Short Term Emergency Solution or Permanent Alternative?
This year, humanity has faced one of its gravest challenges in over a century. The COVID-19 virus has wreaked havoc on society and forced us to reimagine the very fabric of our lives. With over a million recorded deaths and nearly 56 million cases detected worldwide, global leaders have been forced to make the most difficult of decisions in an attempt to combat this unpredictable global health crises. Across the globe, countries have implemented ‘lockdowns’ and employed various other actions to curb the spread of the virus. Social distancing rules, mask wearing mandates, quarantines and travel restrictions have all become common features in our everyday lives. However, such measures have come at a cost as the normal functioning of 21st century societies is no longer compatible with our united effort to defeat this virus.
While the effects of this have been felt across all walks of life and industry, the practice of international arbitration has been particularly affected. As a field which is so globalised in its character, the COVID-19 pandemic posed an unprecedented challenge to international arbitration. Thus, the international arbitration community was forced to react and ensure that effective dispute resolution can continue. This has, in particular, resulted in a sudden increase in the use of virtual hearings. The oral hearings which had previously been heard in person before arbitral tribunals are now taking place through online video conferencing. In keeping with the flexible nature so inherent within arbitration, this switch to online video conferencing has allowed the continuation of dispute resolution proceedings and the delivery of justice, despite the pressing circumstances. However, their use has also begun to pose broader questions about what the practice of international arbitration will look like in our post-COVID-19 world. Will they prove to simply be a short-term emergency solution or do they in fact represent a permanent alternative for the future of arbitration?
In this blog, I shall first discuss the present state of play in relation to oral hearings via video conference (I) before looking at the arguments in favour of them as representing a permanent alternative to physical oral hearings (II). Thereafter, I shall discuss the problems with holding oral hearings via video conference (III) before concluding that these hearings should remain in the future, albeit not as a new normal in place of in-person arbitration.
I. Oral Hearings via Video Conference: The Current State of Play
Whilst the conduct of oral hearings via video conferencing has become far more common since the rise of COVID-19, their use does in fact pre-date the current pandemic. To better understand the potential advantages and disadvantages of conducting oral hearings via video conference, in my view it is first important to appreciate what these technologies entail.
On the current market place, parties have various options when it comes to virtual hearings. This includes, first, the fact that many arbitration centres already offer parties the opportunity to conduct virtual arbitrations through an “all in one platform”. For example, the International Arbitration Centre in London offers parties an integrated platform through which they can conduct both their case preparation and oral hearings, with all of the necessary materials for the proceeding stored under one single platform. Alternatively, parties could choose to conduct proceedings through individual online platforms and applications such as Zoom, Skype, Microsoft Teams and BlueJeans, each of which offers an easy to use and relatively affordable service. Through these platforms, video conferencing can be conducted via the live transmission of video and audio with the parties not having to leave their respective countries. They each allow for various different users to join at the same time and also have the capabilities for different break-out rooms to be formed, allowing the different parties and their counsel the chance to conduct internal communication privately.
As far as the legal implications of conducting virtual hearings are concerned, it is important to note that the rules of all prominent institutions in international arbitration grant the arbitral tribunal wide powers to direct the procedures in the manner in which they deem suitable. There is support for the proposition that such powers may in a given case include the decision to hold a virtual hearing. In fact, the rules of certain institutions expressly allow for hearings to take place via videoconferencing without the parties’ physical presence, such as the 2021 ICC Rules of Arbitration , while others do not reference this specifically but do not rule such a scenario out provided that the tribunal respects any existing party agreement and mandatory norms such as the right to be heard. Furthermore, various soft law instruments were already in place to guide the conduct of videoconferencing with witnesses in arbitration. Of course, they apply to a far narrower scope of procedural interactions than the conduct of entire oral hearings via videoconferencing.
Nevertheless, the principles that those soft laws establish can still be developed further and help establish a framework for the conduct of entire oral hearings in this manner.
Thus far, those who have used virtual hearings in international arbitration appear to have had generally positive experiences. One particular example of interest was the completion of the renowned International Commercial Arbitration Moot competition, the Vis Moot and Vis Moot East, via video conferencing provided by the firm Immediation. The process was considered to have been a resounding success and one which may have “forced to think about the ‘new normal”.
II. Oral Hearings via Video Conference Becoming a Permanent Alternative: Arguments in Favour
There are a plethora of different arguments that can be made in favour of oral hearings via video conferencing becoming a permanent alternative in international arbitration. These range from benefits that derive out of our present global context (1) such as lower financial costs, environmental advantages and reducing risks to health, to procedural benefits (2). I will discuss each of these in turn.
