1 Introduction*
The right to be heard as a fundamental characteristic of arbitration does not include a right to an in-person hearing, not even in evidentiary hearings.1 However, in practice, an in-person hearing is often considered a cornerstone of international arbitration proceedings, and almost tantamount to due process. The covid-19 pandemic was a shock to this established system and the assumption of many that in-person hearings were a natural element of any arbitration proceeding. The social restrictions imposed by the pandemic, accompanied by governmental measures to restrict travel across borders, have raised with ever more strength the question whether an in-person hearing is really necessary – under the applicable arbitration rules as well as in practice. As this study will show, although the transition to virtual or remote hearings happened quickly and surprisingly smooth, some parties in investment arbitration raised their concerns about the continued use of the virtual hearing format when the health emergency subsides. It is possible that a growing number of hearings in investment cases will again take place in person.
This article analyzes the rules applicable to international arbitration and the practice of investment arbitration tribunals that held or will hold remote hearings during the pandemic. The goal is to determine whether the virtual format in this type of arbitration (1) has infringed upon the parties’ procedural rights, (2) is a legitimate way of advancing an arbitration at times when in-person hearings may be considered too dangerous for health reasons, or impractical because of governmental limitations on travel and free movement, or (3) is a realistic option for the future, even when the pandemic is fully overcome and no restrictions to free movement exist.
2 Virtual Hearings and Arbitration Rules of International Arbitral Institutions
2.1 icsid and uncitral Rules: Reaffirming the Powers of Arbitral Tribunals
Reacting to the covid-19 pandemic, arbitral institutions large and small have continued their alternative dispute resolution services through different electronic means of communication. The icsid Secretariat, and the tribunals constituted pursuant to the icsid rules, as well as others following icsid Additional Facility and uncitral rules, quickly adapted to the new realities and provided their services primarily through electronic means of communication.
Any arbitration proceeding shall be conducted in accordance with the provisions of this Section and, except as the parties otherwise agree, in accordance with the Arbitration Rules in effect on the date on which the parties consented to arbitration. If any question of procedure arises which is not covered by this Section or the Arbitration Rules or any rules agreed by the parties, the Tribunal shall decide the question.4
Article 32 of the icsid Arbitration Rules refers to the hearing, although it does not specify if the oral presentations must be done in person or by any virtual means. Consequently, the rules leave a broad margin of discretion to the arbitral tribunal to give effect to these provisions. Furthermore, Rule 26 of the Administrative and Financial Rules of icsid provides that the Secretary General “shall make or supervise arrangements if proceedings are held elsewhere,” referring to a place different than the Center.5
Article 17(1) of the 2013 uncitral Arbitration Rules similarly provides arbitral tribunals with wide discretion to fill gaps and take procedural decisions.6 Neither icsid nor uncitral have modified their arbitration rules to reflect any concerns about the pandemic’s challenges. For the arbitrations that follow those rules, the tribunals themselves provided solutions to these challenges in exercising their powers to conduct the procedure in accordance with the chosen arbitration rules. In addition, some already existing rules became relevant, such as Article 28(4) of the 2013 uncitral Arbitration Rules, which allows for the examination of witnesses and experts through means of telecommunication such as videoconferencing.7
2.2
In contrast, several privately-run arbitral institutions amended their rules with the main purpose of including the possibility for arbitral tribunals to use virtual means of communication and other technology in the administration of justice, including for conducting virtual hearings. Any such powers emerge from the tribunals’ general powers – after giving the parties a reasonable opportunity to state their views – to make any procedural order they consider appropriate, with regard to the fair, efficient, and expeditious conduct of the arbitration.8
To further clarify the scope of the arbitral tribunals’ broad powers, the icc in early 2021 amended Article 26(1) of the icc Rules of Arbitration to provide that the arbitral tribunal may decide, after consulting the parties, and on the basis of the relevant facts and circumstances of the case, that any hearing will be conducted in person or remotely by videoconference, telephone or other appropriate means of communication.9 Before the addition of Article 26(1) to the icc Rules, the icc adopted the “icc Guidance Note on Possible Measures Aimed at Mitigating the Effects of the covid-19 Pandemic” on April 9, 2020, to guide parties, arbitrators, and counsel with management case techniques and the use of technological means of communication and videoconferencing to mitigate the adverse effects of the covid-19 pandemic on arbitrations.10 The Guidance Note develops the idea that the arbitral tribunal should strive to hold hearings virtually if it is not possible to hold a face-to-face hearing in a reasonable time, and that waiting until it becomes possible would produce unwarranted or prejudicial delay.11
The Guidance Note provides for the various scenarios in which either the parties or the tribunal determine that an in-person hearing is indispensable
Additionally, other institutional rules support the use of technology to increase the efficiency, economy, and expeditious conduct of the arbitration, including the hearings.17 The Singapore International Arbitration Centre (siac) and the Stockholm Chamber of Commerce scc Arbitration Rules implicitly refer to the use of technology by providing for the holding of a hearing “by any other means.”18
