This article is written by Arya Mittal from Hidayatullah National Law University. The article analyses the challenges imposed by virtual hearings in international arbitration and the way people have dealt with these challenges.
Table of Contents
All of us are well-versed with the effects of COVID-19. The courts were shut down, travel restrictions were imposed and some cities were locked down. In such a situation, it was impossible to conduct proceedings. This became a problem even in cases of international arbitration. But, these cases involve huge costs and cannot be delayed for a long time, otherwise it might create economic difficulties for many people. Therefore, tribunals started to conduct virtual hearings. But was it easy? People faced different problems in this online setup which were different from the ones faced in physical proceedings. In this scenario, it is important to examine whether virtual hearings affect the nature and course of judgments in international arbitration. This article seeks to answer this question by analysing the advantages of virtual hearings, challenges in conducting virtual hearings and the role of arbitrators and parties in solving these problems.
Advantages of virtual hearings
In the current virtual setting, it is imperative to examine what advantages do these hearings offer. This becomes crucial since this would help to present a better view of the nature of virtual proceedings and would help in analysing if they offer solutions to any of the problems posed by the physical hearings. Thus, some of the advantages of virtual hearings are discussed hereafter.
One of the biggest advantages of virtual hearings is cost savings. Parties will surely save a lot on their travel expenditure. They need not travel internationally anymore and can attend the proceedings from the comfort of their home. The only expenditure they will incur is on technology which will be way less expensive than travelling internationally every now and then.
Easy and time-saving
Virtual hearings have proved to be saving time for all the participants whether parties, counsels, or arbitrators. Parties do not need to travel internationally which will save a lot of time. Additionally, since all the data will be available online, it will take less time to locate relevant information in the digital documents. This has also saved the time of the courts since all the documents are easily accessible.
A study revealed that international arbitration has had a negative impact on the environment. Travel by flights, stay in hotels, large-scale printing for documentation etc. have affected the environment. Though this might seem to be trivial when imagining one case, the cumulative figures are alarming. However, the virtual hearings have ensured that the level of carbon emissions remain low as people need not travel or stay at hotels anymore and all the documents that are being used are digital.
Virtual hearings in international arbitrations will surely serve a better purpose by helping to increase its accessibility. Since the hearings will be online, so people would incur lesser costs and therefore would not be reluctant in engaging in international arbitrations. This will help a larger number of people to have access to justice.
Challenges in online hearings
Discussing various advantages of online hearings has made it evident how they are more fruitful than physical hearings in many aspects. Nevertheless, it is important to analyse the challenges and practical difficulties of virtual hearings to see if it can effectively replace physical hearings. The same has been discussed below.
This is one of the most significant problems in conducting virtual hearings. One can never be assured of the credibility of the witnesses when it is on a screen. A physical i.e. face-to-face interaction substantially differs from an onscreen interaction. There are high chances that the witnesses may not be credible when the proceedings are conducted virtually. This is so because it is easy for a person to hide their true behavior when they are on screen. When a person is physically present, arbitrators or opposite parties can see the body language of the person. Even the facial expressions of a person can change when everything is virtual. This issue of credibility has been dealt with in greater detail in the further sections of the article.
Access to technology
It is known that not everyone has equal access to technology. Many developed countries are way ahead in technology than developing countries. Some countries have really low access to the internet. In case if one of the parties belongs to any such country, then it might be difficult for the party to properly participate in the proceedings. These technical problems create a disparity between the parties and both cannot be said to be on an equal pedestal. Even in the normal course, there might arise situations such as power disruptions or network issues which is a challenge for smooth conduct of arbitral proceedings.
One of the major problems that have arisen is privacy and security. This is a corollary to the previous point which talks about access to technology. It has been witnessed that even the best video-conferencing platforms were not free from glitches and there were interruptions in many meetings by strangers. This led to a privacy concern since even the unknown individuals would know about the proceedings and every detail related to the same. However, with time, many of the institutions have set up their own platforms or devised different ways through which privacy concerns of the parties could be addressed and their data could be secured.
Since the parties are of different countries, so it can frequently happen that there exists a language barrier between two parties or the witnesses are of a different country. In such a case, translators and interpreters are used. It might happen that such a translator may translate the message in a different manner which can have an effect on the statement of the witness. Therefore, opposite parties have their own translators as well to solve this problem. In virtual proceedings, this setup might become a challenge for the parties and can hamper the arbitral proceedings.
Different time zones
Though one of the advantages of virtual hearings is that the parties need not travel but the same even has a disadvantageous side. Since everyone will be participating in the proceedings from their homes, so the time zone for the parties will be different. This might cause chaos since there are chances that this might clash with their other prior engagements or one might even have to attend the proceedings at odd hours of the day. Nevertheless, when one sees the positive side of these virtual hearings as discussed above, an issue such as different time zones might seem to be trivial.
