Arbitral institutions have been playing a leading role in the fight against the impacts of the COVID-19 pandemic on arbitral proceedings, due to their significant role in providing services related to alternative dispute resolution methods in a fair and efficient manner. These institutions have hundreds of cases under their administration and they thus have the authority and the duty to ensure that the best practices reach parties to proceedings, through the enactment of rules that allow the market to adapt to new circumstances, such as those imposed by the pandemic.

Since the pandemic has been announced by the World Health Organization (WHO), several arbitral institutions in Brazil have issued more than 20 sets of rules to regulate their activities during the pandemic, in compliance with the recommendations of social distancing issued by health authorities.

We analyzed the main measures adopted by arbitral institutions to mitigate the impact of the pandemic on their activities – and on the cases under their administration.

For example, the Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada (“CAM-CCBC”) has made it possible to conduct all of its activities remotely, by suspending hearings, face-to-face meetings and the filing of hard copies of briefs and documents, as well as by implementing full electronic management of proceedings through technological tools.

the International Court of Arbitration of the International Chamber of Commerce (“the ICC”).

Suspension of onsite activities and maintenance of remote operations. With the need for social distancing, CAM-CCBC[1] and the other have opted to suspend the face-to-face service to the public at their offices, a measure adopted by all the institutions considered. However, all the arbitral institutions remain fully operational via telephone, e-mail or through their digital platforms, following up on-going proceedings and also receiving new cases.

Electronic receipt of requests for arbitration. The commencement of new proceedings also remains functional: 93% of the institutions implemented the electronic receipt of requests for arbitration. In most institutions – such as CAM-CCBC[2] – the filing of requests of arbitration is done by e-mail, but in some instances it can also be done through digital platforms.

Electronic administration of cases in the administrative phase. Proceedings in the administrative stage, i.e. before the appointment of the arbitral tribunal or the sole arbitrator, have also been covered by the new rules: 57% of the institutions have provided for the possibility of electronic administration of these cases.

Among them, CAM-CCBC initially consulted the parties about their interest in adopting only electronic communications for the administrative stage of the proceedings.[3] However, Administrative Resolution 40/2020 has since provided for the mandatory use of electronic communications for proceedings in the administrative stage.

Deadlines for electronic filing. The deadlines for electronic filings have been maintained by 93% of the institutions considered, including CAM-CCBC, which has established in its Administrative Resolution 40/2020 that the briefs and documents must be filed by e-mail and made available in the shared electronic folder.

Suspension of on-site filing of hardcopies and alternatives. While the absence of face-to-face services by the arbitral institutions had little impact on electronic filing deadlines, the same cannot be said, of course, about the filing of hardcopies, which has been suspended by 93% of the institutions. The alternatives vary among the institutions: 7% of the institutions have waived the requirement for the filing of hardcopies of documents and briefs; 43% have postponed their filing for when onsite activities return; 15% of the institutions have established special processes for the filing of hardcopies, and 7% have opted to notify the arbitral tribunals, so the latter could decide on the need (or not) to file at least one hardcopy of the briefs filed electronically during the pandemic.

In its Administrative Resolution 40/2020, CAM-CCBC has determined that briefs and documents must be filed via e-mail and made available in the shared electronic folder pursuant to certain guidelines provided in its website.

. In addition to the alternatives to the filing of hardcopies of briefs and documents, 43% of the institutions considered, including CAM-CCBC,[4] have changed the date considered for determining deadlines – while deadlines originally started on the day following the receipt of hardcopies of briefs, deadlines are now counted starting on the day following the receipt of the electronic copy.

Suspension of in-person hearings and the availability of tools for conducting hearings remotely. The current scenario has imposed the suspension of in-person hearings – which was determined by 85% of the institutions considered.

Despite this, in their new rules, 64% of the arbitral institutions have provided for mechanisms for conducting hearings remotely, among them CAM-CCBC, which has made arrangements for remote hearings via Microsoft Teams or similar platforms, with the assistance of the Case Manager in charge and an IT technician.

Digital platforms for case management. Only 15% of the arbitral institutions have digital platforms for electronic case management. Of these 7,5% are able to manage arbitration proceedings and 7,5% can only manage mediation and conciliation cases. It should be pointed out that 15% of the institutions that do not have their own platforms have reported that they are working towards it.

Conclusions. The analysis of the new rules issued by the arbitral institutions has shown that, in order to mitigate the effects of the pandemic, the institutions have adopted technological tools to adapt their activities to the virtual environment, especially for the conduct of cases.

The exchange of briefs between the parties is now occuring exclusively through electronic means, and the filing of hardcopies, which has been suspended due to the halting of face-to-face operations, have also been dismissed, postponed or replaced by all the institutions considered, in order to avoid delays or even the stay of proceedings.

Even deadlines have been updated as to start on the first business day following the filing the electronic copies – and no longer following the filing of hardcopies – in order to adapt the conduct of cases to the new circumstances.

In-person meetings and hearings have been suspended due to the rules of social distancing imposed by health authorities and are being conducted remotely, with tools and support made available by institutions.

The use of digital platforms to manage the cases remotely has been growing – and () it is completely functional only in two of the institutions considered and in phase of implementation in other three.

Therefore, it is clear that the alternative dispute resolution industry has adapted, under the leadership of arbitral institutions, which are responsible for creating rules for the conduct of cases. Arbitrations can now be conducted remotely, in order to ensure the access to justice and legal certainty also during the unprecedented health crisis that we are all facing.

 

 

[1] Through Administrative Resolution 39/2020, dated March 16, 2020, CAM-CCBC suspended its face-to-face activities in the offices of Sao Paulo and Rio de Janeiro, but maintained its telephone and e-mail services.

[2] Through Administrative Resolution 39/2020, dated March 16, 2020, the filing of Requests for Arbitration before CAM-CCBC must be done through the e-mail secgeral@ccbc.org.br.

[3] In accordance with the item 3.3 of the Administrative Resolution 39/2020, dated as of March 16, 2020.

[4] Pursuant to Administrative Resolution 40/2020, dated February 4, 2020, item 3.2, V.