The global pandemic of COVID-19 has severely affected the personal and professional lives of people worldwide. Numerous governments have been obliged to impose strict constraining measures on their natural and legal persons, which has resulted in often injurious repercussions to business relationships.
It is everyone’s responsibility to contribute to the global effort to prevent the spread of the virus. However, CIArb believes that resolving disputes by alternative dispute resolution procedures should not be dependent on the surrounding circumstances in the majority of cases. Thus, business should not be burdened by unresolved disputes due to the inability of parties to meet physically to resolve disputes. CIArb seeks to reassure disputing parties that, in most cases, applying some sensible checks as set out in this Guidance Note, parties can still use remote procedures for full resolution of their disputes.
CIArb offers this Guidance Note on Remote Dispute Resolution Proceedings to provide parties to existing and future disputes, as well as neutrals, a guide for conducting proceedings in any circumstance where parties to the dispute are unable to meet physically. This Guidance Note is intended to be broadly applicable to the current 2020 global health crisis and well beyond.
This Guidance Note is intended to be taken into consideration to help participants in arranging remote procedures. The Guidance Note relies on related existing practices and scholarly writings produced before and after the 2020 pandemic and is in no way a definitive work. We welcome any feedback, comments and suggestions from our members and colleagues around the world. We are eager to contribute to the global effort of establishing best practices on remote dispute resolution and facilitation of its use.
The Guidance Note is intended for use in conjunction with and adjusted to any governmental and arbitral institutions’ advice with reference to any dealings during the COVID-19 pandemic or other circumstance that prevents physical meetings and any laws applicable, including public policy provisions of the possible place(s) of enforcement.
Where travel bans and severe government restrictions become more widespread, parties and neutrals should immediately express any concerns regarding their participation in pending proceedings to their neutrals, co-neutrals, and case managers and discuss possible schedule or procedural amendments, in particular the possibility of remote participation.
Although the definition of remote dispute resolution includes, but is not limited to, video and audio conferences, email and offline means such as documents-only proceedings, this Guidance Note will focus on the use of video and audio conferencing. CIArb encourages parties to primarily use combined video or audio conferencing whenever possible. This is because combined video and audio allows participants to create a “working environment” that allows participants to be more engaged in the process. Further, combined video and audio conferencing is a more efficient means of resolving ongoing complex disputes where physical hearings or meetings have been cancelled or postponed.
This Guidance Note can be applied to arbitration, mediation, adjudication, negotiation, expert determination, dispute boards, or any other type of alternative dispute resolution. However, CIArb recognises that arbitration proceedings may be affected by a circumstance preventing physical meetings to a greater degree than other procedures and thus parties to arbitration may need to take more adjustments into consideration.
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