1 Introduction*
In 2020, in response to the unprecedented disruptions caused by the covid-19 pandemic, the international arbitration community including institutions, practitioners, arbitrators, and disputants—pivoted admirably to conducting arbitrations remotely. This response was consistent with arbitration’s reputation as a flexible and dynamic form of dispute resolution.1
Pre-pandemic, remote technologies were often utilized for procedural conferences and, less frequently, during a jurisdictional or merits hearing for select witness or expert examinations. Today, fully remote hearings2 are increasingly utilized for full hearings on jurisdictional and merits issues. Since March 2020, several arbitral institutions have adopted new rules3 and published model procedural orders or other practical guidance4 to facilitate remote hearings.
This chapter analyzes salient issues that are implicated in a decision to conduct a remote hearing, including: (1) select procedural and policy considerations of conducting an arbitration that utilizes only remote hearing platforms (Section 2); (2) the due process implications of this transition to remote hearings (Section 3); and (3) sector-specific considerations for parties in the tourism and hospitality industry (Section 4).
As elaborated below, the framework and technology for conducting remote hearings were largely established and available prior to March 2020, but the pandemic has accelerated the utilization of remote hearings. As a general matter, the increased use of remote hearings is a welcome development. Benefits likely include time and cost efficiencies, enhanced diversity, a reduced carbon footprint, and increased technological innovation that will improve outcomes for clients. Indeed, prior to the pandemic, stakeholders in international arbitration5 had indicated that further use of videoconferencing would result in a more efficient process.6 Today, a consensus appears to be emerging that remote hearings, subject to some qualifications, will likely continue to be an enduring feature of international arbitration and improve the overall process.7
With regard to the due process implications of remote hearings, our research does not, to date, reveal a single instance where a tribunal or enforcing court has found that a party’s due process rights were infringed due to a decision to hold a remote hearing or the manner in which a remote hearing was conducted. Notwithstanding this, it is incumbent upon arbitrators to ensure that due process challenges relating to remote hearings are taken seriously, while at the same time guarding against “due process paranoia.” Tribunals must be prepared to deal with unique challenges relating to remote hearings, which may include allegations of unfair treatment arising from differences in time zones for participation, technological arrangements, interpretation issues, and witness or expert coaching, amongst other issues. Thus, tribunals will be expected to continue to conduct proceedings in an efficient manner, while not compromising the rights of a party such that a remote hearing leads to unequal treatment.
Furthermore, the hospitality and tourism industry may be uniquely positioned to benefit from the increased utilization of remote hearings. The efficiency and accessibility of remote hearings may allow for the smooth resolution of disputes relating to ongoing hotel projects and enable parties under an active management contract to continue their contractual relationship and not endanger business goodwill.
On balance, all indications suggest that remote hearings will likely endure as a permanent and increasingly common feature of conducting international arbitrations, even if used in combination with in-person hearings throughout the case. At a minimum, remote hearings will continue to be considered as an
2 Procedural and Policy Considerations for Conducting Remote Hearings
The covid-19 pandemic catalyzed a fundamental behavioral shift toward the adoption of remote hearing platforms, including for merits hearings. That shift has created, in many instances, substantial and tangible benefits for arbitration users and stakeholders. As elaborated below, key benefits include proceedings that are more time and cost effective, enhanced diversity and improved access to justice for end users, the facilitation of environmentally sustainable proceedings, and an opportunity for the arbitral community to be at the forefront of adopting innovative technologies that ultimately can enable the arbitral community to gain a competitive advantage over other forms of dispute resolution.
It is worth noting, as an initial matter, that the rules and guidance issued by leading arbitral institutions9 issued following the onset of the pandemic supports the option for parties to continue utilizing remote hearing platforms.10
2.1
- –icdr: The aaa’s icdr Rules (2021) provide that a “hearing or a portion of a hearing may be held by video, audio, or other electronic means” when either the parties agree or the tribunal decides, “after allowing the parties to comment,” that a remote hearing is “appropriate and would not compromise the rights of any party to a fair process.”11 Furthermore, under Article 22(1), the Tribunal “may conduct the arbitration in whatever manner it considers appropriate, provided the parties are treated with equality and that each party has the right to be heard and is given a fair opportunity to present its case.”12 Notably, Article 22(2) requires that the Tribunal “shall conduct the proceedings with a view to expediting the resolution of the dispute” and in this context, states that the “tribunal and the parties may consider how technology, including video, audio, and other electronic means, might expedite the proceedings or decrease costs.”13 Further Article 22(3) requires the tribunal to discuss with the parties on steps to be implemented that ensure that the adequate cybersecurity, privacy,
and data protection measures are established for the conduct of the proceedings.14 - –icc: The icc Rules (2021) expressly permit the arbitral tribunal to decide “after consulting the parties, and on the basis of the relevant facts and circumstances of the case, that any hearing will be conducted by physical attendance or remotely by videoconference, telephone or other appropriate means of communication.”15 The arbitrator is thus explicitly given the discretion, after consulting with the parties, to hold a hearing remotely by videoconference, telephone or other appropriate means. Article 22(4) states that the arbitral tribunal must act fairly and impartially and ensure that each party has a reasonable opportunity to present their case.16
- –icsid: The icsid Arbitration Rules (2006) do not expressly reference but do not prohibit remote hearings. In its March 2020 publication, icsid in fact noted that the popularity of remote hearings was steadily increasing prior to the pandemic.17 Notably, however, the icsid Convention Article 44 provides the tribunal broad discretion to decide “any question of procedure” that is not covered by the Convention or the applicable arbitral rules.18 Furthermore, icsid Arbitration Rule 20 calls for “the views of the parties on questions of procedure” during the preliminary procedural conference, and, in particular, the parties’ views on “dispensing with the written and oral procedure.”19 At that time, the parties may offer their views on whether remote hearings will be appropriate under the circumstances.
