III. Specific Measures
In response to the challenges posed by the COVID-19 pandemic, the Guidelines provide speciﬁc measures for the arbitral tribunals, parties and counsels to deal with the difﬁculties. Those measures are understood to be formulated on the further and speciﬁc explanation of the Arbitration Rules during this special period, encouraging the tribunal and the parties to reasonably Consider all available measures for them to proceed with the arbitration.[i]
A. On Case Filing
The Guidelines provide that “[t]he parties and their representatives are encouraged to file their arbitration applications with the CIETAC online case ﬁling system…, or to use postal service or other non-contact means to submit their arbitration applications.”
Since 1 January 2019, CIETAC online case ﬁling system has been put into use to improve the efﬁciency of the case ﬁling procedures. On 28 January 2020, CIETAC published Urgent Notice on Work Arrangements during the Prevention and Control of the COVID-19, encouraging the parties to ﬁle their arbitration applications through its online case ﬁling system. From February to April in 2020, CIETAC received 192 applications through the online case ﬁling system, with 300% of increase on year-on-year basis, among which the highest amount in dispute reached nearly RMB 3 billion (about USD 420 million). With the outbreak of the pandemic, the online case ﬁling system becomes an important channel for the parties to ﬁle new cases.
B. On Service of Documents
The default service of documents in CIETAC arbitration is service by courier. The Guidelines encourage the parties to “agree to submit and receive arbitration documents via emails to promote efﬁciency in service of documents”. Following the fundamental principle of party autonomy, the Arbitration Court of CIETAC and its sub-commissions/centers will ask in the Notice of Arbitration for the parties’ opinions on the submission, receipt and service of arbitration documents by emails, and the parties are expected to give due consideration thereto. “In any stage of the arbitral proceedings, the parties are always encouraged to agree on submitting and receiving arbitration documents via emails.”[ii]
C. On Appraisal
The Guidelines advise the parties to consider the necessity of applying for an appraisal. Pursuant to Article 2.4 of the Guidelines, “[t]he arbitral tribunal shall decide prudently by ﬁrst making a comprehensive consideration on the factors such as the irreplaceability of the appraisal, the time and economic cost for the appraisal, its effects on the arbitral proceedings and the chance of having a successful appraisal during the pandemic. The parties shall fully cooperate in the appraisal procedure as requested by the arbitral tribunal. Where an appraiser is required to attend an oral hearing, his/her attendance by video conference or other non-contact means of communication shall be preferably considered.”
D. On Documents-only Case Examination
Given the fact that physical hearings can hardly be conducted, documents-only case examination becomes an alternative to be considered by the tribunal. According to the Guidelines, “[f]or cases where the Summary Procedure applies, according to Article 60 of the Arbitration Rules, the arbitral tribunal may decide to examine the case solely on the basis of the written materials and evidence submitted by the parties after hearing from the parties of their opinions. The arbitral tribunal is advised to consider the feasibility of examining the case on a documents-only basis on its own initiative, and ask for the parties’ opinions thereof.”
“For cases where the Summary Procedure does not apply, according to Article 35 of the Arbitration Rules, the arbitral tribunal shall hold oral hearings when examining the case. However, for cases with clear facts and simple evidence, the arbitral tribunal is advised to ask for the parties’ opinions on its own initiative and decide to examine the case on a documents-only basis if the parties so agree.”
E. On Oral Hearing
The Guidelines emphasize that “virtual hearing is considered as a speciﬁc way of oral hearing which is in accordance with the Arbitration Rules. During the pandemic, for cases to be examined with oral hearings, the arbitral tribunal is advised to first consider the possibility of holding virtual hearings”. Accordingly, the tribunals are authorized to decide on virtual hearing with comprehensive consideration on a variety of factors, including but not limited to the parties’ opinions, the complexity of the case, the volume of evidence, any witness to be present, the justiﬁcation of the party’s reasons against holding a virtual hearing, and the convenience and equality of the participants to access to the virtual hearing facilities.
