CNUDMI - A-CN.9-1233

United Nations A/CN.9/1233

General Assembly

Distr.: General 9 July 2025

English only

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United Nations Commission on International Trade Law Fifty-eighth session Vienna, 7 –23 July 2025

Submission by the Government of Israel regarding exploratory work on remote arbitration and mediation

The Government of Israel submitted a proposal with regard to further exploratory work to be undertaken by the Secretariat, through the project on the stocktaking of developments in dispute resolution in the digital economy (DRDE). The submission was receiv ed on 7 July 2025, and is reproduced as an annex to this Note in the form in which it was received.A/CN.9/1233

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Annex

Possible future work on the procedural aspects of remote international arbitration and international mediation

I. Background

1. In the past few years conducting full or partial international arbitration and mediation proceedings remotely has become almost a norm. As stated by the UNCITRAL Secretariat “recourse to videoconferencing has been boosted in dispute resolution by the COVID -19 pandemic and is here to stay ”.1

2. In the wake of this development, arbitral institutions have adopted interim protocols or guidelines on virtual hearings. These tools aim to address , inter alia, the potential for technical difficulties, limiting exposure of witnesses to external influences and measures to preserve the integrity of the proceedings. 2

3. The different tools have common elements focusing on principles of technological neutrality, due process and efficiency. At the same time, the tools diverge in scope and content. 3 While several non -governmental instruments, such as the IBA Rules, the Seoul Protocol, and guidance issued by arbitral institutions

3. The different tools have common elements focusing on principles of technological neutrality, due process and efficiency. At the same time, the tools diverge in scope and content. 3 While several non -governmental instruments, such as the IBA Rules, the Seoul Protocol, and guidance issued by arbitral institutions including the ICC, offer useful frameworks for remote proceedings, these are not the product of an intergovernmental proces s and lack universal endorsement. There is at present no universally agreed or recommended guidance for the conduct of remote international arbitration and international mediation issued by a government led forum such as UNCITRAL, in particular when these are conducted on an ad -hoc basis without institutional support. A soft -law instrument developed under UNCITRAL’s auspices could provide a harmonized standard, particularly useful for ad hoc proceedings but potentially may also lead to great consistency bet ween institutional rules that would look up to the UNCITRAL tool for guidance and inspiration, to ultimately promote global standards.

4. In 2023, the UNCITRAL Secretariat suggested in respect of arbitration that “…a common protocol or guidance notes on online hearings may be developed so that they are readily accessible by the users when needed, taking stock of the lessons learned since the onset of the pandemic and building on protocols already developed ”.4 In respect of mediation the UNCITRAL Secretariat noted the following “as research has yet to be completed, stocktaking activities need to be continued to obtain a fuller set of protocols, guides or precisions regarding online mediation and information on best practices. Given the flexible nature of mediation and the degree o f party autonomy in designing the process, it remains to be seen whether there would be some value -added in developing guidance material reflecting best practices. ”5

II. Challenges posed by remote international arbitration and mediation

5. Generally, it appears that parties agree to conducting remote deliberations in the conduct of international arbitration and international mediation. 6 At the same time, __________________ 1 A/CN.9/1154 , para. 58.

mediation

5. Generally, it appears that parties agree to conducting remote deliberations in the conduct of international arbitration and international mediation. 6 At the same time, __________________ 1 A/CN.9/1154 , para. 58. 2 Ibid., para. 65. 3 Ibid., footnote 18. The footnote contains the following examples – “ICC Checklist for a Protocol on Virtual Hearings and Suggested Clauses for Cyber -Protocols and Procedural Orders Dealing with the Organization of Virtual Hearings, SIAC Guides – Taking Your Arbitration Remote, JIDRC Sample Agreement for a Virtual Hearing, Seoul Protocol on Video Conferencing in International Arbitration, ALARB Protocol for the holding of arbit ral hearings remotely or virtually. ” 4 Ibid., para. 67. 5 Ibid., para. 73. 6 Ibid., para. 64.A/CN.9/1233

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even when there is party consent on the use of remote hearing technologies potential challenges remain, including the following: • Confidentiality and unauthorized access – despite best efforts, virtual hearing platforms might be susceptible to breaches of confidentiality, whether due to third -party interception or unauthorized recording. 7 This risk can also be relevant in mediations, where parties often assume heightened expectations of privacy and can pose obstacles to the trust parties to mediation have in the process. • Witness examination and credibility assessments – the integrity of crossexamination - especially the ability to assess witness demeanour and prevent coaching or unauthorized communications – must be preserved to the fullest extent possible. • Jurisdictional and logistical coordination - Procedural rules applicable to the seat of arbitration or the place of enforcement may require physical presence for certain procedural acts. Moreover, time zone disparities, data localisation laws, and cross -border service of documents can complicate t he organization of remote hearings and deliberations in mediation. • The lack of personal interaction – face to face interaction is particularly

