The core principles of arbitration are autonomy, consent, fair treatment, confidentiality, etc. These principles have to remain intact in both virtual and in-person arbitration. The aim should be to hold hearings effectively. Therefore, owing to the circumstances different arbitral bodies have issued press releases to seek suggestions on online arbitration practices.
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Key Practices for an Effective Online Arbitration
One can ensure a smooth online arbitration hearing by adopting the following practices:
- Logistical and technological specifications: It includes specifications regarding participants’ number, time-zone difference, guiding protocols, any data privacy concerns, online platform to conduct the hearing. The online document management system should be agreed before the hearing.
- Fair conduct: Online arbitration proceeding must be fair to both the parties. Each party should agree on the time allocation and length of arguments. The arbitral tribunal should ensure that parties stick to their deadlines.
- Mock session: All concerned parties must participate in a mock round to ensure a smooth session.
- Proper audio-video quality: The tribunal should clearly be able to see the witness.
- Break-out rooms: It is important that everyone knows how to use the common and private chat features. Whenever needed, break-out rooms should also be available.
- Document Monitoring: Parties and tribunal must have access to e-documents, and witness testimony must be closely monitored.
- Back-up option: In case of any unanticipated circumstances, the parties may move to teleconference.
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International Chamber of Commerce (ICC)
The ICC had issued a guidance note to parties to mitigate the adverse effects of the pandemic on ICC arbitrations. The note implores the parties, counsel, and tribunals to minimize disruption. The ICC Rules of Arbitration can be referred to. Annex I provides a checklist for a protocol on virtual hearings and Annex II includes suggested clauses for the cyber-protocol. These clauses serve as a “how-to” guide for conducting virtual hearings. Article 24(4) of the ICC Rules of Arbitration deals with requests for arbitration. The ICC has insisted that disputes must proceed expeditiously as per Article 22(1)
Singapore International Arbitration Centre (SIAC)
The SIAC had proposed to designate and train counsels in the Secretariat as Remote Technology Specialists and introduce a Live Help Desk feature on the SIAC website for ease of contacting the SIAC Secretariat during the period of workplace closure in accordance with applicable COVID-19 measure. According to Rule 19.1 of the SIAC Rules 2016, the tribunal shall conduct the arbitration in an appropriate manner after consulting with the parties, to ensure the fair, expeditious, economical, and final resolution of the dispute. Schedule 1-Emergency Arbitrator of the SIAC Rules, 2016, under Rule 7 and Rule 8 empowers the Arbitrator to utilize the video conferencing facility for hearing the disputing parties as an alternative to an in-person hearing and even to pass any order or award any interim relief.
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World Intellectual Property Organisation (WIPO)
The WIPO administers domain name disputes and is responsible for appointing panelists to determine the dispute. The emergence of new technologies and applications has begun to influence significantly the way companies do business. The WIPO Arbitration and Mediation Center has developed an online, Internet-based system for administering disputes. This online dispute resolution facility and all related information are accessible through these Online Dispute Resolution pages of the WIPO’s website. The digital communication tools allow the parties to file requests by completing electronic forms to submit documents and exchange correspondence online through secure channels. Under Article 37 of the WIPO Arbitration Rules, the parties are provided with considerable procedural flexibility. This allows the parties for a range of procedural adjustments as may be necessary. The WIPO Center also offers a no-cost online case administration option, including an online docket and videoconferencing facility.
London Court of International Arbitration (LCIA)
Article 19.2 of the LCIA Arbitration Rules grants the arbitral tribunal the authority to establish the conduct of an arbitral hearing and permits hearings at any appropriate stage of the arbitration to take place by video or telephone conference or in-person (or a combination of all three). The London court thus envisages any type of hearing to proceed by video conference.
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The Law Commission of India encouraged the use of technology such as videoconferencing and teleconferencing to aid the efficiency of online arbitral proceedings in 2014. However, these recommendations have not been considered significant in India due to resistance from arbitrators and counsel, for a lack of technological exposure. Though the arbitration community in India has been working proactively for the development of India as an arbitration-friendly jurisdiction, the acceptance of virtual arbitration could play a prominent role in this movement. The Indian Council of Arbitration (ICA) is currently using video conferencing tools to conduct online arbitration proceedings.
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Virtual procedures or online arbitration practices adopted even partially, if not for the entire arbitration, could significantly reduce the costs of travel, and of organizing physical hearings. Thus, Indian Institutions may use online arbitration to become more attractive to parties. To conclude a properly held virtual hearing can save considerable time and costs.
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