Arbitration Online: How the Pandemic Has Changed International Dispute Resolution

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Getting witnesses, parties, arbitrators or tribunals, a variety of legal counsel and whoever else, to an in-person international arbitration hearing, would have been difficult to organise even before the onset of a global pandemic.

According to the International Bar Association (IBA), the pandemic has in fact accelerated a move to online proceedings that was already underway in many jurisdictions.

As such, some considerations, although not new to any experienced arbitrator, have simply become of much greater importance. These include:

  • Determining whether the parties would be better served by a remote video hearing or an in-person one
  • Minimising any disruption that might be caused by a range of factors not ordinarily present in an in-person hearing, such as time zone differences and technological failures
  • How to minimise concerns over due process, including the confidentiality of the proceedings and the security or admissibility of evidence, documents and data
  • Ensuring that any awards are enforceable

1. Increased use of online proceedings

In international arbitration, adjustments to a new way of working have happened much more quickly than would otherwise have been required.

Without the catalyst of a global catastrophe, like many sectors, the world of international arbitration might not have seen such a range of new problems to consider and technology being introduced in a relatively short period of time.

Now that hopefully, we are approaching the end of the pandemic, there is now a substantial amount of documentation available to ensure that, despite the increased use of online hearings, any concerns regarding their efficacy can be mitigated.

For example, CPR released a model procedural order for remote video arbitration hearings. It provides information to:

  • Choose a remote video platform, or multiple platforms, from which to conduct the hearings
  • Ensure that each participant has access to the appropriate equipment and can use such equipment effectively
  • Schedule a test session to resolve any potential technical issues beforehand
  • Gain access to exhibits
  • Agree on terms for challenging an award, such as not to oppose enforcement on the basis that the arbitral hearing was conducted by remote video conferencing

2. Minimising concerns over due process

Whilst the above steps are largely focused on maintaining the same level of efficacy as an in-person hearing, it still might prove difficult to guarantee the degree of confidentiality that is so integral to arbitration.

For example, whilst recording a hearing might be forbidden by the rules, nevertheless, the parties, counsel or the arbitrator may remain none the wiser if recordings or screenshots are taken.

Mitigating the risks to due process can be broken down into two areas:

  • maintaining the confidentiality of the proceedings as a whole and
  • maintaining the security of the individuals involved.

This can be done by:

  • Allowing the tribunal to request participants, at any time, to orient the webcam so as to provide a view of their room, or any documents they may be referring to
  • Distributing hard-copy documents in sealed envelopes, to be opened at the remote hearing, or to provide a cloud-based alternative and to use screen-sharing
  • Witnesses giving evidence at a desk or other area, empty except for any hard-copy documents
  • Asking the witness to confirm that they do not have access to any real-time transcript or communications from any unauthorised person
  • Making the ground rules of the remote hearing available to every participant, and ensuring that each party is responsible for upholding the confidentiality of the proceedings as a whole

3. Minimising disruptions

Reduced audio quality, weird virtual backgrounds and the usual child/pet interruptions present on most normal video calls are even less appropriate in the context of international arbitration.

Accordingly, practising with a trial run, having an alternative solution in case technology fails one or more participant, or having an IT technician available, are changes that are aimed ultimately at protecting the fairness of the proceedings and the enforceability of the award.

4. Enforcement of online arbitral awards

Much of the information available to the parties, counsel and arbitrators is aimed at ensuring the efficacy and confidentiality of proceedings, and by extension, the enforceability of the final award.

The arbitrator should, as with an in-person hearing, monitor the proceedings to ensure each party can present its case fairly. Should any incidents occur that may be prejudicial to either party, the arbitrator or tribunal should work to rectify the incident quickly.

In order to further improve the enforceability of an award, both parties could agree not to challenge or oppose an award on the grounds of the award being reached remotely. The Africa Arbitration Academy, AA-ICDR and CPR each provide draft orders for parties to waive the right to object and confirm their agreement to remote hearings.

Conclusion

With steps taken by a variety of legal institutions, including a joint statement signed by key arbitral institutions, it seems increasingly possible to mitigate the risk of injustices occurring.

With so many high-level changes taking place, confidence in remote arbitral hearings seems to be on the increase.

It seems that the pandemic has gone a considerable way to dragging many fields within the legal sector firmly into the 21st century, with arbitration no exception.

Carlsons Solicitors have a wealth of experience at conducting a variety of matters across the UK and internationally. With in-house barristers having worked on high-profile international arbitration proceedings, get in touch for trusted legal advice.

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