1 Introduction1
This paper addresses recent innovations, trends and practical challenges to Arbitration Centers arising from covid-19. Since March 2020 the landscape for legal services changed significantly. In particular, the emerging geographical diversification of the provision of legal services allows Arbitration Centers an unprecedented reach to customers and markets, a reach not reasonably practicable before covid-19. Arbitration Centers benefited from the increased use of technology, and in creative and innovative ways, contribute towards access to justice. The increasing use of technology, however, has its challenges. For example, initially there were numerous instances of resistance to remote hearings by parties and counsel. This paper explores the type of objections and the manner in which courts, arbitration tribunals and Arbitration Centers have addressed them. This paper also addresses practical challenges and concerns arising from issues of privacy and cybersecurity in arbitration and offers practical and cost-effective ways to address and tackle these challenges.
2 Trends and Innovation
2.1 Geographical Diversification of Provision of Legal Services
On March 11, 2020, the World Health Organization (“who”) classified covid-19 as a pandemic.2 The resulting health and safety measures included restrictions on movement, government issued stay at home orders, travel restrictions
Arbitration Centers, such as Arbitration Place, adapted their onsite services to include remote formats and expanded their offerings to facilitate remote proceedings taking place anywhere in the world through the use of secure meeting platforms, case managers, document management services including electronic presentation of evidence, deployment of equipment worldwide, court reporters, translation services, tailored training and technological support services. Arbitral institutions such as the Hong Kong International Arbitration Centre (“hkiac”), the American Arbitration Association International Centre for Dispute Resolution (“aaa-icdr”), the International Chamber of Commerce (“icc”) and the Arbitration Institute of the Stockholm Chamber of Commerce (“scc”) have similarly adapted to keep the dispute resolution process moving forward and currently offer remote hearing services to parties.4
As time progressed and remote hearings merged into a more regularized part of the arbitration environment, Arbitration Centers continue to refine and diversify their offerings. In some parts of the world, activities have resumed (with limitations) and restrictions have eased, although, depending on the jurisdiction, restrictions have been reintroduced. These varying requirements have resulted in an increased demand for hybrid hearings that combines both in-person and online elements. One example of Arbitration Place’s response to this demand involved its participation in forming the International Arbitration Centre Alliance (“iaca”), along with the International Dispute Resolution Centre and Maxwell Chambers. iaca is a global collaboration of physical, technical and professional resources aimed at eliminating challenges associated with the planning and conducting of international hearings such as distance and time zones. iaca has hearing centers in Toronto, Ottawa, Singapore and London and provides on-site and remote integrated services that enable parties to move forward with the business of dispute resolution.6 The shifting landscape of dispute resolution in the time of covid-19 means that Arbitration Centers will continue to adapt and respond to the needs of the arbitration community through the delivery of innovative and customized services.
2.2
Prior to March 2020, technology in arbitration proceedings was used on a regular basis for certain steps such as procedural conferences, electronic document storage and some witness testimony. The usual practice for more complex procedural hearings or merits hearings, however, was for the parties, counsel and tribunal members to be physically present at the same location. covid-19 has shifted hearings online through the use of videoconferencing platforms including Zoom, Cisco WebEx, Adobe Connect, Microsoft Teams and Skype. The shift to remote hearings propelled arbitration tribunals, counsel, parties and witnesses, all with varying degrees of comfort with technology, into an entirely digital landscape. This shift prompted a number of practical concerns relating to the potential fairness of remote hearings. The following section explores some of these challenges as well as discusses creative and innovative solutions developed by Arbitration Centers in response to these issues.
In order to proceed remotely, all participants must have access to a computer with sufficient hardware and software capabilities, a secure internet connection and a location free from interruptions.7 From time to time, one or more participants, be it a witness, arbitrator or counsel does not have access to a computer or the computer is not sufficiently equipped for use in a remote hearing. As a result, Arbitration Centers are faced with developing solutions to the issue of uneven access to technology. Arbitration Place approached this issue through the provision of Virtual Remote Kits containing equipment with standard hardware and software requirements, customized to fit the needs of each client. The Virtual Remote Kits can be shipped worldwide and have been deployed to North America, South America, Europe and the Middle East. The Virtual Remote Kits ensure that all necessary individuals can participate in the process and that each party is afforded the opportunity to meaningfully present its case.
