Remote hearings in international arbitration after the COVID-19 outbreak
JESÚS TLACAELEL COVARRUBIAS MIRANDA1
JOSÉ CENTEOTL COVARRUBIAS MIRANDA
SUMARIO: I. Introduction. II. Rationale for the term Remote hearings. III. Legal framework for Remote hearings. IV. Parties right to be heard and equal treatment in International Arbitration. V. Cost-Efficiency of Remote hearings. VI. Conclusion.
Resumen: Este artículo analiza las audiencias remotas en el contexto del COVID-19, como alternativa a las audiencias presenciales. Asimismo, expone el marco jurídico de las audiencias a distancia en el arbitraje internacional, teniendo en cuenta las facultades del tribunal arbitral y el reglamento institucional de arbitraje. Además, afirma de forma concisa en el contexto de las audiencias remotas, la igualdad de trato de las partes y la eficiencia de los costes de las audiencias. Por último, establece lo que hay que tener en cuenta para determinar la forma más adecuada de llevar a cabo las audiencias.
Palabras clave: Audiencias remotas, derecho a ser oído e igualdad de trato, rentabilidad, reglas de arbitraje, pandemia COVID-19.
Abstract. This article analyses the remote hearings in the context of the COVID-19 Pandemic, as an alternative to in-person hearings. Likewise, it states the legal framework for remote hearings in international arbitration considering the power of the arbitral tribunal and the institutional arbitration rules. Furthermore, this article concisely asserts in the context of remote hearings, the parties’ equal treatment and the cost efficiency of the hearings. Finally, it establishes what to consider in order to determine the most appropriate manner to conduct the hearings.
Keywords: Remote hearings, right to be heard and equal treatment, arbitration rules, COVID-19 Pandemic.
I ] Introduction
On 31 December 2019, Wuhan Municipal Health Commission reported new pneumonia cases in Wuhan, Hubei Province, eventually a novel coronavirus was identified2 as SARS-COV-2 Coronavirus, which causes COVID-19 disease.3
When the SARS-COV-2 Coronavirus strike the world, it was necessary to stop the physical interaction in pursuance of a common interest i.e. to defeat the virus, however, this implicated a great challenge to humankind. As a consequence, the COVID-19 Pandemic accelerated the use of digital technologies and conferencing tools.4 Evidently, arbitration was not excluded, ergo, these IT tools5 had to be incorporated; most of the hearings had to be held remotely to avoid the possibility of virus transmission among the participants.
Nevertheless, not all the arbitration institutions were prepared to hold remote hearings; for some arbitrators, lawyers, experts and witnesses this was a titanic challenge. In this regard, there were several cases where the arbitration agreement provided for physical hearings in a specific location, but due the impossibility of physical interaction, public restrictions and travel bans, the hearings had to be held by using IT tools. As a result, an issue that arose was whether the arbitral tribunal had the power to conduct the hearings remotely against the consent of one of the parties, or in some cases even both.
The implementation of this new means of communication seemed to be the best solution, albeit, not all coincide since there are benefits and disadvantages, in both remote and physical hearings. This article intends to approach the different perspectives regarding this issue.
II ] Rationale for the term remote hearings
Remote hearings are defined as hearings that are conducted using communication technology to simultaneously connect participants from two or more locations6 e.g. telephone and videoconference.7 In this sense, the terminology virtual hearings is not appropriate since it refers to something not physically existent, however, in this kind of hearings where the participants are in different places, they are not virtual, they exist and communicate using technology; therefore, the most suitable term to define these hearings is the denomination provided above.8
III ] Legal framework for remote hearings
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Arbitration Rules regulation
Due to the COVID-19 Pandemic, several hearings had to be conducted remotely or adjourned in order to ensure the safety of the participants and to avoid travel restrictions, nonetheless, not all the arbitration rules provided for remote hearings. Since arbitration rules are a source of the powers of the arbitral tribunal,9 the existence of a provision regulating remote hearings should be considered as a parameter to determine whether or not the arbitral tribunal has the power to conduct the hearings remotely.
