By Nihit Nagpal and Anuj Jhawar
A technology revolution in the legal industry has been underway for some time now but only recently owing to the Covid-19 pandemic, the same has come to forefront of the legal professionals as well as general public’s consciousness.
To put a stop to the possibility of spread of Covid-19, various restrictions have been put in place, which have made holding in-person hearings difficult. The same has resulted in rise of virtual hearings and there is an emerging consensus to better integrate the use of technology in dispute resolution, particularly in alternative dispute resolution methods or online arbitration practices. The focus should be on the adoption of new methods so that businesses should not be burdened by unresolved disputes due to the inability of parties to meet physically to resolve disputes. Unlike courts, the ADR mechanism are not required to clear bureaucratic hurdles to implement changes, thus the arbitral bodies are flexible and are able to adapt to the need of the hour.
Although in both the physical as well as virtual hearing, the core principles of Arbitration i.e., autonomy, consent, fair treatment, confidentiality etc. would have to remain intact. The goal should be to hold substantive hearings remotely and as efficiently and securely as possible. Though the switch to the virtual technology will definitely raise significant technical, procedural, legal and existential challenges.
Thus, the Arbitral bodies such ICC, SIAC, LCIA since the abrupt halt have been issuing press releases and seeking suggestions on online arbitration practices, electronic filings, virtual evidentiary hearings, and online case management. Based on these suggestions, certain guidelines for virtual arbitrations proceedings have been issued and the mechanism laid out therein is now being employed at pace in international arbitrations. This Articles seeks to put light on what can be considered as some essential practices for conducting virtual arbitration with the later part focusing on the mechanism introduced for effective transition to virtual hearings by various arbitral bodies around the world.
KEY PRACTICES FOR AN EFFECTIVE ONLINE ARBITRATION
A number of major arbitration institutions on account of COVID-19 have postponed hearings, and no postponement request has been denied by the registry / secretariat of these institutions. Though, the institutions have maintained that they wish to avoid delays and conduct proceedings in order to maintain the sanctimony of Arbitral proceedings. Thus, virtual hearings are indispensable, and a properly held virtual hearings can save considerable time and costs, and so by adopting certain good practices in conducting them, one can ensure a smooth experience, which are as under –
- Logistical and technological specifications such as the number of participants, access to technology, time-zone difference, guiding protocols, any data privacy concerns, the online platform i.e., Face Time, Skype, VidyoCloud, Microsoft Teams, Zoom, or Bluejeans, and the online document management system should be agreed prior to the hearing.
- The conduct of the online arbitration proceeding must be fair to both parties, so the length of arguments and time allocation to each party has to be agreed, and arbitral tribunal should ensure that parties stick to them and do not speak over each other.
- A practice round between the arbitral participants should be organized to ensure that all participants, including the tribunal, have adequate hardware and sufficient training to work the technology so that no one is left at a disadvantage, and that the hearing runs efficiently.
- The audio-video quality and the tribunal’s clarity of line of sight of the witness should be properly ensured.
- The functionality of the break-out rooms, common and private chat features, and understanding how and when these will be engaged should be in place and be available when required
- Access of the parties and the tribunal to e-documents must be ensured, and presentation of evidence by witnesses must be closely monitored and efficiently displayed via computers at all venues to ensure security of the documents and efficiency of the proceedings.
- There should be a back-up plan in place, in case of any unanticipated circumstances, such as moving to teleconference.
- The participants at their end should also ensure of quiet location with adequate lighting with proper access to internet, with quality mic and a plan in place for any troubleshooting equipment.
MECHANISM EMPLOYED BY ARBITRAL BODIES
INTERNATIONAL CHAMBER OF COMMERCE (ICC)
This ICC has issued a guidance note1 to parties, counsel and tribunals on possible measures that may be considered to mitigate the adverse effects of the COVID-19 pandemic on ICC arbitrations. The guidance note implores the parties, counsel and tribunals to minimize disruption and avoid difficulty by thoughtful use of case management tools that are either already available through the ICC Arbitration Rules or by the additional steps the ICC International Court of Arbitration is taking to streamline its internal processes. The Annex I provides a checklist for a protocol on virtual hearings and Annex II includes suggested clauses for the cyber-protocol. These clauses serve as a “how to” guide for conducting virtual hearings.
This Guidance Note recalls the procedural tools available to parties, counsel and tribunals to mitigate the delays generated by the pandemic through greater efficiency, and provides guidance concerning the organisation of conferences and hearings in light of COVID-19 considerations, including conducting such conferences and hearings by audio conference, video conference, or other similar means of communication as envisaged in Article 24(4) of the ICC rules of Arbitration2. ICC through the guidance note has insisted that disputes still must proceed expeditiously, as required by Article 22(1) of the ICC Rules of Arbitration. The Proposed techniques include bifurcating the proceedings, identifying issues that can be resolved on the basis of documents, determine un-meritorious claims/defenses, and proceed where live testimony of a witness or an expert is not that requisite for deciding the dispute.
SINGAPORE INTERNATIONAL ARBITRATION CENTRE (SIAC)
The SIAC has proposed that it shall be designating and training a number of counsel in the Secretariat as Remote Technology Specialists and introduce a Live Help Desk feature on the SIAC website for ease of contacting the SIAC Secretariat during the period of workplace closure in accordance with applicable COVID-19 measures3. Also, SIAC has been actively hosting a series of monthly webinars entitled “A Dialogue on COVID-19 with the Secretariat” to address questions about the impact of COVID-19 on any aspect of SIAC arbitrations.