1. Benefits Relating to the Current Global Context
One advantage that is derived from conducting oral hearings via video conferencing is the financial benefits that parties can enjoy as a result of its potential to reduce costs. The aforementioned video conferencing technologies are generally reasonably priced, especially when compared to the expense of physical arbitration proceedings. For example, the popular video conferencing platform Zoom offers various different packages which each only cost a few of hundred US dollars per year. By contrast, a normal physical arbitration will generally require the parties to purchase flights and accommodation as well as incur general living costs accumulated during their trip. Their outlay will often be significant in comparison to the couple of hundreds of dollars which a one-year subscription with Zoom costs. Looking into the future, this saving will only become more desirable for parties looking to adapt to a post-COVID-19 world. The effect of anti-virus restrictions have been devastating on the global economy and the consequent economic hardship is predicted to last long into the future. The effects of COVID-19 are actually even graver than those suffered after the 2008 financial crash. Thus, in times like these when global economies are in recession, liquidity will become an issue for many parties to arbitration. An interesting analysis can be made of the comments made by Markus Wirth, the President of the Swiss Arbitration Association (ASA), at the time of the financial crisis in 2008. He said that:
“Businesses will be under dramatically increased pressure to save costs, including the costs of dispute resolution. Two consequences are foreseeable. First, parties to potential business disputes can be expected, more so than ever, to look around for alternative dispute resolution methods that are less costly than conventional arbitration. Second, where conventional arbitration remains the preferred tool or the one that must ultimately be resorted to, the demand for more time and cost-effective arbitral proceedings will undoubtedly rise.”
Accordingly, a future where parties can largely avoid the costs inherent in a standard physical oral hearing and instead derive the financial benefits which flow from using video conferencing will be very desirable.
Moreover, periods of financial disaster also often lead to an increase in the number of disputes and thus an increase in dispute resolution. The financial crash of 2008 is a recent example of this as it led to an immediate increase in the number of cases coming before arbitral institutions. In particular, the International Chamber of Commerce saw its caseload rise by 23% from 663 to 817 between 2008 and 2009. As has been stated, the economic fall-out from COVID-19 is likely to be even more severe than that resulting from the crash of 2008 and will no doubt give rise to new types of disputes. Arbitrators could see an increased workload, with cases linked to force majeure and hardship almost certain to become more frequent. The effects of COVID-19 and its economic fall-out will remain with us long into the future and it will fall to arbitral tribunals to resolve any increase in cases brought before them. To do so, more efficient and expeditious proceedings will be desirable and the use of video conferencing to conduct oral hearings instead of traditional in person hearings will, in my view, better facilitate that.
In addition, the aforementioned lack of travel which would result from the conduct of oral hearings using video conferencing will also result in environmental benefits. The reduction of travel would result in the entire arbitration community reducing its carbon footprint. The globalised nature of the field has, until now, required its practitioners to fly all across the world and generate a very significant carbon footprint. In this day and age, when the effects of global warming are well understood, it should be everyone’s individual duty to play their part in fighting against the very worrying trends of global warming. The international arbitration community can also play its part in this regard and the use of video conferencing for oral hearings would help it to do so.
Furthermore, one not so obvious effect that COVID-19 is having upon us all is how it has altered the way that we all now think about diseases. The requirements to wear a mask in public places and to reduce our human interaction with people from as few different households as possible are widely adhered to as people try their best to avoid catching the virus. In arbitration, such measures have led to arbitral institutions closing down their offices and, of course, facilitating a move to virtual hearings. However, it is likely that the effect that such measures will have on our collective mindsets will remain, even after COVID-19 has been defeated. The hardship that this pandemic has caused will ensure that people are far more cautious about the spread of diseases going forward. The use of video conferencing for oral hearings will negate the effect of the health risks attached to the spread of infection between parties.
2. Benefits Relating to the Arbitral Proceedings
The use of video conferencing for arbitral proceedings will also result in certain procedural benefits. A move to video conferencing would also allow for a rethink of the procedure of arbitral proceedings by identifying particular points of discussion from within the case and then constructing a structure for how they shall be analysed. Whilst this might seem obvious, often parties flying in for a physical hearing cause the proceedings to feel like an all or nothing event. However, in the event of conducting the hearings through video conferencing, the need for having all of the witness hearings and oral submissions at the same time no longer remains. Hence, the virtual hearing could then be separated into different discrete parts. For example, one could divide the proceedings so that witnesses are heard first, and then after they give their evidence, the experts can then be given some time to reflect and consider upon what they have heard, if they feel that is necessary, before giving their own evidence. This does not mean that the proceedings would be any slower but rather a greater degree of proportionality could be adopted when dealing with the intricacies of different disputes.
