Arbitration effectiveness as a dispute resolution mechanism was widely appreciated during the pandemic and was one of the dispute resolution mechanisms that never really close down. Unlike the national courts that saw activities almost limited to zero globally, Arbitration continued in most parts of the world and left many disputing parties subscribing to it for resolving their disputes.
So how did Arbitration survive the pandemic and the national courts did not? One simple answer; Virtual Arbitration. At the beginning of the pandemic Arbitral tribunals were faced with an impending shutdown, but thanks to the innovative atmosphere of Arbitration and certain call for reforms, institutions were able to provide guidelines that allowed the resolution of disputes to continue, but this time via remote hearings.
Before the pandemic, the call for the implementation and use of Technology in Arbitration had always been a matter of serious contemplation, with practitioners citing the need to achieve Shorter and Cheaper Arbitration processes. This discussion led to arbitral tribunals easily adapting to the opportunity of Virtual Arbitration and remote hearings.
Now even after the pandemic, virtual Arbitration has continued to present a cheaper and better alternative to a complete in-person hearing with parties not having to deal with as much cost as they would with having to compile paperwork and transfer them across jurisdictions in the of international disputes. Also, there has been a higher level of efficiency as all stakeholders in a dispute can now perform their roles from their locations and get an enforceable award.
Virtual Arbitration: The Influence of Remote hearings in Arbitration Currently
At the beginning of the pandemic, not every practitioner actually keyed into Virtual Arbitration. It was only until there were significant positive results from the first string cases that practitioners and parties began to see the potential of Virtual Arbitration. Now, this is not to say that Virtual Arbitration only started at the pandemic, but it became prevalent after the shutdown and proved to be by far a more efficient form of resolving disputes.
Following a survey carried out in 2020, out of all cases studied during the pandemic, about 79% of disputing parties and Arbitrators subscribed to Virtual hearings where in-person meeting was not possible. 16% of respondents surveyed opted for postponement of hearings until it was possible to hold it in person.
An in-depth analysis of the survey showed that respondents subscribed for Virtual hearing had cases mostly in the commercial, energy, and finance sectors. Those who wanted only in-person resolution cited that the cases were extremely crucial and couldn’t risk the possibility of information stealing through hacking as technology in Arbitration was yet to mature.
Another advantage of Virtual Arbitration is the fact that Awards are enforceable just as much as a case where all parties are present.
Latest Arbitral Rules Reforms for Facilitating Shorter, Cheaper Virtual Arbitrations
With the advantages of Virtual Arbitration well outlined already, this section will be outlining the New Rules in Arbitration remote hearings and the current guidelines made available by arbitration institutions to make Arbitration more efficient, cheaper, and straightforward.
The International Chamber of Commerce (ICC) was one of the first of many institutions in Arbitration to set up a guideline that arbitrators could use in assisting them during virtual hearings. The ICC provided guide was termed ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic. Other guides were released from SCC and HKIAC, with both termed COVID-19: Information and Guidance in SCC Arbitrations and HKIAC Guidelines for Virtual Hearings, respectively.
Apart from institution-inspired guides and guidance, there were other Non-institution guides. One of the most notable was Seoul Protocol on Video Conferencing in International Arbitration and other guidance released to make virtual hearings smoother and seamless.
While these guides were outlined and provided during the height of the pandemic, they have continued to play an important role in virtual arbitral hearings to date. This acceptance gives an idea of Virtual Arbitration, and the relationship is definitely encouraging.
Almost all arbitral institutions have in one way or the other taken steps to inculcate and update rules that expressly guide remote hearings. The LCIA Arbitration Rules 2020 in Article 19.2 provides guidance on how hearing can be carried out on conference calls, virtually, or via other technological methods that allow all parties to be fully involved as long as data compromise cannot be easily perpetrated.
Virtual Arbitration processes and proceedings can clearly only get better from here, and this shows that why the pandemic brought pains and uncertainty, it outlined while dispute resolution institutions such as the arbitral tribunal must embrace Technology in Arbitration proceedings.
Remote hearings undoubtedly still need a level of fine-tuning, but the Latest Arbitral Rules set up by the ICC and other Arbitration institutions give insight into the kind of reforms the system needs for the arbitrators and firms to benefit from it.
The New Rules in Arbitration, especially for Virtual Arbitration, can be harnessed to its full extent by top professional arbitrators. Therefore, it is important that any party getting into an international dispute going forward must ensure that they get the services of professionals who understand the working of virtual Arbitration.
However, getting a top firm with skillful and technology-inclined arbitrators requires knowing what to look out for to get the best value. Rattaskuten is one of the top Arbitration institutions with some of the most experienced and technology-friendly professionals that help clients get the best out of a dispute. Clients can employ their services by reaching out to them and wouldn’t have to worry about geographical barriers as the firm advocates and uses the opportunities offered by Remote hearings and Virtual Arbitration.
Rattsakuten is a leading law firm focused on Commercial Arbitration and Dispute Resolution. Based in Sweden, Rattsakuten handles dispute resolution and Arbitration matters before the SCC (Swedish Chamber of Commerce), ICC, HKIAC, and several other Arbitration tribunals.