Cemre Cise Kadioglu (Ph.D. Candidate, Ankara University Graduate School of Social Sciences) & Sadaff Habib (Beale & Company Solicitors LLP)
During the COVID-19 pandemic, travel disruptions and other restrictions have led to postponed arbitration hearings. For this reason, parties are increasingly demanding virtual hearings. This requires arbitral institutions to have the necessary technology to conduct virtual hearings and to be prepared with a plan concerning the conduct of online hearings, particularly with regard to issues such as due process, cybersecurity and confidentiality.
In order to provide a smooth transition to virtual hearings, dispute resolution centers are implementing rules or issuing guides and notes concerning the conduct of online hearings. Institutions that are technically better prepared will likely be the preferred dispute resolution centers since virtual hearings are likely the new normal.
In addition, in an effort to meet the growing demand for virtual hearings, some arbitration centers have signed Memorandums of Understanding to pledge support to one another for virtual hearings (covering aspects such as access to facilities and technical support) and have released joint messages for cooperation. Institutions are adapting to the new normal and this will hopefully serve to further increase the efficiency of virtual arbitration proceedings. In this post, we discuss select guidance notes issued by major arbitral institutions across the world.
Virtual Hearings before the ICC and ICC Guidance Note addressing the Organization of Virtual Hearings
The ICC is developing a Virtual Hearing Solution to allow some or all of the hearing participants to attend proceedings remotely. The solution aims to facilitate the transition to a “virtual environment” by providing Internet security and service. Prior to the hearing, the ICC will offer training to hearing participants and will conduct tests to ensure that participants have working technology. If required, the ICC will provide the services of a neutral technician during the hearing.
After issuing the ICC Commission’s Report on Information Technology in International Arbitration and Techniques for Managing Electronic Document Production, the ICC also issued a Guidance Note on Possible Measures Aimed at Mitigating the Effects of COVID-19 Pandemic (“ICC Guidance Note”). The Guidance Note addresses ways to mitigate COVID-19 related delays and lists ways to continue to conduct conferences and hearings to ensure the health and safety of the participants. The Guidance Note encourages tribunals and parties to minimize delays by considering alternatives to traditional in-person hearings, including virtual hearings. The Guidance Note captures the language of Article 25(2) of the ICC Arbitration Rules as “to the parties having an opportunity for a live, adversarial exchange and not to preclude a hearing taking place ‘in person’ by virtual means if the circumstances so warrant.”
The parties may agree to hold the hearing virtually, or the tribunal may order the parties to do so. The ICC Secretariat published (as an Annex to the Guidance Note) a checklist for virtual hearings. This checklist provides for the following:
- pre-hearing plans, scope and logistics (e.g.,identifying essential issues for the hearing agenda, determining the number and list of participants, determining log-in locations and points of connection and determining the hearing date, duration and timetable);
- technical issues, specifications, requirements and support staff;
- confidentiality, privacy and security;
- online etiquette and due process considerations (e.g., having lead speakers, limiting interruptions, reasonable and responsible use of the platform and bandwidth and agreeing upon a procedure for raising objections);
- presentation of evidence; and
- examination of witnesses and experts.
The checklist also provides suggested clauses for cyber-protocols and procedural orders dealing with the organization of virtual hearings.
In case a tribunal holds a virtual hearing without the parties’ agreement or despite one party’s objection, the Guidance Note advises the tribunal to consider whether such a decision would impact the enforceability of a final award and to provide reasons for its determination.
The Guidance Note also suggests a list of platforms for videoconferencing and sharing electronic bundles of materials.
The CIArb Guidance Note on Remote Dispute Resolution Proceedings
The CIArb also published a Guidance Note on Remote Dispute Resolution Proceedings (“CIArb Guidance Note”). The CIArb Guidance Note addresses similar issues as the ICC Guidance Note and also includes a checklist for the parties to follow leading up to the proceedings. The CIArb Guidance Note emphasizes that institutional arbitration is preferable for online hearings but even if the parties opt for ad hoc arbitration, CIArb promises to ensure assistance. In terms of selecting neutrals, the CIArb Guidance Note suggests selecting a neutral with a positive attitude towards, and familiarity with, remote proceedings. The Note also suggests “active listening and verbal engagement, expressive body language and clear speech, as well as any other step necessary to create a comfortable professional environment” for the neutrals in online hearings (in reality, these are the minimum requirements desired by all decision-makers under any circumstances).
The above guidance notes prepared by the ICC and the CIArb attempt to anticipate the issues that may come up during the virtual proceedings and to encourage parties to agree on these issues. Since these notes are not procedural rules, they do not mandate how to handle specific issues such as taking evidence during a virtual hearing. This leaves parties with a handful of items to agree upon, which may be difficult when they are in the midst of a dispute.
