The Bahrain Chamber for Dispute Resolution (BCDR or the Chamber) is committed to minimizing delays and interruptions to arbitral proceedings as a consequence of the restrictions on working, movement and contacts imposed during the Covid-19 pandemic.
To this end, BCDR requests parties and arbitral tribunals whenever permitted and possible to adopt electronic means of communication in all pending and forthcoming arbitrations under the 2017 BCDR-AAA Rules of Arbitration (the Rules).
1. Relevant Articles (emphasis added)
Article 2.3 Request for Arbitration
"The Request may, but need not, be submitted to the Chamber using the Chamber's online filing form located at www.bcdr-aaa.org."
Article 4.3 Response to the Request
"The Response may, but need not, be submitted to the Chamber using the Chamber's online filing form located at www.bcdr-aaa.org."
Article 6.3 Expedited procedure
"The Request may, but need not, be submitted to the Chamber using the Chamber's online filing form located at www.bcdr-aaa.org."
Article 7.1 Written communications and time limits
"Any written communication by any party (including its legal representative), by the arbitral tribunal, or by the Chamber, to any or all of these may be delivered personally; by courier; by registered mail; or by e-mail, facsimile, or any other form of electronic communication that provides a record of its transmission."
Article 14.16 Emergency measures of protection
"The request to appoint an emergency arbitrator may, but need not, be submitted to the Chamber using the Chamber's online filing form located at www.bcdr-aaa.org."
Article 16.3 Preliminary conference
"The arbitral tribunal shall, promptly after being appointed, conduct a preliminary conference with the parties, in person or by video or telephone conference, for the purpose of organizing, scheduling, and agreeing to procedures, including the setting of deadlines for any submissions by the parties. In establishing procedures for the case, the arbitral tribunal and the parties may consider how technology, including electronic communications, might be used to increase the efficiency and economy of the proceedings."
Article 22.7 Examination of witnesses
"The arbitral tribunal may direct that witnesses be examined in person or by telephone or video conference."
Article 26.4 Interim measures of protection
"An application for emergency measures of protection prior to the appointment of the arbitral tribunal may be made as provided for in Article 14."
Article 28.6 Joinder
"A Request for Joinder and a Response to Request for Joinder may, but need not, be submitted to the Chamber using the Chamber's online filing form located at www.bcdr-aaa.org."
2. Parties' filings and applications
Requests for arbitration (Article 2.3 of the Rules), responses to requests for arbitration (Article 4.3), applications to appoint an emergency arbitrator (Article 14.16), applications for conservatory measures (Article 26.4 ), and requests for joinder and responses thereto (Article 28.6) should be submitted to the Chamber using only BCDR's online filing forms.
3. Written communications, generally
Any written communication by any party (including its legal representative), by the arbitral tribunal, or by the Chamber, to any or all of these should be delivered only by e-mail, facsimile, or any other form of electronic communication that provides a record of its transmission (Article 7.1 of the Rules).
4. Preliminary conference
The preliminary conference mandated by Article 16.3 of the Rules should be conducted exclusively by video or telephone conference.
Pursuant to Article 16.3, the arbitral tribunal and the parties, when establishing procedures for the case, should agree how electronic communications will be used to increase the efficiency of the proceedings.
It is strongly recommended, therefore, that all written submissions and any supporting documentation, including witness statements and expert reports, be submitted exclusively by electronic means.
Such submissions include statements of claim and statements of defense (Article 17), applications for summary procedure (Article 18), applications in connection with the exchange of information (Article 23), applications for consolidation (Article 29), and requests for interpretation or correction of an award (Article 37).
BCDR recommends that arbitral tribunals instruct parties to refrain from the transmission of portable storage devices (e.g., USBs, CD-ROMs, etc.) by mail or courier, and instead to upload any documentation and/or exhibits to an online document repository instead.
It is also recommended that arbitral tribunals use only electronic copies of case-related documents.
5. Hearings
Whenever possible, arbitral tribunals and emergency arbitrators should conduct oral hearings and the examination of witnesses by video or telephone conference (Articles 14.5, 16.3 and 22.7)
Guidelines for the preparation and conduct of online ("virtual") hearings are annexed to this note.
6. Extension of time limits
As a general rule, and in line with the arbitral tribunal's and the parties' respective duties to avoid unnecessary delay and cost (Articles 16.2 and 16.4), all time limits prescribed by the Rules should be adhered to.
However, if and when called upon to set a time limit or to decide on a request for an extension of a time limit, the Chamber will, and the arbitral tribunal should, consider the impact of the Covid-19 pandemic on the parties' ability to comply with deadlines prescribed by the Rules or directed by the arbitral tribunal.
7. Awards, orders, decisions, and rulings
Procedural orders, decisions, and rulings may be notified to the parties electronically unless applicable law(s) provide(s) to the contrary, or the arbitral tribunal or the Chamber determines otherwise.
The issue by the arbitral tribunal of any award remains as set out at Article 35.6 of the Rules, with the arbitral tribunal retaining for each of its members one signed original of the award, and transmitting to the Chamber as many signed originals as there are parties, plus one signed original for the Chamber.
However, the arbitral tribunal may also transmit to the Chamber an electronic copy of the signed award for immediate onward transmission by the Chamber to the parties.
8. Invoicing and payment
The Chamber will only issue invoices electronically.
The arbitral tribunal, any expert to the tribunal and any secretary to the tribunal, should similarly submit its invoices to the Chamber only by electronic means.
Parties should only use BCDR's online payment tools (with payment to our bank account or by credit card) for the secure payment of invoices.
9. Queries and support
For any questions or assistance relating to any of the contents of this note, contact your dedicated BCDR case manager or [email protected].
10. Modifications to this Note
Any modifications or additions to this note will be posted on the News section of the BCDR official website www.bcdr-aaa.org.