A second challenge is the coordination of hearing logistics including managing a large number of participants, the organization and display of a potentially voluminous documentary record and the ability to manage and resolve technical issues if and when they arise.8 Arbitration Centers offer trained personnel to neutrally manage the technology platform and provide support to hearing participants, including troubleshooting technical issues, storing and organizing hearing documents using an online document repository and
A further challenge is that not all participants have the same level of comfort with remote technology. In Miller v. fsd Pharma, Inc.,11 a Canadian court case heard on April 14, 2020, at a time when Ontario was in a province-wide shutdown,12 one party objected to a remote hearing on the basis that they would not be able to have their entire team together in one room in order to provide the support required for the hearing.13 Two weeks later the objection to proceeding remotely on the basis that counsel would not be in the same location was raised again in Arconti v. Smith,14 a separate and unrelated case. In Arconti, Justice Myers wrote that the only possible “unfairness” inherent in the format of a video hearing “is a lack of comfort by one counsel that he or she will be at their best in presenting evidence and making arguments using technology”. Justice Myers went on to say that the need of the courts to operate during covid-19 highlighted the availability of alternative processes, the imperative of technological competency and that “efforts can and should be made to help people who remain uncomfortable to obtain any necessary training and education”.15 The same is true in arbitration. In order to ensure that natural justice is achieved, Arbitration Centers developed and offer training to assist counsel, witnesses and members of the tribunal prepare for remote hearings and reduce the risk of technological problems through adequate preparation of the parties.16 The training is tailored depending on the needs of the parties and is designed to ensure participants achieve familiarization and competency with the technology. Further, Arbitration Place developed and implemented procedural protocols as a response to the concern that a witness may have access to aids off screen. For example, one component is a requirement that a witness
3 Practical Challenges
3.1 Initial Objections to Remote Hearings
The sudden shift to remote hearings as a result of covid-19 occurred both in the practice of arbitration and the courts. A 2020 survey conducted on remote hearings in arbitration found there was a considerable amount of resistance by counsel at the outset, rather than tribunals, to schedule fully remote hearings. The study found that the average ratio of objections to fully remote hearings rose from 21% (meaning that for every 10 cases the survey respondents encountered 2.1 cases where an objection occurred) before March 15, 2020, to 46% (4.1 out of every 10 cases) after March 15, 2020.17 In contrast, tribunals became more likely to dismiss objections to remote hearings made by one side. The survey indicated that objections were dismissed in 50% of cases heard after March 15, 2020, which is a 34% increase from cases heard prior to March 15, 2020, where objections were dismissed in 17% of the cases.18 Notably, all of the respondents to the survey reported that no challenges were brought related to the enforcement of an arbitral award on the basis that the hearing had been held fully remotely.19
The confidential process of arbitration makes it so there is very little public information available where objections to remote hearings have been raised and reasons have been issued. It is instructive to look to the types of objections raised by parties in the courts and how those objections have been addressed before turning to a select number of arbitration decisions. In April 2020, the Federal Court of Australia addressed a wide variety of objections during an application for an adjournment of a trial brought by the respondent in Capic v. Ford Motor Company of Australia Limited.20 The respondent argued the remote trial proposed in the circumstances of covid-19 would adversely impact the conduct, length and expense of the trial, and categorized
The court acknowledged the reality of technological limitations, such as access to hardware and software, the potential for problems with internet connections and technological glitches such as a participant dropping off or a lagging video. Justice Perram compared these potential disruptions to breaks that occur for a variety of reasons in the course of in-person hearings that necessitate the postponement of a witness’ evidence or taking a witness out of order. Although a technological issue is a different type of interruption, the manner in which it is addressed, for example by pausing the hearing or shuffling the ordering of witnesses, is no different than managing breaks in an in-person hearing. Justice Perram noted that difficulties related to communication, for example counsel teams not being together in one place can be overcome through the use of instant messaging platforms such as WhatsApp21 and the challenge of preparing and briefing witnesses and experts can be managed through videoconference technology.22
