By Jaydeep Saha ~ Law College Dehradun, Faculty of Uttaranchal University.
In International Arbitration virtual hearing of cases is not new but potentially due to the catastrophic effect of Covid-19, there is a huge shift on a core feature of arbitrational procedure i.e. the in-person hearing. But one important issue rises as to how parties and arbitrators can ensure that virtual hearings, especially of the main application or an evidential hearing that may be hands-down of the entire case, act in accordance with due process. As today the situation is different, Virtual hearing is the only option to avoid undue delay with live hearing.
THE PROTOCOLS AND GUIDANCE NOTES ON VIRTUAL HEARING
There are various protocols and guidance notes, have been issued to assist parties. Includes:
- The ICC’s Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic, which provide guidelines for a virtual hearing protocol ensuring each party is treated equally and given a full opportunity to present its case.
- The CIArb Guidance Note on Remote Dispute Resolution Proceedings, which provide guidelines on legal and logistical, technology, and procedural matters relating to virtual hearings.
- The Seoul Protocol of Video Conferencing in International Arbitration, which provides guidelines on best practices for a virtual hearing.
- The HKIAC Guidelines for Virtual Hearings, which provide practical guidelines on matters such as confidentiality, the preparation of electronic bundles, and transcription and interpretation services.
However, they are helpful but have their own shortcomings. Furthermore, they do not address the situation in live virtual hearing where one or both parties object.
PRACTICAL ISSUES RELATED TO ESTABLISHED TECHNOLOGIES
In the virtual hearing, most of the arbitrators are unfamiliar[i] with the concept of conducting a hearing with everyone from different locations. As in the case of Municipo de Mariana & Ors v. BHP Group PLC & Ors[ii], it was stated that the lawyers can and must equip themselves with the experience and practice of using the platform. In the case of, fail links and poor internet connectivity it can also hamper the smooth functioning of the hearing. As hearing is online, the other party in hearing from other parts of the globe will create the question to the logistics to manage the time of the participation and even for brief teleconferences the challenge of finding times fall within the waking hours of participants. Further, there is a concern that may be raised by a party that the complexity of the technology being used is impeding its ability to allege facts, submit arguments, or produce evidence. There is also a concern in evaluating witness testimony, mostly under cross-examination, concern rises that the loss of in-person observation will impair the tribunal’s true ability to assess the credibility and strength of the evidence. It may be difficult to make out and capture the appearance of the witness’s evidence onscreen and body language, facial expressions and tonal changes. It also reduces the attention span in hearing cases which is more in in-person hearing.[iii] Also, remote participation raises concerns that tribunal must ensure that the witness is not reading from a script that is hidden from the view because of virtual hearing. This possibly casts doubt on the soundness and utility of a witness’ virtual evidence.
Another vital issue in virtual arbitration is data protection, when there is an excessive exchange of data that includes names, email id and addresses, recording of calls and videos, storing and exchanging of documents and maintaining the records of the proceedings. As there is the “ICCA-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration” and the IBA’s “Cybersecurity Guidelines” provide some helpful baseline security measures that one can adopt in the virtual arbitration for the following shift in recent patterns as the arbitrators and parties should carefully ensure the new law in the mechanism of data protection
LEGAL ISSUES RELATED TO VIRTUAL HEARING
The main concern arises between the two parties while hearing is when the appellant requires a virtual hearing but the respondent does not want to move as fast as the appellant and wants its preference for in-person hearings. Even if also the opposite scenario of the case happens the appellant wants to exercise his right to establish its case with an examination of evidence in cross-examination of witnesses and experts. And, finally, both parties may object to the tribunal’s invitation for a virtual hearing. Under this scenario, the tribunal should not order a virtual hearing as it raises issues related to recognition or setting aside proceedings against the award. The Tribunals while hearing any case virtually consider the nature and complexity of any dispute. As in cases when the outcome of the issue is heavily dependent on the credibility of the witness the virtual hearing can be considered inappropriate[iv]
Today most modern institutional arbitration rules contemplate that if one of the parties to the arbitral proceedings requests a hearing, the tribunal shall provide that party with a hearing.[v] If a party requests a hearing, the tribunal shall provide a hearing. The question arises if a hearing is the kind of oral in-person hearing that existed at the time the Model Law was drafted in 1985, but now we are dealing with virtual hearings, when both witness counsels are not in the physical presence of the tribunal, so the question arises is whether this is really a hearing. It is generally accepted that a hearing includes any mechanism (e.g. audio and visual) to hear counsel in real-time, provides the opportunity for a witness to deliver testimony directly to the tribunal in real-time which now totally depends on the internet connectivity of both the parties.
Even if we consider a virtual hearing as a hearing due to pandemic, this doesn’t necessarily satisfy other requirements, for example, under article 18 of the Model Law, it states that “the parties shall be treated with equality and each party shall be given a full opportunity of presenting his case” and articles 5.1 (b) and (d) of the New York Convention (i.e., the right to be heard). The assumption that because the parties to an arbitral proceeding willingly participate in a virtual hearing are exercising their right to be heard could be a wrong assumption if there is unequal access to the use of technology and accessibility makes an issue, the right to be heard could later become an issue. This is important to consider such implications of a virtual hearing.
Due to the pandemic tribunals are forced to consider options like virtual hearing which might lead to greater efficiency and cost-effective if the issues can overcome during the hearing virtually. Thus shall now parties have to consider their interest and concern while opting for virtual hearing in Arbitration as procedural considerations, like the lack of good faith and data security, can threaten the legitimacy of virtual arbitration even when there is the solution of other problems in virtual hearing.
- [i] The Queen Mary, University of London 2018 International Arbitration Survey found, at 31- 32, that 78% of respondents had never or only rarely used virtual hearing rooms.
- [ii] Re: Smith Technologies (Unreported 26th March 2020), cited in Municipo de Mariana & Ors v. BHP Group PLC & Ors  EWHC 928 (TCC); National Bank of Kazakhstan v. Bank of New York Mellon (Unreported), 19 March 2020.
- [iii] https://www.americanbar.org/groups/litigation/committees/childrens-rights/articles/2020/privacy-and-confidentiality-tips-for-virtual-hearings/
- [iv] Alastair Henderson, Minimising the Impact of COVID-19 on Arbitrations: A Guide for Counsel and Arbitrators¸ SIAC Webinar Series; Nish Shetty, Strategies for Effective Oral Advocacy & Cross-Examination for Virtual Hearings: A Guide for Counsel, SIAC Webinar Series.
- [v] Article 24 of the UNCITRAL International Commercial Arbitration Model Law (the Model Law).