- –siac: The siac Rules (2016) also provide flexibility to the parties and the arbitrators to decide whether a remote hearing is appropriate for the case.20 Article 19 of the siac Rules requires the Tribunal to ensure
that the arbitration is conducted fairly, expeditiously, and economically, with the goal of arriving at a final resolution of the dispute.21 Although remote hearings are not expressly referenced, a decision to hold such a hearing, if appropriate under the circumstances, would adhere to the principles set forth in Article 19. - –uncitral: Article 15 of the uncitral Arbitration Rules (2020) gives the tribunal wide discretion to conduct the arbitration in a manner suitable to the parties and the circumstances of the case, which logically extends to the option for holding remote hearings.22 Article 15 also requires the tribunal to treat the parties “with equality” and provide each party a full opportunity to present its case. Similar to the icsid and siac frameworks, the uncitral Arbitration Rules rely on party autonomy and arbitrator discretion for deciding whether to hold a remote hearing.
Assessing whether the relevant arbitral rules expressly or implicitly permit a remote hearing, however, is only one piece of the calculus as to whether a remote hearing is appropriate and required. As briefly noted in Section 3, infra, parties considering whether to utilize a remote hearing, especially one involving dispositive issues of jurisdiction or the merits, must inter alia consider potentially relevant national laws on remote hearings for the purposes of enforcement after an award is rendered.
2.2 Time and Cost Efficiencies
Notwithstanding its historical reputation as a more efficient and economical alternative to national court litigation, international arbitration has recently been criticized as slow and costly.23 The arbitral community’s widespread adoption of remote hearings has the potential to significantly increase efficiency and reduce costs in an enduring fashion, which can help address this criticism.24
Remote hearings can significantly reduce these costs. In a survey of nineteen arbitral institutions, Patricia Shaughnessy noted that “the institutions have found the procedures for facilitating remote arbitration have worked well and meet the needs of clients for fair, efficient, and cost-effective arbitration.”27 The prevalence and familiarity of remote hearing platforms sparked by the pandemic has led many arbitral users to experience significant efficiency gains without compromising the quality of the arbitral process. Further, in the White & Case and Queen Mary School of International Arbitration Survey for 2021 (“qm Survey”), 25% of the respondents surveyed noted that they would be prepared to forgo in-person hearings altogether.28 That one-quarter of respondents would be willing to forgo the all-important merits hearing in a physical setting is striking, but, as the qm Survey points out, this statistic seems to reflect the newfound level of comfort with remote hearing platforms amongst stakeholders.29 Moreover, the qm Survey found that “[i]f a hearing could no longer be held in person, 79% of respondents would choose to ‘proceed at the scheduled time as a virtual hearing’. Only 16% would ‘postpone the hearing
The qm Survey also revealed that the following features would make certain institutions or arbitral rules more attractive: administrative/logistical support for remote hearings (38%); and provision for arbitrators to order both remote and in-person hearings (23%).31 One could reasonably surmise that the higher costs associated with in-person merits hearings played a role in motivating these responses. In-person hearings typically involve numerous parties travelling internationally to either an arbitral institution or an ad hoc venue of the parties’ choice. No matter which venue is chosen, the parties shoulder significant expenses for transportation, lodging, catering, equipment rentals and so on. Remote hearings, if appropriate under the circumstances of the case, could be the answer for reducing these significant hearing costs and achieving a resolution in an expeditious fashion. Given that remote hearings are typically held only for four or five hours a day, as opposed to eight hours a day for an in-person hearing, users are also incentivized to more efficiently use the available hearing time. In this context, practitioners must more succinctly identify the key arguments for presentations and examinations. Remote hearings thus can impose self-discipline to focus on the issues that are most material to the dispute, which can result in greater efficiencies.
