2020, the lcia adopted new Arbitration Rules that also reflect a shifting approach to hard-copy submissions. While the 2014 lcia Arbitration
The transition to electronic-only submissions brings substantial efficiencies to the arbitral process, reducing the time and expense previously required to prepare and ship hard copies to the relevant parties, including the arbitrators, opposing counsel, and the administering arbitral institution.30 As Ms. Kinnear observed when icsid moved to electronic-only submissions, “[t]he result will be cost and time-savings to parties.”31 Furthermore, smaller arbitral institutions may be able to rely on the investments that larger organizations have made with respect to electronic-filing software, further reducing overall costs.32
Eliminating hard-copy submissions also reduces the volume of paper in an arbitration, resulting in a more environmentally sustainable practice.33
Electronic submissions, however, are not without potential issues. One potential issue is whether the electronic submission of a request for arbitration provides adequate and sufficient notice of the dispute to the respondent. Unlike paper copies, the delivery of which can be confirmed by a courier or other package service, it may be difficult to ascertain whether the respondent, in fact, has received notice of a request for arbitration.36
In addition, the increased use of electronic submissions and online data storage has given rise to heightened concerns about cybersecurity and data protection in arbitration proceedings. In a 2019 survey, 90 percent of survey respondents agreed that cybersecurity was an “important issue” for international arbitration, with 11 percent indicating that they had experienced a cybersecurity breach in an arbitration.37
Given the high-stakes nature of many international arbitration disputes and the exchange of often highly confidential commercial information between the
Despite these concerns, the move towards electronic-only submissions likely will continue, given the efficiencies in time and expense, as well as the environmental benefits.
3 The Increased Use of Virtual Hearings
Before the covid-19 pandemic, the vast majority of arbitral hearings were held in person.41 The imposition of travel restrictions and quarantine requirements
At the outset of the pandemic, given the uncertainty surrounding the duration of the pandemic and related travel restrictions, several arbitral hearings were simply postponed.43 It soon became clear, however, that the pandemic would continue for the foreseeable future and that arbitration would need to adapt, so that hearings and resulting awards would not be delayed indefinitely.44
On March 16, 2020, several of the largest arbitral institutions, including the icc, icsid, the lcia, and the Vienna International Arbitral Centre, issued a joint statement, emphasizing their focus on “international arbitration’s ability to contribute to stability and foreseeability in a highly unstable environment, including by ensuring that pending cases may continue and that parties may have their cases heard without undue delay.”45 The institutions encouraged parties and tribunals to “mitigate the effects of any impediments to the largest extent possible while ensuring the fairness and efficiency of arbitral proceedings.”46
In addition, several arbitral institutions issued individual guidance specific to their proceedings. In an icsid press release issued on March 24, 2020 in light of the “unprecedented disruptions to travel” that had “spurred further interest in online hearings,” icsid noted that it already had measures in place
The icc likewise encouraged the use of virtual hearings where possible, noting that steps should be taken to guarantee “that parties are treated with equality and each party is given a full and fair opportunity to present its case during a virtual hearing,”49 while the hkiac noted that “whether or not a virtual hearing, in part or in full, is suitable for a particular matter remains a matter for the parties and the arbitral tribunal.”50
In addition, some arbitral institutions have issued new arbitration rules, which include a virtual option for hearings. In August 2020, the lcia issued guidance encouraging virtual hearings, noting that Article 19 of the amended lcia Arbitration Rules, effective in October 2020, would provide that hearings may take place “in person, or virtually by conference or videoconference or using other communications technology.”51
In October 2020, the icc also released new arbitration rules, effective in January 2021, which permit the arbitral tribunal to hold virtual hearings, after consultation with the parties.52 Similarly, in December 2020, the iba released
