ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic
2020年4月9日, the ICC International Court of 仲裁 released a guidance note outlining measures that can be taken to mitigate the adverse effects of the 冠状病毒 pandemic on arbitral proceedings (“COVID-19指南”).
The COVID-19指南 contains 13 pages of advice for 方, 确保律师和法庭的公正, 迅速, and cost-effective dispute resolution before the ICC court that remains open for business.
The COVID-19指南 indicates that the Coronavirus pandemic “will both disrupt many pending ICC arbitrations and generate new disputes that may themselves be more difficult to progress due to safety concerns and public health restrictions imposed to limit or slow the virus’s spread. 然而, 方, counsel and tribunals can minimise and perhaps even avoid such disruption and difficulty by thoughtful use of case management tools that are either already available through the ICC arbitration rules … or by the additional steps the ICC International Court of 仲裁 is taking to streamline its internal processes”.
Under article 22(1) of the ICC Rules tribunals and 方 are required to conduct cases in an 迅速 and cost-effective manner, these principles remain unchanged in the context of the 冠状病毒 pandemic.
The COVID-19指南 outlines various existing procedural tools allowing the control of time and cost of arbitration proceedings and effective case management in the current 冠状病毒 context.
这样的措施, that may be taken by tribunals after proactively consulting the 方, 包括以下内容:
- Disposing 迅速ly of certain claims or defences in the case;
- Resolving the issues in dispute in stages by means of one or more partial awards;
- Resolving the dispute on the basis of documents only, without evidentiary hearing;
- Limiting the size and number of submissions in cases; and
除了, the COVID-19指南 outlines the steps taken by the Secretariat of the Court to streamline its processes to promote efficiency and avoid COVID-19 related delays.
自3月17日, new requests for arbitration are to be filed with the Secretariat in electronic form and tribunals and 方 are encouraged to sign the terms of reference and to exchange submissions electronically “尽最大可能”.
The COVID-19指南 highlights the possibility of organising virtual hearings and conferences during the 冠状病毒 outbreak as health and safety considerations and travel restrictions “may make it impossible to convene physically in a single location”.
当面对这样的情况, 方, counsel and tribunals should consider whether a hearing should be postponed, if it can be conducted by physical presence with special precautions (distance between participants, 口罩, 可用消毒凝胶)或者是否应该虚拟持有. Decisions should be made based on the length of the required hearing, 案件的复杂性, 参与者的数量和重新安排时的延迟.
“While tribunals have often erred on the side of caution and decided to hold at least one face-to-face hearing on the merits if a party so requires, the 新型冠状病毒肺炎 pandemic may mean that it is not possible to hold a face-to-face hearing in reasonable time and that waiting until it becomes possible would produce unwarranted and even prejudicial delay” 《菠菜台子集合》指出.
重要的是, the COVID-19指南 emphasises that the purpose of Article 25(2) of the ICC rules, under which a tribunal “shall hear the 方 together in person if any of them so requests” is to ensure that “a live adversarial exchange” takes place. 如果情况允许的话, this exchange can therefor take place “in person” or “by virtual means”.
进一步, the COVID-19指南 includes suggested clauses to be inserted in a cyber protocol so as to ensure that the virtual hearing complies with applicable data privacy regulations and the privacy of the hearing and the protection of electronic communications.
The ICC Hearing Centre in Paris can offer technical support and assistance to tribunals operating virtual hearing and electronic bundle facilities, COVID-19指南说明说.
除了, the ICC has licensed access to various videoconference platform options, 包括微软团队, videocloud和Skype for Business, 变焦, 牛仔裤和GoToMeeting.
As many national jurisdictions are currently limiting their activities to urgent and essential matters only, 特别是在刑事案件中, 商业纠纷将遭受拖延. The efficiency of international arbitration proceedings is especially important in the midst of the current 冠状病毒 pandemic.
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信息由ALARIS AVOCATS提供, English speaking lawyers in France (Paris) specialized in French labor law, 尤其是各种社会计划, 解雇程序及劳动合同条款.