More than 100 participants attended the recent ICC International Court of Arbitration webinar on the effective case management of virtual hearings, a pertinent issue facing parties and tribunals at the moment. Held on 18 June 2020, the session featured speakers from four different continents – moderator Julia Dreosti (Lipman Karas, Adelaide), and panellists Mirèze Philippe (ICC International Court of Arbitration, Paris), Professor Dr. Mohamed Abdel Wahab (Zulficar & Partners, Cairo) and Kevin Kim (Peter & Kim, Seoul).
In her opening remarks, Julia Dreosti observed how attitudes towards arbitration prior to the pandemic appeared to centre around the old adage of ‘if it ain’t broke’, don’t fix it’. However, Covid-19 has been a catalyst for arbitration practitioners to embrace new and innovative technology to achieve, amongst other things, a speedy and efficient resolution of disputes.
Practical Tools to Improve Case Management
Building on that theme, Mirèze Philippe noted that tools and initiatives have been in place to make the process of arbitration more efficient for some time, but many of them have been under-utilised until now. She took participants through the ICC Commission on Arbitration and ADR’s reports on techniques for controlling time and costs in arbitration, the effective management of arbitration, use of information technology in international arbitration and techniques for managing electronic document production – all of which were issued prior to the Covid-19 outbreak, and which contain useful tips for the effective management of arbitrations in a virtual setting. She then discussed the notes issued by the ICC Court to parties and tribunals on the conduct of arbitration and virtual hearings, and shared some practical tips on using technology to improve case management – including the use of case management and electronic file transfer platforms for document exchange, video conferencing for procedural conferences and hearings, and standard file naming protocols for file organisation.
Virtual Hearings –When are They Permitted?
Mohamed Abdel Wahab focussed on how to deal with applications for virtual hearings. He explained that, in determining whether to conduct a virtual hearing in place of a physical hearing, the overarching principle is that the parties’ rights and obligations must be respected. Thus, in a scenario where all parties to an arbitration have agreed to not have a virtual hearing, the tribunal does not have the power to conduct a virtual hearing against the parties’ wishes – arbitration is a party-driven process and party autonomy must be respected. Where the parties do not agree, this requires the parties and the tribunal to consider the applicable lex loci arbitri and the governing procedural rules. If they unequivocally refer to physical appearance at hearings, virtual hearings may not take place without the parties’ consent. On the other hand, if the applicable lex loci arbitri or the governing procedural rules expressly refer to virtual hearings or possible use of ICT, no consent would be required from the parties, unless the parties have opted out of such ICT options. The difficulty is when the rules are silent and the parties need to work out whether one can infer an intention of permission or prohibition of virtual hearings. Parties should carefully consider whether the arbitration rules permit virtual hearings, or the award might be set aside.
Logistical Challenges – Windows of Opportunity and Hybrid Hearings
Kevin Kim echoed the thoughts of the panel on the importance of using technology to facilitate the conduct of arbitration. However, he reminded participants of the need to consider the effectiveness and availability of video conferencing facilities before agreeing to the use of virtual hearings. While it would be relatively simple to implement virtual hearings for stages like counsel submissions, there might be logistical issues with witnesses who have no prior experience and will be cross-examined. He also emphasised that it was of utmost importance to find the right time zone and the window of opportunity that was most convenient for the parties, counsel, witnesses and the tribunal. This was particularly so when there were three or more time zones involved, and the time zone of a hearing may impact on counsel and tribunal members’ effectiveness. He also encouraged parties and tribunal members to consider the use of hybrid virtual hearings and stressed the importance of devoting adequate consideration to logistical issues when conducting in-person hearings under pandemic restrictions.
The webinar concluded with a lively discussion among all speakers, addressing questions submitted by participants throughout the course of the session. Julia Dreosti noted the significant number of questions centred around due process considerations during virtual hearings, with Mohamed Abdel Wahab agreeing that this was an important consideration and that a balance needs to be struck between considerations of efficiency and procedural fairness. In response to a question regarding the competing interests of parties, counsel, witnesses and the tribunal in selecting a time zone for hearings, Kevin Kim suggested that the office hours of the seat of arbitration should be the default, with adjustments to be made to accommodate the time zones where the counsel and tribunal members are based (being those attending the entirety of the hearing) followed by the time zones of parties and witnesses. Addressing the question of whether the ICC would consider adopting some of its guidance notes into the formal rules so as to encourage uptake, Mirèze Philippe’s view was that the institution’s role was to establish best practices and effective tools, and that parties are likely to adopt those practices and tools naturally once they have discovered their benefits.
Please click on the following links for further information on the topics covered:
Kluwer Arbitration Blog: Offline or Online? Virtual Hearings or ODR?
Kluwer Arbitration Blog: Do Virtual Hearings Without Parties’ Agreement Contravene Due Process? The View from Singapore
Kluwer Arbitration Blog: International Arbitration During COVID-19: A Case Counsel’s Perspective