As a result of the covid-19 pandemic and the encouragement of arbitral institutions, the number of virtual hearings in international arbitration has greatly increased. In a 2018 survey, 64 percent of survey respondents reported that they had “never” used virtual hearings in international arbitration; by contrast, in a similar survey conducted in May 2021, 72 percent of respondents reported having used virtual hearings at least “sometimes.”55
Virtual hearings, however, present unique challenges and may not be suitable in all arbitration disputes, particularly where holding a hearing virtually may affect a party’s right to present its case or violate the principle of equal treatment of the parties.56 One party and its witnesses and experts, for example, may be located in a country with limited technological capabilities or internet connectivity, making it more difficult for that party to prepare for and participate in the hearing.57
Time zone differences also may be problematic.58 In a Survey conducted by White & Case and Queen Mary’s University of London and published in May
Virtual hearings also may limit the ability of the arbitrators to assess the credibility of fact and expert witnesses.61 At an in-person hearing, the arbitrators – as well as the counsel conducting the examination – are able to see the witness directly in front of them and assess not only the substance of his or her responses, but also his or her body language. Virtual hearings also prevent participants from assessing the reaction of other hearing participants on a real-time, in-person basis – which is particularly problematic given that a reported 55 percent of all communication is nonverbal.62 In light of these intangible aspects of in-person hearings, some commentators have questioned whether virtual hearings or trials conducted solely by video may constitute a due process violation in U.S. criminal cases.63
“Zoom fatigue” also is a legitimate concern, as video-conferencing requires increased energy to process facial emotions and body language.64 Particularly
As detailed above, the use of technology also increases the potential for cybersecurity breaches, including in virtual hearings. While numerous institutions have taken measures to ensure the use of high-security platforms for virtual hearings,67 there remains the potential for security breaches. In 2015, for example, hackers launched a cyber-attack on the Permanent Court of Arbitration (“pca”), the Ministry of Justice of the Philippines, and counsel to the Philippines in the midst of a highly-sensitive dispute between the Philippines and China regarding the South China Sea.68
While virtual hearings may continue to be used for procedural conferences and smaller hearings with no or few witnesses and experts, there are indications of a return to in-person hearings in at least some disputes. The hkiac, for example, resumed in-person hearings in March 2021, where “all parties have remained in Hong Kong continuously for the 14-day period prior to admittance, submit to temperature checks, and otherwise comply with its covid-19
4 Conclusion
Just as every other field has been forced to adapt in view of the covid-19 pandemic, so too has international arbitration. While many of the procedural changes seen since the outset of the pandemic were not entirely new to international arbitration, the pandemic has served to spur the transition towards electronic-only filings and virtual hearings, allowing cases to be heard and proceedings to continue. Perhaps due in part to their swift response to the challenges posed by the pandemic, the majority of major arbitral institutions experienced increased caseloads in 2020.71 siac more than doubled its caseload from 479 cases in 2019 to 1,000 cases in 2020, while the icc and the lcia also saw an increase in the number of cases registered in that same time period.72
While the transition towards electronic-only filings and virtual hearings have brought about efficiencies in both time and cost, as well as environmental
This Chapter was prepared for the University of Lausanne (“unil”) Conference on the Impact of covid on Dispute Resolution in October 2021. Any views expressed in this publication are strictly those of the authors and should not be attributed in any way to White & Case llp. White & Case means the international legal practice comprising White & Case llp, a New York State registered limited liability partnership, White & Case llp, a limited liability partnership incorporated under English law and all other affiliated partnerships, companies and entities. This chapter is prepared for the general information of interested persons. It is not, and does not attempt to be, comprehensive in nature. Due to the general nature of its content, it should not be regarded as legal advice. The Authors thank Meenu Mathews and Robin Liu for their research assistance in preparing this Article, and unil for the opportunity to present it.
