1 Introduction
Parties to legal disputes often prefer international arbitration due to its procedural flexibility. This extends to the format of hearings. Telephone or video hearings have been a common feature of international arbitration long before the covid-19 pandemic, particularly for procedural hearings.1 Indeed, many practitioners predicted the inevitable migration towards virtual hearings, despite the traditional assumption that evidentiary hearings should take place face-to-face.2
Notwithstanding some initial reluctance,3 that assumption was reversed during the period of lockdowns and travel restrictions caused by the pandemic, which accelerated the widespread adoption of virtual hearings. The normalization of virtual hearings has seen rapid developments in software and technology, and a marked strengthening of the arbitration community’s familiarity with these services.
Beyond a pandemic necessity, virtual hearings have become a genuine alternative to traditional in-person hearings and no longer need to be viewed only as a second choice. Clients and their lawyers must now weigh the benefits of each alternative and decide what format is most suitable for their case. Below we discuss the potential efficiencies offered by virtual hearings, and the extent to which perceived difficulties associated with them have been overcome.
2 Virtual Hearings: Opportunities and Efficiencies
Virtual hearings offer several distinct opportunities and efficiencies in terms of cost and time, access to justice, client experience, and environmental benefits. Parties should weigh these potential benefits against any potential drawbacks in their particular case. We examine each of these aspects in further detail below.
2.1 Cost/Time Efficiencies
A major benefit of virtual hearings (and perhaps the benefit that is most cited) is that they are typically cheaper and require a shorter time commitment than in-person hearings.
Travel and accommodation costs, for example, may be entirely eliminated. Of course, any resulting cost reduction will be partly offset by the cost of the technology solutions required to carry out a virtual hearing.4 The decrease in hearing costs may also be less noticeable for domestic arbitrations where an in-person hearing would normally be held in the country or even city where both parties and their legal teams are based.
Because a virtual hearing does not require time-consuming travel, it can be scheduled for every other day or for shorter days, meaning that
participants do not need to put all other work on hold during the hearing. According to the arbitrators surveyed, this makes it easier to find suitable hearing dates within a reasonable time frame, and awards can be rendered faster.7
The preparation for the virtual hearing seemed effortless. The virtual hearing was conducted seamlessly […] the cross examination was clear, the recording/transcript was real time, the camera monitoring was completely captive. One wonders why we should ever have a physical hearing flying numerous parties across the world when technology can facilitate a hearing that is real time, face-to-face, much like the physical hearing in every sense that matters in an arbitration case.10
The 2021 International Arbitration Survey, conducted by the School of International Arbitration at Queen Mary University of London (“Queen Mary Survey”), yielded similar feedback: respondents reported that the use of technology as part of virtual hearings resulted in greater efficiency.11
In this way, virtual hearing technology helps to close the resource gap by allowing parties to minimize time and costs incurred.12 This may present a significant benefit for increasingly cost-conscious and time-poor clients.
2.2
In a lecture in 2020, Chief Justice of the Supreme Court of Singapore, Sundaresh Menon, noted that “technology has the potential to help close—and not merely bridge” all dimensions of the “justice gap”, i.e., “the disparity between the legal needs of low-income persons and the resources available to meet those needs.”13 For example, technology can “[remove] the need for convergence, both physically and temporally.”14
While the access to justice argument arises most acutely in the context of low-value litigation, it is also relevant to arbitration. Virtual hearings have the potential to allow parties, witnesses, and experts to attend or participate in hearings that, for a range of reasons, they may otherwise have been unable to. Where, for example, it is the cost of travel to a hearing venue, particularly one that is overseas, which proves to be prohibitive, virtual hearings offer an accessible alternative. Easier access may prove a significant benefit for, by way of example, public interest groups who wish to intervene in investment disputes by way of “amicus curiae” submissions.
To some extent, virtual hearings may thus permit international arbitration to become more inclusive by facilitating voices that might not otherwise be heard. This could include not only the voices of parties who might otherwise be bound by certain geographical, medical, financial, or legal constraints preventing their physical attendance at a hearing, but also witnesses and experts, potentially even extending to counsel and arbitrators. In sum, virtual hearings may offer a more level playing field in international dispute resolution. Of course, virtual hearings are not a cure-all in respect to other inequalities present in the international legal system, such as a lack of access to legal education or adequate legal representation.