seat of arbitration or the place of enforcement may require physical presence for certain procedural acts. Moreover, time zone disparities, data localisation laws, and cross -border service of documents can complicate t he organization of remote hearings and deliberations in mediation. • The lack of personal interaction – face to face interaction is particularly important in the conduct of mediation for its success. 8 • Limitations to the control by the mediator of the structuring of the proceedings – in physical settings mediators can create a conducive environment for agreement by the parties, for example separate meeting rooms and real -time intervention in discussions between parties. Remote mediation might subject this to software limitations and th e technical capability of parties impacting the fairness of the process. • Cognitive fatigue and diminished engagement – Prolonged participation in remote deliberations in international arbitration and mediations can lead to reduced focus, slower processing, and increased irritability. Continuous screen time, fewer natural breaks, and limited non -verbal cues make virtual se ttings more mentally demanding than in -person ones. These effects are amplified during multi -day hearings (the norm in international arbitration) or when participants join from different time zones, potential ly undermining the quality of advocacy, decision -making, and all -around engagement.

6. The UNCITRAL Model Law on International Commercial Arbitration, the UNCITRAL Arbitration Rules, the UNCITRAL Expedited Arbitration Rules, the UNCITRAL Notes on the Organization of Arbitral Proceedings, the UNCITRAL Mediation Rules and the UNCITRAL Mediation Notes permit a flexible approach to the conduct of remote deliberations. At the same time none of these instruments elaborate on appropriate procedural framework. 9

III. Proposed scope of work

7. It is proposed that the Commission mandate the Secretariat to focus further exploratory work aimed at mapping existing institutional practices, national laws, and user expectations concerning remote international arbitration and international mediation. Th e outcome of this work can be demonstrated as in comparative review

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7. It is proposed that the Commission mandate the Secretariat to focus further exploratory work aimed at mapping existing institutional practices, national laws, and user expectations concerning remote international arbitration and international mediation. Th e outcome of this work can be demonstrated as in comparative review __________________ 7 UNCITRAL recently recognized the importance of confidentiality in the SPEDR UNCITRAL Model Clause on Confidentiality. 8 https://ellisons.com/news/remote -mediation -advantages -and -disadvantages -is-it-the-wayforward/ . 9 UNCITRAL Model Law on International Commercial Arbitration, article 24(1 ), UNCITRAL Arbitration Rules, article 28(4 ); UNCITRAL Arbitration Expedited Arbitration Rules, article 3.3; UNCITRAL Arbitration Notes, paras. 19, 31, 122; UNCITRAL Mediation Rules, article 4.4; UNCITRAL Mediation Notes paras. 58, 67.A/CN.9/1233

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of guidance issued by arbitral institutions (e.g., ICC, SIAC and the Seoul Protocol) mediation institutions, bar associations, and regional arbitration centres. The work could also include engagement with the Permeant Bureau of the Hauge Conference on Private International Law to learn from the experience with the work on videoconferencing for taking of evidence abroad in the framework of the 1970 Evidence Convent ion. 10

8. On the basis of the outcome of the work, the Secretariat could be invited to convene in the first or second half of 2026, a colloquium or expert group meeting, drawing together stakeholders from across jurisdictions —including arbitrators, user representati ves (including General Councils ( mediators, technical experts, counsel, and representatives of international arbitral and mediation institutions and organizations. The colloquium could focus on procedural innovations and identify areas where consistent uni versally backed guidance is lacking or fragmented.

representati ves (including General Councils ( mediators, technical experts, counsel, and representatives of international arbitral and mediation institutions and organizations. The colloquium could focus on procedural innovations and identify areas where consistent uni versally backed guidance is lacking or fragmented.

9. Based on the findings of the colloquium, the Commission could consider mandating a working group to develop one or more soft -law instruments. These may include: (a) optional protocols for remote hearing management; (b) draft model clauses addressing virtual hearing consent, format, and security; (c) guidance on best practices; and (d) recommendations on the use of technology in the conduct of remote international arbitration and international mediation.

10. It is emphasized that the scope of the proposed work would be limited to procedural guidance. It would not address substantive legal issues including questions pertaining to the need, or lack thereof, for parties' consent to conducting deliberations remote ly and potential impact on the enforceability of the arbitral award or mediated settlement.

11. Insofar as international dispute resolution is increasingly conducted in digital environments, the development of harmonized universally endorsed procedural tools and guidance for remote international arbitration and international mediation could significa ntly enhance the legitimacy, predictability, and user -friendliness of UNCITRAL’s dispute resolution instruments. This could complement the existing UNCITRAL corpus while helping to ensure that cross -border virtual proceedings meet the same standards of due process and effectiveness as physical ones.

__________________ 10 For example, the HCCH 2020 Guide to Good Practice on the Use of Video -Link under the Evidence Convention.