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See, e.g., “Information Technology in International Arbitration- Report of the ICC Commission on Arbitration and ADR,” icc, accessed October 23, 2021,
Kevin Ongenae and Maud Piers, “Procedural Formalities in Arbitration: Towards a Technologically Neutral Legal Framework,” Journal of International Arbitration 38, no. 1 (2021): 33.
icsid Arbitration Rules, Rule 23; see also icsid (Additional Facility) Arbitration Rules, Article 3(3) (“The request shall be accompanied by five additional signed copies. . .”). Similarly, Article 3.1 of the Swiss Chambers’ Arbitration Institution Arbitration Rules “scai” (now known as the Swiss Arbitration Centre Ltd.,
icc Arbitration Rules 2017, Article 4.4.
hkiac Administered Arbitration Rules 2018, Arts. 3.1, 4.1 (“Any written communication pursuant to these Rules shall be deemed to be received by a party, arbitrator, emergency arbitrator or hkiac if . . . communicated to the address, facsimile number and/or email address communicated by the addressee.”); lcia Arbitration Rules 2014, Art. 1.3 (“The Claimant may use, but is not required to do so, the standard electronic form available on-line from the lcia’s website for lcia Requests.”); siac Arbitration Rules 2016, Art. 2.1 (“Any such notice, communication or proposal may be delivered by hand, registered post or courier service, or transmitted by any form of electronic communication (including electronic mail and facsimile), or delivered by any other appropriate means that provides a record of its delivery.”); dis Arbitration Rules 2018, Arts. 4.1, 4.2, 4.3 (“Requests for Arbitration pursuant to Article 5 and Article 19 shall be sent to the dis in paper form as well as in electronic form.”); wipo Arbitration Rules 2002, Art. 4(a) (“Any notice or other communication that may or is required to be given under these Rules shall be in writing and shall be delivered by expedited postal or courier service, or transmitted by telefax, e-mail or other means of telecommunication that provide a record thereof.”).
Prior to the pandemic, some arbitral institutions already had adopted electronic-only submissions as their preferred transmission method. See, e.g., Netherlands Arbitration Institute (“nai”) Arbitration Rules 2015, Art. 3.2 (providing that “[u]nless the sender is unable to do so, all requests, communications and other documents to the administrator, the Committee, the third person as referred to in Article 39 and/or the nai shall only be sent electronically by e-mail. . .”). Other institutions had developed online filing systems to facilitate electronic submissions before the pandemic. See, e.g., “Ad Hoc Platform – Powered By the SCC,” scc, accessed July 16, 2021,
lcia Arbitration Rules 2014, Art. 4.3 (“Delivery by electronic means (including e-mail and facsimile) may only be effected to an address agreed or designated by the receiving party for that purpose or ordered by the Arbitral Tribunal.”).
lcia Arbitration Rules 2014, Art. 4.1.
See, e.g., hkiac Administered Arbitration Rules 2018, Arts. 3.1, 4.1 (“Any written communication pursuant to these Rules shall be deemed to be received by a party, arbitrator, emergency arbitrator or hkiac if … communicated to the address, facsimile number and/or email address communicated by the addressee.”); siac Arbitration Rules 2016, Art. 2.1 (“Any such notice, communication or proposal may be delivered by hand, registered post or courier service, or transmitted by any form of electronic communication …”); dis Arbitration Rules 2018, Art. 4.1 (“[A]ll Submissions of the parties and the arbitral tribunal to the dis shall be sent electronically, by email, or on a portable storage device, or by any other means of electronic transmission that has been authorized by the dis.”); wipo Arbitration Rules 2002, Art. 4(a) (“Any notice or other communication that may or is required to be given under these Rules shall be in writing and shall be delivered by expedited postal or courier service, or transmitted by telefax, e-mail or other means of telecommunication that provide a record thereof.”).