In August 2020, the Secretariat of the siac issued a document titled “Taking Your Arbitration Remote” as a guide with considerations about the benefits and the risks of adopting remote hearings in the conduct of the arbitration proceeding, as a viable alternative to traditional in-person hearings.19 While admitting the availability of remote hearings, the guide also recognizes that
Despite this expansion of the permissive terms allowing for the use of technology to hold hearings remotely and the arbitral tribunals’ discretion in the conduct of the arbitration, there is some concern that the parties may not be treated equally, that each party may not be given the right to be heard or a fair opportunity to present its case. In response to these concerns, the rules exhort the arbitrators to balance potential impacts on the right to be heard with the need to limit unnecessary delays and expense of the arbitration proceeding.21
2.3 The 2020 Amendment of the iba Rules Affecting Evidentiary Hearings
On the other hand, regarding the taking of evidence, the International Bar Association (iba) did not lag behind and the “iba Rules on the Taking of Evidence in International Arbitration” were amended as a resource to parties and to arbitrators to provide an efficient, economical, and fair process for the taking of evidence in international arbitration, among other things, by including a provision on remote hearings.22
Article 8.2 of the iba Rules indicates that, at the request of a party or on its own motion, the arbitral tribunal may, after consultation with the parties, order that the evidentiary hearing be conducted as a remote hearing. In this situation, the arbitral tribunal shall consult with the parties with a view to establishing a Remote Hearing Protocol to conduct the remote hearing efficiently, fairly and, to the extent possible, without unintended interruptions.23
In either case, the tribunal’s power to decide on remote hearings is not without limits. Among other things, the tribunal’s power is limited by the parties’ agreement and the parties’ right to be heard and treated equally, so as to render an enforceable award.25
3 Application of the Tribunals’ Powers under Arbitration Rules: The Experience in Investment Arbitration
Numerous investment tribunals were surprised by the announcement of the global pandemic in March 2020 and the ensuing governmental restrictions on international travel, free movement, and professional activities. As the previous section has shown, the arbitration rules grant broad discretion to arbitrators. These rules impose upon the arbitrators an overarching mandate to conduct the proceeding in a cost-effective manner and to arrive at an enforceable outcome. The following section will review how tribunals have exercised these powers.
This analysis focuses on the discussions between the parties and tribunals about postponement or suspension of proceedings, extensions of deadlines, and other procedural exceptions, as well as the treatment of jurisdiction and merits, hearings on provisional measures, hearings in annulment proceedings, and other in-person meetings.
3.1 Suspensions of Proceedings, Extensions of Deadlines, and Other Procedural Exceptions
Parties ask the arbitral tribunal to suspend proceedings if the circumstances make it impossible to continue following the procedural schedule agreed upon at the outset of the proceeding.
The situation is different when the parties are not in an agreement as to the extension of deadlines or suspension of proceedings. In the case of Ayat Nizar Raja Rumrain et al. v. Kuwait, both parties were initially in agreement as to the need to suspend the proceedings due to the pandemic and whether the first session of the tribunal should be postponed for 60 days.27 The tribunal recorded the agreement in a letter dated April 9, 2020.28 However, shortly afterwards, in a letter dated April 10, claimant changed its position in favor of continuing the proceedings as originally scheduled, and in particular, not to extend for 60 days the deadline to hold the first session.29 Claimant also provided information on the urgency to rule on its request for provisional measures.30 In this context of deciding on the request for suspension of proceedings and the claimant’s request for provisional measures, the tribunal took into consideration that it has the discretion, under Article 44 of the icsid Convention, to decide on “any question of procedure [that] arises which is not covered by this Section or the Arbitration Rules or any rules agreed by the parties.”31 The tribunal interpreted this provision by stating it has the power to suspend upon the showing of good cause.32
El Tribunal ve confirmada su postura a este respecto por la práctica en otros procedimientos, en los cuales la presentación de escritos pudo haberse retrasado, en la medida de lo razonable, y las audiencias se han reprogramado (o realizado por medios telemáticos), pero el procedimiento no se ha suspendido ni se ha determinado que fuese imposible continuar.35
El Tribunal no se refiere a las citadas solicitudes con el objetivo de insinuar que el Demandado haya pretendido dilatar el procedimiento mediante la presentación de una serie de solicitudes de ampliación de plazo
por diversos motivos. Al Tribunal no le cabe duda de que el Demandado y sus abogados han actuado de buena fe. De hecho, el Tribunal concedió una de las solicitudes del Demandado en consideración a la situación de Bolivia en dicho momento. El Tribunal se remite a la historia procesal a fin de puntualizar que, desde su punto de vista, el Demandado ha disfrutado de un largo periodo para preparar su edc [Escrito de Contestación] antes del surgimiento de la pandemia de covid-19.36
The pandemic has also led to other procedural innovations or adaptions, such as the sole electronic filing of memorials by the parties instead of paper versions of those documents. For instance, in the case of Gerald International Limited v. Republic of Sierra Leone, the arbitral tribunal recognized the pandemic-related restrictions in force in various countries as sufficient justification for not having to present physical copies of the memorials.37
3.2 Hearings on Jurisdiction and Merits
- 8.2By agreement of the Parties, the hearing scheduled for November 15–24, 2021 as per the procedural calendar set out at Annex 1 shall be held at the facilities of the International Centre for Settlement of Investment Disputes (icsid) at Washington, D.C., USA.
