The ongoing COVID-19 pandemic has an unprecedented impact on the global economy and poses severe challenges to international dispute resolution. The pandemic has forced all international arbitration practitioners to think over how to turn crises into opportunities.
Strengthening coordination and collaboration in the international arbitration community becomes necessary and particularly important amid the pandemic. The COVID-19 pandemic broke out in China in late January this year. China International Economic and Trade Arbitration Commission (CIETAC) acted promptly to contact the United Nations Commission on International Trade Law (UNCITRAL), and more than 80 related international arbitration institutions and organizations, explaining the Chinese government’s decision and deployment on the prevention and control of the pandemic, and briefing CIETAC’s measures responding to the pandemic, thereby paving the way for Chinese enterprises to participate in arbitration activities during the pandemic. During this period, nearly 40 international arbitration institutions, including the UNCITRAL Working Group III, the Singapore International Arbitration Centre (SIAC), and the Asian International Arbitration Centre (AIAC), sent letters to CIETAC, expressing their supports for China in fighting against the pandemic and their confidence in China’s victory over the pandemic. In mid-March, the pandemic has spread with alarming speed globally. CIETAC took immediate actions to contact more than 50 international arbitration institutions and organizations, and provided assistance and supplies to more than 30 institutions according to their needs and worked together with the international arbitration community to fight against the pandemic. At the same time, CIETAC joined the Arbitration and COVID-19 Initiative jointly initiated by 13 major international arbitration institutions and organizations including the International Centre for Settlement of Investment Disputes (ICSID) of the World Bank, the International Centre for Dispute Resolution (ICDR) of the American Arbitration Association (AAA), the German Arbitration Institute (DIS), and the Vienna International Arbitral Centre (VIAC), to try our best to actively participate in international cooperation in response to the pandemic. In addition, building on the Beijing Joint Declaration of the Belt and Road Arbitration Institutions issued in tandem with more than 40 domestic and foreign dispute resolution institutions in 2019, CIETAC continues to roll out clearer and more specific cooperation arrangements and promote the development of diversified dispute resolution mechanisms globally, to make positive contributions to the development of international arbitration in response to the pandemic.
Another lesson we’ve learnt during the pandemic is that innovation by using the rising digital technology is one of the ways we must take in international arbitration in order to overcome difficulties and promote the orderly and efficient operation of arbitration procedures in difficult times. CIETAC made full use of Internet technology and adopted a series of important measures to tackle challenges during the pandemic:
- The further improvement and wide application of online case filing. At the beginning of the outbreak, CIETAC adopted the online case filing system developed in 2019 to enable online case filing functions such as real-time consultation, identity verification, and online submission of arbitration documents, facilitating the parties concerned in filing cases during the pandemic. Statistical data show that online case filing has become an important channel for parties to submit arbitration applications to CIETAC, and a total of 693 cases have been filed through the online system from January to October this year. The number of cases accepted by CIETAC has not been negatively affected by the pandemic. As of October 31, 2020, CIETAC accepted 2,883 cases this year, indicating a year-on-year increase of 6.7%. Among the cases accepted this year, 615 are foreign-related cases, representing a year-on-year increase of 19.19%, with parties coming from 70 countries and regions.
- Comprehensively using technologies to advance the arbitration procedures. In April this year, CIETAC issued the Guidelines on Proceeding with Arbitration Actively and Properly during the COVID-19 Pandemic, advocating that the arbitration tribunals and the parties concerned should comprehensively use online case filing, electronic service, online arbitration hearing, online mediation and other procedures and measures, and adopt technologies such as electronic signatures and electronic seals of arbitrators, so as to minimize the impact of the pandemic and actively and steadily advance the arbitration procedures. From January to October this year, CIETAC has concluded 2076 cases, among which, significantly more cases were concluded by means of document-only examinations or settlements compared with previous years.
- Adopting diversified online hearing approaches. CIETAC developed a smart platform for arbitration hearings in April this year, and released the CIETAC Provisions on Virtual Hearings (Trail) to resolve the procedural and technical issues of online hearings for users, including identity verification of arbitration participants, electronic evidence submission and display, online simultaneous record, electronic signatures by scanning QR code, arbitration tribunal deliberations, “back-to-back” mediation, among others. With the procedural norms and technical guarantee, all arbitration hearing participants can participate in online hearings “without leaving their homes.” Up to now, 216 cases have been heard through the CIETAC online arbitration hearing platform. Arbitration participants from the United States, Canada, Australia, Sweden, Hong Kong, and nearly 40 cities in the mainland have participated in the online hearings.
Meanwhile, drawing on the unique advantages of having a network of sub-commissions and cooperative institutions around the world, and the integration of the headquarters and branches, CIETAC has explored a variety of arbitration hearing modes include online, offline, and a combination of online and offline hearings, so that participants in different jurisdictions, time zones and places are able to join the arbitration hearings in real-time, simultaneously, and without delay, and the complex and even tailored arbitration hearing needs of different cases are met. In June this year, an international arbitration case accepted by the CIETAC Hong Kong Arbitration Center with the seat of arbitration in Hong Kong was heard using the combination of online and offline approach, with participants in four cities of two countries in two continents.
Furthermore, to satisfy the needs of arbitration in the post-pandemic era, CIETAC steps up efforts to further strengthen the IT construction of the case management system, designing a comprehensive network covering arbitration tribunals, parties concerned and arbitral institutions to build an “expressway” for hearing cases online, and promote online arbitration all-round services, so as to provide the parties with more convenient and efficient arbitration services.
Because of the pandemic, arbitration institutions need to assume more social responsibilities, and provide more risk prevention suggestions for arbitration participants, so as to prevent disputes beforehand and minimize possible losses. In this regard, CIETAC launched a legal risk prevention column, “共克时艰, 玉汝于成” (“Working together to overcome difficulties”), on its official website and WeChat account on January 30 this year, and organized top arbitrators and experts to use their expertise to compose over 100 industry observations and early-warning reports with regard to the analysis of legal issues faced by ten major industries, including international trade, finance, construction projects, insurance, and pan-entertainment, the performance risks of contractual trans-actions, and previous case studies and industry response recommendations and in-depth researches, and the forecasts on key industries, types of disputes and issues involving the pandemic situation and relevant prevention and control measures. Furthermore, CIETAC carries out online and offline public benefit activities including training, lectures, visits and the “CIETAC Live” lectures, and holds international high-end conferences such as the China Arbitration Summit 2020, with a total of nearly 2 million participants. With these high-quality activities, CIETAC hopes to find novel and practical approaches to effectively promote the development of the industry.
COVID-19 has spread worldwide in 2020. The international arbitration is faced with huge crisis and challenges, but vitality potential and new opportunities are also found in responding to this crisis. It is time for us to reconsider and uphold the flexibility, confidentiality, procedural legitimacy and party autonomy principles in arbitration procedures. By strengthening international cooperation, advancing technological innovation, and assuming social responsibility, the international arbitration will be led from this “worst times” to a “better era”.
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