Before the Pandemic some rules expressly established videoconference in furtherance of holding evidentiary hearings: 2012 SCAI Rules;10 2014 LCIA Rules;11 2013 UNCITRAL Rules;12 2017 MKAS Rules;13 2018 ICAC Rules;14 2018 AIAC Rules;15 2013 AAA Rules.16 Conversely, there were arbitration rules that did not specifically provide for such means of communication: 2018 VIAC Rules;17 2017 SCC Rules;18 2018 HKIAC Rules;19 DIS Rules;20 2007 DIAC Rules21 and 2017 ICC Rules22. The mere fact that these rules did not include a provision for remote hearings does not mean that it is not possible to implement them, but it can be controversial.
Following this line of thought, the CIETAC and the ICSID do not regulate remote hearings in their respective arbitration rules,23 but they have been using technology for remote arbitration administration for several years before the COVID-19 outbreak.24 In addition, the UNCITRAL Model Law on International Commercial Arbitration does not expressly state the form of the oral hearing, however, since it has embraced modern means of communication and modernized arbitration laws, it should be interpreted broadly, encompassing physical and remote hearings.25
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Arbitral tribunal’s power to conduct the hearings remotely
In this context, the issue that arose is whether the arbitral tribunal had the power to conduct the hearings remotely against the consent of one of the parties. The arbitral tribunal has a duty to respect the procedural agreements reached by the parties26, consequently, in principle, if the parties did not agree to conduct the evidentiary or legal hearings remotely it is highly recommendable that the arbitral tribunal obtains the parties consent for the implementation of such technology.27
Nevertheless, all around the world, there are different perspectives concerning this issue. On the one hand the Austrian Supreme Court (Oberster Gerichtshof) on a landmark case rendered a decision establishing that the arbitral tribunal was empowered to conduct remote hearings even when one of the parties had objected to the use of videoconference technology during the COVID-19 pandemic,28 the Court relied on Article 6 ECHR29 relating to the parties’ right to get equal access to justice and to be heard, since in-person hearings during the COVID-19 pandemic could lead to a stalemate of the proceedings.30 In addition, the US District Court for the Northern District of Illinois Eastern Division decided that remote hearings did not infringe parties’ right to be heard, albeit that the arbitration agreement provided for in-person hearings.31 Moreover, the same approach was taken by the England and Wales High Court of Justice, the Court decided that remote hearings should be held in order ensure the safety of the participants32, furthermore, the Federal Court of Australia rejected the possibility to vacate the hearings when one of the parties requested it, since there was no guarantee that the situation would get better sooner; hence, it conducted the hearings remotely.33
On the other hand, the Swiss Federal Tribunal rendered a decision stating that the COVID-19 pandemic was not a sufficient reason to impose remote hearings in state court proceedings against the consent of one of the parties.34 Furthermore, in a recent case the Swiss Federal Tribunal reaffirmed that an arbitral tribunal may refuse to reschedule a hearing without violating one parties’ right to be heard, considering the specific circumstances of the case.35
The previous cases demonstrate that each situation should be analysed particularly, as it was held by the Federal Court of Australia when determining whether evidence of witnesses should be taken by videoconference or in person:“[a]t the end of the day, the exercise of the discretion as to what is appropriate in a particular case will involve a balancing exercise as to what will best serve the administration of justice consistently with maintaining justice between the parties [...]36”. This same approach has been taken by various scholars and experienced lawyers.37
IV ] Parties right to be heard and equal treatment in international arbitration
Parties’ rights’ to be heard and equal treatment are fundamental principles of justice38, for instance the UNCITRAL Model Law enshrines these basic rights in Art. 18.39 Hereof, under the NYC and the UNCITRAL Model Law an award may be unenforceable40 or set aside41 if a party was unable to present its case. In this line of thought, the issue that emerges is if remote hearings compromise the aforementioned rights.