- 8.3
The Tribunal may order that any hearing take place by video conference in lieu of in person, if the circumstances so require, following consultation with the Parties.42
This language shows the agreement of the parties favoring an in-person hearing, but if the circumstances did not allow for that hearing to take place at the agreed date, a virtual hearing would suffice.43 In the Procedural Orders, the tribunals generally did not specify the detailed criteria followed to determine whether the hearing should be virtual or in-person. In some cases, however, such as Latam Hydro llc and ch Mamacocha S.R.L. v. Republic of Peru, the tribunal specified in more detail that it would consider “whether the circumstances at that time make it difficult, burdensome or dangerous to have an in-person hearing.”44 In the case of Omega Engineerings v. Panama, the parties disagreed on the modalities of the hearing, prompting a postponement to October 2020.45 When it became clear that it would not be possible to hold that hearing in person, both parties consented to a virtual hearing.46
Both parties’ consent was also required in the case of Resolute Forest v. Canada, where the parties initially agreed to postpone the in-person hearing from May to November 2020.47 Thanks to the parties’ agreement, the tribunal was able to schedule a virtual hearing in November 2020 instead of an in-person meeting.48 Similarly, in Alberto Carrizona v. Colombia, the parties requested one postponement at the beginning of the pandemic with the aim of preserving the possibility of holding an in-person hearing.49 However, the parties avoided a second postponement by agreeing in October 2020 to a virtual hearing to be held in December 2020.50
The Parties agree to hold the hearing virtually due to the current covid-19 pandemic. The Parties further agree not to challenge the Tribunal’s Award in any subsequent proceeding solely on the basis that the hearing was held virtually rather than in person. Such a stipulation, however, will not bar a Party from challenging an award based upon the manner in which a remote video proceeding was actually conducted.53
There has not yet been any annulment request against an award on grounds that the virtual hearing impaired a party’s rights. Hence, it has not yet been tested if such an explicit waiver is necessary.
However, there are some cases – which are clearly outliers – in which tribunals followed a more restrictive approach. These tribunals allowed virtual hearings for most procedural issues, except for specific types of hearings. For example, in Red Eagle Exploration Limited v. Republic of Colombia, the tribunal expressly confirmed that the hearing on jurisdiction and the hearing on liability would have to be in-person.54
[…] remained concerned about the health and safety of all hearing participants, who would be gathered in the same room for long days and would need to travel to the hearing venue, some of them on long haul flights. Further, it could not be ruled out that one or more of the participants would eventually be unable to attend the hearing due to travel restrictions or health reasons, which could jeopardize the hearing and cause a last-minute postponement or require an additional hearing, neither of which would be time nor cost efficient.56
However, as the date of the hearing approached, the parties again disagreed on the modalities of the hearing, and the hearing was again postponed to July 2021.57 For February 2021, the tribunal also conveyed a hearing on provisional measures, which both parties attended without objection.58
In addition, at least two other tribunals did not modify the initially established in-person mode of the hearing after the pandemic broke out.59
Another approach to the hearing could be to only allow individual and specific witnesses to be connected remotely, in the event that health reasons prevent them from attending the in-person hearing. This possibility was expressed in The Lopez-Goyne Family Trust v. Nicaragua, where the tribunal stated that “[e]xceptionally, if a witness is unable to appear personally at the hearing on the merits for reasons of health or force majeure, the Tribunal may permit alternative arrangements (such as videoconference facilities), upon
3.3 Hearings on Requests for Provisional Measures
In deciding whether or not to exercise this discretion in the present circumstances, the Tribunal will weigh the prejudice that may be suffered by the Claimants in not having its request for provisional measures adjudicated upon immediately against the prejudice that may be suffered by the Respondent in having to defend itself under the constraints imposed by the covid-19 pandemic. This balancing exercise essentially focuses on two issues that the Tribunal anticipated in its letter of 9 April 2020: the urgency of the Claimants’ request for provisional measures against the severity of the constraints upon the Respondent resulting from governmental policies to deal with the covid-19 pandemic.62
In this specific case, the tribunal considered that if the respondent provided an “undertaking” in which it would commit to not enforcing an eviction order against the claimants from the construction site that was the object of the underlying dispute, it may not be necessary for the claimants to insist on their request for provisional measures.63 The tribunal ultimately did not adopt provisional measures.
3.4
Following the practice of the tribunal when setting up hearings in regular icsid proceedings, as described in the previous sections, the hearing in icsid Annulment Procedures may be held in-person or by any other means of communication as determined by the Committee after consultation with the parties.64
[T]he impression should not be conveyed to the Committee that the Respondent has given its unqualified consent to a virtual hearing. Rather, that the Respondent does not dispute that, in the context of the Committee’s previous directions and the prevailing covid-19 conditions, the hearing will be a virtual one, but one which will have to build into the modalities of the hearing conditions which satisfy the Respondent that the standards of the hearing equate to an in- person hearing.65
This statement shows that this State did not consent in general to the possibility of virtual hearings, despite the fact that today, it is technically possible. The State considered that an in-person hearing on important procedural aspects could still be necessary.