Notwithstanding these time and costs savings, high-stakes, technically complex merits hearings involving multiple witnesses, experts, and time zones are likely better suited to a traditional in-person hearing—or at a minimum a hybrid hearing—instead of a remote hearing.32
First, it may not be logistically feasible to find a mutually agreeable time slot for all parties involved.33 Given the various international time zones that may be implicated in a particular case, parties, counsel, and arbitrators may only have a narrow time slot to conduct the hearing each day. In such a case, parties or counsel may be at a serious disadvantage because that limited time range could fall during an inconvenient time, such as early morning or late at night. After considering all relevant circumstances, if time zone conflicts
Second, the arbitrators, counsel, and, if applicable, the arbitral institution should ensure that all participants are equipped with adequate and reliable technology. If one party or counsel has drastically asymmetrical technological resources or is disadvantaged due to unreliable internet services, the quality of the process would be in peril.
Third, it may be difficult to control cross-examinations and assess the witnesses’ credibility,34 particularly in a case with many witnesses. If a proper remote hearing protocol is not concluded, witnesses may appear with inadequate camera angles or poor lighting that renders it difficult to assess the witness’ demeanor and body language.35
Fourth, notwithstanding the efficiency of remote hearings, participants in such hearings can experience significant mental and physical toll.36 Mental and physical symptoms can include screen fatigue, physical exhaustion, mental health deterioration, and a waning ability to focus.37 The impact of screen fatigue is amplified in the context of longer hearings and may jeopardize the quality of the process. As such, a tribunal must consider these negative side effects when deciding whether to hold a remote hearing.
Fifth, when a case requires several days of taking evidence and oral argument, counsel may prefer to confer internally and with witnesses and experts in-person.38 For example, a recent study by Berkeley Research Group found that a lack of in-person preparation amongst counsel and experts diminishes
Thus, a tribunal may consider the above five points when determining if an in-person hearing or remote hearing is warranted. At the same time, it should also consider the significant cost and time efficiencies of holding a remote hearing, as discussed above, as well as the due process related implications noted in Section 3, infra.
2.3 Enhancing Diversity in International Arbitration
Continued use of remote hearings will likely help achieve greater diversity in international arbitration. As Dr. Shaughnessy posits, “[t]here is a great need for greater diversity and more inclusiveness in arbitration” as it “will improve arbitration performance and legitimacy.”40 Diversity may take many forms and encompasses differing racial, gender, cultural, socio-economic, sexual orientation, geographical, or disability-related backgrounds. While a comprehensive and sustained approach is required to improve diversity, the utilization of remote hearings presents one tangible way forward to make international arbitration more inclusive. Remote hearings could lower the barriers to entry in arbitration, which will permit arbitrators, parties, and counsel with diverse backgrounds more opportunities to achieve more visibility and garner first rate experience.41
First, increased reliance on remote hearings could provide counsel from underrepresented groups and geographic regions with more exposure to international arbitration, which in turn would provide them with expertise to serve as arbitrators in due course.42 Reducing the time and costs associated with travel may also result in more frequent appointments of qualified counsel from
Second, counsel with diverse backgrounds may enjoy newfound opportunities to attract potential clients and contribute to arbitral discourse. In contrast to travel schedules associated with physical presence, remote settings permit more flexible schedules. A more flexible environment may improve the representation of minorities and women and men with young families for whom physical attendance and long travel schedules may prove challenging. For example, as noted in the International Council for Commercial Arbitration’s report on gender diversity, a general lack of flexible work schedules particularly affects women in law firms.47 But this new remote paradigm could result in more flexible arrangements for women with families and may diminish the difficulties of conducting one’s professional duties solely in an in-person setting.
Third, remote hearings may enable greater access to justice. For instance, remote arbitrations could reduce legal costs for claimants such as individuals or small businesses. Conversely, remote arbitrations may allow a financially disadvantaged respondent, including a fiscally strained sovereign State or State-owned enterprise, to defend itself without expending significant resources for an in-person hearing. Removing the costs associated with an in-person hearing may allow a disputing party to fully litigate its case rather than, for instance, seeking settlement early in the proceedings.48
There may, however, be certain circumstances under which remote hearings could have the collateral impact of impeding diversity initiatives.49 For instance, arbitral users may be averse to appointing counsel or arbitrators whom they have not had the opportunity to meet in-person, whether in a professional or social setting. The current remote work paradigm could limit aspiring practitioners’ ability to interact with clients and senior colleagues. There is thus a risk that arbitral users may continue to rely upon the more experienced counsel and arbitrators.
Furthermore, in the context of access to justice, it is critical to ensure that financially disadvantaged parties have access to adequate and reliable technology.50 If a party lacks access to reliable technology, such as high-speed internet access required for remote hearings, the arbitrators must carefully consider those circumstances before determining whether a remote hearing is warranted.