As per Rule 19.1 of the SIAC Rules 20164, 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. Parties may therefore wish to discuss with tribunals the use of virtual hearings solutions, if appropriate for the case at hand. Also, the Schedule 1 – Emergency Arbitrator of the SIAC Rules, 2016, under Rule 7 and Rule 8 empowers the Arbitrator to utilize the video conferencing facility for hearing the disputing parties as an alternative to an in-person hearing and even to pass any order or award any interim relief.
SIAC on its website has stated that where in-person hearings are impossible or impracticable, parties should discuss with the tribunal other options to an in-person hearing, such as proceeding with the hearing virtually or via teleconferencing. The SIAC depending on the suitability of parties and on discussion with the tribunal is referring them to use of Maxwell Chambers for virtual ADR services and for less complex cases, adopting a documents-only procedure in lieu of a hearing5. The SIAC has left the discretion of deciding the protocol and procedure of holding virtual hearing upon the tribunal, however the same should be decided in consultation with the parties.
WORLD INTELLECTUAL PROPERTY ORGANIZATION (“WIPO”)
The World Intellectual Property Organization (“WIPO”) is one of the UDRP dispute resolution service providers administering the UDRP Administrative Procedure for domain name disputes and is responsible for appointing panelists to determine the dispute. The emergence of new technologies and applications has begun to influence significantly the way companies do business. Bearing this in mind, the WIPO Arbitration and Mediation Center has developed an online, Internet-based system for administering disputes. This online dispute resolution facility and all related information are accessible through these Online Dispute Resolution pages of the WIPO’s web site6. The Digital communication tools allows the parties to file requests by completing electronic forms and to submit documents and exchange correspondence online through secure channels. Thereby alleviating, the need of in-person meetings and hearings.
Even through the pandemic, the WIPO Arbitration and Mediation Center is administering cases submitted under the WIPO Mediation, Arbitration, Expedited Arbitration and Expert Determination Rules. Under the Article 37 of the WIPO Arbitration Rules7, the parties are provided with considerable procedural flexibility, thus allowing the parties for a range of procedural adjustments as may be necessary. The WIPO Center also offers a no cost online case administration option, including an online docket and videoconferencing facility.
LONDON COURT OF INTERNATIONAL ARBITRATION (LCIA)
The LCIA rules explicitly reference the use of video conference during arbitral proceedings. Article 19.2 of the LCIA Arbitration Rules8 grants the arbitral tribunal the fullest authority to establish the conduct of an arbitral hearing, and permits hearings at any appropriate stage of the arbitration to “take place by video or telephone conference or in person (or a combination of all three).” The London court thus envisages any type of hearing to proceed by video conference.
The LCIA is yet to frame any guidelines for hearing the matters virtually, however the online filing service available at their website does allow hearing of urgent matters via video conferencing, apart from the same, LCIA proposes to host webinars, few of which have already been held on evaluative and diagnostic investigation of the “new normal” by going beyond pure technicalities in matters.9
In 2014, the Law Commission of India encouraged the use of technology such as videoconferencing and teleconferencing to aid the efficiency of online arbitral proceedings, but these recommendations have not found much popularity in India due to a resistance from arbitrators and counsel, for a lack of technological exposure. Though, the arbitration community in India has been working proactively for the development of India as an arbitration-friendly jurisdiction, and the acceptance of virtual arbitration could play a prominent role in this movement.
INDIAN COUNCIL OF ARBITRATION (ICA)
The Indian Council of Arbitration (ICA) is currently using video conferencing tools to conduct online arbitration proceeding. The ICA Secretariat upon receiving emails of the interest parties, are making arrangement for conducting hearing via video conferencing. Also, ICA is accepting registration of fresh arbitration cases. The letter issued by ICA provides for the list of scanned documents required for initiation of a fresh case along with requisite fees, and the details of account where the same is to be deposited. ICA is yet to frame any guidelines on virtual hearing.10
The acceptance of virtual dispute resolution is not unanimous, though the use of video conference and virtual hearings provides a viable alternative to international travel and in-person attendance at an arbitral hearing. But the use of virtual technology to conduct remote proceedings raises some legal concerns, such as challenges to the legal enforcement of an arbitral award passed in an arbitration held via video conferencing. Currently, due to pandemic, the virtual hearings have been used as an interim tool for avoiding disruptions, but sooner or later the Virtual hearings are bound to become a new normal for cross-border disputes. Though still certain cases may require in-person hearing.
The lessons learned during these challenging times may be the push needed to help arbitration better fulfill its purpose of providing an expeditious and cost-effective means for the final resolution of disputes. Virtual procedures or online arbitration practices adopted even partially, if not for the entire arbitration, could significantly reduce the costs of travel, and of organising physical hearings. Institutions in India may use this opportunity to become more attractive to parties by promptly preparing themselves with the infrastructure to administer online arbitrations. Also, the government should enact the necessary changes for adopting virtual hearings via video conferencing in the Arbitration Act, and issue model guidelines on virtual hearing for all the arbitral institution in India.
Appointment & Removal of Arbitrator
 Letter by siac president dated April 28, 2020 available at https://www.siac.org.sg/images/stories/press_release/2020/[Open%20Letter%20from%20SIAC%20Court%20President]%20Arbitration%20at%20SIAC%20during%20%20COVID-19.pdf
 Rules available at https://www.siac.org.sg/our-rules/rules/siac-rules-2016
 Available at https://www.wipo.int/amc/en/arbitration/rules/