This article was originally published in Arbitration: The International Journal of Arbitration, Mediation and Dispute Management.

Le mieux est l’ennemi du bien

The pandemic saw a considerable increase in the use of virtual hearings. Whilst telephone or video conference procedural conferences had been commonplace in international arbitration, full virtual evidentiary hearings had not been. The pandemic changed that and virtual/remote evidentiary hearings became commonplace and kept the wheels of justice turning. This article considers whether there is a right to insist on a virtual hearing and conversely whether there is a right to an in-person hearing. The broad consensus is that save in exceptional or unusual circumstances, there is no right to an in-person hearing. Virtual hearings work perfectly well and will generally observe due process. Virtual hearings are good enough and are here to stay in at least some arbitrations.

Keywords: Virtual, In-Person, Due Process, Consent, Hybrid, Equality

1. Introduction

The Coronavirus disease 2019 (COVID-19) pandemic has not been all bad – it has driven innovation through the promotion of virtual hearings; reduced costs (by reducing travel); freed up diaries by taking out travel, acclimatisation time, and conferences; and made us all better at working without paper. If the long-term result is to have a greener planet and a cheaper and more efficient arbitration world – we have something to be thankful for.

The pandemic has made us face novel issues in very many aspects of our lives. International arbitration is no exception. Parties, counsel and tribunals have had to adapt to the new reality of conducting international arbitration proceedings in the face of travel restrictions and social distancing measures. One particular issue is whether hearings that cannot be held in-person can and should be heard remotely.

Many steps in the process of an international arbitration are done remotely nowadays. This is true for all communications including filing the Request (which are done electronically/online), as well as constituting the tribunal; all filings, submissions or briefs are electronic (perhaps also with a paper copy) and all or many of the procedural steps are undertaken by telephone or video conference. The essential issue is whether a party (or the parties) can insist upon a hearing on the merits to be in-person. There is no doubt that there have been very many successful virtual merits
hearings, and parties, counsel and tribunals have rapidly assimilated the technology and introduced protocols to ensure efficiency and due process: necessity truly has been the mother of invention (or perhaps more strictly, innovation).

A virtual hearing is a hearing conducted by means of communication technology to simultaneously connect participants from two or more physical locations. This includes the now ubiquitous Zoom call, allowing multiple locations to interact simultaneously by both video and audio transmission. As mentioned above, the concept of remote or virtual hearings (‘virtual hearings’) is not a new phenomenon in international arbitration. Not only in pre-pandemic times were most case management conferences and some procedural hearings conducted virtually, so were merits
hearings in certain cases. For instance, virtual hearings are often used in expedited and emergency arbitrator proceedings. Indeed, ICSID announced that the majority of its hearings in 2019 were held by videoconference.

Moreover, it was not uncommon for certain witnesses or experts to give their evidence virtually and by video-link. Similarly, some aspects of a merits hearing might be in-person and others virtual. For example, (some, or all, of the) evidence might be in-person and closing oral submissions might be virtual.

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