3.5 Other Hearings and In-Person Meetings
In the case of InfraRed Environmental Infrastructure gp Limited et al. v. Kingdom of Spain, the tribunal held a virtual hearing to decide on the stay
According to paragraph (4) of Rule 54 of the icsid Arbitration Rules, a request “shall only be granted after the Tribunal or Committee has given each party an opportunity of presenting its observations.”70 In this regard, the Committee first noted that it granted the Parties two rounds of written submissions on the stay request.71 Second, the Committee conducted a virtual hearing due to the covid-19 pandemic and listened to the parties’ oral arguments on whether or not to continue the stay of enforcement of the Award. Finally, the Committee provided the parties with several opportunities to introduce new documents to the record in support of their positions, and to comment on their own documents and on the ones submitted by the other side.72 This case is relevant, as it puts the virtual hearing into context with other ways of allowing the parties to make their case, such as the introduction of new documents to the record, the formulation of comments on the documents from the other party, and the existence of numerous rounds of written submissions. In another case, Westmoreland Mining Holding llc v. Canada, the hearing on bifurcation was set to be conducted through a video conference in September 2020.73 Some tribunals also explicitly clarified that other procedural moments,
4 Conclusions
While in international commercial arbitration most prominent international arbitration centers have provided some type of guidance for virtual hearings and other technological innovations to address the challenges of the covid-19 pandemic, international investment arbitration has largely been relying on the initiatives of the parties and the arbitral tribunals to deal with these issues. Quickly, a practice emerged according to which the parties either consented to the tribunals’ proposal of holding virtual meetings, or to do so after one postponement, especially when the hearing was scheduled in the early weeks or months after the announcement of the pandemic. At that time, the uncertainty about the effects of the virus and the severe travel restrictions made it appropriate to postpone. Most of the hearings took place remotely. Seemingly, there has been little controversy between the parties involved as to the acceptability of the virtual format of hearings, including evidentiary hearings. In addition, this shift led to other procedural innovations or adaptions, such as the sole electronic filing of memorials by the parties instead of paper versions of those documents.
We identified only one tribunal that had explicitly included, into its procedural documents, a waiver of any means of appeal or challenge against an award that resulted from a remote hearing. In most other cases, both parties implicitly seemed to consent to a virtual hearing and renounced any challenge
This survey also shows that the parties’ and arbitral tribunals’ acceptance to hold remote hearings was due to the severe restrictions imposed by the covid-19 pandemic. The parties – particularly the States – made it clear on several occasions that they agreed to virtual hearings only as a response to the exceptional circumstances created by the pandemic. This exceptionalism seems to imply that in the event the world returns to normalcy, in which no health threats and no travel restrictions exist, the States will again require in-person hearings. In sum, remote hearings in investment arbitration – especially those involving witness testimony – will not fully substitute the in-person format of traditional hearings. This may seem surprising in light of the fact that parties usually consent to the virtual format and, until now, have not raised challenges against the procedure or the final award. It is also surprising because the States have traditionally criticized the high cost of investment arbitration procedures. While the virtual format saves costs, and seemingly does not impair the parties’ procedural rights, these higher costs may be accepted as a worthwhile price to pay for a procedure that is perceived to be more respectful of the parties’ rights.