2.4 Advancement of Environmental Initiatives
Climate change is at the forefront of the challenges facing the global community. The past five years have been the warmest on record, a trend that the United Nations Secretary General, António Guterres, stated could put the world on “the verge of the abyss.”51 As noted previously, in-person hearings tend to imply long-distance travel for numerous individuals.
The arbitral community has increasingly become aware of its substantial carbon footprint and has taken strides to reduce its negative effects on the environment through efforts such as “The Green Pledge” by the Campaign for Greener Arbitrations, which has now been signed by over 600 individuals and organizations.52 Initiatives have also emerged with creative contract drafting solutions for reducing the legal industry’s carbon footprint, such as the Chancery Lane Project.53 One of the dispute resolution model clauses developed in the Chancery Lane Project calls for the parties to disclose their projected carbon footprint throughout the proceedings and develop an environmental impact plan for reducing carbon emissions.54 Notably, that same clause calls for all hearings to be conducted remotely but preserves arbitrator discretion on that point. Guidance like the Chancery Lane Project may become more common in the years ahead because, while not a carbon-neutral proposition, remote meetings and hearings can help reduce international arbitration’s carbon footprint.
At the time of this article, there are discernible signs of a shift from an industrial era to a low carbon era. In 2015, 196 States adopted the Paris Agreement with the goal of achieving a climate neutral world by the mid-century mark.55 Recently, some governments and business executives alike have taken a more aggressive approach with the “Race to Zero” campaign ahead of the cop26 in
To align itself with those potential disputants’ environmental values, the arbitral community ought to proactively consider the use of remote hearings as frequently as possible in order to combat climate change. While the energy use required for remote hearings is not carbon neutral, the adoption of fully remote or hybrid hearings is a step in the right direction from an environmental standpoint. Furthermore, the decreased carbon footprint of a remote hearing could make carbon offset programs for hearings a more feasible and more affordable proposition that could be explored by future disputants.
In summary, international arbitration must continue to adapt to global environmental initiatives to remain an attractive method for resolving disputes—both from the perspective of sovereign and corporate clients. Remote hearings may be one of the keys for achieving that end.
2.5 Adoption of Remote Technology as a Means of Invigorating Further Technological Advances
As noted above, the pandemic has accelerated the arbitration community’s embrace of remote hearing technologies. In September 2019, Paul Cohen and
While many national courts also utilize remote hearings, the international arbitration community has the opportunity to be at the forefront in promoting and advance remote hearing capabilities. International arbitration must remain an attractive business proposition for its potential disputants—constantly leveraging efficiencies, including cutting-edge litigation technology. If reliance on remote hearing technologies does continue, the sustained demand for these platforms will likely lead to more advanced and higher quality remote hearing technologies.
This demand could result in the elimination of certain drawbacks associated with remote hearings. For example, a common criticism of remote hearings is that the tribunal or counsel is unable to physically view and assess the demeanor and body language of a witness while conducting a cross-examination. However, simple videoconferencing, which has been the default remote hearing medium, is still rather primitive and more advanced technologies are already available. Improved camera angles with 360-degree views of the witness are available and further advanced technologies, such as augmented reality (“ar”) are in the prototype stages of development. Some commentators have suggested that ar could drastically improve the quality of remote hearings.60 Participants could remain in separate physical locations but, with the use of additional hardware, view a full-body hologram of the party speaking in real-time. Having a more interactive experience through ar may also mitigate screen fatigue, as users may feel more physically present. Thus, technologies such as ar may reduce the common criticisms associated with today’s most common remote hearing platforms.
The international arbitration community may find that continued reliance on technology could catalyze new innovation beyond remote hearing
3 Due Process Implications of Remote Hearings
As Julian Lew has observed, “the ultimate purpose of an arbitral tribunal is to render an enforceable award.”62 As part of this “ultimate purpose,” tribunals must ensure that the proceedings are held in accordance with general principles of due process or otherwise risk exposing the award to set-aside or enforcement related challenges. Due process, which is the minimum level of procedural fairness required in the arbitral process,63 includes the following four elements: (i) a party must be given notice of the case against it; (ii) so the party has an opportunity to present its case and respond to the case put against it; (iii) before an impartial and independent tribunal; (iv) that treats all parties with equality.64
To date, the authors have not identified a case from a major arbitration situs that has been set-aside or refused recognition or enforcement on the grounds that the hearings were conducted remotely or that the remote hearing procedures violated due process. Notwithstanding this, it is important for tribunals,
A court faced with a set-aside or enforcement challenge arguing that the tribunal violated due process by conducting part or all of the hearing remotely, or otherwise did not comply with due process standards as part of its remote hearing procedures, would inquire if the parties had an agreement that expressly excluded remote hearings. In such an instance, a tribunal’s decision to hold a remote hearing may lead to a conclusion that the arbitral procedure violated the agreement of the parties or violated a fundamental rule of procedure.69
In the absence of party agreement, the court would assess whether the tribunal was empowered by the relevant rules to conduct a remote hearing. As noted above, institutions such as the icdr and the icc are at the forefront of adopting rules that expressly permit arbitrators to conduct remote hearings, while other institutions have also embraced flexibility in permitting arbitrators to exercise discretion to conduct remote hearings, albeit in a less emphatic manner than the icdr or icc. Additionally, a court would examine whether the tribunal conducted the remote hearings in harmony with the guidance issued by the relevant institution. In this context, the court would inter alia inquire as to whether the parties were given a sufficient opportunity to explain their respective positions on the viability of remote hearings and the procedures for different aspects of such a hearing, the tribunal’s efforts to balance the parties’ due process rights vis-à-vis its obligations to conduct proceedings efficiently, and whether the challenged aspects of the tribunal’s decisions materially impacted the outcome of the case.
