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Minutes of the Open Meeting of the Arbitration Commission of ICC Poland on the ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic

An Open Meeting of the Arbitration Commission of ICC Poland was held on 13 May 2020. For the first time a meeting of the Arbitration Commission of ICC Poland was held by means of a videoconference, which made it possible not only for the members of the Arbitration Commission of ICC Poland, but also for a few dozen persons interested in arbitration to participate therein. The meeting was based on the ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic of 9 April 2020.

The meeting was opened and moderated by advocate Justyna Szpara, Vice-President of ICC Poland and President of the Arbitration Commission of ICC Poland. She then gave the floor to Cezary Wiśniewski, PhD, President of ICC Poland, who in a few sentences of introduction noted in particular that the current situation connected with the COVID-19 pandemic has in fact made certain instruments, which previously were optional – in both Polish as well as international arbitration –a sin equa non condition of conducting arbitration proceedings in an efficient and effective manner. He also pointed out to two particularly great challenges of the present situation – how to prepare arbitration institutions for it, and assure safety, including legal safety, in connection with the use of modern remote communication tools in arbitration.

The main part of the meeting was divided into two parts.

During the first part of the meeting, Beata Gessel-Kalinowska vel Kalisz, PhD, described how the ICC International Court of Arbitration, including its Secretariat, function during the pandemic. The speaker raised a few issues – among others she indicated that the Secretariat is trying to have an increased part of communication conducted electronically (so that this may even cover proceeding-initiating submissions). She indicated that the COVID-19 pandemic is not in itself a reason for arbitrators not to issue an award within the prescribed term. This part was concluded with a statement that the current world situation has not in fact significantly changed the functioning of the Secretariat and the ICC Court of Arbitration, which continue to operate in an undistorted way.

During the second part of the meeting three panellists took floor. They discussed selected current problems of functioning of arbitration during this special time. Each presentation was followed by a discussion during which every interested participant of the meeting could be heard.

The first speech, devoted to the possibility of signing an award in electronic form, was given by Beata Gessel-Kalinowska vel Kalisz, PhD. Dr Gessel pointed out to a multitude of modern tools for signing documents – other than the traditional written form (autograph signature) – that are available on the market. They, among others, include the tools regulated in Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC – the advanced electronic signature and the qualified electronic signature. This issue has also been directly regulated in Polish law – electronic form of legal acts, pursuant to Art. 78(1) of the Polish Civil Code. Can these modern tools be used to sign an award and thus replace autograph signatures of the arbitration tribunal? The conclusions of the speaker and of the participants of the meeting generally tended to allow such possibility with respect to those qualified forms which ensure durability of the content covered by the signature and clear identification of the holder of the signature. These conditions could be met by an award signed with the use of the electronic form within the meaning of Art. 78(1) of the Civil Code, i.e. with a qualified electronic signature. On the other hand, these conditions would not probably be met, if one pasted a reproduction of an autograph signature into an award – in particular in ad hoc arbitration, since it cannot be excluded that a permanent court of arbitration could certify authenticity of such a “signature”.