The court acknowledged there is a real concern for abuse of technology in the form of fraudulent witness coaching or prompting. In cases where evidence of abuse exists and is proven, it should be dealt with strongly, however, the amorphous risk of abuse is not a sufficient reason for a court to deny that a trial proceeds remotely. The respondent in Capic also objected to cross-examining witnesses in a remote environment, claiming that this approach is unsuitable. In addressing this issue, Justice Perram acknowledged previous decisions in Australia where the court opined on the unsuitability of cross-examination by videolink. His Honour noted the present case is distinguishable for two key reasons, the first being that previous decisions were rendered before March 2020 in a time when there were no limitations on travel and movement, and the second being that the objections were raised without the benefit of improved videoconferencing platforms such as Zoom, WebEx and Microsoft Teams, which are readily available and frequently used in dispute resolution. Next, Justice Perram addressed the respondent’s submission that the large number of documents will make the hearing and document management more difficult. The court noted this issue is resolved through the use of a third-party operator and
As a concluding observation, Justice Perram stated that while the circumstances of a remote six-week trial for a lengthy and complex class action, with the contemplated attendance of 50 witnesses, was not ideal, it is not unjust or unfair. The climate of covid-19 is itself not ordinary and in order to facilitate the just resolution of disputes, it is necessary to carry on using alternative processes.24
3.1.1 Canadian Court Cases
In March 2020, Canadian courts suspended in-person operations. Justice Morawetz, the Chief Justice of the Ontario Superior Court of Justice said at the time “right now there is no alternative but to do a virtual hearing”.25 As a result, some matters proceeded remotely without issue, while in others, objections were raised. This paper examines objections raised to remote proceedings in eight Canadian court cases. In two of the eight cases, the court initially allowed the moving party’s request for an adjournment on the basis of concerns to proceeding remotely raised by that party. In Stuart v. Doe,26 one party objected to holding oral discoveries remotely citing concerns about testing the credibility of witnesses, the potential for coaching of witnesses by people or aides off-screen and the unsuitability of counsel’s at-home computer. The other party did not object to this position. Accordingly, the court ordered in April 2020 that oral discoveries were not required to be held “until the covid-19 pandemic was over”.27 In Miller v. fsd Pharma, heard on April 14, 2020, counsel objected to the hearing of a pre-certification motion in a proposed class action on the basis that proceeding remotely would not be practical or procedurally fair in circumstances where such a voluminous documentary record existed, the matter related to complex legal issues and it was not possible for the multi-lawyer team to be together at the same location. The defendants’ counsel objected and argued that the hearing should proceed remotely. The court agreed with
However, both Stuart and fsd Pharma were later brought back to court and in both cases, the court reversed its initial decision and ordered the matter proceed remotely over the objections of one of the parties. In Stuart, Justice Duncan observed that practices and protections had developed since the beginning of covid-19 to enhance the use of technology and reduce possible negative consequences. Justice Duncan noted that benefits of preventing further delay outweighed the risks of any shortcomings of the use of technology.29 In fsd Pharma, Justice Morgan wrote that by the end of May 2020, counsel and courts developed the ability to conduct remote hearings in a way that minimizes problems originally foreseen with them. Justice Morgan went on to say that although there are logistical and practical challenges to remote hearings “there is nothing about remote procedure, whether large, complex, and potentially final, or small, straightforward, and interim that is inherently unfair to either side”.30
In the other six cases examined, the court refused requests for an adjournment at first instance and ordered the matter proceed remotely.31 Since March 2020, various judicial regions issued practice directions governing how proceedings are conducted during covid-19. The Superior Court of Justice Practice Direction for the Toronto Region effective April 6, 2020, indicates that remote hearings are a key aspect of the court’s response to maintaining the institutions essential for the continuation of the Rule of Law. Courts have recognized the processes for the continuation of court operations established under such practice directions to be a matter of scheduling that is not subject to the consent of the parties.32
The outcome of these cases indicate that Canadian courts characterize objections raised by parties to remote hearings as logistical and practical challenges that can be overcome through the use and availability of technological processes, rather than relating to matters of procedural fairness and prejudice.