Unethical behavior and manipulation during virtual hearings
As stated above, there have been a lot of credibility issues with regard to witnesses. It is often not possible to judge the person when he is just available virtually. It becomes easy for the witnesses to lie when they are not present in person. There might also be a situation where the person is not technology-friendly and so is uncomfortable in front of the screen. This might seem to be manipulative and unauthentic, although it is not. On the contrary, there might be people who are friendly with the online setting and so they would leave no benefit of doubt for the other party even though their statement might not be authentic. There might also be a situation where the person is being advised behind the screen without this coming into the knowledge of the tribunal. To exemplify, in cross-examination, a witness might not be able to manipulate the facts and statements if appearing in person. However, while such a person is a part of virtual proceedings, it is way easier to manipulate since he/she might get to know what to speak behind the camera. The parties may engage in unethical tasks to strengthen their side.
Responsibilities of arbitrators
It is settled law that parties should be entitled to fair and equitable treatment. In the case of international arbitration, the onus is on the arbitrators to ensure that there are the least conflicts and challenges in virtual hearings. Different international documents such as Article V(1)b of the New York Convention and Article 18 of the United Nations Commission on International Trade Law (UNCITRAL) Model Law state that the parties have a right to due process. Therefore, a party can refuse the award if it is of the opinion that it was not able to present its case properly. Arbitrators may opt to suggest that parties prepare procedural orders to address different issues faced by parties during virtual hearings. The parties can prepare these orders similar to the usual protective orders addressing their concerns related to privacy and confidentiality of documents or any other concern as the parties may deem fit. This process at an initial stage will ensure that the parties do not face any difficulty at a later stage which may create misunderstandings between the parties and delay or hamper the proceedings.
Consideration for parties
From the above discussions, it is important that parties keep certain points in consideration while being engaged in the virtual hearings. This will ensure smooth functioning of the proceedings and would yield better results. Some of the factors to be considered as mentioned hereafter.
Drafting an agreement
In the previous section, we saw that an arbitrator can suggest procedural orders. Similarly, parties can voluntarily enter into an agreement if any clause that parties want is absent in the rules of the institution. They can discuss issues as to how technical requirements will be taken care of or whether they can record the meeting or they can even put up a clause that such a virtual hearing cannot be challenged on specific grounds at a later point in time. All these considerations will surely help to avoid a dispute at a later point in time.
Host for the meeting
It will be easier for parties if they could decide beforehand who will be the host for the meeting and which platform they will be using. Arbitrator, panel, arbitral institution, or any other person can be appointed as the host of the meeting. This host can ensure that there are no technical glitches while the proceedings are going on and can help in the smooth functioning of the meeting.
Addressing technological requirements
The parties should consider in advance which platform they will be using for conducting the virtual proceedings. They should ensure that they are equipped with all the devices that will be required. Further, they can stipulate additional equipment such as 360 degree rotating cameras to ensure that no other person is present. This way they can ascertain that no one is behind the camera to guide the parties during the examination. They can also stipulate audio and video devices that need to be used by the parties for the proper conduct of proceedings.
Since privacy is a major concern for most of the parties, while addressing technical requirements, they should ensure that the platform offers security measures so that everything is kept confidential. Active network monitoring or encryption can be used if parties want additional security measures. Moreover, the documents can be password-protected and passwords should be revealed immediately before the hearing to maintain security.
Since the credibility of a witness is significant, parties can agree on ways to ensure that the credibility of such evidence is not shaken. While a witness is testifying, then such witness can be instructed to be alone in the room so that it is ensured that no one is advising them behind the camera or they are not referring to any document.
Other administrative considerations
Lastly, some small difficulties can be dealt with by parties discussing these problems in advance. Since the time zones of parties are different, they can decide the time which will be suitable for the parties. Additionally, in some cases, parties may undertake special equipment to ensure privacy. So, in such a case, they can decide how costs will be split between the parties to avoid disputes at a later point in time.
To answer the question, yes, virtual hearings did affect the nature and course of judgments in international arbitration. Different challenges were faced by people in terms of access to technology, the testimony of witnesses and their credibility, privacy concerns, linguistic barriers and manipulation during virtual hearings. Yet, possible solutions have been found and can be found further by the parties and institutions to ensure smooth functioning. Parties can consider drafting an agreement to stipulate conditions for conducting the meeting. Even arbitrators can lend their support to ensure fair and equitable treatment to the parties. Lastly, the advantages that virtual hearings offer cannot be ignored and more ways can be devised to ensure better conduct of proceedings.
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