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Throughout the coronavirus pandemic, parties to an arbitration agreement and arbitrators have grappled with the issue of the right to a live, in-person arbitration hearing.\u00a0 Is there a due process concern that flows from conducting remote proceedings over one side\u2019s insistence on in-person hearing?\u00a0 For example, parties\u2019 facility with presenting testimony and evidence remotely may be limited, arbitrators\u2019 technical proficiency may be lacking, and they may be uncomfortable with taking evidence remotely.\u00a0 Then there is the difficulty of presenting the case effectively across different time zones and the potential unfair advantage to one party over another caused by requiring one party\u2019s witnesses and evidence to be presented outside normal business hours.\u00a0 In some cases, there may be physical evidence that is difficult to present remotely or the need for a site visit.<\/p>
While one party may be willing to wait for the COVID-19 crisis to end in order to conduct in-person hearings, the other side might not agree.\u00a0 Postponing a hearing on the merits may be inconsistent with contractual time limitations, real-world time pressures that affect the parties differently, and\/or timing requirements in arbitration rules.\u00a0 Difficulties may arise when one party insists on in-person hearings in the designated place of arbitration.<\/p>
In some circumstances, the arbitration rules may contemplate remote hearings.\u00a0 For example, the London Court of International Arbitration Rules provide that \u201ca hearing may take place in person, or virtually by conference call, videoconference or using other communications technology with participants in one or more geographical places (or in a combined form).\u201d And that the tribunal may use technology \u201cto enhance the efficiency and expeditious conduct of the arbitration.\u201d \u00a0Consistent with that directive, at least one English court has recently held that a proposed hybrid hearing in which both in-person and remote proceedings take place would not unfairly advantage one party over the other.<\/p>
Likewise, while the International Chamber of Commerce Rules of Arbitration provide that the tribunal \u201cshall hear the parties together in person,\u201d the ICC has interpreted this rule \u201cas referring to the opportunity for a live, adversarial exchange and not to preclude a hearing taking place \u2018in person\u2019 by virtual means if the circumstances so warrant.\u201d\u00a0 Indeed, the 2021 ICC Rules, which took effect January 1, 2021, expressly permit tribunals to conduct hearings \u201cremotely by videoconference, telephone or other appropriate means of communication.\u201d<\/p>
Additionally, the Singapore International Arbitration Centre recently reported that all in-person meetings are now \u201cbeing conducted by teleconference and videoconference\u201d and has directed all parties to file and exchange papers electronically.\u00a0 By contrast, the Hong Kong International Arbitration Centre remains operational and will admit parties for in-person hearings and meetings, provided that all parties have remained in Hong Kong continuously for the 14-day period prior to admittance, submit to temperature checks, and otherwise comply with its COVID-19 protocols.<\/p>
In practice, parties to an arbitration agreement may not be able to force an in-person arbitration hearing during the pandemic.\u00a0 For example, unless the parties stipulate to proceed telephonically or via Zoom or the panel orders that the hearings will take place telephonically or via Zoom, the Financial Industry Regulatory Authority (FINRA) postponed all in-person arbitration and mediation proceedings scheduled through June 4, 2021.\u00a0 The FINRA guidance does not specify what happens if one party refuses to stipulate to remote proceedings.<\/p>
In one well-publicized dispute, a union representing bus drivers in Reno, Nevada commenced an arbitration proceeding against Keolis North America, alleging that Keolis wrongfully threatened to terminate bus drivers who refused to let riders board buses without a face mask.\u00a0 Keolis insisted on an in-person arbitration hearing that was scheduled for March 5, 2021. \u00a0Citing COVID-19 concerns, however, the arbitrator refused to attend the hearing in person and instead offered to attend the hearing via video.\u00a0 Keolis accused the arbitrator of bias in favor of the union for refusing to attend the hearing in person.\u00a0 The arbitrator said Keolis\u2019s allegations were baseless but has since withdrawn from the case.<\/p>
In our experience, attempts to compel non-remote hearings seem unlikely to succeed while public health concerns remain.\u00a0 Arbitration tribunals have rejected arguments that due process requires in-person hearings or that remote hearings give one side an unfair advantage.\u00a0 At the same time, arbitration tribunals have taken great pains to protect the principal of equality of arms, often crafting creative case management techniques to address perceived shortcoming of remote hearings.\u00a0 Our informal survey revealed not a single case in which an international arbitration tribunal has ordered the parties to appear in person during the pandemic.<\/p>
The remote arbitration hearings are likely to remain the standard for the duration of the pandemic. Arbitrators can and should continue their efforts to ensure that parties and witnesses are not required to participate in remote hearings or present evidence in ways that threaten due process, including such mundane considerations as what time of day a witness must testify or counsel must present arguments.\u00a0 Arbitrators should also allow sufficient time to elapse between the end of one hearing session and the commencement of another. And they should consider commencing hearings at different times on different days, so each side can present its case at times that are optimal or convenient for its time zone.\u00a0 If a party wants to ensure an in-person hearing, that party should include mandatory language in the contractual arbitration clause, knowing that such language could make it impossible to enforce time limits on the rendering of an award.<\/p>
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