2.3 The Client Experience
While “aspects of the hearing room drama might be lost,”15 virtual hearings may offer clients a preferable hearing experience, at least in some respects.16 In an in-person hearing, a client’s ability to communicate with her/his legal team and/or to assess the arbitrator(s)’ reaction instantaneously, may be curtailed
In virtual hearings, the experience of the hearing room is the same for all.18 Anecdotally, many clients appear to view this positively: they have the same visibility over the proceedings as all other participants,19 leading them to feel “much more connected with the proceedings.”20
As for other participants, analysis of the United Kingdom published by the Standing International Forum of Commercial Courts suggests that, in the eyes of judges and arbitrators, oral submissions and arguments are no less effective when delivered via video than they would be in person, as the insight and assistance provided to the judge is not hindered.21
An improved client (and/or arbitrator) experience at hearings is perhaps a more unexpected benefit of virtual hearings. However, this may not be appreciated by all. The general consensus seems to be that the experience is more practical and accessible in terms of viewing and following the hearing, but it seems likely that some will miss the feel of “real life”, particularly after living with the pandemic for so long.
2.4 Environmental Benefits
Choosing a virtual hearing makes it easier for parties and their law firms to achieve increasingly ambitious sustainability targets. Virtual hearings reduce travel,22 and accordingly, associated carbon emissions. They reduce paper waste by encouraging the electronic submission and presentation of documents,23 particularly when combined with other software such as online case management platforms24 which provide electronic management of the case file throughout the life of a case.25 A significant portion of respondents to the
Amongst the arbitration community itself, in 2019, a group of practitioners launched the Campaign for Greener Arbitrations (“Greener Arbitrations Campaign”),27 with the aim of reducing international arbitration’s carbon footprint. What started as “a promise by an international arbitrator to manage her arbitrations in an environmentally friendly manner”28 evolved into an international campaign including a “Green Pledge”29 and, most recently, a series of “Green Protocols” to “promote better environmental behavior through a series of action items”.30
As is to be expected, the Green Protocols encourage the use of electronic correspondence and electronic documents/bundles, avoiding printing, and reduction of travel.31 Arguably, holding a virtual hearing will allow parties to fulfil, at least partially, many of these aims. As highlighted by the Greener Arbitrations Campaign, just under 20,000 trees could be required to offset the total carbon emissions resulting from just one major international arbitration.32 Flights alone can contribute to over three quarters of these total carbon emissions.33 Practitioners can substantially reduce such emissions by taking just three measures, all of which might be achieved through the choice of a virtual hearing: reducing long-haul travel by one return flight at each stage of the arbitration; eliminating hard copy filings; and eliminating the use of disposable coffee cups.34
In this regard, “[e]ncouraging the use of videoconferencing facilities as an alternative to travel (including for the purposes of conducting fact finding or interviews with witnesses)” is one of the Green Pledge’s guiding principles.35
While pre-pandemic sustainability targets might have seemed difficult to fulfil, whether out of inertia, a resistance to change or some other reason, covid-19 has essentially forced the arbitration community, over the months in which relevant restrictions have been in place, to reduce its carbon footprint. Given the pandemic’s duration, it seems likely that at least one effect will be to alter deep-seated assumptions as to the conduct of arbitration proceedings. The positive environmental impact of the increase in virtual hearings, which, setting aside other issues, seems to be indisputable, is likely to last.
That being said, the increase in virtual hearings is not a complete answer to environmental concerns in international arbitration. Since “transitioning to increased virtual proceedings naturally requires greater energy usage”, it has been suggested that practitioners review the energy sources being used to power their workspaces and home offices, to “ensure that it is clean and that the tools they are using are energy efficient”.38 This is of particular importance since, as a study conducted by Herbert Smith Freehills identified, carbon emissions from non-clean energy sources are the largest contributor of emissions in proceedings.39
3 Concerns Regarding Virtual Hearings Have Largely Been Dispelled
The conventional preference for in-person hearings has, at least in part, been sustained by a number of perceived limitations traditionally held against virtual hearings. We address certain of these below and consider the extent to which they have, in practice, been overcome.
3.1
There are several practical concerns often cited against virtual hearings. Here, we focus on those relating to witness testimony and technology and connectivity, before discussing confidentiality and cybersecurity, and the risk of legal challenges to the conduct of the proceedings.
