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Online Arbitration Hearings

"Nuts and bolts" of virtual hearings in Online Arbitration

Basics

Arbitration proceedings shall be legally enforceable and binding if both the specific arbitration procedure provisions and the respective subsidiary applicable law are observed and complied with. In particular, the ICC's arbitration law allows the parties to the conflict to agree on a purely "distance procedure", i.e. without the obligation to be present in person at meetings or at the oral hearings.

While procedural law sets the legal limits to this flexible arrangement, the Court, the arbitral tribunal and the parties must ensure that a fair trial is guaranteed at all times. This means that the technical aids used must be available to both parties and the arbitrators on equal terms throughout the proceedings. The arbitral tribunal has the challenging task of providing sufficient space for "smart" technical solutions and at the same time monitoring the requirement of fairness from a distance and detecting misconduct or even obstructions by either party and, if necessary, disqualifying this. It is advisable for the tribunal to agree on the individual procedural steps and sequences in advance, to determine them separately and to rehearse them where necessary.

Practical Advice

Practical advice on virtual oral proceedings:

In online proceedings there are numerous peculiarities to be considered, some are listed in brief below:

01 Preparations

• The details of the technical equipment and the conduct of the virtual hearing, including the taking of minutes, should be determined and in agreement with the arbitral tribunal at one or more procedural management conferences.

• Sufficient lead time and, where appropriate, the obligation to bear the costs should be clarified for the technical setting and equipment (encrypted video conferences, special video conference rooms with broadband connections, data room, replacement equipment including power supply, etc.).

• Test runs, ideally two sessions (lasting about 1 h) in the week before the actual hearing.

• In case of technical difficulties, provide for "procedural leeway" (i.e. catch-up date).

• Preparation of technical checklists to prevent unnecessary interruptions (charging batteries, switching off sleep mode for PC/laptop, mobile conference dial-in numbers for emergencies, exchanging mobile phone numbers in case of unforeseen interruptions, audio/video test, correct lighting, correct camera position, noise cancellation, etc.)

• Recommended technical equipment: 3 or 4 screens for speakers, documents, internal communication (provide breakout meeting room / messenger), translators; headset or buttonhole micro.

02 Procedure

• Pay attention to different time zones and pause preferences

• More short breaks instead of fewer long breaks

• Agree on maximum speech time blocks (check with timer).

• Seperate and announce in advance free discussion and moderated discussion rounds (tribunal grants speaking rights) .

• Presentation technique: simple, short sentences; structure arguments clearly (numbering), have sound and camera constantly controlled by own team members.

• Hyperlink documents for joint viewing via index page and limit the extend and scope of the selected documents appropriately.

• Record separately notices of defects and objections relating to the technology used (incompatible hardware or software, sound or image interference, etc.).

Conclusions

The conduct of an online arbitration procedure offers an alternative to traditional face-to-face proceedings. It can be assumed that – last but not least triggered by the Covid-19 pandemic – more and more proceedings will be moved to "the net" for reasons of time and cost.

However, the advantage of flexibility is bought with the disadvantage of an increased potential for abuse. In addition, all parties have to make considerable technical efforts in order to achieve a satisfactory and fair course of proceedings and the desired time savings.