Most importantly, a court would examine whether a right to a physical hearing exists under the relevant lex arbitri70 or if remote hearings are expressly prohibited. In 2021, the International Center for Commercial Arbitration (“icca”), surveyed 77 national jurisdictions and concluded that not a single jurisdiction granted an express right to a physical hearing.71 Given that several national
While the threshold for setting aside or refusing enforcement of an award is high and due process-related challenges are rarely successful, remote hearings could pose a unique set of issues for arbitrators and courts to tackle. For example, as Erica Stein has observed arbitrators will have to ensure that time zone differences, screen fatigue, access to reliable technology, simultaneous
4 Potential Impact on Arbitration in the Tourism and Hospitality Industry
Taking into account the considerations of remote hearings highlighted in this Chapter, it is likely the case that the tourism and hospitality industry is uniquely positioned to benefit from the time and cost efficiencies of remote hearings.78
In the context of major hotel construction projects, the employer, contractor, and sub-contractors frequently encounter disputes during the construction phase. One method for resolving these mid-project disputes is through a Dispute Adjudication Board, which is a form of alternative dispute resolution, or through institutional arbitration, such as the icc. Expeditiously resolving disputes related to an ongoing project are critical for keeping the project on track with contractual milestones. In addition, swift resolution of disputes during a project preserves the parties’ contractual relationship under, for example, hotel management agreements, customer-supplier contracts, and construction contracts.
Remote hearings may be particularly advantageous for such disputes because they represent significant cost savings and could prove to be more expeditious. Frequently, these disputes are decided by an engineer or adjudicator with particularized experience in the subject matter without taking oral testimony from witnesses. Holding such proceedings in person may lead to undue delay and jeopardize the contractual relationship, especially if multiple disputes must be resolved.
As such, should these disputes arise during a major resort construction or renovation project, the use of remote hearings may increase the prospect of preserving the parties’ relationship and viability of the project while simultaneously achieving certain policy objectives.
5 Conclusion
With indications that covid-19 may become endemic in the near future, it remains to be seen whether the era of fully remote merit hearings were an aberration or will become an enduring feature of international arbitration. For the reasons discussed above, in-person hearings will likely continue as a desirable format for hearings, especially in the context of complex, multi-week merits hearings. Yet, at the same time, given the success with remote hearings, tribunals and parties should not rely on in-person hearings as a default matter. Rather, they must consider whether a remote hearing or a hybrid hearing would be more beneficial from a procedural and policy perspective, even in a post-pandemic world.
While the foregoing procedural and policy considerations are not intended to be exhaustive, the ultimate decision on which hearing format is appropriate should take into account these considerations, as well as the unique circumstances of each case. Ultimately, the tribunal serves as the gatekeeper of the process. It should thus endeavor to hear each party’s views on the type of hearing that is preferable, seek to ensure an efficient and expeditious resolution of the dispute that complies with principles of due process and results in an enforceable award.
The authors wish to thank Jillian Timko, Summer Associate at BakerHostetler, for her invaluable research in preparing this chapter.
See, e.g., Gary Born, International Commercial Arbitration, 3rd ed. (Kluwer, 2021), 19 (“[A]rbitral procedures have varied substantially, both over time and in different geographic and political settings. At least in part, that reflects the inherent flexibility of the arbitral process, which leaves the parties (and arbitrators) free to devise procedures tailored to a particular dispute and legal or cultural setting.”).
For the purposes of this chapter, “remote hearing” means “a hearing conducted, for the entire hearing or parts thereof, or only with respect to certain participants, using teleconference, videoconference or other communication technology by which persons in more than one location simultaneously participate.” See iba Rules on the Taking of Evidence in International Arbitration (2020), 8.