3.1.1 Witnesses
A recurring concern regarding virtual hearings centers around witness evidence, particularly in common law systems in which credibility issues can often only be fully explored during cross-examination, and in which witness evidence can make or break a party’s case. This is arguably becoming more relevant as the numbers of witnesses called to give evidence appears to be increasing: one study found that, from March 2020, the average number of persons called for examination in a given hearing rose by 62%, from 3.7 to 6.0.40
Possible concerns include that a virtual hearing may allow witnesses to benefit from clandestine assistance throughout their testimony,41 or that video causes difficulties in reading body language or “soft” signals, thereby hindering effective communication and/or the creation of an accurate impression of a witness’s credibility. Advocates may also worry that the conduct of a hearing via video may make it more difficult for a cross-examiner to interrogate a witness in the manner to which they are accustomed.42
However, in reality, such matters can be adequately resolved as part of the logistical arrangements for a hearing, and published guidelines such as the Seoul Protocol provide a useful starting point.43 For example, there are multiple options available to parties concerned about witness interference, whether it be additional technology such as the use of a second or roving camera, or the agreed presence of a neutral lawyer in the witness’s room. Parties may also
As for issues regarding body language, arbitrators have indicated that, in practice, there is no real difference in examining witnesses in person as opposed to over video conference, particularly as advances in technology and appropriate preparation can make it easier to see witnesses.45 In fact, at least one practitioner observed that “the process [of presentation of witness evidence in a virtual hearing] was to an extent enhanced by the online circumstances”.46
For those with experience of virtual hearings, that concerns of this nature are still levied against them may be surprising. As explained above, the options available for assuaging any such concerns are plentiful and are bolstered by professional and ethical rules which prohibit lawyers from interfering (directly or indirectly) with witness testimony. Indeed, concerns regarding the credibility and honesty of witness evidence exist regardless of the chosen hearing format. Whilst there will inevitably be individual cases in which the specific circumstances dictate that an in-person hearing is the only (or manifestly the better) way to reduce the risk of witness interference, such instances may in practice be rare.
3.1.2 Technology and Connectivity
The obvious difference between virtual hearings and in-person hearings is the need, in a virtual hearing, for sophisticated audio-video software allowing submission and presentation of documents alongside live witness and/or expert testimony. The need for such services, whichever is ultimately chosen, brings with it certain concerns: the potential for technological limitations or interruptions, a lack of sufficient screen space to share documents, and/or poor audio-video quality, to name a few. In addition, where arbitration participants are located around the world, something as simple as selecting an appropriate time zone for the hearing may also be a logistical headache.47
In such instances, arrangements such as that reached by icsid, which has entered into over 23 cooperation agreements with dispute settlement institutions around the world,50 may be invaluable. These agreements permit icsid to connect to virtual hearings (or hold in-person hearings) from the relevant institution’s facilities, allowing parties to benefit from existing infrastructure at reduced cost.51 This may be particularly attractive to parties encountering difficulties with poor internet access/connectivity or in accessing digital platforms/software.52
Arbitral participants must also be comfortable with the technology required for an effective virtual hearing. As one Dubai-based practitioner noted, the reluctance of certain parties and judges to consider virtual hearings over in-person hearings likely stems from instances of lack of access to adequate facilities or technology required for virtual hearings.53 There is potential for a vicious cycle: practitioners hesitant to try a virtual hearing are unlikely to invest in the new wave of technology and software that has been developed over recent years precisely in order to improve the quality and functionality of the virtual hearing. That being said, in the long run it seems unlikely that practitioners’ fear of the unknown will prevail over, for example, client cost and sustainability concerns: arguably, the market will drive the changes it wants to see.
In practice, given the number of virtual hearings which have taken place in recent months,54 in the face of the above possible technical challenges, plus
3.1.3 Overcoming Practical Concerns: Relevant Guidance
While many of these concerns may have presented formidable obstacles prior to the pandemic, there is now an abundance of literature, guidance, protocols and recommendations to help parties mitigate these concerns. These include, for example, the Seoul Protocol on Video Conferencing in International Arbitration56 and the Protocol for Online Case Management in International Arbitration,57 as well as the new rules or guidance published by a number of arbitral institutions since the pandemic began.58
3.2 Confidentiality and Cybersecurity
Clients may be concerned that unauthorized third parties might access virtual hearings, whether by hacking their way in, or by obtaining a password or recording of the hearing from an authorized participant. These concerns are unsurprising given the sensitive commercial data and trade secrets routinely referred to during arbitration hearings (which by their nature are held in private), the desire that certain disputes remain confidential for a variety of business reasons, and the potential for regulatory penalties if certain protected information is disclosed. The stakes, therefore, can be high.