The AAA-ICDR Video Hearing Guides
The AAA-ICDR has implemented a Virtual Hearing Guide for Arbitrators and Parties and Virtual Hearing Guide for Arbitrators and Parties Utilizing ZOOM (the “Guides”). The Guides address how to prepare for a virtual hearing, technical issues that may arise and suggested conduct during the hearing. Most importantly, the Guides address Internet security and emphasize that the AAA-ICDR does not endorse or guarantee the suitability or availability of any platform. For participants utilizing ZOOM, the Guides provide recommended settings.
Similar to the annexures to the ICC’s Guidance Note, the AAA-ICDR released its Model Order and Procedures for a Virtual Hearing via Videoconference. This model includes technical and legal aspects of a virtual hearing such as the order agreed to by the parties, the taking of evidence and hearing logistics. The model also provides a sample clause for apportioning the cost of videoconferencing; it suggests parties equally bear the costs “in the first instance.” In the event of a technical failure, the model provides instructions for the disconnected party and the tribunal, and in case of a permanent failure, for rescheduling the session.
Online Hearings at ICSID
On March 24, 2020, ICSID announced that, last year, around 60 percent of its 200 hearings and sessions were held by video conference. The substantial occurrence of online proceedings coupled with an increased interest in online hearings during COVID-19, led ICSID to release a brief guide to online hearings. This guide introduces ICSID’s videoconferencing platform that allows participants to communicate without any additional software or hardware, determines the size of the hearings, provides suggested transcription procedures and discusses IT support. The guide emphasizes that ICSID provides online hearing services and technology for all cases, including cases subject to procedural rules other than ICSID’s, at no extra charge.
HKIAC E-hearing Services and SIHC Virtual Hearing Platform
The HKIAC has initiated a handful of services to organize virtual hearings. These include videoconferencing, audio conferencing, electronic bundling, presentation of evidence, transcription services and interpretation services. The HKIAC also published guidelines for virtual hearings mainly concerning technical issues.
The Stockholm International Hearing Centre (SIHC) has announced the launch of a virtual platform for digital hearings. The SIHC offers technical solutions utilizing Microsoft Teams for online hearings. Participants access the hearing through a link sent to their emails, which may add another element of security concern unless additional security measures are taken. For example, on Teams, a user can send individualized links that are only able to be opened by authorized email accounts, and cannot be accessed by non-authorized accounts. This prevents people from forwarding the meeting link to other unauthorized participants. The platform will facilitate virtual examination of witnesses and promises access to court reporters. In the hope of educating parties, the SIHC has held webinars on topics such as online hearings (especially where the parties cannot agree) and online services in arbitration.
ISTAC Introduces Online Hearing Rules and Procedures
The Istanbul Arbitration Centre (ISTAC) introduced Online Hearing Rules and Procedures (the “Rules”) amid the COVID-19 pandemic. Rather than guidance notes, model orders or platforms designed to facilitate access to hearings online, ISTAC published the Rules for parties to adhere to, if they agree to adopt them. The Rules set out a general framework for online hearings to be held under the auspices of the ISTAC, but do not address the technical aspects of online hearings or the potential security issues.
Under the Rules, online hearings can be held at a request of a party or, where appropriate, by the arbitrator. The Rules do not require a specific software to be used and provide that the software should be determined by arbitrators. Arbitrators also have the discretion to set other procedural rules apart from those stated.
Parties and arbitrators are responsible for ensuring the safety of the technical equipment and confidentiality of the hearing. The Rules also allow for documents to be presented online during a hearing, with the approval of the arbitrators.
The Rules require arbitrators to ensure that the parties’ right to be heard is not violated. Where a party’s rights are prejudiced during an online hearing, an arbitrator has the power to end the hearing at any time and give its reasons for doing so. The Rules allow witness and expert evidence through video call but do not provide detailed rules for the taking of evidence. Although the Rules set a precedent as compared to what other institutions have done, they might be overlooking some technical and legal details, which are addressed by other institutions.
Across the board, institutions are making an effort to facilitate virtual hearings by adopting rules and procedures. Yet, as more parties opt for virtual hearings, more challenges are likely to arise. The arbitral institutions seem to tackle the technical aspects successfully but the legal issues such as taking evidence, obtaining party agreement on various pertinent issues and the arbitrator’s powers still need more attention. The centers should consider defining the legal framework in relation to confidentiality and due process in addition to the technical requirements such as data protection and security on the one hand, and the use of microphones and cameras, the positioning of the participants, etc., on the other hand. It would also be helpful for centers to consider training sessions to educate the parties, arbitrators and counsel on their virtual platforms and the ways in which they are regulating and adapting to virtual hearings.
Going forward, ICCA aims to conduct a survey among New York Convention jurisdictions to address some of the legal issues particularly party agreement to holding a remote hearing, application of institutional rules and minimum due process expectations. This project aims to provide a roadmap for arbitrators, counsels, judges and institutions. Regarding data protection concerns, the ICCA-IBA Roadmap to Data Protection in International Arbitration is likely to be an important guide.