See, e.g., International Centre for Dispute Resolution Arbitration Rules (2021) (“icdr Rules”); International Chamber of Commerce Arbitration Rules (2021) (“icc Rules”).
Given the absence of express provisions addressing remote hearings in most arbitral rules or national arbitration legislation at the start of the pandemic, many arbitral institutions promptly released guidance to assist arbitration users. See, e.g., “COVID-19: Information and Guidance in scc Arbitrations,” scc, March 27, 2020,
See White & Case llp, “2021 International Arbitration Survey: Adapting arbitration to a changing world,” Queen Mary University of London, May 7, 2021, 1,
See White & Case llp, “2018 International Arbitration Survey: The Evolution of International Arbitration,” Queen Mary University of London, May 9, 2018, 32,
See, e.g., qm Survey, supra note 5, (“The arbitration community had to adapt quickly [to the pandemic], and some of these changes will remain after the pandemic recedes. Virtual hearings and increased reliance on technology are clear examples of changes that will persist”); “The Psychological Impact of Remote Hearings,” Berkeley Research Group, August 18, 2021, 10,
See Section 2, infra. Drawbacks of remote hearings, as noted briefly herein, include scheduling around multiple time zones, potential lack of access to adequate technology, inability to view the body language of a witness or expert under cross-examination, so-called “Zoom fatigue,” stunting the visibility of aspiring practitioners, and a lack of in-person communication amongst hearing participants.
Arbitral institutions were quick to produce meaningful guidance on remote hearings at the onset of the pandemic. See, e.g.,: (1) the icdr published its Model Order and Procedures for a Virtual Hearing via Videoconference that serves as a template for disputants’ remote hearing procedural order and a veritable checklist of best practices for conducting virtual hearings; (2) the icc issued a Guidance Note on Possible Measures Aimed at Mitigating the Effects of the covid-19 Pandemic, followed by a comprehensive virtual hearing checklist, suggested remote hearing clauses, and model procedural order; (3) icsid published its guide to online hearings in which encouraged parties to continue leveraging its bespoke hearing platform in light of the pandemic; and (4) siac published a guide for conducting remote hearings. “aaa-icdr Model Order and Procedures for a Virtual Hearing via Videoconference,” aaa-icdr, May 9, 2020,
It is also worth noting that there has recently been a significant increase in non- institutional guidance in this area. See, e.g., “[Press Release] Seoul Protocol on Video Conferencing in International Arbitration,” kcab International, March 18, 2020,
icdr Rules, supra note 3, at Art. 26(2).
Id. at Art. 22(1).
Id. at Art. 22(2).
Id. at Art. 22(3).
icc Rules, supra note 3, at Art. 26(1).
Id. at Art. 22(4).
icsid, “A Brief Guide to Online Hearing at ICSID,” supra note 9 (reporting that 60% of cases before the Centre at that time were conducted remotely).
icsid Convention (1966), Article 44.
icsid Arbitration Rules (2006), Rules 20(1), 20(1)(e).
See, e.g., siac Arbitration Rules (2016), Arts. 19.1 (“The Tribunal shall conduct the arbitration in such manner as it considers appropriate, after consulting with the parties, to ensure the fair, expeditious, economical and final resolution of the dispute.”), 19.3 (“As soon as practicable after the constitution of the Tribunal, the Tribunal shall conduct a preliminary meeting with the parties, in person or by any other means, to discuss the procedures that will be most appropriate and efficient for the case.”), 19.7 (“The President may, at any stage of the proceedings, request the parties and the Tribunal to convene a meeting to discuss the procedures that will be most appropriate and efficient for the case. Such meeting may be conducted in person or by any other means.”).
Id. at Art. 19.1.
See, e.g., uncitral Arbitration Rules (2020), Art. 15.1 (“Subject to these Rules, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at any stage of the proceedings each party is given a full opportunity of presenting his case.”); see also uncitral Arbitration Rules (2020), Art. 25.
See qm Survey, supra note 5, at 13 (“Time and cost are perennially acknowledged as the biggest concerns for arbitration users.”).
See Jennifer Kirby, “Efficiency in Arbitration: Whose Duty Is It?,” Journal of International Arbitration 32, no. 6 (2015): 689–695 (The former Deputy Secretary General of the icc, Jennifer Kirby, posits that efficiency in arbitration involves the relationship between time, cost, and quality).
See Nigel Blackaby et al., Redfern and Hunter on International Arbitration, 6th ed. (Oxford University Press, 2015), para. 6.160 (“The task of organising hearings in a major international commercial arbitration should not be underestimated nor should the cost. A suitable hearing room must be provided, with ancillary breakout rooms and facilities for the parties and the arbitral tribunal. Access to printing facilities, and a Wi-Fi connection, is invariably essential. A live transcript and verbatim record of the proceedings is often considered essential. Accommodation is also required for witnesses, experts, and the parties’ legal teams”).