The next speaker was advocate Bartosz Krużewski, who discussed a virtual hearing (i.e. a hearing held in the form of a videoconference) in the context of holding thereof without the agreement of the parties, and even despite the parties’ objections. The speech referenced to paragraph 22 of the Guidance Note of 9 April 2020, whereunder, arbitrators may determine to proceed with a virtual hearing even without agreement of the parties, but they need to take into account the following three questions. Firstly – arbitrators can make such a determination after careful consideration of the relevant circumstances, including those mentioned in paragraph 18 of the Guidance Note (i.a. the length of the hearing, the number of participants, the complexity of the case). Secondly – they need to assess whether the award will be enforceable at law after holding such hearing. Thirdly – arbitrators should provide reasons for such determination. The speaker indicated four arguments employed by the ICC to substantiate that arbitrators may determine to hold a hearing by means of a videoconference: (i) this authorisation results from Art. 22(2) of the ICC Arbitration Rules, (ii) this authorisation is a continuation of the trend reflected i.a. by organization of case-management conferences by means of a teleconference or a videoconference, (iii) pursuant to Art. 25(2) of the ICC Arbitration Rules (e.g. in the French language version) a hearing is to have an adversarial character, which does not mean, however, the need for physical presence of its participants, (iv) weighing the need for physical presence of participants at a hearing against the requirements of effectiveness and cost efficiency of proceedings, priority should be given to the latter. In the subsequent part of the speech, as well as during an intense discussion that ensued, it was considered, among others, whether a virtual hearing could be considered a “hearing” within the meaning of Art. 1189 of the Civil Procedure Code, as well as whether holding a virtual hearing despite an objection of a party, may constitute a basis for setting aside of an award (due to a party being deprived of the possibility to defend its rights or due to a breach of the agreed rules of proceeding). In particular, the manner of examining fact witnesses and experts at such a hearing may give raise to doubts (i.a. the question of the contact with the witness, including preventing potential abuse, the ability to assess non-verbal circumstances of evidence being given by a witness). It seems, however, that it cannot generally be a priori assumed that in a particular case holding of an on-line hearing will violate the rights of the parties. At the same time, a virtual hearing will generally meet the requirements of an “ordinary” hearing (i.a. oral character, simultaneous participation of arbitrators and parties, adversarial character). Only certain specific situations connected with the character of the examined evidence (e.g. inspection of a site) can make a virtual hearing difficult to organize, if at all possible. The participants of the meeting agreed, however, that holding such a hearing requires careful consideration and consultations with the parties. It was considered thereby, whether setting of an on-line hearing may be treated as a strictly organizational decision of arbitrators, which the parties need to accept. It was raised that presently a number of tools, technical solutions and services of specialized entities (the so-called hearing facilities) are available, which are capable of ensuring that even a complicated hearing may be organized on-line without distortions. The discussion was followed by a vote, during which the meeting participants answered the question, in what circumstances Polish arbitration law permits a hearing to be held by means of a videoconference – the highest number of votes (more than a half – 56%) were given to the view that this is permissible only if the parties agree thereto. About one-fourth (26%) of the respondents considered that an on-line hearing is always permissible, 12% of the respondents – that it is admissible, if at least one of the parties agrees thereto, and 6% of the respondents supported the view that such a hearing may be held only if it is accepted by the person who requested organization of the hearing. No-one agreed with the view that Polish arbitration law does not permit organization of a hearing by means of a videoconference.

The second part of the hearing was concluded with the speech of the third speaker, advocate Małgorzata Surdek, who discussed the so-called cyber-protocol of a virtual hearing. As pointed out by the speaker, a cyber-protocol – which term has not yet been adequately translated into Polish – is an organizational order of the arbitral tribunal, which sets out the rules of conducting a virtual hearing. This order – the same as all other procedural orders – should reflect the arrangements made by the parties and the arbitration tribunal, whereby it is of a special character – it covers all aspects of holding a hearing in the form of a videoconference. Suggested wording of such an order was provided in Annex II to the Guidance Note of 9 April 2020. Such an order should include, among others, indication of the grounds for holding a hearing in the form of a videoconference, decisions on the organization of the hearing, specification of minimal technical requirements, on-line hearing etiquette considerations, as well as a “contingency plan” in case of unforeseen difficulties and disruptions. ICC Guidance Note suggests ensuring assistance of IT experts, appointed by the parties or the arbitration tribunal, who would support arbitrators in any technical issues connected with conducting a virtual hearing.

After all three speeches, another voting was organized, where the participants were asked to comment on whether they have ever in their practice participated in hearings by means of a teleconference and to indicate (with a multiple choice option), what – as counsel – they are concerned with in case of such a hearing. It turned out that only 4 participants have already participated in hearings held fully in this form, whereas 37% of participants – participated in hearings partially organized in the form of a videoconference (e.g. in terms of examining certain witnesses). As to the participants’ concerns, they mainly pertained to possible technical problems (63% of the respondents), difficulties in cooperation with colleagues representing the same client (44% of the respondents), as well as lack of the sense of being in contact with the remaining persons (41% of the respondents). Concerns were also expressed about fatigue and reduced concentration of arbitrators during such a hearing (37% of respondents), difficulties using documents (11% of the respondents), as well as lack of competence in terms of using necessary technologies or handling other unknown problems (11% of respondents). Only 4% of the respondents stated that they were not concerned with anything. Then, at the end of the meeting, a few participants shared their experiences connected with participation in virtual hearings, and these experiences, as it turned out, despite the existing concerns, had so far been positive. At the same time, the discussions held after each speech demonstrated how important, and at the same time, how controversial the problems discussed by the speakers are. In conclusion, advocate Justyna Szpara emphasized that holding virtual hearings, in view of the challenges connected therewith, needs to be considered separately in each particular case. Organization of such hearings means the necessity to abandon certain prevailing notions, and probably also the need to change certain habits, as well as to learn new technological solutions, which we might have not even known already existed, since, as it seems, virtual hearings may stay with us for longer than we think, even after we leave the COVID-19 pandemic behind us.

Prepared by: attorney-at-law Andrzej Maciejewski

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