One of the advantages of arbitration over jurisdictional processes is its flexibility. This advantage allows an arbitral tribunal to make decisions about the organization of the procedure, taking into account the circumstances of the case and the expectations of the parties. In this regard, and in the face of recent global events, the question arises about the effects of COVID-19 and its impact on arbitration processes.
It is important to clarify that arbitration institutions remain operational, addressing any queries via email, and processes continue unless the arbitral tribunal decides otherwise.
The principle of flexibility has been embraced by different arbitration institutions. Below are some of the measures adopted by various institutions in response to COVID-19:
(I) International Chamber of Commerce (ICC)
For the International Chamber of Commerce (ICC), communications with the Secretariat remain active via email. New requests for arbitration and their annexes can be sent electronically, and if physical shipments are necessary, it is advisable to contact the team managing the case in advance. For ongoing proceedings, they continue unless the arbitral tribunal decides otherwise. In accordance with Article 22.2 of the ICC Rules, to ensure the effective conduct of the case, the arbitral tribunal, after consulting with the parties, may adopt the procedural measures it deems appropriate, as long as they do not violate any agreement between the parties. If there is a hearing scheduled for the next 30 days, it is likely to be suspended or canceled due to immigration and movement restrictions in different countries. It is important to note that a hearing may be held virtually if the parties and the arbitral tribunal agree. In this case, it is advisable to coordinate the use of a platform that allows for recording.
(II) Madrid Court of Arbitration
In other institutions, such as the Madrid Court of Arbitration, despite the limitations imposed for reasons of public health, the court continues to operate electronically. If it is necessary to send documentation in physical format, the team in charge of the case must be contacted by email beforehand. In this institution, in-person hearings scheduled for March 31, 2020, have been postponed, but the court is available to its users to organize virtual hearings or meetings.
(III) CRECIG, Guatemala Chamber of Industry’s Center for Conflict Resolution
In Guatemala, at the Center for Conflict Resolution of the Chamber of Industry of Guatemala (CRECIG), communications with the institution also remain active via email. New arbitration claims and their annexes can be sent by email. The deadlines for ongoing proceedings remain in force unless the arbitral tribunals decide otherwise on a case-by-case basis. If there is an in-person hearing scheduled, it must be rescheduled since CRECIG’s facilities have been closed since March 23, 2020, for the duration of the State of Calamity decreed in Guatemala. For virtual hearings, support can be requested by email for coordination.
(IV) Chamber of Commerce Arbitration and Conciliation Center (CENAC)
In arbitrations conducted under CENAC, the deadlines running in arbitrations were suspended as of March 17, 2020, and will resume on April 1, 2020. The institution is closed until a new pronouncement from the Board of Directors, but it is possible to make any queries via email. Hearings scheduled from March 17 to March 31 must be rescheduled.
In addition, for hearings with international arbitrators, it is important to take into consideration that some countries have taken measures and limitations for reasons of public health that may affect the mobility of arbitrators from one country to another. In the case of arbitrations whose seat is Guatemala, it is important to note that in accordance with the public order provisions issued by the Executive Body, air, land, and sea borders have been closed since March 16, 2020, for a period of 15 days. Therefore, if there are already scheduled in-person hearings involving foreign arbitrators or experts, they must be rescheduled or the possibility of using mechanisms such as video conferences where in-person attendance is not essential and using information technologies that allow for online communications should be evaluated.
Arbitration within a framework of legal certainty generates confidence in a private justice system. It is possible that arbitrators and arbitration institutions will seek to always guarantee the swiftness of the procedure or make the means available to users to try and ensure that the proceedings are affected as little as possible.
However, under the parameters already discussed, in circumstances such as those that have occurred recently, the flexibility of arbitration is highlighted as one of the greatest benefits of this dispute resolution mechanism, since in most cases, arbitrators have the freedom to maintain or reconfigure the process calendar according to the needs of each case.