In practice, however, the sharing of confidential information is a risk in connection with any hearing, virtual or not. As for hacking, this would appear to have been near non-existent in the context of virtual hearings. Even so, publicly available guides and protocols such as the iba Presidential Task Force’s Guidelines on Cyber Security59 (released in October 2018), the icca-nyc Bar-cpr Protocol on Cybersecurity in International Arbitration60 (released
In light of the now near universal reliance on email and other forms of electronic communication and information sharing, confidentiality and cybersecurity concerns can arise in any arbitration proceeding regardless of the format of the hearing. Accordingly, whilst such concerns do not solely affect virtual hearings, they may require some further thought and additional, well-conceived precautions. Fortunately, there is ample guidance available. Where appropriate steps are taken, virtual hearings offer a more than adequate level of confidentiality protections as compared to in-person hearings.
3.3 Legal Challenges
Traditionally, virtual hearings have been viewed as somehow providing a lesser or compromised form of justice.65 Amongst some practitioners, there is
In late 2020, the International Council for Commercial Arbitration (“icaa”) launched a research project to ascertain whether a right to an in-person hearing exists in various jurisdictions around the globe.68 icaa did not locate a provision granting a right to an in-person hearing in any of the seventy-seven surveyed jurisdictions examined.69 Furthermore, the requirement for “oral” hearings in the uncitral “Model Law”70 has been interpreted by most Model
The unlikelihood of a successful challenge to virtual hearings (without more) is also reflected in the fact that the arbitration rules of most of the major arbitration institutions either expressly provide for, or at least leave open, the possibility of dealing with matters “remotely” through the use of technology, including virtual hearings and telephone hearings. In 2021, for example, the icc added a provision to its Arbitration Rules which expressly allows a tribunal to conduct a hearing remotely, regardless of any objections from either party.75 The relevant provisions of some of the most well-known institutional rules are summarised in Annex 1.76
4 Virtual Hearings: Persisting Possible Disadvantages
While most objections to the use of virtual hearings have been (or should be possible of being) largely resolved, the differences between in-person hearings
4.1 Reduced Human Interaction
One immediate disadvantage is less direct human interaction. For example, some witnesses have found isolation from their legal teams to be a dispiriting, lonely and difficult experience.77 From the perspective of lawyers, cross-examining an opposing party’s expert, for example, can prove more difficult without the client’s legal team and own expert nearby helping to identify weaknesses in the testimony.78 While multiple instant messaging options provide a quick and easy method to communicate, this may fall short of the usual hearing experience.79 Indeed, one of the key drawbacks of virtual hearings expressed repeatedly by respondents to a survey carried out by dla Piper in 2020 was the lack of “feel” for the hearing room—a loss of chemistry between counsel and the opposing side, the tribunal and the witnesses.80
This may also affect settlement opportunities. The constant proximity and frequent breaks during an in-person hearing provide informal opportunities for the parties to discuss issues and sometimes even to settle the dispute.81 While true that virtual breakout rooms or intermittent discussions separate from a hearing can also be conducive to settlement, in-person interactions would seem to represent a superior alternative.82
4.2 Different Time Zones
The main downside, because this was a very international case, is the time zone differences, because most days we had to log-in at night or very early in the morning. If you are there in person then of course we do not have that problem.83
In these circumstances, arguably the starting point should be for any inconvenience caused by time zone differences be distributed evenly among the parties,84 although anecdotal evidence, including in the experience of the authors of this paper, suggests that this is not always a given. Particular thought should be given to those giving evidence: parties will of course want to ensure that their own witnesses are as fresh and alert as possible. It is likely to be unreasonable, for example, for a witness to sit through the rigour of a cross-examination very late into the evening, as drowsiness sets in.
