30 June 2020

CEPANI arbitration in times of COVID-19

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In this contribution, we will look at what CEPANI, the Belgian Centre for Arbitration and Mediation, has in store to overcome difficulties caused by the containment measures.

Generally speaking, CEPANI’s efforts over the past few years to increase the digitalisation of arbitral proceedings have proven to be instrumental in facing the challenges presented by the COVID-19 pandemic.

More specifically, the revision of the CEPANI Arbitration Rules (in force since 1 January 2020) to mark CEPANI’s 50th anniversary constituted a significant step forward.

The CEPANI Secretariat remains fully operational and manages its services for as long as necessary by remote, meaning that ongoing proceedings should not be affected.

Where containment measures and travel restrictions affect the speedy continuation of the proceedings, CEPANI offers several procedural tools to avoid any delay. More specifically:

  • The use of an electronic platform, called “Box”;
  • The use of electronic communication;
  • Several options in respect of the organization of hearings.

 

I. Use of an electronic platform, called “Box”

In 2016, CEPANI introduced “Box”. Box is a secure online platform, used by the Arbitral Tribunal, the parties and the CEPANI Secretariat to exchange documents concerning a specific case. Upon introduction of a case, the parties and the Arbitral Tribunal receive instructions and a password allowing them to access Box and upload their documents.

The introduction of Box makes the physical deposit of procedural documents at the CEPANI Secretariat and at the address of the opposite party redundant. A lockdown would therefore not hinder a party to deposit its documents once the request for arbitration is filed.

Use of this online platform is a complimentary service CEPANI offers to the parties who choose CEPANI as centre of arbitration.

II. CEPANI favours electronic communication

In respect to communication, art. 8.2 of the Rules stipulate that all communications made pursuant to the Rules, with the exception of the communication of the award “may be validly made in electronic form or by any other means of written communication”.

Thanks to electronic communication, the dispatch of heavy bundles of evidence by registered mail or courier, often abroad, belongs to the past, which increases efficiency and reduces costs. The preference for electronic communication ties in with the use of Box.

III. Organization of hearings

The organisation of hearings is difficult in times of containment measures and travel restrictions. Article 24.3 of the Rules provides that “The Arbitral Tribunal may decide the case on the basis of documents, unless the parties or one of them requests a hearing.” This means that parties are free to have the Arbitral Tribunal decide their case without having to organise a hearing.  Parties also may request the Arbitral Tribunal to organize a virtual hearing.

This being said, it is important to know that virtual hearings present their own challenges. For more information about organising virtual hearings we refer to the ICC Guidance report of 9 April 2020 which we discussed in a previous contribution (click here to read more).

This implies that containment measures or travel restriction do not necessarily have an impact on the organization of hearing. Disputes can still be settled quickly.

 

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