3.1.2 Objections in International Cases
Unlike the Canadian courts, a decision of the Swiss Federal Tribunal dated July 6, 2020, upheld the appeal of a party that objected to a decision of the lower court ordering a remote hearing. The implication of that decision may be narrow in application as it was made in the context of state court litigation and the court held that there was no legal basis in the Swiss Civil Procedure Code to allow for the main hearing to proceed remotely against the will of one of the parties.33
Shortly after the Swiss Federal Tribunal’s decision, the Austrian Supreme Court dismissed the appeal of a party challenging the decision of an arbitral tribunal to hold a merits hearing remotely.34 On July 23, 2020, the court held that the arbitration tribunal’s decision to hold a remote hearing over the objection of one party does not violate the party’s right to be heard and does not amount to a breach of the principle to treat both parties fairly. The court held that in circumstances of covid-19, Article 6 of the European Convention on Human Rights supports its decision to order remote hearings by providing a means for a party to be heard. The court noted that in the current climate, the indefinite postponement of proceedings until in-person matters are permitted would lead to an adjournment of indefinite length which is not acceptable in the circumstances. The court went on to say that general allegations of unfairness are not sufficient and a party must put forward significantly persuasive factual considerations in order to succeed.35 The United States District Court for the Northern District of Illinois Eastern Division reached a similar conclusion when it upheld an arbitration tribunal’s decision to order an evidentiary hearing proceed remotely over the objection of the other party. In that case the court found that a remote hearing does not prevent a party’s meaningful opportunity to be heard.36
3.2 Privacy and Cybersecurity
Technology is a useful means to support and advance dispute resolution and has been traditionally well received in arbitration. Results from the 2018 International Arbitration Survey: The Evolution of International Arbitration by White & Case denote that 61% of respondents indicated “increased efficiency, including through technology” as the factor that is most likely to have a significant impact on the future evolution of international arbitration.38 At the same time, 78% of respondents answered that they “never” or “rarely” used remote hearings rooms.39 Suffice it to say, times have changed since 2018. In May 2021, White & Case released the results of their survey titled “Use of technology: The virtual reality” aimed at investigating the current use of certain forms of information technology and measuring it against the results of their 2018 survey. In
The discrete and private nature of arbitration and the obligation on the part of the arbitrator and arbitration service provider to keep information confidential are well known characteristics in arbitration. While risks relating to privacy, data protection and cybersecurity are not new, covid-19 brought about a shift where most matters continue to be heard remotely. As a result, dispute resolution moves forward on account of an almost entirely digital landscape. This presents a number of challenges including the likelihood that security incidents will cause economic loss to individuals whose commercial information or personal data is compromised and the potential for loss of integrity of data. There are other potential issues such as questions about the reliability or accuracy of data as a result of a cyber incident, the unavailability of data, networks, or platforms as a result of disruption caused by a cyber security incident and reputational damage to the system of arbitration as a whole.41
Before covid-19, the arbitration community made efforts to address these issues. In late 2019, the icca-nyc Bar-cpr published the “Protocol on Cybersecurity in International Arbitration (2020 Edition)” (the “Cybersecurity Protocol”), which provides a recommended framework to guide tribunals, parties, institutions and service providers in their consideration of what information security measures are reasonable to apply to a particular arbitration matter. The authors recognize the close relationship between information security and data protection and emphasize the focus of the Cybersecurity Protocol to be the mitigation of information security risks. Compliance with the Cybersecurity Protocol may overlap with data protection regimes such as the European Union General Data Protection Regulation, however, it does not guarantee compliance with data protection regimes.42
In 2020, the International Bar Association and International Council for Commercial Arbitration released a draft icca-iba Roadmap to Data Protection in International Arbitration (the “Roadmap”) for public consultation, with the expectation that it will be finalized in the fall of 2021. Although in draft form,
covid-19 accelerated the need to address risks and gaps of confidentiality, data protection and cybersecurity as reliance on technology for the digital exchange of information and video conferencing are now essential to dispute resolution. In the second quarter of 2020, the prevalence of fully remote hearings was over ten times greater than at any time previously.44 Arbitration Centers are uniquely positioned to address concerns related to cybersecurity and data protection by providing guidance to stakeholders involved in dispute resolution. For example, Arbitration Centers have developed protocols and procedures related to the use of technology in arbitration. Further, there are a number of practical and cost-effective measures that can be implemented in order to manage and mitigate these risks. The following constitutes a non-exhaustive list of such organizational processes:
- –The use of a secure internet connection through a virtual private network as opposed to an unsecured Wi-Fi network, along with a prohibition that users may not participate in a remote proceeding through a public Wi-Fi network.
