This article is written by Sanjana Jain, student, Guru Gobind Singh Indraprastha University, Delhi. The article talks about the E-arbitration in India and its technical aspects and it also discusses the impact of E-arbitration on rights of parties and procedural fairness.
Table of Contents
The Covid-19 pandemic has forced the world to think a new way for dispute resolution, the international arbitration community has taken charge of it by formulating guidelines for virtual arbitral proceedings to help the parties in dispute resolution in this difficult situation. After adopting this new method of dispute resolution parties and practitioners feel that this virtual method of dispute resolution is quite convenient and cost-effective and also it has been realized by them that the procedural rights of parties can never be infringed.
To aid the efficiency of arbitral proceedings, in 2014 the Law Commission of India supported the use of technology such as teleconferencing and videoconferencing, however, in India due to lack of acceptance by arbitrators and councils, these recommendations have not found much importance.
Virtual arbitration refers to the arbitration that has included technological processes for the purpose of dispute resolution, however, the adoption of this technological process will depend on the circumstances as determined by the parties and the tribunal. In India, the arbitration community has been working proactively, for making India an arbitration-friendly-jurisdiction, and the adoption of virtual arbitration will play an important role in this movement.
The arbitration proceedings can be efficient only when there is a correct choice of technology, similarly, it will be inefficient if inappropriate technology is used. Therefore, parties, councils, and arbitrators must be vigilant while choosing technology.
It has been recommended by arbitral institutions like SIAC, ICC, and PCA, that tribunals in consultation with the parties should determine which platform to be used. However, their certain institutions which because of the reason for effectiveness and security have forced the parties to use a particular platform. For example, ICSID has instructed the parties to use Cisco WebEx as the platform for dispute resolution, as the institution believes it to be an effective and secure platform with end-to-end-encryption.
While choosing technology following considerations must be taken care:
Technological abilities of participants
It will be difficult for parties, councils, and tribunals to manage technology along with arbitration if they are not technology-friendly, this is one of the reasons that prevent including technology in arbitration. So technology that matches the technical abilities of parties as well as of arbitrators shall be selected. The familiarity of technology can be established to the participants with the help of training sessions, also assistance can be provided by the tribunal assistants to the participants during proceedings.
Uninterrupted high-quality audio and video
A platform that provides the participants to communicate with high-quality audio and video, can help in smooth transfer from in-person hearings to virtual hearings. Virtual hearings will be benefited only when a video-conferencing software is adopted.
Sub-grouping/ Break-out rooms
It will be very difficult to manage proceedings if participants log in and out repeatedly, so software that provides the facility of subgrouping or breakout rooms shall be taken as they help in running proceedings efficiently.
Easy reference of documents
The variety of documents are needed at the time of normal arbitration proceedings, which creates a need for a software that provides easy screen sharing of documents, without interfering with the video of the participants. This will make virtual hearing more effective as compared to in-person hearings where parties have to carry voluminous documents.
Data security and confidentiality
Data protection and security issues arise with the use of technology, so for this purpose by means of “IP to IP Encryption” connections are needed to protect from third-party interception, therefore the software which is not available with end-to-end encryption must not be taken. Also, only those document sharing software shall be used which assures adequate data security measures.
According to Section 42A of Arbitration and Conciliation Act, the arbitration proceeding shall be confidential, so for this, the software that ensures by providing facilities like a waiting room, password for entering meetings, etc, that no third party can have access to the proceedings shall be chosen.
Other logistical arrangements
The basic things that participants will require during the virtual hearing are as follows:
It is a must for every participant to have a good internet connection to use the selected platform if any participant has any problem in this regard it should be reported in advance, and necessary arrangements shall be made. In India, high-speed internet is easily available at affordable prices. The Supreme Court of India in regard to virtual courts during Coronavirus has instructed litigants to have an internet connection of 2 Mbps and above, which can be easily available with any 4G connection/ Wi-Fi dongle, also the court said that internet connection will not act as a barrier to virtual court proceedings.
Location of virtual hearing
While participating in the virtual hearing participants shall consider the following:
While attending the virtual proceedings participants shall use a room with less external disturbances, such as traffic, etc, the sound of ceiling fans causes many disturbances, so participants should prefer an air-conditioned room.
Participants should make sure that the room they are using shall have proper lighting so that their face is clearly visible in the virtual proceeding. The camera shall be placed by them against a neutral background so that while recording no interference is there. Also, they shall make sure that they are not sitting against a window, as the light from the window will reduce the visibility of the participant.
Participants shall have good headphones with embedded mics such that they can clearly hear the incoming and outgoing audio, also participants can use speakers and high-quality microphones.
Large / Multiple screens
Participants shall use large size screens such that they can clearly see the faces of all participants clearly, therefore, for this purpose use of smartphones shall be avoided. In virtual proceedings, participants not only have to be visible but also have to refer to documents, so large size screens or multiple screens are encouraged.
Multiple cameras/360° camera
In cases of witness examination in order to ensure that witnesses are not being coached, there is a need to have a full view of the room, and this can be done with the help of 360° or wide-angle cameras that provide such a view of the room, but they are not easily available. So a simple solution for this is to place another camera of mobile phone or tablet in such a way that it will show the whole surrounding of the room, and ensure that no one else is present there.
Strategies for management of virtual hearings
In India, there is a lack of familiarity with the technology, among the parties, counsels, and arbitrators when it comes to virtual proceedings, but these challenges can be mitigated by the tribunal by effective case management. Thus the tribunal by resolving the dispute at hand can save the integrity of the arbitration proceedings.
