In the wake of the rapid spread of the Novel Coronavirus (hereinafter referred to as the "COVID-19") pandemic, the worldwide situation has become unpleasant altogether. It has created an unprecedented scenario all across the globe causing nation-wide lockdowns in several countries. The governments have resorted to imposing several travel restrictions, both domestic and international, in order to contain the spread of COVID-19. Similarly, there has been a considerable impact on the day to day hearings of the arbitral institutions all across the globe, which has stalled the conduct of several in-person arbitration hearings. Subsequently, in all likelihood this is going to be the situation for the next few months at least.
Meanwhile, due to such travel restrictions, the framework of in-person arbitration hearings has been substituted with the next best alternative method viz., Video Conferencing or Virtual Hearings. Bearing the same in mind, several arbitral institutions, in their respective rules provide for virtual hearings, which are mentioned and discussed in the present article, and it has only been a matter of time, that they invoked such rules for the convenience of the parties. Pertinently, during such times, two-fold problems warrant an assessment viz., (i) not pertaining to videoconferencing but rather the conundrum surrounding the conduct of a virtual hearing and (ii) lack of leading provisions governing virtual hearings in the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the "1996 Act").
The present article has been narrowed down on the slew of measures adopted by international and domestic arbitral institutions for switching to a virtual mode of hearing during the COVID-19. The first part of the article primarily focuses on outlining the framework for virtual arbitration hearings. The second part focuses on analysing and scanning drawbacks of virtual hearings along with addressing these drawbacks by referring to a few contemporary international protocols which lay down the guidelines for video conferencing in international arbitration and also concern both physical and cyber-security. Third part is a bird's eye view of the provisions that have been or may be invoked by arbitral institutions on both domestic and international fronts concerning virtual hearings. Lastly, and fourthly, the article concludes by providing certain recommendations to the 1996 Act and the rules to be devised for virtual hearings by arbitral institutions.
Arbitrations across the globe adopt two-fold strong premises viz., (i) Convenience of the parties and (ii) Dynamism adopted in hearings. In short, arbitration deviates from the uniform procedure of tedious litigations, and are seemingly flexible. Whilst party autonomy stands as one of the pillars of arbitrations, the convenience of the parties needs to be respected in the parallel front. In view of the same and in order to accommodate hearings on a day-to-day/regular basis, several arbitral institutions have switched to an online mode via video conferencing wherein, along with the arbitral tribunal, the disputing parties, case counsel, witnesses, tribunal secretary, and stenographers. Additionally, this platform allows having access to documents during the course of the proceedings as well.
For instance, the Singapore International Arbitration Centre (SIAC) is encouraging and promoting the utilization of services being offered by the Maxwell Chambers for virtual ADR hearings. Another instance, worth citing is that of the Arbitration Place Virtual e-hearings based out in Canada, wherein the institution primarily offers client altered variants in the form of e-hearings for facilitating all types of dispute resolution. Thus, one of the forefronts of international commercial arbitration, as addressed hereinabove is the dynamic nature of the proceedings. Be it an in-person hearing or virtual hearing, the arbitral proceeding can be set into either one without much hassle.
Notwithstanding the fact about how convenient it might be for the parties to adjust and adapt to a virtual hearing setup, there arise multiple issues right from its commencement. Mentioned hereinafter are a few drawbacks pertaining to the conduct of virtual hearings:
There appears to be comparatively less number of institutions providing services equivalent to that of Maxwell Chambers or Arbitration Place Virtual in terms of e-hearing facilities. Therefore, not everyone who is part of the arbitration proceedings will necessarily have access to such platforms which provide for virtual hearings.
Another significant aspect that warrants attention is that of witness tutoring, which maybe in the form of reading out from a script that may have been prepared prior to the hearing or follow instructions from a third party during the testimony. These aspects may be present or located in the interior of the hearing room, where the camera does not focus or will not be able to locate. Thus, it is indispensable to ensure that the witnesses are not involved in acts which would undermine the credibility of their statements.
In order to address the aforementioned drawbacks, which might occur during the course of the virtual hearings, strong emphasis is laid on the Seoul Protocol on Video Conferencing in International Arbitration (hereinafter referred to as "The Protocol"). The primary objective behind The Protocol was initially laid down in 2018, which aimed at establishing such features that would be beneficial for the international arbitration community at large. Thus, in the wake of 2020, The Protocol received the go-ahead and was subsequently enforced in Seoul. Recently, on 20th March, 2020, the Protocol got triggered due to the COVID-19 to facilitate the international arbitrations. The extracted and summarized relevant provisions of The Protocol in order to address the drawbacks are as follows:
Further, the issues or drawbacks concerning the confidentiality of documents can be addressed by way of the ICCA-NYC Bar-CPR Cybersecurity Protocol for International Arbitration, 2020(hereinafter referred to as the "Cybersecurity Protocol"). The Cybersecurity Protocol has been established bearing in mind specifically the requirements of international commercial arbitrations. The purpose of the Cybersecurity Protocol is two-fold: (i) providing reasonable security measures for arbitration matters and (ii) increasing awareness about security requirements in international arbitrations. Therefore, the Cybersecurity Protocol is an entire substantial and procedural protocol in itself.
