This notice is meant to offer guidance to arbitrators, parties and counsel as to the response to COVID-19 at the NAI Secretariat.
In the context of COVID-19, the NAI Secretariat follows the guidelines of the WHO, the National Institute for Public Health and the Environment (in Dutch: RIVM) and the national government. The health and safety of our staff and users is most important. In order to guarantee the continuity of our services, the NAI Secretariat works remotely in any event up to and including 1 June 2020. All meetings and/or hearings scheduled to take place at the NAI offices are conducted by means of video link or phone, or are postponed.
The NAI monitors closely current developments in the arbitration community with respect to the continuation of dispute resolution proceedings in times of COVID-19. The flexibility that arbitration offers parties to tailor the procedure and the flexibility given to arbitrators and parties to make adjustments as appropriate in the course of the proceedings are now seen as key features to move forward in these times of crises. The NAI wishes to emphasize it remains fully operational and stands ready to assist tribunals with the administration and case management of the dispute.
The COVID-19 pandemic has disrupted business operations globally. Commercial contracts are under scrutiny and the applicability of force majeure provisions are assessed by counsel and their parties. If the parties cannot reach an agreement with respect to the impact of force majeure on the commercial relationship, parties may want to seek clarity by pursuing formal dispute resolution. Parties to international contracts often include arbitration clauses as a means to resolve their disputes. Given the pressing need current times of crisis to resolve a dispute quickly and cost efficiently, the nature of these disputes make these cases apt for arbitration.
Moreover, the NAI recognizes that dispute resolution specialists are taking a pro-active approach as to informing their clients on the route forward during COVID-19. In certain instances, this also reflects on the timing experienced or perceived by parties and their counsel in ongoing court proceedings. As a result, we see that, in the market, suggestions are made to consider submitting existing commercial disputes pending before the courts to arbitration. The NAI is prepared and able to facilitate the administration of these disputes and to discuss the possibilities with counsel and parties.
The NAI recognizes the important role that parties, counsel and arbitral tribunals can play in ensuring disputes will continue to be resolved in a timely manner and on a cost-effective basis, with high due process standards. As per Article 3 of the NAI Rules, communications shall be done electronically.
Furthermore, as per Article 21 of the NAI Rules, the arbitral tribunal shall determine the manner in which and the time limits within which the proceedings will be conducted, with due observance of any arrangements between the parties in that regard. As per said article the arbitral tribunal shall guard against unreasonable delay of the proceedings and, if necessary, at the request of a party or of its own motion, take measures. Finally, according to Article 21(10) of the NAI Rules, instead of a personal appearance of a witness, an expert or a party, the arbitral tribunal may determine that the relevant persons have direct contact with the arbitral tribunal and, insofar as applicable, with others by electronic means. The arbitral tribunal shall determine, in consultation with those concerned, which electronic means shall be used to this end and in which manner this shall occur. In light of the NAI Arbitration Rules as well as generic guidelines, the parties, counsel and arbitral tribunals should commit to ensuring a continuation of proceedings, so as to avoid unnecessary delays as a result of COVID-19.
For new cases or in case of pending cases, the NAI has indicated that the following guidelines should be taken into account:
In case of an application involving summary arbitral proceedings, under Article 35(2) in conjunction with Article 36 NAI Arbitration Rules, we kindly ask that you notify us in advance via email@example.com.
Parties and arbitrators should send all other questions, documents and correspondence to the NAI by email only.
The NAI will correspond with parties and arbitrators by email.
Furthermore, and further to Article 22 of the NAI Rules, the arbitral tribunal should consult the parties on the rules of procedure as soon as possible. In determining the procedural timetable, the arbitral tribunal, on the basis of the consent of the parties, may consider, in light of COVID-19, appropriate means to decide the dispute including exploring whether
With respect to arbitral awards, as per Article 40 of the NAI Rules, and at the end of the hearing as referred to in Articles 25 and 36(5) of the NAI Arbitration Rules, the arbitral tribunal shall communicate to the parties the timing of the rendering of the arbitral award. The arbitral tribunal shall decide expeditiously.
Arbitrators are requested to deliver their awards by email and should notify the same email address if for any reason this is not possible.
The NAI will transmit arbitral awards to parties electronically with originals and/or certified copies to follow.
Dispute resolution proceedings globally are experiencing the impact of the COVID-19 outbreak. At the NAI, we see an increased interest and use of remote hearings; all scheduled hearings are conducted via virtual means or have been postponed. Article 25 of the NAI Arbitration Rules states that the arbitral tribunal shall give the parties the opportunity to explain their case at an oral hearing, unless the parties waive that opportunity. The arbitral tribunal shall determine the time and place of the hearing. Under the NAI Arbitration Rules, the parties can agree on a virtual hearing and the tribunal has the ability to make suggestions for the way in which the hearing is conducted.
Innovation and flexibility are key to ensuring the continuance of arbitration procedures and avoiding delays. For future disputes, arbitration clauses that provide for supplemental wording with respect to video conference hearings are now made available by private practitioners.
Technology services bring with them certain risks. Virtual hearings are no exception. When exploring this option in a pending arbitration, an arbitral tribunal should consider how to effectively, safely and fairly use video conferencing to best conduct an arbitration procedure. The NAI Secretariat stands ready to assist the tribunal on this matter. Any virtual hearing requires a consultation between the arbitral tribunal, the parties and counsel with the aim of deciding on the appropriate measures and process. If it is preferred to use technological means to conduct a hearing, the arbitral tribunal and the parties and their counsel should discuss the key features of such mechanism as well as the advised implementing measures and protocols to comply with relevant data privacy laws and regulations.
Several notices have been published with respect to conducting virtual hearings and video conferencing. We have listed some guidelines below, without being exhaustive, as these might prove useful to arbitrators, the parties and their counsel.
Videoconferencing protocols, guidelines and checklists for remote proceedings
The Seoul Protocol on Video Conferencing in International Arbitration is intended to serve as a guide to best practice for planning, testing and conducting video conferences in international arbitration.
A Working Group established by the International Council for Commercial Arbitration, the New York City Bar Association and the International Institute for Conflict Prevention & Resolution has released the 2020 edition of its Protocol on Cybersecurity in International Arbitration (the “2020 Protocol”). The 2020 Protocol aims to “provide a framework to determine reasonable information security measures for individual arbitration matters” and “increase awareness about information security in international arbitrations”.
The NAI cannot endorse or make any guarantee or warranty with respect to any of the providers or tools mentioned in this notice, but it is happy to share experiences seen in NAI arbitrations thus far. It is up to the parties, counsel and arbitral tribunals to conduct due diligence as to the preferred provider in each case and the NAI Secretariat stands ready to assist the arbitral tribunal on each occasion; questions in this regard can be addressed to the NAI legal counsel administering the arbitration.