China International Economic and Trade Arbitration Commission Guidelines on Proceeding with Arbitration Actively and Properly during the COVID-19 Pandemic
China International Economic and Trade Arbitration Commission (“CIETAC”) adopts these Guidelines (“Guidelines”) based on its arbitration practice and experience, as an effort to effectively mitigate the effects of the COVID-19 pandemic (“pandemic”), proceed with arbitration actively and properly in accordance with the law, protect the parties’ legitimate interests, and uphold social fairness and justice.
1. Fundamental Principles
1.1 The arbitral tribunal shall proceed with arbitration fairly and efficiently. According to the CIETAC Arbitration Rules (“Arbitration Rules”), the arbitral tribunal bears the responsibility to proceed with the arbitration efficiently, which is not changed by the pandemic. According to Article 35 of the Arbitration Rules, the arbitral tribunal enjoys extensive power in actively proceeding with the arbitration and may examine the case in any way it deems appropriate. While taking such measures, the arbitral tribunal shall act impartially and fairly and shall afford a reasonable opportunity to both parties to present their case in order to ensure the enforceability of the arbitral award.
1.2 The parties shall participate in the arbitral proceedings in good faith. According to Article 9 of the Arbitration Rules, the parties and their representatives shall proceed with the arbitration in good faith. They shall try their best to mitigate the effects of the pandemic on the arbitral proceedings and avoid abuse of rights, and shall not pursue unreasonable and unfair procedural rights with the pandemic as an excuse or impede the arbitral proceedings in bad faith. Where the parties are truly unable to exercise their arbitration rights in a timely manner due to the pandemic, the case shall be conducted in accordance with the laws and regulations as well as the Arbitration Rules.
2. Specific Measures
2.1 On case filing. The parties and their representatives are encouraged to file their arbitration applications with the CIETAC online case filing system (http://online.cietac.org/), or to use postal service or other non-contact means to submit their arbitration applications. After the office facilities of the CIETAC headquarters and its sub-commissions/centers reopen to the public, case filing at its offices may be accepted with the necessary anti-epidemic measures in place.
2.2 On service of documents. In order to promote efficiency in service of documents, the parties are encouraged to agree to submit and receive arbitration documents via emails. Where the arbitration court of CIETAC or its sub-commissions/centers asks in the Notice of Arbitration for the parties’ opinions on the submission, receipt and service of arbitration documents by emails, the parties shall give due consideration thereto. In any stage of the arbitral proceedings, the parties are always encouraged to agree on submitting and receiving arbitration documents via emails.
2.3 On procedural orders, question lists, terms of reference, and pre-hearing conferences. According to Article 35 of the Arbitration Rules, unless otherwise agreed by the parties, the arbitral tribunal may adopt one or several of the following measures to proceed with the arbitration: (1) issue procedural orders after consulting with the parties, and take targeted measures to mitigate the effects of the pandemic on the arbitral proceedings; (2) produce terms of reference to summarize the issues in dispute and clarify the focus of hearing as early as possible in order to guide the parties through the arbitral proceedings effectively; the arbitral tribunal may also issue question lists to investigate on certain factual or legal questions, and request the parties to reply and submit evidence; or (3) hold pre-hearing conference by audio/ video conference, to prepare for the oral hearing and improve its quality and efficiency.
2.4 On appraisal. The parties are advised to consider the necessity of applying for an appraisal. The arbitral tribunal shall decide prudently by first making a comprehensive consideration on the factors such as the irreplaceability of the appraisal, the time and economic cost for the appraisal, its effects on the arbitral proceedings and the chance of having a successful appraisal during the pandemic. The parties shall fully cooperate in the appraisal procedure as requested by the arbitral tribunal. Where an appraiser is required to attend an oral hearing, his/her attendance by video conference or other non-contact means of communication shall be preferably considered.
2.5 On documents-only case examination.
--For cases where the Summary Procedure applies, according to Article 60 of the Arbitration Rules, the arbitral tribunal may decide to examine the case solely on the basis of the written materials and evidence submitted by the parties after hearing from the parties of their opinions. The arbitral tribunal is advised to consider the feasibility of examining the case on a documents-only basis on its own initiative, and ask for the parties’ opinions thereof.
--For cases where the Summary Procedure does not apply, according to Article 35 of the Arbitration Rules, the arbitral tribunal shall hold oral hearings when examining the case. However, for cases with clear facts and simple evidence, the arbitral tribunal is advised to ask for the parties’ opinions on its own initiative and decide to examine the case on a documents-only basis if the parties so agree.