The right to be heard does not guarantee a right to in-person hearings in all circumstances42, it has been established that the two essential elements of every hearing are the orality and the synchronous exchange of arguments.43 Therefore, the notion oral hearing cannot be strictly settled as an in-person hearing because in both, in-person and remote hearings are performed through a synchronous exchange of oral arguments; with the main difference being the use of technological tools in remote hearings,44 hence, the concept oral hearing encompasses both, remote and in-person hearings. Furthermore, applying the principle of functional equivalent approach45 based on the functions of both kinds of hearings, it is determined that the same objective can be achieved via in-person or remote hearings.
Furthermore, there are some issues that could arise during remote hearings that could compromise the equal treatment of the parties; for instance, where a party has better technological equipment than the others.46 Some authors established that a remote hearing could not be the most suitable manner to proceed.47 Nevertheless, protocols or guidelines specialized in this matter can be implemented to prevent these kind of risks, such as the Seoul Protocol which establishes minimum industry standards48 (video, audio, and so on) to ensure that each party is in the same condition to present its case during the remote hearing. Moreover, in the Sino Dragon case one of the parties complained that it was unable to present its case due technological difficulties during a witness examination; however, the Federal Court of Australia held that the party was responsible for the technical problems and that videoconference does not in itself produce real unfairness.49
V] Cost-efficiency of remote hearings
The efficiency of the proceedings in international arbitration is of sum importance, under a vast majority of institutional arbitration rules, the arbitral tribunal has the duty to avoid unnecessary delay and expense, and instead, provide efficient and expeditious means to ensure the cost-efficiency of the proceedings; for instance, the LCIA Arbitration Rules 202050, the Swiss Rules 2021.51 In this line of argument, the arbitral tribunal must assess which is the most suitable and cost-efficient manner to proceed depending on the pros and cons in each case, whether with remote or with in-person hearings.
Both modalities grant certain benefits and detriments. For instance, remote hearings offer the possibility to reduce the costs of the arbitration because the parties will not have to pay the rental costs of accommodation and rental facilities for the hearings,52 thus, the schedule of the hearings can be more flexible53 because videoconferencing systems are functional in most parts of the world.54 Besides, the use of these means of communication reduce environmental impact55 and in the present circumstances curtails the possibility of virus transmission. What is more, the hearings do not need to be adjourned and the disputes can be resolved in an expeditious way, as it was held by the Federal Court of Australia when determining whether the hearings should be adjourned or conducted by videoconference.56
Even though all these advantages of remote hearings, it is of paramount importance to consider some issues that could arise if the hearings are conducted in this manner. Different time zones can portend problems regarding the setting of the timetable of the hearings, sometimes remote hearings could be scheduled at unsociable hours and an issue can emerge in relation to the parties equal treatment.57 Consequently, the Parties should be encouraged to implement protocols that serve as a guide to the planning of the hearings, for instance the Seoul Protocol58, which provides information about the witness examination, Video Conferencing venue, observers, documents, technical requirements, preparatory arrangements, interpretations, recordings, and other technical specifications e.g. video, audio and picture standards. In addition, currently there are platforms such as Webex and Zoom that allow an efficient conduct of the remote hearings.59
Furthermore, another relevant matter to contemplate is the Cybersecurity and the participants technical knowledge in order to conduct the remote hearings60 i.e. it demands the arbitrators to manage the communication tools, cybersecurity and data protection.61 Hereof, the cybersecurity measures are extremely important. In an arbitration between China and Philippines concerning a territory in the South of the Chinese Sea, the Permanent Court of Arbitration and Philippine’s Department of Justice was hacked.62 Hence, it is recommendable for the Parties that intend to hold the hearings remotely to apply the guidance established in the Protocol on Cybersecurity in International Arbitration.63 Besides, the platform selected to hold the remote hearings must have a good security system.