1. Case management conferences
When participants are operating remotely in a proceeding, an effective mode of communication between the tribunal and participants becomes important, for these tools such as case management conferences are helpful in bringing the participants and the tribunal on the same page. The main object of these conferences are:
- To determine the mode of the proceedings in a virtual form.
- To issue instructions on the use of technology for the effective functioning of virtual hearing.
- To resolve parties concerns to the earliest
In international arbitration, early case management is regular practice and in order to increase the efficiency of arbitration, it is recommended in India also.
2. Protocols to manage technology
It is very necessary to set beforehand certain protocols in virtual proceedings so that parties do not find any difficulty while using technology. For an effective virtual hearing following can be discussed at the case management conferences:
Assigning technical responsibilities
In virtual proceedings one has to manage the technology in use, this management includes work like booking video sessions, keeping records, maintaining the database, etc. and it also includes the work which requires technical knowledge, such as supervising the connection, testing, and orientation, troubleshooting and resolving technical issues, guiding participants with technology, etc. For this, there shall be one individual with adequate technical knowledge shall be appointed with on-call service that will help in planning, testing, and conducting the video conference.
Tribunal assistants / secretaries
In virtual proceedings, the traditional role of tribunal assistants and secretaries have become more emphasized, but now these tribunal assistants shall have knowledge of technologies being used and shall be able to solve the issues commonly faced by the participants. Tribunals shall take steps to make sure that the assistants have adequate technological knowledge. For example, SIAC has taken an initiative to train its council, by technological experts.
Testing and orientation
Participant’s lack of familiarity with these technologies can lead to difficulty in virtual hearing, in order to resolve this, the tribunal shall organize an orientation program or testing of technology for participants so that they get familiarise with the technology. Institutions like ICC, ICSID, PCA, SCC, and SIAC have organized orientation programs and testing of videoconferencing for participants.
File management system
It’s a system that organizes documents and helps the participants in easily accessing the information referred to. This system is necessary where there is an exchange of a large number of documents or if in a dispute multiple claims are involved. Tribunals with the consultation of parties shall decide the format for naming and organizing files, pagination, etc.
Maintaining records of the proceeding
Participants must decide among each other how the proceedings to be recorded, either by video recording or written transcription or both and also when this record must be circulated among the participants. The accuracy in video records and live transcripts must be acknowledged by the parties. If participants choose video recording then the tribunal must make sure that the video link is secure and encrypted, and also specifications shall be made regarding the storage of video recording during the arbitration and its subsequent deletion after the conclusion of the arbitration.
During the virtual proceeding, it is possible that some technical errors may occur, such as loss of connectivity with a participant. So for these cases, a contingency plan shall be made by the tribunal in consultation with the parties. For example, if there is any technical error during the proceeding, parties can inform their issue to the tribunal’s technical support by means of text or phone calls.
3. Gathering evidence while conducting a proceeding
The ad-hoc-tribunals in India restrict themselves to the rules of civil procedure and evidence only, however, they have the power to determine the admissibility and relevance of any evidence in the manner they feel appropriate, this provides them with the ability to collect evidence according to the circumstances and requirements of the case. Because of the Coronavirus, nowadays tribunals have to conduct the entire arbitration remotely, and thanks to the advancement in technology the courts are able to collect evidence electronically. However, while collecting electronic evidence, tribunals shall keep in mind the due process of traditional offline arbitration.
Legal issues in India
The Arbitration & Conciliation Act, 1996 does not mention whether or not arbitration proceedings can be held through video conferencing and other electronic means. Section 24 of the Act, grant parties a right to an oral hearing.
“oral hearing” has not been defined under the Act, but under Section 18 (Equal treatment of parties) the Act provides essential crux for due process i.e, that the parties must be treated equally and each party shall be given full opportunity to present its case. Accordingly, as long as the virtual hearing satisfies all the requirements mentioned under section 18 they are valid. Certain legal issues that arise in conducting arbitration virtually are as follows
Right to an in-person hearing
The Arbitration and conciliation act does not specifically mention in-person hearing, it only under section 24 recognizes the party’s right to an oral hearing. Like in-person hearing virtual hearing also provides the parties with the right to present their case. In the case of State of Maharashtra V. Praful B. Desai the court observed that the requirement of “presence” under section 273 of Criminal Procedure Code, 1973 is satisfied by the video-conferencing, as one can hear and observe the other as in the same room. Therefore, the objectives of in-person hearing i.e giving an opportunity to respond immediately to the opposing party’s allegations, are also fulfilled through virtual hearings.
Absence of mutual consent
An arbitral tribunal is empowered by Section 19(3)of the Act, to determine the mode in which proceedings are to be conducted in the absence of any agreement between the parties. So the arbitral tribunal can pass an order to conduct virtual arbitration, in the absence of the agreement to conduct arbitration virtually.
Virtual examination of a witness
On virtual examination of the witness, the supreme court of India opines that “ when the technology works effectively, witness demeanour is clearly visible and its credibility can adequately be assessed”. Arbitrators that have conducted regular virtual examinations have shared the same opinion. Thus virtual hearing satisfies the right to an oral hearing under Section 24 of the Act, for the presentation of evidence or for oral argument.
To meet the necessities of this time, tribunals and parties are forced to consider options like virtual hearings. However, the COVID-19 has made an arbitration in India more efficient and cost-effective. A severe economic downturn has been caused by COVID-19 and in its aftermath, businesses will be more cost-sensitive. Now, the most efficient options for dispute resolution will be offered by the council, and there will be a much greater emphasis on the tribunal’s obligation to conduct proceedings efficiently. Adoption of virtual hearings even partially can help in organizing physical hearings and also will reduce the cost of travel.
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