Moreover, the Guidelines provide four means of virtual hearings based on the speciﬁc circumstances of the case: “(1) where the arbitrator(s), the parties and their representatives, and other participants are located in different parts of mainland China, a virtual hearing maybe conducted via CIETAC smart oral hearing platform (https://kt.cietac.org/portal/main/domain/index.htm); (2) where the arbitrator(s), the parties and their representatives, and other participants are located in different jurisdictions, or the language of the oral hearing is not Chinese, a virtual hearing may be conducted via other video conferencing platforms agreed by the parties and approved by the CIETAC headquarters or its sub-commissions/centers; (3) after the ofﬁce facilities of the CIETAC headquarters and its sub-commissions/centers reopen to the public, the arbitrator(s), the parties and their representatives, and other participants at different localities of the CIETAC headquarters or any of its sub-commissions/ centers may participate in a virtual hearing by using the nearest CIETAC facilities; (4) where the arbitrator(s), the parties and their representatives, and other participants are located in different jurisdictions, a virtual hearing may also be conducted through the joint platforms between CIETAC and other foreign arbitration institutions (CIETAC has cooperation agreements with major arbitration institutions in the world with arrangements for mutual assistance in oral hearings. If needed, please contact CIETAC case managers).”[iii]
Besides, in order to regulate the virtual hearings activities and maintain the order thereof, CIETAC published its Provisions on Virtual Hearings (Trial) (“Provisions”) in accordance with the relevant laws and regulations. The Provisions provide speciﬁc rules that shall be followed by the participants in a virtual hearing, including but not limited to the conﬁdentiality of the virtual hearing, default of the parties, requirement of the location and the surrounding environment, disciplines and etiquette, participation of witness, experts and appraisers, and electronic signing of the transcript.[iv]
F. On Mediation
Mediation has a long history in China. Since it is in line with the core Chinese value of prioritizing harmony, mediation has been long rooted in the Chinese legal culture. Nowadays, it still has a signiﬁcant role to play in China’s legal regime, where Chinese laws continue to promote mediation to settle disputes. Being praised as “oriental wisdom”, mediation is also highly valued in the ﬁeld of Chinese arbitration. CIETAC has initiated the practice of combining mediation with arbitration to promote settlement between the parties. Being cost-efﬁcient and time-saving, such mechanism works well in Chinese arbitration practice.[v]
Following the established practice, the Guidelines continue to highlight the importance of mediation and encourage the tribunal to “make greater endeavors to mediate and actively lead the parties through the difﬁculties by consultation and conciliation. Where it is difﬁcult to have a formal oral hearing, with the consent of the parties, the arbitral tribunal may encourage settlement by holding mediation meetings, especially virtual mediation meetings.”
Except for the measures mentioned above, the Guidelines also highlight other measures that tribunals can take to improve the effectiveness of arbitration proceedings. The tribunals are suggested to actively make use of procedural orders, question lists, terms of reference, and pre-hearing conferences to facilitate the arbitral proceedings. Where the members of the tribunal cannot meet in person to deliberate, the deliberations of the tribunal may be hold in any manner that it considers appropriate. Besides, the arbitral tribunal shall try its best to render the arbitral award as soon as possible for cases with hearings concluded. Where a case is not ready for a ﬁnal award yet but is possible to have any part of the claims to be decided ﬁrst, the arbitral tribunal shall consider the feasibility of rendering a partial award according to the provisions of the Arbitration Rules.
The Guidelines are tailored specifically to respond to the challenges caused by the pandemic, which are not binding and are temporary in nature, encouraging the arbitral tribunals, the parties and counsel to make full use of all possible measures to carry the arbitration proceedings forward.
In any case, as one of the world’s well-known arbitration institutions, CIETAC acts efﬁciently and promptly to cope with the pandemic, tailors the Guidelines with its unique Chinese arbitration experiences, and effectively facilitates CIETAC arbitration during the COVID-19 pandemic.
[i] Mirèze Philippe, Offline or Online? Virtual Hearings or ODR?, Kluwer Arbitration Blog, April 26 2020, available at http://arbitrationblog.kluwerarbitration.com/2020/04/26/ofﬂine-or-online-virtual-hearings-or-odr/, last visited on 12 May 2020.
[ii] Article 2.2 of the Guidelines.
[iii] Article 2.6 of the Guidelines.
[iv] Available at http://www.cietac.org.cn/index.php?m=Article&a=show&id=16910, last visited on 20 May 2020.
[v] Tang Houzhi, Is There an Expanding Culture that Favors Combining Arbitration with Conciliation or Other ADR Procedures?, in Albert Jan Van den Berg (ed), International Dispute Resolution: Towards an International Arbitration Culture, ICCA Congress Series, Volume 8, pp. 101 – 120.