April 16, 2020

Arbitration and the use of videoconferencing

This is unsurprising given that the primary attractions of London as a seat of arbitration have remained the same, for example, the relative contractual certainty offered by English law, the reliability, neutrality and impartiality offered by the English judiciary, and the support for the arbitral process offered by the English courts and under English law.

How does coronavirus change things?

The coronavirus pandemic, however, presents a new challenge for courts and tribunals. This note briefly sets out what parties to an arbitration dispute might do, in the present circumstances, to ensure their dispute is dealt with as effectively as possible.

1.  In the absence of an agreement between the parties to the contrary, the default position is that the parties in an arbitration are entitled to have an oral hearing. This is usually a private hearing attended by the parties and the arbitrators, due to the nature of arbitration being a contractually agreed confidential process.

2. Most oral hearings are held in-person, but an oral hearing can be held 'remotely' – say by video conference or telephone conference. The arbitration rules of most of the major arbitration institutions either expressly provide for, or at least leave open, the possibility of dealing with matters 'remotely' through the use of technology, including video hearings and telephone hearings - see for example,

2.1. Articles 14 and 19.2 of the LCIA Arbitration Rules 2014 (where hearings  may be held by telephone or videoconferencing);
2.2. Rules 19 and 24 of the SIAC Arbitration Rules 2016 (where preliminary hearings may be held by "other means", and videoconferencing for other hearings is not excluded);
2.3.  Articles 28 and 32 of the SCC Arbitration Rules 2017 (where Case Management Conferences may be held by "other means", and videoconferencing for other hearings is not excluded); or
2.4.  Articles 22 and 24 of the ICC Arbitration Rules 2017 (where Case Management Conferences and other hearings "where attendance in person is not essential" may be held by telephone or videoconferencing).

3.  On 22 March 2020, the English courts issued a temporary COVID-19 Protocol, among other things, to provide guidance to the courts and parties on the carrying out of remote hearings. In practice, an increasing number of English Court hearings are being conducted (where possible) by telephone or video-link.

4. Videoconferencing has commonly been deployed in arbitration (and in the English courts) for the hearing of the evidence-in-chief and cross-examination of live witnesses. In Hanaro Shipping v Cofftea Trading [2015] EWHC 4293 (Comm), the court rejected the argument that there was a procedural imbalance between one party's witnesses giving evidence in person whereas the counterparty's witnesses gave evidence only by video link.

5. When using videoconferencing, however, parties should try to ensure that:

5.1.  The necessary software is available (whether that be Skype, Zoom, etc);
5.2.  All relevant documents are accessible (whether in hard copy and/or available via document viewing software);
5.3.  Evidence is presented in appropriate manner (that is to say, a way that is efficient and avoids procedural unfairness);
5.4.  There is good internet connection (which can otherwise undermine the effectiveness of a witness’s evidence and/or the ability of counsel to examine/cross examine a witness).

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