III. The Problems With Conducting Oral Hearings via a Video Conference
Despite the various advantages that are achieved when conducting oral hearings via a video conference, they also present a lot of problems too and these most definitely cannot be ignored. These problems range from the effects on witness evidence (1) and technological issues (2) to concerns over cybersecurity (3). Once again, I shall discuss each of these issues in turn.
1. The Effects on Witness Evidence
Perhaps the biggest issue that arises from conducting oral hearings via video conference is that it deprives arbitrators of the chance to be physically present during the taking of witness testimony, and particularly during cross-examinations.. If the oral hearings are conducted through video conferencing, arbitrators will be less able to form an opinion on the credibility of a witness in the manner that they have always been accustomed to. Online settings will simply not be as effective in terms of allowing arbitrators to really engage with the character of a witness and their evidence, and it will be harder to analyse changes in body language, facial expression and tone. Such psychophysiological observations are now part and parcel of arbitration and arbitrators will no doubt be concerned about the effects that using video conferences for oral hearings will have upon their ability to do so.
A further concern that they will have about witness evidence relates to the coaching of witnesses. The nature of remotely hearing witnesses via video conferencing raises obvious questions about the possibility of witness coaching or the receipt of assistance during testimony. A witness could, in theory, receive assistance from an undetected coach who is hidden out of shot or through a script which is hidden from the tribunal’s view. However, this issue is not an entirely genuine concern as certain measures can be taken to ensure this does not happen. These could include installing rotating or 360-degree cameras which are controlled by the arbitrators, allowing them to constantly observe what is going on in the witness’s surrounds. Alternatively, another person, acting in an official capacity, could be present in the room with the witness and invigilate the proceedings from there.
2. Issues Relating to Technology
Conducting oral hearings via video conferencing also raises a variety of different concerns in relation to technology. The issues here start at a fairly basic level. International arbitration cases often involve parties from all corners of the world. At the outset, an obvious concern here would be time differences between jurisdictions and the difficulty with trying to organise a hearing which falls during the business hours of both parties. However, what is even more concerning is that some parties may be situated in nations with particularly unreliable infrastructure. Vast sectors of the world are still hamstrung by poor internet connectivity, meaning that, someone who participates in a virtual hearing from one such country risks poor quality and reliability of their picture and audio, which can be highly problematic. Furthermore, many countries still have unreliable electricity supplies. It could be the case that a party involved in a hearing suffers a power cut. This, again, would prove to be very problematic during the conduct of oral hearings. Simply put, arbitration can only move at the pace of the slowest runner. Thus, an arbitral tribunal must remain ready throughout the proceedings to adjourn the hearing if the situation requires as much. In this scenario, issues relating to time and to provide a decision within a reasonable time would then potentially arise.
As well as issues stemming from a nation’s infrastructure, there is also the potential for a party to be based in a country where there still exists a high level of government censorship over the internet. Given the highly confidential nature of arbitral proceedings, parties involved in such a situation would find it far more preferable to hold oral hearings in person and further secure their information. No matter what sort of protocols that an institution tries to put in place, these sorts of problems are simply very hard to combat.
Overall, issues such as a gulf in the quality of a party’s technological resources will not be viewed as type of inequality that should prevent proceedings from going ahead. A simple comparison would be to look at how different parties in arbitration are often represented by a different quality of counsel who may have received different standards of training and have different linguistic capabilities. Whilst problems with connectivity could be debilitating for counsel, who may accordingly have to adopt a slower style of delivery, it would take a very extreme case of technological inequality before it could be decided that the situation is actually materially unequal from a due process perspective. Yet, while arbitral institutions can take many precautions to mitigate the effects of any of the above concerns, the fact remains that these are issues that are not found in physical hearings. Arbitrators and counsel alike may prefer to simply return to in person hearings when it is safe to do so and avoid any of these potential problems.
3. Concerns Relating to Cybersecurity
Possibly the gravest concern in relation to conducting oral hearings via video conferencing are potential cybersecurity issues. Cybersecurity issues have been in the limelight in recent years due to several high-profile stories in this area. Perhaps the most notable of these was the claims of interference by foreign governments in Western elections through their aggressive cyber-attacks and campaigns.
Whilst this is an example of cybersecurity issues in the public field, attacks in private industry take place too. In fact, cybersecurity was already a live issue in international arbitration, with the Seoul Protocol, the ICCA/IBA Joint Task Force's Roadmap on Data Protection in International Arbitration and the ICCA-NYC Bar-CPR Protocol all being released in 2020. Whilst not produced in response to COVID-19, they show that cybersecurity was an issue of concern, even before the move to conducting oral hearings via video conference.