See Laudy and Mokele, supra note 7.
Shaughnessy, supra note 7, at 46.
See qm Survey, supra note 5, at 14.
Id. at 14 (“This seems to reflect, to some extent, the increased level of comfort users have acquired with remote hearings in recent times, and particularly as a result of logistical difficulties for in-person hearings resulting from the covid-19 pandemic.”).
Id. at 20.
Id. at 12, Chart 8.
See id. at 20 (“Going forward, respondents would prefer a ‘mix of in-person and virtual’ formats for almost all types of interactions, including meetings and conferences. Wholly virtual formats are narrowly preferred for procedural hearings, but respondents would keep the option of in-person hearings open for substantive hearings, rather than purely remote participation”).
Id. at 24 (40% of respondents cited difficulties in accommodating time zones as a drawback of remote hearings).
Id. (38% of respondents determined that remote hearings make it “more difficult to control witnesses and assess their credibility”).
See, e.g., icdr, “Model Order and Procedures for a Virtual Hearing via Videoconference,” supra note 9.
See Berkeley Research Group, supra note 7, at 8 (“[S]taring at a screen for long periods of time, often in an observational capacity, is considerably less engaging than if the proceedings are taking place within the atmosphere of a physical courtroom”); Sophie Nappert and Mihaela Apostol, “Healthy Virtual Hearings,” Kluwer Arbitration Blog, July 17, 2020,
See generally Nappert and Apostol, supra note 36.
See qm Survey, supra note 5, at 24 (40% of respondents said that a pitfall of remote hearings is difficulty in conferring during the hearing session outside of breaks).
See Berkeley Research Group, supra note 7, at 6 (“The lack of in-person preparation before entering proceedings was cited by many as a major drawback of remote hearings, and seen by some to have a negative impact on the performance of both the expert witness and wider legal team.”); see also Nappert and Apostol, supra note 36 (“Coordination with team members/co-arbitrators presents its own challenges. Often this is done in parallel with the main hearing, with Post-it notes being replaced by instant messaging chat rooms. This adds to the dissonance, or gap, referred to above: these platforms are usually social, not professional, outlets”).
Shaughnessy, supra note 7, at 47.
Id.
See, e.g., qm Survey, supra note 5, at 19; Shaughnessy, supra note 7, at 47.
See Laudy and Mokele, supra note 7 (“The shift to virtual hearings offers an opportunity to African practitioners who have not previously been involved in international arbitrations as party representatives. It relieves African parties of the requirement to designate legal representation in one of Europe’s legal centres, allowing them to participate in arbitration proceedings at a lower cost”).
Id.
Id.
Cosmo Sanderson, “Don’t condescend to African arbitrators,” Global Arbitration Review, September 8, 2021,
“Report of the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings,” International Council for Commercial Arbitration, July 29, 2020, 47,
See Laudy and Mokele, supra note 7 (“These additional costs [for an in-person hearing] have commonly influenced the approach taken by African parties in international arbitration, with many seeking to settle rather than incur the cost associated with international arbitration hosted in one of the European centres”).
See, e.g., qm Survey, supra note 5, at 2 (“The general consensus amongst respondents is that caution should be exercised when exploring whether adaptations in arbitral practice experienced during the covid-19 pandemic may have an impact on promotion of diversity objectives, as it can go both ways. Virtual events, meetings and hearings may facilitate participation by more diverse contributors, but this may be hindered by unequal access to technology and the challenges of building relationships remotely”).
See qm Survey, supra note 5, at 19 (“Unequal access to reliable and affordable technology required for remote participation in hearings, meetings and community events was also flagged by many as a challenge”).
“World on the verge of climate ‘abyss’, as temperature rise continues: UN chief,” UN News, April 19, 2021,
See “The Green Pledge,” Campaign for Greener Arbitrations, accessed April 22, 2022,
See “Low Carbon Arbitration Hearings: Mia’s Clause,” Chancery Project, last modified September 27, 2021,
See, e.g., Shaughnessy, supra note 7, at 47.
See “The Paris Agreement,” United Nations Climate Change, accessed on April 22, 2022,
See Disha Shetty, “A Fifth of the World’s Largest Companies Committed to Net Zero Target,” Forbes, March 24, 2021,
“Transformative climate change charter launched for global infrastructure sector,” fidic, November 10, 2021,
For instance, the United Kingdom has pledged to derive all of its electricity from renewable sources by 2035, and the United States announced its goal to halve its emissions by 2030 (compared to 2005 levels). See “Climate change: Australia pledges net zero emissions by 2050,” bbc News, October 26, 2021,
Paul Cohen and Sophie Nappert, “Robots redux: blockchain, augmented reality, quantum computing and the future of arbitration,” Global Arbitration Review, September 3, 2019,
See, e.g., Lucas Bento, “Arbitration Tech Toolbox: Toward Pandemic-Proof Arbitrations: The Augmented View,” Kluwer Arbitration Blog, July 8, 2021,
See Kun Fan, “The Impact of COVID-19 on the Administration of Justice,” Kluwer Arbitration Blog, July 10, 2020,
Julian D.M. Lew, “The Law Applicable to the Form and Substance of the Arbitration Clause,” in Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, ed. Albert Jan van den Berg (Kluwer Law International, 1999), 114–145.