Arbitral Institution |
Relevant Extract of Arbitration Rules |
Guidelines or Protocols for Virtual Hearings/Use of Technology |
|---|---|---|
International Centre for Settlement of Investment Disputes (icsid) icsid Convention |
Article 44. Any arbitration proceeding shall be conducted in accordance with the provisions of this Section and, except as the parties otherwise agree, in accordance with the Arbitration Rules in effect on the date on which the parties consented to arbitration. If any question of procedure arises which is not covered by this Section or the Arbitration Rules or any rules agreed by the parties, the Tribunal shall decide the question. |
|
United Nations Commission on International Trade Law (uncitral) 2013 uncitral Arbitration Rules |
Article 17(1). Subject to these Rules, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at an appropriate stage of the proceedings each party is given a reasonable opportunity of presenting its case. The arbitral tribunal, in exercising its discretion, shall conduct the proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the parties’ dispute. |
|
International Chamber of Commerce (icc) 2021 Arbitration Rules of the icc |
Article 22(1). The arbitral tribunal and the parties shall make every effort to conduct the arbitration in an expeditious and cost-effective manner, having regard to the complexity and value of the dispute. Article 22(2). In order to ensure effective case management, after consulting the parties, the arbitral tribunal shall adopt such procedural measures as it considers appropriate, provided that they are not contrary to any agreement of the parties. Such measures may include one or more of the case management techniques described in Appendix iv. Article 22(4). In all cases, the arbitral tribunal shall act fairly and impartially and ensure that each party has a reasonable opportunity to present its case. Article 26(1). The arbitral tribunal may decide, after consulting the parties, and on the basis of the relevant facts and circumstances of the case, that any hearing will be conducted by physical attendance or remotely by videoconference, telephone or other appropriate means of communication. |
icc Guidance Note on Possible Measures Aimed at Mitigating the Effects of the covid-19 Pandemic |
London Court of International Arbitration (lcia) 2020 Arbitration Rules of the lcia |
14.1 Under the Arbitration Agreement, the Arbitral Tribunal’s general duties at all times during the arbitration shall include: (i) a duty to act fairly and impartially as between all parties, giving each a reasonable opportunity of putting its case and dealing with that of its opponent(s); and (ii) a duty to adopt procedures suitable to the circumstances of the arbitration, avoiding unnecessary delay and expense, so as to provide a fair, efficient and expeditious means for the final resolution of the parties’ dispute. |
|
14.5 Without prejudice to the generality of the Arbitral Tribunal’s discretion, after giving the parties a reasonable opportunity to state their views, the Arbitral Tribunal may, subject to the lcia Rules, make any procedural order it considers appropriate with regard to the fair, efficient and expeditious conduct of the arbitration. |
||
14.6 The Arbitral Tribunal’s power under Article 14.5 includes the making of any procedural order with a view to expediting the procedure to be adopted in the arbitration by: (iii) employing technology to enhance the efficiency and expeditious conduct of the arbitration (including any hearing); |
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19.2 The Arbitral Tribunal shall organise the conduct of any hearing in advance, in consultation with the parties. The Arbitral Tribunal shall have the fullest authority under the Arbitration Agreement to establish the conduct of a hearing, including its date, duration, form, content, procedure, time limits and geographical place (if applicable). As to form, a hearing may take place in person, or virtually by conference call, videoconference or using other communications technology with participants in one or more geographical places (or in a combined form). As to content, the Arbitral Tribunal may require the parties to address specific questions or issues arising from the parties’ dispute. The Arbitral Tribunal may also limit the extent to which questions or issues are to be addressed. |
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American Arbitration Association – International Center for Dispute Resolution (aaa/icdr) 2021 International Arbitration Rules |
Article 22(1). Subject to these Rules, the arbitral tribunal may conduct the arbitration in whatever manner it considers 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 22(2). In establishing procedures for the case, the tribunal and the parties may consider how technology, including video, audio, or other electronic means, could be used to increase the efficiency and economy of the proceedings. |
Virtual Hearing Guide for Arbitrators and Parties Virtual Hearing Guide for Arbitrators and Parties Utilizing zoom Order and Procedures for a Virtual Hearing via Videoconference |
Singapore International Arbitration Centre (siac) 2016 Arbitration Rules of the siac |
Rule 19.1 The Tribunal shall conduct the arbitration in such manner as it considers appropriate, after consulting with the parties, to ensure the fair, expeditious, economical, and final resolution of the dispute. Rule 19.3 As soon as practicable after the constitution of the Tribunal, the Tribunal shall conduct a preliminary meeting with the parties, in person or by any other means, to discuss the procedures that will be most appropriate and efficient for the case. |
Taking Your Arbitration Remote |
Rule 19.7 The President may, at any stage of the proceedings, request the parties and the Tribunal to convene a meeting to discuss the procedures that will be most appropriate and efficient for the case. Such meeting may be conducted in person or by any other means. |
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Rule 41.2 In all matters not expressly provided for in these Rules, the President, the Court, the Registrar and the Tribunal shall act in the spirit of these Rules and shall make every reasonable effort to ensure the fair, expeditious and economical conclusion of the arbitration and the enforceability of any Award. |
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Arbitration Institute of the Stockholm Chamber of Commerce (scc) 2017 Arbitration Rules of the scc |
Article 23(1). The Arbitral Tribunal may conduct the arbitration in such manner as it considers appropriate, subject to these Rules and any agreement between the parties. |
scc Platform Guidelines Ad Hoc Platform Guidelines scc Express Guidelines |
Article 23(2). In all cases, the Arbitral Tribunal shall conduct the arbitration in an impartial, efficient and expeditious manner, giving each party an equal and reasonable opportunity to present its case. Article 28(2). The case management conference may be conducted in person or by any other means. |
All web pages referenced in this article are updated to October 2021. The authors thank Charlene Mwaura for her editorial revision of this article.