VI ] Conclusion
Due to the COVID-19 Pandemic all the industries had to adapt to the “new reality”; international arbitration was not the exception, and had to implement mechanisms such as remote hearings, to prevent the spread of the coronavirus disease. On this subject, in the majority of the cases in international arbitration remote hearings were the most suitable manner to proceed; nevertheless, each case must be analyzed separately to determine the best alternative. As it was established in the present article, the main aspects that must be considered to proceed with remote hearings are: arbitral tribunal’s power to direct remote hearings, parties’ equal treatment and right to be heard, cost-efficiency of the proceedings and the pros and cons presented by each particular case. Lastly, in the authors view, it must be pointed out that remote hearings are the present and the future of the manner in which hearings are conducted in international arbitration.
1 Alumnos de la licenciatura en derecho en la Universidad Panamericana, Campus Guadalajara y participantes en dos ocasiones del Willem C. Vis International Commercial Arbitration Moot en Hong Kong.
2 WHO. 27 April 2020. Archived: WHO Timeline- COVID-19. available at: https://www.who.int/news/item/27-04-2020-who-timeline---covid-19
3 WHO. 20 October 2020. Coronavirus disease (COVID-19): How is it transmitted? available at: https://www.who.int/news-room/q-a-detail/coronavirus-disease-covid-19-how-is-it-transmitted
4 OECD. 23 June 2021. How will COVID-19 reshape science, technology and innovation. Available at: https://www.oecd.org/coronavirus/policy-responses/how-will-covid-19-reshape-science-technology-and-innovation-2332334d/
5 Information Technology tools are purported to solve problems through the use of technology, in the present case in relation to the communication. See. Slyter, Kirsten, What is information technology? A Beginner's guide to the World of IT. 2 February 2019. Available at: https://www.rasmussen.edu/degrees/technology/blog/what-is-information-technology/
6 SCHERER, Maxi. Chapter 4: The Legal Framework of Remote Hearings, in Scherer, Maxi; Bassiri, Niuscha et al. (eds.), International Arbitration and the COVID-19 Revolution, Kluwer Law International 2020, p. 68.
7 Videoconference refers to “technology which allows two or more locations to interact simultaneously by two-way video and audio transmission, facilitating communication and personal interaction between these locations”. See Hague Conference on Private International Law, Guide to Good Practice on the Use of Video-Link under the Evidence Convention (2020), p. 15, para. 10. available at: https://assets.hcch.net/docs/569cfb46-9bb2-45e0-b240-ec02645ac20d.pdf
8 Op. Cit. SCHERER, Maxi,p. 69.
9 'Chapter 5. Powers, Duties, and Jurisdiction of an Arbitral Tribunal', in Blackaby Nigel , Constantine Partasides , et al., Redfern and Hunter on International Arbitration (Sixth Edition), 6th edition (© Kluwer Law International; Oxford University Press 2015) pp. 305 - 352 para. 5.10.
10 NATER-BASS, Gabrielle; PFISTERER, Stefanie; Chapter 3, Part II: Commentary on the Swiss Rules, Article 25 [Evidence and hearings, II] , in Arroyo, Manuel (ed.), Arbitration in Switzerland: The Practitioner's Guide, 2a ed, Kluwer Law International, 2018, p. 695, para. 46. Brunner, Cristoph; Chapter 3, Part I: Introduction to the Swiss Rules of International Arbitration, in Arroyo, Manuel (ed.), Arbitration in Switzerland: The Practitioner's Guide, 2a ed, Kluwer Law International, 2018, p. 442, para. 16. Girsberger, Daniel; Voser, Nathalie; Chapter 4: The Arbitral Procedure in Girsberger, Daniel, Voser, Nathalie International Arbitration: Comparative and Swiss Perspectives, Kluwer Law International; Schulthess Juristische Medien AG, 2016, p. 245, para. 1009. Karrer, Pierre; Institutional Arbitration Article-by-Article Commentary on Swiss Rules, Schütze (edr.), C.H. Beck Hart Nomos, 2013, p. 390, para. 170. See. Art. 25(4) SCAI Rules.