2.6 On oral hearing.
Virtual hearing is considered as a specific way of oral hearing which is in accordance with the Arbitration Rules. During the pandemic, for cases to be examined with oral hearings, the arbitral tribunal is advised to first consider the possibility of holding virtual hearings.
--When deciding whether to hold a virtual hearing, the arbitral tribunal shall take into comprehensive consideration a variety of factors such as the parties’ opinions, the complexity of the case, the volume of evidence, any witness to be present, the justification of the party’s reasons against holding a virtual hearing, and the convenience and equality of the participants to access to the virtual hearing facilities. Where a virtual hearing is conducted, the arbitral tribunal shall fully protect the procedural rights of the parties, afford a reasonable opportunity to both parties to present their case, and treat both parties equally, so as to ensure the enforceability of the arbitral award under the applicable procedural law. The parties and their representatives as well as other participants of a virtual hearing shall follow CIETAC Provisions on Virtual Hearings (Trial) as attached and other relevant requirements.
--After consulting with the parties, the arbitral tribunal may adopt one of the following means of virtual hearings based on the specific circumstances of the case: (1) where the arbitrator(s), the parties and their representatives, and other participants are located in different parts of mainland China, a virtual hearing maybe conducted via CIETAC smart oral hearing platform (https://kt.cietac.org/portal/main/domain/index.htm); (2) where the arbitrator(s), the parties and their representatives, and other participants are located in different jurisdictions, or the language of the oral hearing is not Chinese, a virtual hearing may be conducted via other video conferencing platforms agreed by the parties and approved by the CIETAC headquarters or its sub-commissions/centers; (3) after the office facilities of the CIETAC headquarters and its sub-commissions/centers reopen to the public, the arbitrator(s), the parties and their representatives, and other participants at different localities of the CIETAC headquarters or any of its sub-commissions/centers may participate in a virtual hearing by using the nearest CIETAC facilities; (4) where the arbitrator(s), the parties and their representatives, and other participants are located in different jurisdictions, a virtual hearing may also be conducted through the joint platforms between CIETAC and other foreign arbitration institutions (CIETAC has cooperation agreements with major arbitration institutions in the world with arrangements for mutual assistance in oral hearings. If needed, please contact CIETAC case managers).
--After the office facilities of the CIETAC headquarters and its sub-commissions/centers reopen to the public, oral hearings may be conducted by physical presence with the necessary anti-epidemic measures in place.
--No matter an oral hearing is conducted virtually or by physical presence, the parties are advised to limit the number of participants and avoid the attendance of unnecessary witnesses under the premise of ensuring their legitimate rights.
2.7 On deliberation of the arbitral tribunal. According to Article 35 of the Arbitration Rules, the arbitral tribunal may hold deliberations in any manner that it considers appropriate. Where the members of the tribunal cannot meet in person to deliberate, the arbitral tribunal is advised to deliberate promptly through audio/video conference or other non-contact means of communication.
2.8 On mediation. For the sake of reducing the parties’ cost in dispute resolution and keeping the sound cooperation relationship between the parties, the arbitral tribunal shall make greater endeavors to mediate and actively lead the parties through the difficulties by consultation and conciliation. Where it is difficult to have a formal oral hearing, with the consent of the parties, the arbitral tribunal may encourage settlement by holding mediation meetings, especially virtual mediation meetings.
2.9 On arbitral award. The arbitral tribunal shall try its best to overcome the adverse effects of the pandemic and render the arbitral award as soon as possible for cases with hearings concluded. Where in a case it is not ready for a final award yet but is possible to have any part of the claims to be decided first, the arbitral tribunal shall consider the feasibility of rendering a partial award according to Article 50 of the Arbitration Rules.
These suggestions are non-exhaustive. The arbitral tribunal has the power to adopt other appropriate measures to efficiently proceed with the arbitration based on the specific circumstances of the case, but shall act impartially and fairly and shall afford a reasonable opportunity to both parties to present their case.
CIETAC will actively assist the arbitral tribunal to proceed with the arbitration efficiently, provide necessary service and guarantee to the arbitral tribunal, the parties and their representatives, and other participants to participate in the arbitral proceedings. Depending on the development of the pandemic, CIETAC will gradually and orderly reopen the office facilities of its headquarters and sub-commission/centers to the public to the best extent allowed by the relevant laws, regulations and requirements of the relevant departments, and provide consultation, case filing and oral hearing services at its offices as soon as possible.
These Guidelines do not constitute part of the Arbitration Rules.
These Guidelines shall be interpreted by CIETAC.
These Guidelines shall be effective as of May 1, 2020, and shall cease to have effect when the pandemic is over.