UNCITRAL Arbitration Rules, 2013.
Article 28: Arbitral Tribunal may examine witnesses by way of video conferencing.
Institutional Arbitration Bodies (International)
Singapore International Arbitration Centre (SIAC).
Schedule 1: Emergency Arbitrator
Rule 7: The Emergency Arbitrator may utilize the video conferencing facility for hearing the disputing parties as an alternative to an in-person hearing.
Rule 8: Power of Emergency Arbitrator to order or award any interim relief via video conferencing.
London Court of International Arbitration (LCIA).
Conduct of proceedings
Article 14.1: Allows the parties and the Arbitral Tribunal to conduct the proceedings via video conferencing.
Article 19.2: Allows video conferencing as a mode of oral hearing.
International Chamber of Commerce (ICC).
Case Management Conference and Procedural Timetable
Article 24(4): Case Management Conference may be conducted by video conferencing.
Case Management Techniques
Appendix IV: Encourages the use of video conference (for procedural or other hearings) where attendance in-person is not essential.
Emergency Arbitrator Rules
Appendix V, Article 4(2): Emergency Arbitrator may conduct hearing through video conference.
Place of the Emergency Arbitrator Proceedings
Appendix VI, Article 3(5): In case of expedited procedures, the Arbitral Tribunal may conduct hearings via video conference.
Institutional Arbitration Bodies (Domestic)
Indian Institute of Arbitration & Mediation (IIAM)
Article 28: Arbitral Tribunal may examine witnesses by way of video conferencing.
Indian Arbitration Forum (IAF).
Case Management Conference
Article 8: Case Management Conference may be conducted by video conferencing.
Examination of witnesses via video conferencing
Article 28: In exceptional circumstances, video conferencing of witnesses may be allowed.
Bearing in mind the aforesaid discussion, there arises a stark need to lay due emphasis on the 1996 Act. In this regard, an attempt to trace out certain provisions which may be accommodated in the 1996 Act with regard to virtual hearings, which would be add-ons during unprecedented times like right now. In light of the aforesaid, mentioned hereinafter are a few prospective recommendations:
Despite tracing the drawbacks and addressing them subsequently, there appears to be a fair amount of work required to be done at the ground level. COVID-19 has opened a new sphere for outlook and forced the arbitration regime to adopt the format of virtual hearings. Whilst courts and litigants are still trying to adjust into the virtual hearing setup, institutional arbitration hubs have been a step ahead. Therefore, institutional arbitration has yet again proved that its core strength lies in the framework and convenience it provides to the parties. However, India possesses an advantage to consider such changes from the international arbitration community and build up on the same.
(Authors are students of Symbiosis Law School, Hyderabad. Views of the author(s) are personal).
Maxwell Chambers offers Virtual ADR Hearing Solutions, MAXWELL CHAMBERS (Mar. 27, 2020, 07:20 p.m.), https://www.maxwellchambers.com/2020/02/18/maxwell-chambers-offers-virtual-adr-hearing-solutions/.
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Seoul Protocol on Video Conferencing in International Arbitration, KOREAN COMMERCIAL ARBITRATION BOARD (KCAB) (Mar. 28, 2020, 03:20 p.m.), http://www.kcabinternational.or.kr/user/Board/comm_notice_view.do?BBS_NO=548&BD_NO=169&CURRENT_MENU_CODE=MENU0025&TOP_MENU_CODE=MENU0024.
ICCA-NYC Bar-CPR Cybersecurity Protocol for International Arbitration, 2020, INTERNATIONAL COUNCIL FOR COMMERCIAL ARBITRATION (ICCA) (Mar. 28, 2020, 06:45 p.m.), https://www.arbitration-icca.org/media/14/76788479244143/icca-nyc_bar cpr_cybersecurity_protocol_for_international_arbitration_-_print_version.pdf
 UNCITRAL Arbitration Rules, 2013 (Mar. 29, 2020, 08:50 a.m.), https://www.uncitral.org/pdf/english/texts/arbitration/arb-rules-2013/UNCITRAL-Arbitration-Rules-2013-e.pdf.
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LCIA Arbitration Rules, 2014 (Mar. 29, 2020, 12:20 p.m.), https://www.lcia.org/Dispute_Resolution_Services/lcia-arbitration-rules-2014.aspx
ICC Arbitration Rules, 2017 (Mar. 29, 2020, 05:30 p.m.), https://iccwbo.org/dispute-resolution-services/arbitration/rules-of-arbitration/.
IIAM Arbitration Rules, 2017 (Mar. 30, 2020, 10:35 a.m.), https://www.arbitrationindia.com/pdf/rules_arbitration.pdf.
Indian Arbitration Forum, Guidelines for Conduct of Arbitrations, 2018 (Mar. 20, 2020, 11:22, p.m.), https://indianarbitrationforum.com/wp-content/themes/iaf/assets/IAF-Draft-Guidelines.pdf.