11 SCHERER, Maxi; RICHMAN, Lisa; GERBAY, Remy; Chapter 15 Hearings, Witnesses and Experts, in Scherer, Maxi; Richman, Lisca; et al., Arbitrating under the 2014 LCIA Rules: A User's Guide, Kluwer Law International, 2015. p. 222, para. 2. See Art. 19(2) LCIA Rules of 2014.
12 See Art. 28(4) UNCITRAL Rules.
13 See Art. 30(6) MKAS Rules.
14 See Art. 47(4) ICAC Rules.
15 See Art. 28(4) AIAC Rules.
16 See R-32C AAA Rules.
17 HAHNKAMPER, Wolfgang; VIAC Rules of Arbitration 2018, Article 30 [Oral Hearing], in Vienna International Arbitral Centre of the Austrian Federal Economic Chamber (ed.), Handbook VIAC Rules of Arbitration and Mediation: A Practitioner's Guide, 2 ed, Verlag WKÖ Service GmbH, 2019, p. 215. Cfr. Art. 30 VIAC Rules.
18Even though that it is not expressly settled in the rules the possibility of remote hearings, some authors establish that the arbitral tribunal can conduct its deliberations by means that do not require physical presence, such as videoconferencing; see Ragnwaldh, Jakob, Andersson, Fredrik, Salinas Quero, Celeste; Chapter 5: The Proceedings Before the Arbitral Tribunal', in Ragnwaldh, Jakob, Andersson, Fredrik, et al., A Guide to the SCC Arbitration Rules, Kluwer Law International, 2019, p. 82. See Art. 25(2) SCC Rules.
19The arbitral tribunal can determine the manner in which witnesses or experts are examined, the HKIAC Rules allow for videoconference to hold oral hearings, See Moser, Michael J.; Bao, Chiann; Conduct of the Arbitration (HKIAC Rules, Articles 13–22, 25–26, 30–31), in Moser, Michael J., Bao, Chiann, A Guide to the HKIAC Arbitration Rules, Oxford University Press, 2017, p. 194, para. 9.167. See. Arts. 22.4-22.5 HKIAC Rules of 2018.
20 Rolf Trittmann, Rolf, Schardt, Ramona; The Proceedings Before the Arbitral Tribunal, Article 29: Oral hearing, in Flecke-Giammarco, Gustav, Boog, Christopher, et al. (eds.), The DIS Arbitration Rules – An Article-by-Article Commentary, Kluwer Law International, 2020, p. 474, para. 1. See Art. 29 DIS Rules.
21 See Art. 28 DIAC Rules of 2007.
22 See Art. 24 ICC Rules 2017 provides the use of videoconference for case management conferences. The new ICC Arbitration Rules from 2021 added the possibility to hold remote hearings, see Art. 26 ICC Rules 2021. In addition, the ICC during the COVID-19 outbreak settled “the ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic”, available at: https://iccwbo.org/publication/icc-guidance-note-on-possible-measures-aimed-at-mitigating-the-effects-of-the-covid-19-pandemic/
23 See Art. 35 CIETAC Rules & Art. 32 ICSID Rules.
24 SHAUGHNESSY, Patricia Louise; Chapter 2: Initiating and Administering Arbitration Remotely, in Scherer, Maxi, Bassiri, Niuscha et al. (eds.), International Arbitration and the COVID-19 Revolution, Kluwer Law International, 2020, p. 37.
25 STEIN, Erica; Chapter 9: Challenges to Remote Arbitration Awards in Setting Aside and Enforcement Proceedings, in Scherer, Maxi, Bassiri, Niuscha et al. (eds.), International Arbitration and the COVID-19 Revolution, Kluwer Law International, 2020, p. 173. See Art. 24 UNCITRAL Model Law on International Commercial Arbitration.
26 SMAHI, Nadia, Due Process Under the Swiss Rules of International Arbitration, in Scherer, Matthias (edr.), ASA Bulletin, Kluwer Law International, vol. 38, issue 4, 2020. pp. 942-943. Kaufmann- Kohler, Gabrielle; Rigozzi, Antonio; International Arbitration: Law and Practice in Switzerland, Oxford University Press, 2015, p. 316, paras. 6.62-6.63.