Jurisdictions in many countries have recognized the right to be heard, but not gone so far to require a right to an oral (in-person) hearing. See, for instance, in Switzerland the case of X. et consorts contre Z. GmbH, Swiss Federal Tribunal Judgment, 4A_342/2015 of April 26 2016, bge 142 iii 360, at 4.1.1.: “Le droit d’être entendu, tel qu’il est garanti par les art. 182 al. 3 et 190 al. 2 let. d ldip (rs 291), n’a en principe pas un contenu différent de celui consacré en droit constitutionnel (atf 127 iii 576 consid. 2c; atf 119 ii 386 consid. 1b; atf 117 ii 346 consid. 1a p. 347). Ainsi, il a été admis, dans le domaine de l’arbitrage, que chaque partie avait le droit de s’exprimer sur les faits essentiels pour le jugement, de présenter son argumentation juridique, de proposer ses moyens de preuve sur des faits pertinents et de prendre part aux séances du tribunal arbitral (atf 127 iii 576 consid. 2c; atf 116 ii 639 consid. 4c p. 643). En revanche, le droit d’être entendu n’englobe pas le droit de s’exprimer oralement (atf 117 ii 346 consid. 1b; atf 115 ii 129 consid. 6a p. 133 et les arrêts cités). […]”.
“IBA Rules on the Taking of Evidence in International Arbitration,” International Bar Association (iba), adopted by a resolution of the iba Council, December 17, 2020,
“iba Rules on the Taking of Evidence in International Arbitration,” International Bar Association, December 17 2020, 8,
Art. 44 of the Convention on the Settlement of Investment Disputes between States and Nationals of other States (“icsid Convention”), signed at Washington, D.C. on March 18, 1965 and entered into force on October 14, 1966, 575 u.n.t.s. 159.
Rule 26 of the icsid Administrative and Financial Rules.
Article 17(1) of the uncitral Arbitration Rules, in their latest version of 2013, grants the arbitral tribunal the power to conduct the arbitration as it considers appropriate, provided that the parties are treated with equality and that each party is given a reasonable opportunity of presenting its case at an appropriate stage of the proceedings. The arbitral tribunal, in exercising its discretion, shall conduct the proceedings in such a way to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the parties’ dispute. See Article 17(1) of the unictral Arbitration Rules, available online at
Art. 28(4) of the uncitral Arbitration Rules, as revised in 2010: “The arbitral tribunal may direct that witnesses, including expert witnesses, be examined through means of telecommunication that do not require their physical presence at the hearing (such as videoconference).”
For example, Articles 22(2) of the 2021 Rules of Arbitration of the International Chamber of Commerce (icc), 14(5) and 19(2) of the 2020 Arbitration Rules of the London Court of International Arbitration (lcia), 22(1) of the 2021 International Arbitration Rules of the American Arbitration Association International Center for Dispute Resolution (aaa-icdr), Rule 19(1) of the 2016 Arbitration Rules of the Singapore International Arbitration Centre (siac), and Article 23(1) of the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (scc).
icc, Rules of Arbitration, 2021, Art. 26(1), second phrase.
“ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic,” International Chamber of Commerce, April 9, 2020,
Id. at 5, para. 25.
Id. at paras. 19–20.
Id. at para. 21.
Id. at paras. 18 and 22.
Id. at para. 22. This rule is also reflected in Article 42 of the icc Arbitration Rules, which mandates that the arbitrators should interpret and fill gaps in such a way that the procedure leads to an enforceable award.
Id. at 4, paras. 21 and 22.
Article 14.6 (iii) of the 2020 lcia Arbitration Rules and Article 22(2) of the 2021 aaa-icdr International Arbitration Rules.
Articles 19.3 and 19.7 of the 2016 Arbitration Rules of the Singapore International Arbitration Centre (siac) and 28(2) Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (scc).
“Taking Your Arbitration Remote,” Singapore International Arbitration Centre, August 31, 2020,
Id.
Articles 22(4) of the 2021 icc Rules of Arbitration, 14.1 of the 2020 lcia Arbitration Rules, 22(1) of the 2021 aaa-icdr International Arbitration Rules, Rule 41.2 of the 2016 siac Arbitration Rules, and Article 23(2) of the scc Arbitration Rules.
“IBA Rules on the Taking of Evidence in International Arbitration,” International Bar Association (iba), adopted by a resolution of the iba Council December 17, 2020,
Id. at 20, Article 8.2. The Rules also highlight some minimum requirements that the Remote Hearing Protocol may address the technology to be used; advance testing of the technology or training in use of the technology; the starting and ending times considering, in particular, the time zones in which participants will be located; how documents may be placed before a witness or the Arbitral Tribunal; and measures to ensure that witnesses giving oral testimony are not improperly influenced or distracted. Id. at 20–21.
See also Maxi Scherer, Niuscha Bassiri, and Mohamed S. Abdel Wahab, International Arbitration and the COVID-19 Revolution (Kluwer Law International, 2020), 76.
Id.
Tennant Energy, LLC v. Government of Canada, pca Case No. 2018–54, José Luis Aragón Cardiel (pca), email to the parties of July 4, 2020, re Modification of the Procedural Schedule.
Ayat Nizar Raja Sumrain and others v. State of Kuwait, icsid Case No. arb/19/20, Decision on Request for Suspension of Proceedings and on Request for Provisional Measures, April 23, 2020, para. 1.
Id.
Id. at para. 2.
Id. at para. 5.
Id. at para. 8.
Id.