- –Adequate security of software, web browsing and email addresses, ensuring that software and web browsers are up to date and that parties use paid web-based email accounts that include security features as opposed to free email accounts.
- –The use of encryption for the storage of sensitive data so that only users with the encryption key can access the information and discouraging the use of removable storage devices unless encrypted.
- –The use of a reputable and secure cloud computer provider that complies with all applicable data storage regulations and laws.
- –
The implementation of complex username and password requirements, using a combination of uppercase, lowercase, numbers and symbols and multi-factor authentication. - –Limiting access and distribution of sensitive data and information such as personal information, client information, designs, practices, records, and other sensitive information to only necessary recipients.
The implementation of cybersecurity and data protection measures will vary depending on the circumstances of the case and on factors such as cost and proportionality. The Cybersecurity Protocol, the Roadmap and Arbitration Centers provide useful and practical guidance to stakeholders involved in dispute resolution to manage these complex issues, which will undoubtedly continue to evolve over time.
4 Conclusion
The impact of covid-19 on Arbitration Centers is profound. Technology has markedly altered the environment of dispute resolution and paved the way for Arbitration Centers to become salient international players, advance access to justice and contribute to solutions surrounding complex issues of cybersecurity and data protection. The requirement for technological competency is essential to the conduct of dispute resolution in the time of covid-19 and Arbitration Centers demonstrate they will continue to adapt and respond to the needs of the arbitration community through the delivery of innovative and customized services. While in-person hearings will undoubtedly return, the availability of alternative processes such as remote and hybrid hearings will have a lasting impact on dispute resolution proceedings in the future.
Acknowledgement
Many thanks go to my Colleague Christina Ma for her valuable research and assistance in reviewing this text.
A remote hearing is defined as one in which all participants (decision-maker, parties, legal representatives, witnesses, etc.) are not physically at the same location and usually involves attendance by video conference or teleconference. Other writings on related subjects distinguish between “remote”, “virtual” and “online” to refer to hearings conducted by video or teleconference. The term remote is used for the purposes of this paper.
“WHO Director-General’s opening remarks at the media briefing on COVID-19 – 11 March 2020,” who, March 11, 2020,
For the purposes of this paper, the legal services industry is defined as the practice and business of delivering professional services. This includes work done by licensed practitioners for clients as well as work carried out by organizations that provide services to individuals and corporations within the legal and alternative dispute resolution fields. This paper will focus on the impact to organizations in the latter part of this definition.
“Virtual Hearings,” Hong Kong International Arbitration Center, accessed April 22, 2022,
Clients of Arbitration Place include stakeholders involved in dispute resolution such as parties, counsel, institutions, tribunals and the courts.
“Global Hybrid Hearings,” International Arbitration Centre Alliance, accessed April 22, 2022,
Capic v. Ford Motor Company of Australia Limited (Adjournment) [2020] fca 486 (Austl.).
