Remote hearings

Depending upon the agreement of the parties and the rules under which the arbitration is taking place (Online Dispute Resolution), such a remote hearing may, in effect, amount to online dispute resolution. The CIArb has made an important and timely contribution in that regard by issuing, in 2020, its Guidance Note, the intention of which is to provide parties and all others engaged in the arbitral process with guidance on how arbitration proceedings may be conducted in circumstances where the parties are unable to convene physically. In its preamble, the Guidance Note makes clear that its provisions are intended to be applicable, not just to the COVID-19 crisis, but to arbitration proceedings going forward generally. It should be emphasised though, that it needs to be read in conjunction with any guidance or amendments that are made by arbitral institutions to their rules and working practices, and to any advice emanating from the term “remote dispute resolution” encompasses, of course, documents only proceedings (even where those are conducted offline, rather than online) as well as the use of video and audio conferencing. In that latter regard, the CIArb encourages the use of combined video and audio conferencing by parties wherever possible.

The Guidance Note should be read carefully. In its Pt 1 (Technology and Logistical Matters), it emphasises the importance of procedures being agreed in advance, with technology and equipment being decided upon by the parties at a similarly early stage, and the importance of using the highest possible quality of audio-video connections. It highlights that virtual hearing rooms are the preferred way to conduct hearings remotely and that adjusted timeframes may be necessary for witnesses, experts and interpreters. In a remote set of proceedings, matters will only progress smoothly if a coordinated approach is taken to documentation. In that regard, a procedure and digital platform for transmission and storage of documentation for the purposes of the proceeding should be agreed as early as practicable. With the remote hearing as a whole in mind, privacy and security concerns must be also addressed, and provision made.

As to legal and regulatory considerations, the Guidance Note highlights matters which should be obvious, but which merit express mention:

1. The arbitration agreement should ensure that it reflects the consent of the parties to whatever form of remote hearing or proceeding is to take place.
2. Regard should be had to the lex arbitri to ensure that any conditions or criteria in relation to remote sets of proceedings are complied with.
3. Parties should always have in mind what the attitude would be on the part of the court in the enforcing jurisdiction.
4. It will be in the interests of the parties to ensure that the tribunal appointed is content with the proceeding taking place remotely.

Part 3 of the Guidance Note addresses institutional and ad hoc proceedings. It makes the point that, although institutional proceedings are often regarded as being more proficient for resolving many forms of dispute, the flexibility of ad hoc proceedings may be particularly advantageous in planning a remote proceeding.

Where institutional proceedings take place, however, it will obviously be important for the parties to consult closely with the institution itself and to follow any guidelines that the institution has issued on the conduct on remote proceedings. It should be highlighted that the Guidance Note contains a helpful preliminary checklist (set out at Appendix 1) that should be used before a remote proceeding is conducted.

Within the ASEAN +6 region, arbitral institutions have made specific provision for remote or virtual hearings. CITAC has issued its Guidelines on Proceeding with Arbitration Actively and Properly During the COVID-19 Pandemic (28 April 2020), which, inter alia, provides (at art 2.6) that a “virtual hearing is considered as a specific way of oral hearing, which is in accordance with Arbitration Rules. During the pandemic, the cases to be examined with oral hearings, the arbitral tribunal is advised to first consider the possibility of holding virtual hearings.”

It goes on to highlight the factors that the arbitral tribunal should take into account when deciding whether to hold a virtual hearing and then gives a choice of means by which a virtual hearing may take place, depending on the specific circumstances of the case. Inevitably, such an approach will be likely to continue for some time and may well, in the case of CITAC as with other institutions, become a method of choice. Practitioners are, therefore, advised to consult the CITAC Guidelines directly.

Looking ahead, it is, of course, improbable that virtual hearings will replace hearings in person completely. But, equally, it is likely that greater use will be made of virtual or remote procedures. Cost is bound to play a part in that. Additionally, arbitral institutions already have in place procedures that will support remote or virtual proceedings and, therefore, the current health crisis will have served to highlight the wider use that may usefully be made of those.