Born, supra note 1, at 3828.
Lucy Reed, “Ab(use) of due process: sword vs shield,” Arbitration International 33, no. 3 (September 2017): 6.
Id.; Born, supra note 1, at 1734–1735; see also uncitral Rules, Art. 17(1) (conferring the power of the tribunal to “conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at an appropriate stage of the proceedings, each party is given a reasonable opportunity of presenting its case”).
See Born, supra note 1, at 2139, 2175, 2191–2192; icc Rules, Art. 22(1) (“The arbitral tribunal and the parties shall make every effort to conduct the arbitration in an expeditious and cost-effective manner, having regard to the complexity and value of the dispute”); icdr Rules, Art. 20(2) (“The tribunal shall conduct the proceedings with a view to expediting the resolution of the dispute”); siac Rules, Art. 19 (requiring the tribunal to ensure that the arbitration is conducted fairly, expeditiously, and economically, with the goal of arriving at a final resolution of the dispute).
White & Case llp, “2015 International Arbitration Survey: Improvements and Innovations in International Arbitration,” Queen Mary University of London, October 7, 2015,
Sundaresh Menon, “Dispelling Due Process Paranoia: Fairness, Efficiency and the Rule of Law,” Asia International Arbitration Journal 17, no. 1 (2021): 1-27; see also, e.g., The Estate of Julio Miguel Orlandini-Agreda and Compañía Minera Orlandini Ltda. v. The Plurinational State of Bolivia, pca Case No. 2018–39, Procedural Order No. 7, Apr. 10, 2020, para. 40 (In March 2020, Respondent had requested a suspension of its deadline to submit its Statement of Defense citing recent government lockdowns, which caused disruptions to travel and thus prevented counsel and government officials from meeting with witnesses and conferring with experts. The tribunal, however, denied Bolivia’s request, explaining that “the proceeding can move forward, albeit with some delay, in a socially responsible manner by adapting to the new reality of communicating remotely—a practice that, as noted earlier, has already been established in other proceedings”).
Erica Stein, “Chapter 9: Challenges to Remote Arbitration Awards in Setting Aside and Enforcement Proceedings,” in International Arbitration and the COVID-19 Revolution, eds. Maxi Scherer et al. (Kluwar Law International, 2020), 172.
As a general matter, the following legal regimens would govern whether an award can be successfully challenged on the basis of a remote hearing: (i) the uncitral Model Law may govern set-aside proceedings in a national jurisdiction; (ii) the New York Convention would govern recognition and enforcement challenges to an award in a jurisdiction outside the seat of the arbitration; (iii) the icsid Convention would apply to challenges awards issued under the icsid Convention.
“Right to a Physical Hearing Project: Newly Released Reports Confirm Core Trends and Divergences,” icca, last modified May 26, 2021,
See “Videoconferencing, Courts and COVID-19: Recommendations Based on International Standards,” International Commission of Jurists, November 2020, 4,
Born, supra note 1, at 3451 (Born generally mentions that virtually all courts refuse to annul awards because hearings were conducted remotely and acknowledges that this trend will likely continue).
Maxi Scherer, “In a ‘First’ Worldwide, Austrian Supreme Court Confirms Arbitral Tribunal’s Power to Hold Remote Hearings Over One Party’s Objection and Rejects Due Process Concerns,” Kluwer Arbitration Blog, October 24, 2020,
Hafez, supra note 72 (explaining that the Egyptian Court of Cassation refused to set aside a Cairo Regional Centre for International Commercial Arbitration award rendered after a remote hearing because such hearings are consistent with Egyptian law).
Slaney v. The Int’l Amateur Athletic Fed’n, 244 F.3d 580, 592–93 (7th Cir. 2001) (Illinois district court denying a preliminary injunction seeking to prevent a finra arbitration and finding that the decision to hold a remote hearing was for the finra arbitral institution to decide, not the courts).
See Stein, supra note 69, at 174–176.
See, e.g., Arif Ali et al., “Litigation Alternatives For COVID-19 Hospitality Disputes,” Law360, May 11, 2020,
“UN Works with Global Hotel Industry to Reduce Emissions,” United Nations Climate Change, January 31, 2018,