Case of 1. The Estate of Julio Miguel Orlandini-Agreda, 2. Compañía Minera Orlandini Ltda v The Plurinational State of Bolivia, pca Case 2018–39, Procedural Order No 7, Respondent’s Request for Suspension of the Time-limit for the Submission of its Statement of Defense, April 10, 2020, para. 41.
Id. at para. 31.
Id. at para. 38. English translation (ours): “The Court considers that the practice in other proceedings confirms its position. In those proceedings, it was possible to delay the submission of briefs, as far as reasonable, and the hearings have been rescheduled (or carried out by telematic means), but the procedure has not been suspended nor has it been determined that it was impossible to continue.”
Id. at para. 35. English translation (ours): “The Tribunal does not refer to the aforementioned requests with the aim of insinuating that the Respondent has tried to delay the procedure by submitting a series of requests for an extension of the term for various reasons. The Tribunal has no doubt that the Respondent and his attorneys have acted in good faith. In fact, the Tribunal granted one of the Respondent’s requests in consideration of the situation in Bolivia at that time. The Tribunal refers to the procedural history to point out that, from its point of view, the Respondent has had a long period to prepare its [Written Response] prior to the emergence of the covid-19 pandemic.”
Gerald International Limited v. Republic of Sierra Leone, icsid Case No. arb/19/31, Procedural Order No. 1, May 29, 2020, para. 13.4, where the tribunal justified the non-application of the physical delivery of memorials with the government-imposed restrictions: “While covid-19 restrictive measures are in place in a country where the Tribunal, either Party or their counsel are located (§8), the requirement of physical delivery under §13.3 shall not apply, and the Parties shall file their pleadings in accordance with §13.1-13.3 via email and the file sharing platform only.”
Gabriel Resources Ltd. and Gabriel Resources (Jersey) v. Romania, icsid Case No. arb/15/31, Procedural Order No. 33, September 18, 2020, paras. 1 and 2. In the case of The Renco Group, Inc. v. Republic of Peru, both parties requested in May 2020 that the hearing on jurisdiction and bifurcation be held virtually, and the tribunal accepted that request and confirmed the virtual hearing for June 12 and 13, instead of a sole day originally scheduled for an in-person hearing in Washington, D.C. on June 13. See The Renco Group, Inc. v. Republic of Peru, [ii], pca Case No. 2019–46, Procedural Order No. 2, June 3, 2020, paras. 1.3–1.5.
See, for instance, the cases of Kimberly-Clark Dutch Holdings, B.V., Kimberly-Clark S.L.U., and Kimberly-Clark
See, for instance, the case of Telefónica, S.A. v. Republic of Colombia, icsid Case No. arb/18/3. The hearing on the merits took place by video conference between April 19, and 25, 2021, and the hearing on closing arguments on July 27, 2021, also by video conference. See icsid website at
Among others, see Bacilio Amorrortu v. Republic of Peru, pca Case No. 2020–11, Procedural Order No. 1 (Rules of Procedure), June 29, 2020, paras. 8.2 and 3; Peteris Pildegovics and sia North Star v. Kingdom of Norway, icsid Case No. arb/20/11, Procedural Order No. 1, October 12, 2020, para. 20.2; Patel Engineering Limited (India) v. the Republic of Mozambique, Terms of Appointments of August 4, 2020, para. 80; as well as the Procedural Order No. 1 (Procedural Timetable and Conduct of the Arbitration), October 14, 2020, para. 19; Carlos Sastre and others v. The United Mexican States, icsid Case No. unct/20/2, Procedural Order No. 1, May 28, 2020, para. 20.5; Westmoreland Mining Holdings, llc v. Government of Canada, icsid Case No. unct/20/3, Procedural Order No. 1, para. 5; Gran Colombia Gold Corp. v. Republic of Colombia, icsid Case No. arb/18/23, Procedural Order No. 7, September 21, 2020, paras. 1–4.
For example, Bacilio Amorrortu (USA) v. the Republic of Peru, Procedural Order No. 1 (Rules of Procedure), June 29, 2020, paras. 8.2 and 3.
Also in icsid Additional Facility procedures can be found this approach. See, for instance, José Alejandro Hernández Contreras v. Republic of Costa Rica, icsid Case No. arb(af)/20/2, Procedural Order No. 1 of September 28, 2021, para. 10.
Latam Hydro llc and ch Mamacocha S.R.L. v. Republic of Peru, icsid Case No. arb/19/28, Procedural Order No. 2, May 13, 2020, para. 20.2.
Omega Engineering llc and Oscar Rivera v. Republic of Panama, icsid Case No. arb/16/42, Procedural Order No. 4, paras. 1 and 2.
Id. at para. 5.
Resolute Forest Products, Inc. v. Government of Canada, pca Case no. 2016–13, Procedural Order No. 14, May 7, 2020, paras. 1.1–1.4.
Id. at para. 1.2.
Alberto Carrizosa Gelzis, Enrique Carrizosa Gelzis, Felipe Carrizosa Gelzis v. Republic of Colombia, pca Case No. 2018–56, Procedural Order No. 11, November 11, 2020, para. 2.
Id. at para. 4.