Alex Lo, “Virtual Hearings and Alternative Arbitral Procedures in the COVID-19 Era: Efficiency, Due Process, and Other Considerations,” Contemporary Asia Arbitration Journal 13 (2020): 89–93 (practical, legal and due process challenges to virtual or online hearings).
hkiac, supra note 4.
aaa, supra note 4.
Miller v. FSD Pharma, Inc., 2020 onsc 2253 (Can.).
Geoffrey B. Morawetz “Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings,” Superior Court of Justice, March 15, 2020,
Miller, supra note 11, at para. 5.
Arconti v. Smith, 2020 onsc 2782 (Can.), paras. 32–34.
See id.
Arbitration Place has also delivered this training to judges and court staff in Ontario.
Gary Born, Anneliese Day, and Hafez Virjee, “Remote Hearings (2020 Survey): A Spectrum of Preferences,” Journal of International Arbitration 38, no. 3 (2021): 296 (survey on objections to remote hearings at the start of the pandemic in 2020).
Id.
Id. at 297.
Capic, supra note 7.
WhatsApp is one example of an instant messaging platform, however, there are other suitable platforms available including Microsoft Teams, Slack and Signal, among others.
Capic, supra note 7.
See id.
See id.
Amanda Jerome, “‘Paper-based system is not going to exist anymore,’ Chief Justice Morawetz says of post-covid-19 court,” The Lawyers Daily, April 15, 2020,
Stuart v. Doe, 2021 yksc 11 (Can. Yuk. Sup. Ct.).
Id. at para. 13.
Miller, supra note 11, at para. 6.
Stuart, supra note 26, at para 22.
Miller v. FSD Pharma, Inc., 2020 onsc 3291 (Can.), para. 10.
Hubault Virgili v. Virgili, 2021 nbca 7 (Can.); Guest Tek Interactive Entertainment Ltd. v. Nomadix Inc., 2020 fc 860 (Can. Fed. Ct.); Aptotex Inc. v. Eli Lilly Canada Inc., 2020 onsc 7460 (Can.); Daly v. City of Mississauga, 2020 onsc 5097 (Can.); Arconti v. Smith, 2020 onsc 2782 (Can.); Association of Professional Engineers v. Rew, 2020 onsc 2589 (Can.).
Association of Professional Engineers, supra note 31, at paras. 7 and 8.
Tribunal federale [tf] Jul. 6, 2020, dft 146 iii 194.
Oberster Gerichtshof [ogh] [Supreme Court] Jul. 23, 2020, 18 ONc 3/20s (Austria).
See id.
Carlos Legaspy v. Financial Industry Regulatory Authority, Inc., No. 20-cv-4700, 2020 wl 4696818, at 8 (D. Ill. Aug. 13, 2020).
While there is no single definition of the term “due process” in international arbitration it encompasses the principle of procedural fairness including the requirement that parties shall be treated equally and given a full opportunity to present their case.
White & Case, llp, “2018 International Arbitration Survey: The Evolution of International Arbitration,” Queen Mary University of London, May 9, 2018, 40, Chart 40 (Chart of survey results for factors which will have the most significant impact on the future evolution of international arbitration).
Id. at 32, Chart 35 (Chart of survey results on use of forms of information technology in an international arbitration).
White & Case llp, “2021 International Arbitration Survey: Adaption arbitration to a changing world,” Queen Mary University of London, May 6, 2021, 21, Chart 13 (Chart of survey results on the forms of information technology in an international arbitration).
“icca-nyc Bar-cpr Protocol on Cybersecurity in International Arbitration (2020 Edition),” icca, nyc Bar, and cpr, November 25, 2019.
Id.
“The Draft icca-iba Roadmap to Data Protection in International Arbitration,” icca-iba Joint Task Force, March 11, 2020 (Public consultation draft released for public comment prior to revised version to be launched late 2021).
Born, Day, and Virjee, supra note 17, at 291 (Survey on objections to remote hearings at the start of the pandemic in 2020).