5 The Hybrid Approach
Virtual hearings do not have to be a yes/no proposition. Rather, the opportunities and benefits that virtual hearings offer, as explored above, mean that parties are now able to choose from a range of options when it comes to hearing format. If fully in-person and virtual hearings are, respectively, at either ends of a scale, the possibilities for a hybrid approach to hearings85 seem almost infinite.
Even before the pandemic, the choice of different formats for different types of hearings has long been a feature of international arbitration. Shorter hearings, such as those relating to case management directions and interlocutory applications, were sometimes conducted virtually or simply over the phone, but the assumption generally was that substantive and/or evidentiary hearings would take place in person. Beyond dispelling the necessity of that assumption, the pandemic has led to a greater degree of flexibility, not only in terms of alternating between in-person hearings and virtual hearings, but also within the confines of each individual hearing.
Pre-covid, hybrid hearings sometimes involved the use of video link for one or two witnesses facing specific time, health, or other travel restrictions.86
These kinds of hearings rely on technology working as it is intended to, thus generally requiring the oversight of qualified and skilled personnel.87 Hybrid hearings may require, for example, setting up central dashboards, providing technology facilities for participants, or providing the means to navigate between the hearing room and breakout rooms.88 During the pandemic, significant strides in the technology necessary for fully virtual or hybrid hearings, the investment in and consequent greater availability of the accompanying necessary services and infrastructure, and the rapid increase in the legal community’s familiarity with the available options now make the idea of a hybrid hearing suddenly more attractive.89 This will particularly be the case where a hybrid hearing allows the parties to reduce the time, cost, and effort necessary for hearings, without sacrificing many of the benefits of in-person hearings.90
It should be emphasised that parties do not have to adopt the same cookie-cutter approach to each case. Certain countries, for example, impose restrictions on access to specific online service providers or to certain video platforms, and licensing and regulatory factors must also be considered.91 That there is such a wide range of options means that there should be a hearing format which fits each individual case.
6 Conclusion
Parties’ increasing sensitivity to legal costs means that they are looking for alternative ways to run their disputes. Virtual hearings are a potent tool, offering the possibility of cost and time savings in addition to a slew of other
As a result of the changes required by the challenges of the covid-19 pandemic, virtual hearings are now seen as a real and effective option to clients and arbitration practitioners. Looking to the future of international arbitration, it seems undeniable that virtual hearings, in some form or another, are here to stay.
See, e.g., Derric Yeoh, “Is Online Dispute Resolution The Future of Alternative Dispute Resolution?,” Kluwer Arbitration Blog, March 29, 2018,
André de Luizi Correia, Leticia Barbosa e Silva Abdalla, and Rebeca Franzoni Mateus, “Virtual hearings on the merits of the arbitration: a step too far or the only path to follow?,” The Legal 500, accessed July 14, 2021,
Amy J. Schmitz, “Arbitration in the Age of Covid: Examining Arbitration’s Move Online,” Cardozo Journal of Conflict Resolution 22 (Winter 2021): 249.
Jean-Pierre Douglas-Henry and Ben Sanderson, “Virtual hearings report: Virtual hearings,” DLA Piper, May 14, 2020, 13,
Id.
“scc Virtual Hearing Survey,” Arbitration Institute of the Stockholm Chamber of Commerce, October 2020, 6–7,
Id. at 7.
Id.
Schmitz, supra note 3, at 272.
Jean-Pierre Douglas-Henry et al., “Virtual Hearings 2021: Virtual hearings,” dla Piper, September 21, 2021, 8,
White & Case llp, “2021 International Arbitration Survey: Adapting arbitration to a changing world,” Queen Mary University of London, May 7, 2021, 5,
Allison Goh, “Digital Readiness Index for Arbitration Institutions: Challenges and Implications for Dispute Resolution Under the Belt and Road Initiative,” Journal of International Arbitration 38, no. 2 (2021): 253–290.
Sundaresh Menon, “Technology and the Changing Face of Justice,” Negotiation and Conflict Management Group (ncmg), November 14, 2019, adr Conference 2019, 10 (original emphasis).
Id. at 11.
dla May 2020 Report, supra note 4, at 14.
Id.
Id.
Id.
Id.
Id.
“Second SIFoCC covid-19 memorandum,” Standing International Forum of Commercial Courts, March 2021, 8,
See supra section 2.2.
dla September 2021 Report, supra note 10, at 13.
