International courts and arbitral institutions continue to revise hearing and other procedures in response to the COVID-19 pandemic

Gavel & test tube

International courts and arbitral institutions continue to adopt measures in response to the COVID-19 pandemic.  Most notably, the newly revised International Bar Association Rules on the Taking of Evidence in International Arbitration (“IBA Rules” or “Rules”) contain important provisions on remote hearings.  In further changes, the Court of Justice of the European Union (“CJEU”) has recently issued guidelines on conducting proceedings during the pandemic, while the Stockholm Chamber of Commerce (“SCC”) now offers free of charge its digital platform for parties to ad-hoc arbitrations, to facilitate virtual hearings.  Some of these measures will stay in place beyond the pandemic and augur a permanent move towards virtual hearings in some circumstances.

The revised IBA Rules, issued in February 2021, replaced the previous version of December 2010 (which have been extensively used in investment treaty and commercial arbitrations).  The recent changes reflect the tools implemented and practices adopted by parties and tribunals during the COVID-19 pandemic to date.  The Rules have introduced important guidelines and protocols on virtual hearings through a revised Article 8, which outlines the general framework for conducting an evidentiary hearing.  Article 8(2) now allows a tribunal “on its own motion” to order that a hearing be held remotely, as well as upon a party’s request.  Tribunals must, however, consult with the parties in advance.  Such hearings will require a “Remote Hearing protocol” to be established with the parties, to address issues such as the technology to be used, the time zones in which participants will be located, and considerations of witness testimony (such as how documents will be placed before a witness and how to ensure that oral testimonies are not “improperly influenced or distracted”).  In keeping with these changes, the Commentary to the Rules encourages tribunals to be pro-active in assessing whether a hearing should be conducted remotely.

The revised Rules also update provisions regarding a tribunal’s powers, document translations and confidentiality issues.  The revisions will apply to all arbitrations commenced after 17 December 2020 where the parties have agreed to apply the IBA Rules.  Article 1(2) clarifies that parties who agreed, prior to 17 December 2020, to apply the IBA Rules are deemed to have agreed to the 2010 Rules, absent a contrary indication.

On 27 January 2021, the CJEU released communications to parties before its two constituent courts, the Court of Justice and the General Court.  The communications summarise changes to the CJEU’s judicial activities since March 2020 on the conduct of written and oral phases of proceedings.  In particular, when parties are unable to travel to Luxembourg for hearings before the Court of Justice they may, under certain conditions, be permitted to attend by videoconference.  The Court of Justice does not “rule out” that hearings may have to be replaced with questions to the parties for a written response, “owing to the difficulties caused by Covid-19”.   Parties unable to attend a hearing before the General Court may lodge a request to attend by videoconference, but parties seeking a hearing are “encouraged to consider whether that hearing is appropriate” in light of the pandemic.

In addition, the Court of Justice has extended by one month the time-limit for submitting written observations on requests for preliminary rulings.  As for the General Court, parties seeking an extension may file a request for a ruling, although there is no established time period.  Finally, the CJEU encourages parties to become familiar with its digital application, which allows procedural documents to be filed electronically.

Since November 2020, the SCC has made its digital platform for communications and file sharing free of charge for any ad hoc arbitration registered by 30 May 2021.  The digital platform was introduced in May 2020 for ad hoc as well as SCC arbitrations.  According to the SCC website, the 30 May 2021 date may be prolonged “depending on the development of the outbreak”.

The new IBA Rules and their Commentary are available here

The CJEU’s communications on changes to judicial activities are available here

Information on the SCC’s Ad Hoc Platform is available here

Fietta’s previous PIL updates on COVID-19 are available here and here