See Gami Investments Inc v. The Government the United Mexican State, Procedural Order No. 1, last modified January 30, 2003,
See Mobil Investments Canada Inc. v. Canada (icsid Case No. arb/15/6), Procedural Order No. 1, last modified November 24, 2015,
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“lcia Arbitration Rules (2014),” lcia, last modified October 1, 2014,
lcia Arbitration Rules 2020, Art. 1.3. icsid also currently is in the process of conducting an extensive review to amend its rules and regulations, with the fifth and most recent Working Paper on the amendments providing that the request for arbitration “shall be filed electronically.” See “Working Paper #5,” icsid, accessed June 15, 2021,
See, e.g., Patricia Shaughnessy, “Initiating and Administering Arbitration Remotely,” in International Arbitration and the COVID-19 Revolution (Wolters Kluwer, 2020), 37; “Working Group on LegalTech Adoption in International Arbitration,” in Protocol for Online Case Management in International Arbitration (2020), 3,
“icsid Makes Electronic Filing its Default Procedure,” icsid, last modified March 16, 2020,
Patricia Shaughnessy, “Initiating and Administering Arbitration Remotely,” in International Arbitration and the COVID-19 Revolution (Wolters Kluwer, 2020), 39 (“Institutions that are connected to a larger organization, such as a Chamber of Commerce, may be able to benefit from the larger organization’s investment into digitalization and it use development and support. In the context of the pandemic, some such ‘integrated’ institutions received support from the larger organization in moving to remote service.”).
See Mohit Mahla and Kabir A.N. Duggal, “When the Answer is Becoming the Question: Impact of Arbitrations on the Environment,” Kluwer Arbitration Blog, last modified November 29, 2020,
See Gillian Carmichael Lemaire, “Paperless Arbitrations – Where Do We Stand?,” Kluwer Arbitration Blog, last modified February 19, 2014,
“The Green Pledge Guiding Principles,” Campaign for Greener Arbitrations, accessed June 24, 2021,
See, e.g., Communs. Network Int’l, Ltd. v. mci WorldCom Communs., Inc., 708 F.3d 327, 331 (2d Cir. 2013) (providing an example of a defendant failing to receive notice because said notice was sent to defendant’s former email address).
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See, e.g., “Urgent COVID-19 message to the DRS community,” icc, last modified March 17, 2020,
Patricia Shaughnessy, “Initiating and Administering Arbitration Remotely,” in International Arbitration and the COVID-19 Revolution (Wolters Kluwer, 2020), 28 (“Out of necessity, the arbitration community is forging new approaches to arbitration that employ existing and new procedures, tools, and technology.”).
“Arbitration and COVID-19,” icc, accessed October 23, 2021,
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lcia Arbitration Rules 2014. This was a notable change from the previous 2014 version of the lcia rules, which contained no reference to virtual hearings. See also “Notable amendments in the 2020 Rules,” White & Case llp, last modified August 13, 2020,
“Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration Under the ICC Rules of Arbitration,” icc, last modified January 1, 2021,
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iba Rules on the Taking of Evidence in International Arbitration 2020.
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See, e.g., Alan Redfern, et al., Redfern And Hunter On International Arbitration, 5th ed. (Oxford University Press, 2009), § 10.47 (providing that fundamental principles of due process require arbitral tribunals “to ensure that the parties [have] . . . a full and proper opportunity to present their respective cases”); Jeffrey Waincymer, “Reconciling Conflicting Rights in International Arbitration: The Right to Choice of Counsel and the Right to an Independent and Impartial Tribunal,” Arbitration International 26, no. 1 (2010): 597–598 (“Perhaps the most central procedural rights of a party are the right to equal treatment and the right to an adequate opportunity to present its case”).
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White & Case llp, supra note 55.
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See, e.g., “A Brief Guide to Online Hearings at ICSID,” International Centre for Settlement of Investment Disputes, last modified March 24, 2020,
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Neil A.F. Popović and James V. Fazio, “Insisting on Live, In-Person Arbitration Hearings During the Pandemic,” National Law Review, accessed March 9, 2021,
“icc Hearing Centre reopens doors for physical presence dispute resolution hearings,” icc, last modified July 1, 2020,
Simon Chapman and Jacob Sin, “Rise in arbitration cases in 2020 despite reduced volume of in person hearings due to coronavirus pandemic,” Lexology, last modified March 3, 2021,
Id.; “Annual Casework Report 2019 – The LCIA Records its Highest Number of Cases,” last modified May 19, 2020,