China International Economic and Trade Arbitration Commission Provisions on Virtual Hearings
In order to protect the legitimate rights of the parties, regulate the virtual hearings activities, maintain the order of the hearings, and improve the efficiency of arbitration, these Provisions on Virtual Hearings (“Provisions”) are formulated in accordance with the relevant laws and regulations including the Arbitration Law of the People’s Republic of China, as well as the current Arbitration Rules of the China International Economic and Trade Arbitration Commission (“CIETAC”).
Article 1 Virtual hearings are strictly confidential. Non-parties to the arbitration, arbitration agents and/or other arbitration participants, if without the authorization of the parties or the permission of the arbitral tribunal, are not allowed to take part in the virtual hearing.
The account and the password are the virtual IDs of the parties, arbitration agents and other arbitration participants to a virtual hearing. The parties, arbitration agents and other arbitration participants shall use their own accounts to participate in the virtual hearing and keep their account and password information properly, and shall not allow others to use their accounts to participate in the virtual hearing under their names. No one may impersonate the parties, their agents or other arbitration participants to participate in the virtual hearing.
Article 2 In cases where the arbitral tribunal decides to conduct a virtual hearing, the parties, arbitration agents and other arbitration participants will be deemed to be in default if they fail to take part in the virtual hearing on schedule without showing sufficient cause after being duly notified. During an on-going virtual hearing, they will be deemed to withdraw from the hearing if they are deliberately off-screen without the tribunal’s permission.
If the Claimant fails to appear in a virtual hearing or withdraws from an on-going virtual hearing without justifiable reasons, the Claimant may be deemed to have withdrawn its application for arbitration. In such a case, if the Respondent has filed a counterclaim, the arbitral tribunal shall proceed with the hearing of the counterclaim and make a default award.
If the Respondent fails to appear in a virtual hearing or withdraws from an on-going virtual hearing without justifiable reasons, the arbitral tribunal may proceed with the arbitration and make a default award. In such a case, if the Respondent has filed a counterclaim, the Respondent may be deemed to have withdrawn its counterclaim.
Article 3 The parties, arbitration agents and other arbitration participants, when taking part in a virtual hearing, shall be at a location that can satisfy the requirements of confidentiality and privacy. Such location shall be free from interruptions, and with good illumination and network signals.
It is forbidden for the participants to take part in a virtual hearing at public locations such as Internet cafes, shopping malls, squares, etc., which may affect the sound and image effects of the hearing, or may impair the seriousness of the hearing. It is forbidden to take part in a virtual hearing while the participant is driving a vehicle, or under drunkenness and other abnormal mental status.
The parties, arbitration agents and other arbitration participants shall inform CIETAC in advance of the specific location at which they will participate in the virtual hearing.
The parties, arbitration agents and other arbitration participants shall conduct pre-hearing tests at a specified time to ensure that the equipments are functional and the audio/video transmission is smooth and stable.
Article 4 The parties, arbitration agents and other arbitration participants shall dress properly when participating in a virtual hearing, and shall ensure that their heads and faces are fully shown in a reasonable area of the screen.
Article 5 The parties, arbitration agents and other arbitration participants shall mute or turn off other communication equipments during the virtual hearing, and shall observe the rules and etiquette of the hearing.
The following acts are forbidden:
(1) Any unauthorized audio/video recording;
(2) Disseminate information of the hearing in any way including by message, pictures, audio, and video etc.;
(3) Allow persons who are not authorized by the parties or approved by the arbitral tribunal to attend the hearing in any manner, and seek advice or discuss the case with such persons;
(4) Make or receive calls; and
(5) Other acts that may obstruct the proceeding of the virtual hearing.
Article 6 Witnesses, experts and appraisers shall take part in the virtual hearing at a place designated or approved by the arbitral tribunal. In principle, they are not allowed to participate in the hearing in the same room with the parties, their agents and other arbitration participants.
A party applying for a witness to appear in the virtual hearing shall submit a written application within the time limit provided by the arbitral tribunal. Witnesses shall only attend the virtual hearing with the approval of the arbitral tribunal and shall withdraw from the hearing when the arbitral tribunal so requests.
Experts and appraisers shall give professional opinions upon the requests of the arbitral tribunal during the virtual hearing, before or after which they shall not audit the hearing.
Article 7 The arbitrator(s), the parties, arbitration agents, other arbitration participants, the case manager and stenographer shall sign the transcript by using the electronic signature function of the operating system of the virtual hearing.
Article 8 These Provisions shall be interpreted by the Arbitration Court of CIETAC.