ConocoPhillips Petrozuata B.V., ConocoPhillips Hamaca B.V. and ConocoPhillips Gulf of Paria B.V. Claimants / Respondents on Annulment v. Bolivarian Republic of Venezuela Respondent / Applicant, icsid Case No. arb/07/30, Annulment Proceeding, Procedural Order No. 1, August 28, 2020, para. 10.1.
Gabriel Resources Ltd. and Gabriel Resources (Jersey) v. Romania, icsid Case No. arb/15/31, Procedural Order No. 29, April 8, 2020, paras. 6 and 7.
Gabriel Resources Ltd. and Gabriel Resources (Jersey) v. Romania, icsid Case No. arb/15/31, Procedural Order No. 33, September 18, 2020, para. 9.
Red Eagle Exploration Limited c. República de Colombia, Caso ciadi No. arb/18/12, Resolución Procesal No. 1, December 12, 2019, as amended on June 2, 2020, para. 10.1.
Rand Investments Ltd., William Archibald Rand, Kathleen Elizabeth Rand, Allison Ruth Rand, Robert Harry Leander Rand and Sembi Investment Limited v. Republic of Serbia, icsid Case No. arb/18/8, Procedural Order No. 7, April 20, 2020, para. 2.
Id. at para. 5.
Id. at para. 9. It is not known if the hearing took place and what outcome it had.
Id. at para. 5.
Ángel Samuel Seda y otros c. República de Colombia, Caso ciadi No. arb/19/6, Orden Procesal No. 1, April 7, 2020. This arbitration followed the 2009 Colombia-US fta. Despite the date of the order, in April 2020, the tribunal did not mention any accommodations to the particular circumstances of the pandemic. See also the case of Gerald International Limited v. Republic of Sierra Leone, icsid Case No. arb/19/31, Procedural Order No. 1, May 29, 2020, para. 20.
The Lopez-Goyne Family Trust and others v. Republic of Nicaragua, icsid Case No. arb/17/44, Procedural Order No. 1 (Amended), February 18, 2021, para. 21.2.
Ayat Nizar Raja Sumrain and others v. State of Kuwait, icsid Case No. arb/19/20, Decision on Request for Suspension of Proceedings and on Request for Provisional Measures, April 23, 2020, para. 8.
Id.
Id. at paras. 20–22.
See, e.g., teco Guatemala Holdings, llc (Claimant) v. Republic of Guatemala (Applicant), icsid Case No. arb/10/23, Third Annulment Proceeding, Procedural Order No. 1, May 17, 2021, para. 20.2; Global Telecom Holding S.A.E. v. Canada, icsid Case No. arb/16/16, Annulment Proceedings, Procedural Order No. 1, November 23, 2020, para. 18.2, and ConocoPhillips Petrozuata B.V., ConocoPhillips Hamaca B.V. and ConocoPhillips Gulf of Paria B.V. Claimants / Respondents on Annulment v. Bolivarian Republic of Venezuela Respondent / Applicant, icsid Case No. arb/07/30, Annulment Proceeding, Procedural Order No. 1, August 28, 2020, para. 10.1.
Cortec Mining Kenya Limited, Cortec (Pty) Limited and Stirling Capital Limited v. Republic of Kenya, icsid Case No. arb/15/29, Annulment Proceeding, Procedural Order No. 3, August 12, 2020, para. 3.
InfraRed Environmental Infrastructure gp Limited and others v. Kingdom of Spain, icsid Case No. arb/14/12, Decision on Continuation of Stay of Enforcement of the Award, October 27, 2020, para. 8.
On June 26, 2020, the Committee issued Procedural Order No. 2 concerning the organization of the hearing; see id. at para. 16.
Id. at para. 17.
Id. at para. 24.
Rule 54(4) of the icsid Arbitration Rules.
InfraRed Environmental Infrastructure gp Limited and others v. Kingdom of Spain, icsid Case No. arb/14/12, Decision on Continuation of Stay of Enforcement of the Award, October 27, 2020, para. 119.
Id.
Westmoreland Mining Holdings, llc v. Government of Canada, icsid Case No. unct/20/3, Procedural Order No. 2, September 21, 2020, para. 1. The Order contained extensive provisions on the details that the parties should take in mind for the conduct of the hearing. A similar, virtual hearing took place on jurisdiction on July 14 and 15, 2021. See Hearing on Jurisdiction Transcript – Day 1 (July 14, 2021) and Day 2 (July 15, 2021), available on the icsid website:
Red Eagle Exploration Limited c. República de Colombia, Caso ciadi No. arb/18/12, Resolución Procesal No. 1, December 12, 2019, as amended on June 2, 2020, para. 10.1; and The Lopez-Goyne Family Trust and others v. Republic of Nicaragua, icsid Case No. arb/17/44, Procedural Order No. 1 (Amended), February 18, 2021, para. 11.3.
Gramercy Funds Management llc and Gramercy Peru Holdings llc v. Republic of Peru, icsid Case No. unct/18/2, Procedural Order No. 12, November 5, 2020, para. 1.