“Grace is that turning point from feeling hopeless to becoming empowered.” – Deborah Brodie
COVID-19 is a public health crisis that is massively disrupting the pending dispute resolution proceedings and generating new disputes that may be more difficult to resolve due to the safety concerns and public health restrictions imposed by the governments. The arbitral institutions of different jurisdictions are taking practical measures to provide guidance and procedural tools to the parties, counsels and tribunals to mitigate the delays generated by the pandemic. It is acknowledged that the parties, counsels, tribunals and the institutions have shared common goal to make every effort to conduct the arbitration proceedings in a fair, expeditious and cost-effective manner. While the videoconference and the audioconference have been employed as a practical technological alternative in the resolution of trans-jurisdictional disputes for many years, more and more hearings for domestic disputes are being performed by videoconferencing these days due to the COVID-19 pandemic. However, there is no doubt that some practitioners and disputants insist on in-person hearings and that the virtual hearing is not always the most appropriate alternative in some specific circumstances.
This Q & A note, written after participating in a virtual arbitration hearing simulation in May 2020, aims at sharing my preliminary research and reflections on virtual arbitration hearings. It is divided into 3 parts: Part I is the Definition and Application Scope of the Virtual Arbitration Hearing; Part II is the Pre-Hearing Preparation for the Virtual Arbitration Hearing; Part III is the Points for Attention during the Virtual Arbitration Hearings.
Q: What is virtual/remote arbitration hearing?
A: The virtual arbitration hearing is an alternative format of arbitral hearing in which one party, several parties or all participants use web conferencing software, such as Microsoft Teams and Zoom, to attend the hearing remotely. It provides an option to the participants, including the witnesses and the counsels, to deliver their testimony or make their arguments remotely but directly to the tribunal in real time when their physical presence is not practical for some reasons, such as difficulty of travel, health issues or some other proportionality considerations. The procedure, however, is not conducted online.
The virtual arbitration hearing should be distinguished from “online dispute resolution” which is defined as a mechanism for resolving disputes through the use of a technology-based intermediary called ODR platform which enables the parties to generate, to send, to receive, to store and to exchange or otherwise to process communications in a manner that ensures data security (UNCITRAL Technical Notes on Online Dispute Resolution). The procedure of ODR is completely conducted online.
Q: Why does the virtual/remote arbitration hearing matter?
A: The virtual arbitral hearing can not only effectively reduce the number of people gathered for the hearing during the COVID-19 crisis, but also greatly reduce the costs of arbitral proceedings. For example, some travel and accommodation expenses are saved. Furthermore, the time spent on the transportation would be substantially saved so that the practitioners could invest their precious time in helping more clients.
On the other hand, the virtual hearing is accepted by some judicial courts in Canada. For example, the Ontario Divisional Court has conducted its hearing on April 17, 2020 by videoconference through Arbitration Place on Nation Rise Wind Farm Limited Partnership v. Minister of the Environment, Conservation and Parks, 2020 ONSC 2984. Many national courts in other countries, such as China, Singapore, U.K. U.S., are conducting public hearings by videoconferencing to ensure access to justice during the pandemic. Thus, the virtual hearing could also be acceptable in the world of arbitration.
(See “Arbitration Unplugged Series – Virtual hearing: Present or Future?” May 23, 2020, Kluwer Arbitration Blog)
Q: What is the application scope of the virtual/remote arbitration hearing?
A: First, the arbitral tribunal may decide to advance the arbitral proceeding by virtual hearing if:
(1) all the parties to the arbitral proceeding request to participate in a virtual hearing; or
(2) one party requests to proceed by virtual hearing and the other parties have not raised any objections; or
(3) the arbitral tribunal considers it necessary to proceed by virtual hearing and no party has raised objections.
Second, it is not advisable to proceed by virtual hearing if:
(1) The verification of key facts is highly dependent on the physical authenticity of specific evidence; or
(2) The disputed matters involve information concerns national security, trade secrets or require higher standard of confidentiality (Note: The risk of cyberattacks penetration or unauthorized entry into the virtual hearing room still exists.); or
(3) The tribunal considers it inappropriate to proceed by virtual hearing.
(See Guidance Notes on Virtual Arbitral Hearings of Beijing International Arbitration Center (pilot plan), May 8, 2020, Beijing International Arbitration Center)
Third, it’s important to emphasize the procedural fairness issue in the virtual arbitration hearing. Art. 18 of the UNCITRAL Model Law stipulates that the parties shall be treated with equality and each party shall be given a full opportunity of presenting his case. Even though all the parties willingly participate in a virtual arbitral hearing, they may not be able to exercise their right to be heard fully due to the unequal access to the use of technology or the lack of independent, undisturbed and adequate environment for virtual hearing. If unequal access to use of technology is an issue, the right to be heard could later become an issue of procedural fairness (See “Arbitration Unplugged Series – Virtual hearing: Present or Future?” May 23, 2020, Kluwer Arbitration Blog).
(Reminder: The purpose of this article is to provide general legal information. It does not contain a full analysis of the law nor does it constitute a legal advice on the points of law discussed. To minimize the legal risk for your business, you must take specific legal advice from a lawyer on any particular matter which concerns you. Thanks for your attention. ?)