Concerns have already been raised about whether arbitral institutions are sufficiently prepared to address potential issues arising from cybersecurity or related data breaches during video conferences. These issues are particularly crucial in arbitration given the emphasis placed on confidentiality. It is simply unconscionable that important business information relating to a particular company or project could be obtained by a third party who breaches the cybersecurity of the hearing. It has already, rather worryingly, been the case that certain providers have had to concede that they were at certain stages not properly secure. The fact that the biggest player in the video conferencing market has faced such stark criticism as to its cybersecurity is an undoubted concern.
Such concerns are not as profound when it comes to physical hearings. These usually take place in unmarked rooms, often within reputable venues. Whilst the issue of rooms being bugged could be of concern to some, extensive searches could be conducted by parties with serious worries.
Cybersecurity represents another reason why many in arbitration may want to return to physical hearings when it is safe to do so and, in turn, avoid the potential risks inherent in conducting oral hearings via video conferencing.
This year, international arbitration has seen a huge increase in the use of video conferences for the conduct of oral hearings. Whilst video conferencing was not an entirely novel feature in arbitration, the COVID-19 pandemic has forced it into the limelight far quicker than anyone could have imagined. As a result, many people have started to analyse its merits and ask whether it is just a short-term solution or if it is actually going to serve as a permanent alternative in international arbitration. An exact answer to this question cannot be provided as international arbitration is a diverse and varied field with many different legal families interacting with one another. People from all over the world are involved in arbitration and they will each have their own unique perspectives on the advantages and disadvantages of conducting oral hearings via video conference. There are undoubtedly great advantages to be sought. The positive effects on the environment must not be overlooked, while other procedural and cost benefits are also desirable. However, the issues surrounding hearing witnesses, technological limitations and cybersecurity are equally serious and show that perhaps the world of arbitration is not yet fully ready for a virtual revolution once COVID-19 is defeated. Overall, arbitration is meant to provide flexible and efficient proceedings and 2020 has proven that even in adversity it can do so. In the future, I believe that the best scenario will be a return of physical hearings, but with an option for parties to conduct oral hearings via video conference if they so desire. This flexibility will allow for a more effective conduct of arbitration proceedings. Parties who wish to enjoy the benefits of virtual hearings should be able to do so, but with the option still remaining for physical hearings for parties who are more comfortable with the tried and tested physical method.
 Beatson, David (2020). Virtual Arbitration: The Impact of COVID-19. Indian Journal of Arbitration. Volume 9, Issue 1, p. 162
 Singapore International Arbitration Centre (SIAC), Rules of Arbitration 2016, r. 24; ICC Rules, supra note 2, art. 26.
 Such as The ICC Commission Report on Information Technology in International Arbitration, 2018 or The Seoul Protocol on Video Conferencing in International Arbitration, 2020
 Quote from Professor Dr Jacomijn van Haersolte-van Hof, LCIA director, available at: www.lcia.org
 Wilske, Stephen Crisis? What Crisis?— The Development of International Arbitration in Tougher Times, p. 195; Wilske, Stephen (2020). The Impact of COVID-19 on International Arbitration- Hiccup or Turning Point? Contemporary Asia Arbitration Journal. Vol. 13, No. 1, p. 21
 ICC Statistical Reports of years 2008 and 2009
- Beatson, David (2020). Virtual Arbitration: The Impact of COVID-19. Indian Journal of Arbitration. Volume 9, Issue 1 pp. 159-169
- Engholm Cardoso, Marcel and Hosking, James (2020). Practical Considerations for Holding a Remote Arbitration Hearing. New York Dispute Resolution Lawyer. Vol. 13, No. 2, pp. 14-17
- Shope, Mark L. (2020). The International Arbitral Institution Response to COVID-19 and Opportunities for Online Dispute Resolution. Contemporary Asia Arbitration Journal. Vol. 13, No. 1, pp. 67-84
- Waincymer, Jeffrey M. (2020). Online Arbitration. Indian Journal of Arbitration. Volume 9, Issue 1 pp. 1-23
- Wilske, Stephen (2020). The Impact of COVID-19 on International Arbitration- Hiccup or Turning Point? Contemporary Asia Arbitration Journal. Vol. 13, No. 1, pp. 7-44
- Yu, Hong-Lin (2020). “Business as Usual” During an Unprecedented Time- The Issues of Data Protection and Cybersecurity in International Arbitration. Contemporary Asia Arbitration Journal. Vol. 13, No. 1, pp. 45-66
Date accessed: 21/11/2020
- Bücheler, Dr. Gebhard, Flecke-Giammarco, Gustav and Zahner, Lena (2020). Arbitrating in Uncertain Times
- Institutional Responses to COVID-19. Available at: beck-online.beck.de
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