By Caroline Simson

Law360 (October 2, 2020, 5:42 PM EDT) -- In this edition of Coronavirus Q&A, the International Centre for Settlement of Investment Disputes' newly reelected Secretary-General Meg Kinnear speaks with Law360 about the effect the COVID-19 pandemic has had on the institution's operations and her plans for ICSID over her next term.

Kinnear, who first joined ICSID as secretary-general in 2009, was reelected to a third term by the ICSID Administrative Council on Sept. 10. Her term will run until June 2024, which is her mandatory retirement date.

This interview has been edited for length and clarity.

What are the biggest ways the coronavirus has affected ICSID?

Like everybody else, we have had to [acclimate] to this new environment very, very quickly. For us, that meant essentially that our staff went to full working-from-home status and all of our operations had to be done remotely, including hearings. One of the things that was really lucky for us is that we were already going in the direction of [having] more virtual technology. We had already had a lot of the work done by the IT people at the World Bank.

So we were lucky to be pretty far along that road when we got to that day in mid-March, when the full Secretariat had to go home. We sent out a note to the parties saying, 'Henceforth, all filings will be electronic, and we'll offer remote hearings to anyone who would like to do their hearing remotely.' Even though it seemed pretty abrupt, we were lucky that we had been doing remote hearings before that. So that made it easier for us.

Did you have any idea of how long these conditions would continue at the time?

At the World Bank, they had already set up a group that was monitoring what was happening and where things were happening, so we had a sense of this oncoming wave. But I think nobody knew how long it would last, and how devastating, frankly, it would be. We were lucky in that we had good sources of information, but like everybody, we were learning things every day about how this would happen and how long this would go on.

How have things been going at ICSID since then?

It's been going remarkably well, and in many ways — if you can put it this way — there has been a silver lining in that I think we have all had a really good lesson in how remote technology works, and frankly, how well it can work. For a discipline that's been worrying about time and cost, we've realized that we can operate in a way that really makes a huge dent in time and cost.

What have you been doing to address the issues raised by the pandemic?

The biggest challenge for us was not actually doing this, but the extent of the accommodation needed. We've been having witnesses [give testimony] remotely and have been conducting hearings remotely for many years, but all of a sudden you had the sheer volume of remote hearings. Every hearing that went ahead had to be a remote hearing.

Some of the cases were incredibly complicated. You had tens, if not hundreds of people sitting at their kitchen tables trying to figure out the systems and their capacity.

We noted in the last couple of weeks that we've had at least 10 to 15 remote hearings in every single week. That includes everything from the one-hour pre-hearing conference to the two-week, full blown merits and jurisdictional hearing. So we've really had to rely heavily on our internal hearing organizers and our staff. We've been really lucky because we've been able to get extra support from the World Bank's IT people.

So as far as how we've accommodated this, essentially all of our staff is working from home. We luckily had already provided them with all of the equipment needed, so the key there was determining how we can stay well-coordinated and on top of everything.

We have a number of staff who are working, for example, from a parent's home or an in-law's home to get help with child care, so we really are all across the globe at this point. But it's working very well. In fact, in some respects it gives us coverage in every single time zone, which is great. So I'm really impressed with how quickly everybody has accommodated and adapted to this new situation.

Did you find in those first weeks in March that people were willing to do the remote hearings, or was there some initial resistance?

Some people were concerned about holding hearings remotely, often because they'd had limited experience with the technology or because they had concerns about it. But I think it's fair to say that as everybody started to realize that this was going to continue for a while, people were then willing to try it. They really embraced it once they had tried it.

We found that the No. 1, single most important thing was, basically, the testing. Especially in the beginning, when you had a hearing coming up, we would be doing two, three and four sets of testing, with the transcribers and the tribunal. We were really trying to emulate the real-life situation.

We've also done a number of programs and two videos on how to have a smooth remote hearing — what are the things to learn, and even basic things like how do you place the camera and the kind of equipment needed. We found that ethernet connections work a lot better than regular Wi-Fi connections. This is very basic stuff, but that's what people need to make sure this works really well.

I think the interesting thing has been probably the optimism that people have. They're very impressed. [They're thinking], 'Yes, it was new, and the first time I did it, I felt like I was scrambling a bit, but now I've got this under my belt and it works really well.'

That's really what we're trying to say: Let's keep making the system better. Let's all get the experience, but we've got to be business as usual here, and we've got to keep moving forward.

You mentioned that the filings are now being done electronically. I understand there was movement within ICSID to go in that direction even before the pandemic. How many filings would you say were made electronically pre-COVID?

Well, more than half. What we sometimes found is that people would file electronically and then send the hard copy later, or they would file completely electronically.

What are the biggest concerns you've heard from ICSID users with respect to the pandemic?

Everybody's finding that this is a long, hard road, but we're all in the same boat. I think in some circumstances, parties would still prefer an in-person hearing. I suspect as we go along this road, we will start to transition back, maybe to what people are calling a hybrid hearing. For example, you [could] have a counsel team all in one room remotely linked, and the other counsel team in another room remotely linked, and the three arbitrators together in another room remotely linked. So starting to get back to normal.

But I think and I hope that this really has changed the way we expect to do business in international arbitration, especially in those procedures that are [less complicated]. A lot of people are saying this works really well. We save time, we save cost, we save on jetlag and we save on our carbon footprint. This is really the way of the future. So that's the positive development out of all of it.

Tell me about your plans over your next term as ICSID secretary-general.

I'm delighted. Obviously the immediate priority is, as always, high-quality service on cases. One of the aspects of it now is making sure that the remote technology continues to do what people need, and making it better as we go.

Beyond the case work, as you know, we are in the final stages of major amendments to the ICSID rules. We had a big consultation among our member states that was planned for April of 2020, and of course we couldn't have that because of COVID. So we've been halted a little bit in what our plan schedule was. But we ended up trying to address that by getting one more round of written commentary, which we published [Sept. 18].

We're hoping to get the finalized proposed amendments to our members for a vote in 2021. Obviously, like many things it's pandemic dependent, but we're trying hard to keep the momentum and get there because we're really within striking distance on the amendment package.

Another priority is to move forward with this code of conduct that we developed with the [United Nations Commission on International Trade Law] secretariat. It was a first draft to start the conversation and comments on that are due Nov. 30.

[After that], we'll try and update the draft code and then UNCITRAL will schedule a conversation on it in one of their working groups, and we'll participate in that as well. So it's an ongoing project, but it's a big project. It's one that I think a lot of stakeholders, and a lot of the delegations, are very keen on, so we'd like to get that done.

I would really like to continue to expand our membership. People often talk about the three states that have left ICSID since 2009, but it's a little-known fact that [during that same period] 10 states have joined ICSID. We now have a total of 155 members, and I know that there are other states that are interested in joining.

The other thing that I think deserves a little more time and attention is making mediation a really viable and effective option. I know there's a lot of interest in it, and we have this standalone set of mediation rules as part of the amendment. I think that holds a lot of potential, so we want to keep doing work and increasing the work we're doing to make that a well-understood option for parties, and one that they feel in the appropriate case can be invoked.

--Editing by Kelly Duncan.

Check out Law360's previous installments of Coronavirus Q&A.

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