27 KAUFMANN-KOHLER, Gabrielle; SCHULTZ, Thomas; The Use of Information Technology in Arbitration, Jusletter, Dec. 2005, para. 170. Bateson, David; Virtual Arbitrations: The Impact of COVID- 19, Indian Journal of Arbitration Law; Centre for Advanced Research and Training in Arbitration Law, National Law University, Jodhpur, 2020, vol. IX, issue 1, p. 168.
28 Supreme Court of Austria (Oberster Gerichtshof). 23 July 2020. Case No. 18 ONc 3/20s available at: https://n9.cl/ptb5
29 See Art. 6 European Convention on Human Rights. Available at: https://www.echr.coe.int/documents/convention_eng.pdf
30 SCHERER, Maxi; SCHWARZ, Franz; ORTNER, Helmut; JENSEN, J. Ole; 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 Law Arbitration Blog, 24 October 2020, available at: http://arbitrationblog.kluwerarbitration.com/2020/10/24/in-a-first-worldwide-austrian-supreme-court-confirms-arbitral-tribunals-power-to-hold-remote-hearings-over-one-partys-objection-and-rejects-due-process-concerns/
31 US District Court for the Northern District of Illinois Eastern Division. 12 August 2020. Case No. 20 C 4700. available at: https://law.justia.com/cases/federal/district-courts/illinois/ilndce/1:2020cv04700/378723/14/
32 Blackfriars Ltd, Re England and Wales High Court, United Kingdom, 6 April 2020, Case No. [2020] EWHC 845 (Ch) available at: https://www.bailii.org/ew/cases/EWHC/Ch/20 20/845.html, para. 38.
33Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 Federal Court of Australia 15 April 2020, available at: https://jade.io/article/725605.
34Schweizerisches Bundesgericht 6 July 2020 available at: http://relevancy.bger.ch/php/clir/http/index.php?highlight_docid=atf%3A%2F%2F146-III-194%3Ade&lang=de&type=show_document Zaugg, Niklaus; Shafiri, Roxana; Imposing Virtual Arbitration Hearings in Times of COVID-19: The Swiss Perspective, Kluwer Arbitration Blog, 14 January 2021, available at: http://arbitrationblog.kluwerarbitration.com/2021/01/14/imposing-virtual-arbitration-hearings-in-times-of-covid-19-the-swiss-perspective/ Boller, Urs; Mimoza, Ademaj; Federal Supreme Court: No Legal Basis for Conducting the Main Hearing via Video Conference in Civil Proceedings Without the Parties’ Consent. Meyerlustenberger Lachenal (MLL). 13 October 2020. available at: https://www.mll-news.com/federal-supreme-court-no-legal-basis-for-conducting-the-main-hearing-via-video-conference-in-civil-proceedings-without-the-parties- consent/
35 In this case, the Swiss Federal Tribunal considered that the party that was requesting to reschedule the hearing as a dilatory tactic. See Hirsiger-Meier, Valentina & Frommelt Lukas. Swiss Supreme Court confirms that an arbitral tribunal may under certain circumstances refuse to reschedule a hearing without violating one party’s right to be heard. 31 August 2021. Global Arbitration News. Available at: https://globalarbitrationnews.com/swiss-supreme-court-confirms-that-an-arbitral-tribunal-may-under-certain-circumstances-refuse-to-reschedule-a-hearing-without-violating-one-partys-right-to-be-heard/
36Australian Competition & Consumer Commission v StoresOnline International Inc. Federal Court of Australia 6 July 2009 available at: https://n9.cl/2x1kg, para. 14.