“Protocol for Online Case Management in International Arbitration,” The Working Group on LegalTech Adoption in International Arbitration, November 2020,
dla September 2021 Report, supra note 10, at 11.
White & Case llp, supra note 11, at 28.
“About Us,” Campaign for Greener Arbitrations, accessed April 22, 2022,
Id.
“The Green Pledge: Guiding principles,” Campaign for Greener Arbitrations, accessed April 22, 2022,
“Green Protocols,” Campaign for Greener Arbitrations, accessed April 22, 2022,
“The Green Pledge: Guiding principles,” Campaign for Greener Arbitrations, accessed April 22, 2022,
“A significant impact,” Campaign for Greener Arbitrations, accessed April 22, 2022,
Id.
Id.
“The Green Pledge: Guiding principles,” Campaign for Greener Arbitrations, accessed April 22, 2022,
See e.g. “Green Protocol for Arbitration Proceedings,” Campaign for Greener Arbitrations, accessed April 22, 2022, para. vi.a.,
See also the example set out in the dla September 2021 Report, supra note 10, at 13.
Maguelonne de Bruglere and Cherine Foty, “Sustainability and Diversity in the Newly Virtual World of International Arbitration,” Kluwer Arbitration Blog, December 9, 2020,
Herbert Smith Freehills, “Inside Arbitration: Perspectives On Cross-Border Disputes,” Inside Arbitration, no. 10 (August 2020): 30,
Gary Born, Anneliese Day, and Hafez Virjee, “Remote Hearings (2020 Survey): A Spectrum of Preferences,” Journal of International Arbitration 38, no. 3 (2021): 2.
Schmitz, supra note 3, at 289–90.
Jean-Pierre Douglas-Henry, “Online Arbitration Hearings: A review of key developments in response to covid-19,” dla Piper, September 28, 2020, 8,
“[Press Release] Seoul Protocol on Video Conference in International Arbitration is Released,” kcab International, March 18, 2020,
Schmitz, supra note 3, at 289–90.
See e.g. Alison Ross, “COVID-19: participants in SIAC case share success of virtual hearing,” Global Arbitration Review, April 23, 2020,8,
dla September 2021 Report, supra note 10, at 12.
dla May 2020 Report, supra note 4, at 6; see infra Section 4.2.
dla May 2020 Report, supra note 4, at 9.
Id.
“Other Facilities,” icsid, accessed April 22, 2022,
“In Focus: In-Person, Remote and Hybrid Hearings,” icsid, accessed April 22, 2022,
Goh, supra note 12, at 16.
dla September 2021 Report, supra note 10, at 9.
A survey carried out by a team led by Gary Born in 2020 found, for example, “the prevalence of fully remote hearings win the second quarter of 2020 was over ten times greater than at any time previously.” Gary Born, Anneliese Day, and Hafez Virjee, “Chapter 7: Empirical Study of Experiences with Remote Hearings: A Survey of Users’ Views,” in International Arbitration and the covid-19 Revolution, eds. Maxi Scherer, Niuscha Bassiri, and Mohamed S. Abdel Wahab (Kluwer Law International, 2020).
dla September 2021 Report, supra note 10, at 7, 12.
kcab International, supra note 43.
The Working Group on LegalTech Adoption in International Arbitration, supra note 24.
Summarised in the dla Piper September 2020 Review, supra note 42, at Appendix, 11, and in the Annex to this chapter.
“Cybersecurity Guidelines,” iba’s Presidential Task Force on Cybersecurity, October 2018,
“icca-nyc Bar-cpr Protocol on Cybersecurity in International Arbitration (2020 Edition),” icca, nyc Bar, and cpr, November 21, 2019,
The Working Group on LegalTech Adoption in International Arbitration, supra note 24.
See iba’s Presidential Task Force on Cybersecurity, supra note 59, at 10, 13.
icca, nyc Bar, and cpr, supra note 60.
The Working Group on LegalTech Adoption in International Arbitration, supra note 24, at 7.
