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A brief summary of the position about remote arbitration hearings in some of the common law jurisdictions – UK, Hong-Kong, Singapore and the USA.
2 minute read
28 March 2022
Video links have, of course, been used in international arbitration hearings for many years, for instance, to take the evidence of witnesses or experts. The Covid pandemic has brought about a major change in that many arbitration hearings are either taking place remotely or in hybrid form that is, for instance, one party participating remotely and another in person.
The initial effect of the pandemic was that arbitration hearings were generally postponed but remote hearings were soon contemplated, although with hesitation about whether they were adequately permitted under the applicable arbitral rules.
But arbitral institutions soon adapted and, where the rules did not specifically permit remote hearings, provided guidance about this and some arbitral institutions updated the rules specifically to cover this.
The objective was to avoid due process objections from a losing party who had opposed a remote hearing. Interestingly there has been a decision of the Austrian Supreme Court confirming a tribunal’s power to hold remote hearings over one party’s objections and due process concerns.
The arbitration agreement will often not refer to remote hearings and the institutional rules may not mention this either. However, the rules often give the tribunal wide powers over conducting the arbitration and deciding what procedure should be used and how evidence is taken and arbitral tribunals have been used to relying on this flexibility.
The London Court of International Arbitration updated its rules specifically to cover remote hearings with an update taking effect on 1 October 2020.
The main provision is in Article 19.2 which emphasises the wide power of the tribunal to choose a remote hearing.
Article 19.2 states –“The arbitral tribunal shall organise the conduct of any hearing in advance, in consultation with the parties. The arbitral tribunal should have the fullest authority under the arbitration agreement to establish the conduct of the hearing, including its date, duration, form, content, procedure, time limits and geographical place (if applicable). As to form, a hearing may take place in person, or virtually by conference call, videoconference or using other communications technology with participants in one or more geographical places (or in a combined form).”
There are also other references to the use of technology in the rules. For example, an emergency arbitrator (Article 9.7) is given wide power to use communications technology and Article 14.3 (which relates to communications between the parties and with the tribunal) says that these communications can include conference calls, video conferencing or “using other communications technology”.
The Hong Kong International Arbitration Centre’s approach has been to rely on the wide discretion given in the rules to the arbitral tribunal plus providing detailed practical guidelines for remote hearings.
Article 13 of the 2018 Rules states:
“Subject to these rules, the arbitral tribunal shall adopt suitable procedures for the conduct of the arbitration in order to avoid unnecessary delay or expense, having regard to the complexity of the issues, the amount in disputes and the effective use of technology and provided that such procedures ensure equal treatment of the parties and allow the parties a reasonable opportunity to present their case.”
Further, Article 22.5 allow the tribunal to decide how a witness or expert is examined.
In May 2020 practical guidance was issued by the HKAC and includes directions about technology and how it should be used and also precautions to ensure that witnesses give their evidence in a way in which they are not improperly influenced e.g.: by somebody else in the room. So, a 360 degree viewing of the room by video is featured.
The HKIC has made recommendations for three different forms of hearing:
(a) Physical hearing with social distancing;
(b) Hybrid hearing; and
(c) Fully remote hearings.
Again, the Singapore International Arbitration Centre does not have specific rules for remote hearings but Rule 19.1 of the 2016 Rules states “the Tribunal shall conduct the arbitration in such manner as it considers appropriate, after consulting with the parties, to ensure the fair, expeditious, economical and final resolution of the dispute.”
Rule 19.3, about preliminary hearings, also states that the tribunal can deal with this either by an in person hearing or “any other means”.
The only specific reference in the rules to video conferencing is in relation to emergency arbitrator proceedings which refers to the arbitrator giving reasonable opportunities for parties to be heard but can provide proceedings by video conferencing.
On 31 August 2020 the SIAC issued “Taking your arbitration remote” – which is a detailed guide about remote hearings. The guide contains many recommendations about the procedure, including practical points about technology. It also contains appendices about technology platforms and guidance about procedural orders and participants’ conduct.
The International Centre for Dispute Resolution, as the international division of the American Arbitration Association, has issued specific rules about remote hearings.
Article 22(2) of the ICDR Rules relating to procedural hearings states that “The Tribunal and the parties may consider how technology, including video, audio or other electronic means, could be used to increase the efficiency and economy of the proceedings”.
In Article 26(2) there is reference to tribunals conducting remote hearings by (a) agreement of the parties; or (b) if the tribunal decides after consulting with the parties that it would be appropriate and would not compromise the rights of any party to a fair process.
As to witnesses; Article 26(2) says that they can be examined in a way that does not require their physical presence.
28 March 2022
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