37 SCHERER, Maxi; Remote hearings in International Arbitration: An Analytical Framework, in Scherer, Maxi (ed.), Journal of International Arbitration, Kluwer Law International, 2020, vol. 37, issue 4, p. 425. Backsmann, Till Alexander; Fröhlingsdorf; Joseph; Chapter IV: Science and Arbitration, The Vienna Propositions for Innovative and Scientific Methods and Tools in International Arbitration, G. Innovative Information and Communication Technology as Tools for Cost Efficient and Reasonable Conduct of International Arbitral Proceedings Cultural Challenges and Conflicts, in Klausegger, Christian, Klein, Peter. et al. (eds.), Austrian Yearbook on International Arbitration, 2020, vol. 2020, p. 422. Stein, Erica; 'Chapter 9: Challenges to Remote Arbitration Awards in Setting Aside and Enforcement Proceedings', in Maxi Scherer , Niuscha Bassiri , et al. (eds), International Arbitration and the COVID-19 Revolution, (© Kluwer Law International; Kluwer Law International 2020). p. 172. Beserman Balco, María Solana; COVID-19 and new ways of doing arbitration: are they here to stay?, in Bosco Lee, João and Mange, Flavia (eds.), Revista Brasileira de Arbitragem, Kluwer Law International, 2020, vol. XVII, issue 67, p. 137.
38 BORN, Gary. (2021). International Commercial Arbitration. 3ºedition. Kluwer Law International. P. 2334.
39 UNCITRAL Model Law. (2016). Art. 18 The parties shall be treated with equality and each party shall be given a full opportunity of presenting his case.
40 New York Convention. (1958). Art. V(I)(d).
41 UNCITRAL Model Law. (2016). Art. 34, 36.
42 BATESON, David; Virtual Arbitrations: The Impact of COVID- 19, Indian Journal of Arbitration Law; Centre for Advanced Research and Training in Arbitration Law, National Law University, Jodhpur, 2020, vol. IX, issue 1, p. 160.
43 SCHERER, Maxi. (2020). Remote Hearings in International Arbitration: An Analytical framework. Journal of International Arbitration. P. 420.
44 BATESON, David; Virtual Arbitrations: The Impact of COVID- 19, Indian Journal of Arbitration Law; Centre for Advanced Research and Training in Arbitration Law, National Law University, Jodhpur, 2020, vol. IX, issue 1, p. 160.
45 United Nations Convention on the Use of Electronic Communications in International Contracts, p.27, para. 50; UNCITRAL Model Law on Electronic Commerce, pp. 16-17, para. 20.
46 BACKSMANN, Till Alexander; FRÖHLINGSDORF; Joseph; Chapter IV: Science and Arbitration, The Vienna Propositions for Innovative and Scientific Methods and Tools in International Arbitration, G. Innovative Information and Communication Technology as Tools for Cost Efficient and Reasonable Conduct of International Arbitral Proceedings Cultural Challenges and Conflicts, in Klausegger, Christian, Klein, Peter. et al. (eds.), Austrian Yearbook on International Arbitration, 2020, vol. 2020, p. 422.
47 STEIN, Erica; 'Chapter 9: Challenges to Remote Arbitration Awards in Setting Aside and Enforcement Proceedings', in Maxi Scherer , Niuscha Bassiri , et al. (eds), International Arbitration and the COVID-19 Revolution, (© Kluwer Law International; Kluwer Law International 2020). p. 176.
48 KCAB international. Seoul Protocol on Video Conference in International Arbitration. (2020). Retrieved form: http://www.kcabinternational.or.kr/user/Board/comm_notice_view.do?BBS_NO=548&BD_NO=169&CURRENT_MENU_CODE=MENU0025&TOP_MENU_CODE=MENU0024
49 STURZAKER, Damian; 'Sino Dragon Trading Ltd v. Noble Resources International Pte Ltd [2016] FCA 1131, Federal Court of Australia, New South Wales District Registry, NSD 1333 of 2016, 13 December 2016', A contribution by the ITA Board of Reporters, Kluwer Law International, p. 1; FCA, 13 Sep 2016, Sino Dragon Trading Ltd v Noble Resources International Pte Ltd, Federal Court of Australia, available at: https://jade.io/article/492862