See, e.g., Schmitz, supra note 3, at 2491 (citing “long-held beliefs that in-person hearings are always the best method for resolution” as a reason for avoiding virtual hearings early in the coronavirus pandemic); Andrey Panov, “Post-covid-19 World and the Duty to Conduct Arbitrations Efficiently and Expeditiously,” Thomson Reuters, August 13, 2020,
See, e.g., Schmitz, supra note 3, at 276–78; see also Yvonne Mak, “Do Virtual Hearings Without Parties’ Agreement Contravene Due Process? The View from Singapore,” Kluwer Arbitration Blog, 20 June 20, 2020,
Cf. Grant Hanessian and J. Brian Casey, “Virtual Arbitration Hearings When a Party Objects: Are there Enforcement Rights?,” New York Dispute Resolution Lawyer 13, no. 2 (Summer 2020): 25-29,
“Does a Right to a Physical Hearing Exist in International Arbitration?,” icca, September 4, 2020,
“Right to a Physical Hearing Project: Newly Released Reports Confirm Core Trends and Divergences,” icca, May 26, 2021,
See uncitral Model Law, Article, 24(1), accessed April 22, 2022,
icca, “Right to a Physical Hearing Project: Newly Released Reports Confirm Core Trends and Divergences,” supra note 69.
Cf. Franz Schwarz and Helmut Ortner, “Austria: Does a Right to a Physical Hearing Exist in International Arbitration?,” icca, March 15, 2021, 2-3,
Cf. Rafael Francisco Alves, “Brazil: Does a Right to a Physical Hearing Exist in International Arbitration?,”icca,February8,2021,6,
The United Nations Commission on International Trade Law (“uncitral”) is the core legal body of the United Nations, whose role it is to further the harmonization of the law of international trade. A uncitral Model Law jurisdiction describes those jurisdictions that have adopted legislation based on uncitral’s Model Law, either entirely or in part.
icc Arbitration Rules, art. 26.
Annex 1 is included in the dla Piper September 2020 Review, supra note 42, at 11.
dla September 2021 Report, supra note 10, at 12.
dla Piper May 2020 Report supra note 4, at 12.
Id.
Id.
Schmitz, supra note 3, at 290.
Id.
dla September 2021 Report, supra note 10, at 8.
de Luizi Correia, e Silva Abdalla, and Mateus, supra note 2, at 3.
dla September 2021 Report, supra note 10, at 11.
See Wendy Miles, “Chapter 6: Remote Advocacy, Witness Preparation & Cross-Examination,” in International Arbitration and the covid-19 Revolution, eds. Maxi Scherer, Niuscha Bassiri, and Mohamed S. Abdel Wahab (Kluwer Law International, 2020), 4.
Graham Smith-Bernal, “Virtual Hearings Point the Way Forward for International Arbitration,” Legaltech news, December 17, 2020,
Id.
Id.
Id.
dla May 2020 Report, supra note 4, at 10.
Acknowledgment
Ben Sanderson is Of Counsel at DLA Piper, London, Maria Scott is a Senior Associate at DLA Piper, London, and Sean Croft is an Associate at DLA Piper, New York.
Arbitral Institution |
Provision |
|---|---|
icca |
Article 22 of the icc Arbitration Rules 2017 (“icc Rules”) provides that both the parties and the tribunal are required to be proactive in making efforts to conduct arbitrations efficiently and to agree to appropriate procedural measures to further that cause wherever possible. Article 26 of the icc Rules provides that an icc tribunal “may decide, after consulting the parties, and on the basis of the relevant facts and circumstances of the case” to hold a hearing “remotely by videoconference, telephone or other appropriate means of communication.” |
lciab |
Article 19.2 of the lcia Arbitration Rules 2020 specifically allows for any hearing to be held virtually: “As to form, a hearing may take place in person, or virtually by conference call, video conference or using other communications technology with participants in one or more geographical places (or in a combined form) […]”. |
siacc |
Rule 19.3 of the siac Arbitration Rules 2016 allows for a siac tribunal to hold at least the initial preliminary hearing “in person or by any other means”. Rule 24 of the siac Arbitration Rules 2016 (concerning “Hearings”) does not directly address the issue of virtual hearings, but does not exclude them. |
sccd |
Article 32 of the scc Arbitration Rules 2017 (concerning “Hearings”) does not directly address virtual hearings, but does not exclude them. |
icside |
Rule 32 of the icsid Arbitration Rules (concerning “The Oral Procedure”) does not directly address virtual hearings, but does not exclude them. |