50 See Article 14.1 LCIA Rules.
51 See Article 19 1. SIAC Rules.
52 HAMAMA ,Olga and HERRMANN, Danielle; 'Chapter 15: COVID-19 and Technology, Media and Telecommunication Disputes', in Maxi Scherer , Niuscha Bassiri , et al. (eds), International Arbitration and the COVID-19 Revolution, (© Kluwer Law International; Kluwer Law International 2020) p. 290
53 WAINCYMER, Jeffrey Maurice; 'Online Arbitration', Indian Journal of Arbitration Law, (© Indian Journal of Arbitration Law; Centre for Advanced Research and Training in Arbitration Law, National Law University, Jodhpur 2020, Volume IX Issue 1) p. 4
54 ROGERS, Catherine and BRODLIJA, Fahira; 'Chapter 3: Arbitrator Appointments in the Age of COVID-19', in Maxi Scherer , Niuscha Bassiri , et al. (eds), International Arbitration and the COVID-19 Revolution, (© Kluwer Law International; Kluwer Law International 2020) p. 58.
55 CHARLES, Philippa; 'Chapter 16: Finance Disputes and a Pandemic: The Eye of a Perfect Storm?', in Maxi Scherer , Niuscha Bassiri , et al. (eds), International Arbitration and the COVID-19 Revolution, (© Kluwer Law International; Kluwer Law International 2020) p. 297.
56 Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486
File number: NSD 724 of 2016 Judge: PERRAM J Date of judgment: 15 April 2020 BILJANA CAPIC, Applicant:
FORD MOTOR COMPANY OF AUSTRALIA LIMITED ACN 004 116 223, Respondent Recovered from: https://jade.io/article/725605.
57 BATESON, David; Virtual Arbitration, 9(1) Indian J. Arb. L. 160–170 (2020), available at http://ijal.in/sites/default/files/Vol9Issue1/Amnd/David_Bateson-Virtual_Arbitration_The_Impact_of_COVID-19.pdf
58 Seoul Protocol. KCAB international. 18 March 2020. Available at: http://www.kcabinternational.or.kr/user/Board/comm_notice_view.do?BBS_NO=548&BD_NO=169&CURRENT_MENU_CODE=MENU0025&TOP_MENU_CODE=MENU0024
59 Rethinking Virtual Hearings Sue Hyun Lim (KCAB INTERNATIONAL) and Lars Markert (Nishimura & Asahi)/July 19, 2020 /Leave a comment KCAB Next. Available at: http://arbitrationblog.kluwerarbitration.com.upmx.idm.oclc.org/2020/07/19/rethinking-virtual-hearings/
60 FLECKE-GIAMMARCO, GEBHARD, Gustav; et al., 'Arbitrating in Uncertain Times – Institutional Responses to COVID-19', in Jörg Risse , Guenter Pickrahn , et al. (eds), SchiedsVZ | German Arbitration Journal, (© Kluwer Law International; Verlag C.H. Beck oHG 2020, Volume 18 Issue 3) p. 137
61 ROGERS, Catherine and BRODLIJA, Fahira; 'Chapter 3: Arbitrator Appointments in the Age of COVID-19', in Maxi Scherer , Niuscha Bassiri , et al. (eds), International Arbitration and the COVID-19 Revolution, (© Kluwer Law International; Kluwer Law International 2020 p. 59
62 SAUNDERS, Matthew, 'Chapter 7: COVID-19 and the Embracing of Technology: A ‘New Normal’ for International Arbitration', in Axel Calissendorff and Patrik Schöldström (eds), Stockholm Arbitration Yearbook 2020, Stockholm Arbitration Yearbook Series, Volume 2 (© Kluwer Law International; Kluwer Law International 2020) pp. 110.
63 ICCA-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration (2020 Edition). Available at: https://cdn.arbitration-icca.org/s3fs-public/document/media_document/icca-nyc_bar-cpr_cybersecurity_protocol_for_international_arbitration_-_print_version.pdf