During the COVID-19 pandemic, various arbitral institutions, such as the International Court of Arbitration (ICC), the American Arbitration Association (AAA), the Hong Kong International Arbitration Centre (HKIAC), the International Centre for Settlement of Investment Disputes (ICSID) and the London Court of International Arbitration (LCIA) declared their intention to ensure that international arbitration proceeds in a stable and foreseeable manner during this period, by publishing a joint statement.1 In this context, virtual hearings are explicitly permitted in some of the arbitral institutions' rules such as Article 26(1) of the revised ICC Arbitration Rules of 2021.2 Virtual arbitration rules differ according to the authorized arbitral institution.3

The ICC's Guidance Note dated 9 April 2020 (the "ICC Guidance Note"), the Seoul Protocol published by the Korean Commercial Arbitration Board (KCAB) in March 2020, and the virtual hearing guide for arbitrators and parties published by AAA on 9 May 2020 (the "AAA Guide") are the primary virtual arbitration rules. Furthermore, by publishing its Online Hearing Rules and Procedures (the "ISTAC Online Hearing Rules and Procedures")4 in April 2020, the Istanbul Arbitration Centre (ISTAC) is the first arbitral institution that provides rules specifically for virtual arbitration hearings.5

The ICC Guidance Note provides various measures that may be considered to mitigate possible delays in the arbitration process caused by the pandemic. It also regulates issues related to participants carrying out their discussions, meetings and hearings in a virtual environment. Moreover, the points to be considered while conducting virtual hearings are also included in the ICC Guidance Note.

How to Conduct a Virtual Arbitration Hearing

Various video conferencing platform options are available for conducting virtual hearings, such as customized hearing platforms offered by some hearing centers, licensed publicly available platforms and free of charge publicly available platforms. Customized or licensed, fee-based video conferencing platforms may offer greater security, confidentiality and data protection than free of charge, publicly available platforms.6 For example, HKIAC and LCIA arbitral institutions prefer Epiq and Opus video conferencing platforms for virtual arbitration hearings,7 while the ICC mainly uses the following platform options: Microsoft Teams, Vidyocloud, Skype for Business, Zoom, BlueJeans and GoToMeeting.8

Upon the parties' request, the ICC also offers remotely available technical support for issues, such as using online platforms, joining a meeting (or hearing), operating in-meeting audio and video functions and operating screen sharing functions. Upon a consensus, the parties may benefit from the technical support service offered by the ICC in return for a fee.9

Overview of Virtual Arbitration Hearing Rules and Procedures

Within the scope of procedural equality and right to a fair trial, each party shall be given equal opportunity to present their case during a virtual hearing, just like a physical hearing. Prior to the virtual hearing, it is necessary to agree on matters, such as the platform on which the hearing will be held, where the arbitral tribunal, parties and factual witnesses will join the virtual hearing and when the hearing will be held, considering the different time zones the parties are in.10 A checklist from which the arbitral tribunal may benefit, is presented in the attached Annex I to the ICC Guidance Note. Matters that need to be assessed by consultation between the arbitral tribunal and the parties are listed in this checklist. Accordingly, primary procedural rules regarding virtual arbitration hearings are as follows:

  • Pre-hearing plans shall be made on topics, such as agreeing on the hearing agenda, the total number of participants and the different time zones to be taken into account while identifying the hearing date, duration and schedule taken into consideration.
  • Under the AAA Guide, a trial run shall be held with the technicians at least one week before the hearing.11 Similarly, Annex I to the ICC Guidance Note provides that a preliminary check shall be performed on the compatibility of selected platform and technology to be used for the virtual hearing in order to ensure that everything is in order in terms of technical issues. At least two trial runs shall be held within the month preceding the hearing in order to test connectivity and streaming, with the last session being held one day before the hearing. Furthermore, written statements will be obtained from the parties or their counsel prior to the hearing stating that the tested platform and technology are adequate as tested. The parties will be advised as to their duty to cooperate on technical matters that may occur prior to and during the virtual hearing.
  • The parties' agreement as to the proceeding being conducted through a virtual hearing shall be confirmed or, in the absence of the parties' agreement, the legal basis of conducting the process by means of a virtual hearing shall be determined. Otherwise, the recognition or enforcement of the arbitral award may face some obstacles.12
  • Whether or not a 360-degree view is necessary for all rooms that the participants are in shall be agreed upon prior to the hearing. Moreover, logistical arrangements shall be made, such as preparing the virtual break out rooms in which the arbitrators and parties may, if necessary, confer privately amongst themselves during the hearing and identifying all points of connection. At the beginning of the hearing, all participants present in the virtual room shall be identified and their presence shall be verified. In addition, it is important for the arbitral tribunal to decide which participants will be in the same physical venue, taking into account the risks of the pandemic and social distancing measures because, if one of the parties has the ability to appear in the same room as the factual or expert witnesses, while the other does not have this ability due to the risks associated with the pandemic, this might violate the right to a fair trial.13
  • Upon their consultation, the arbitral tribunal and the parties may decide that the virtual hearing will remain private and confidential to the participants, or to make the hearing public and to allow outside participants to access the platform.14 In the meantime, in terms of confidentiality and privacy, whether or not the virtual hearing can be recorded and the minimum requirements of encryption in case of any illicit access will be agreed to.
  • Providing the use of an electronic hearing bundle (e-bundle) hosted on a shared document platform that all participants can access is often considered beneficial.
  • Efficient access to relevant documents is necessary to secure the flow of the hearing and to avoid the lack of communication with the arbitral tribunal.15
  • If any factual witness or other participants require the use of an interpreter, the arbitral tribunal, in consultation with the parties, shall determine whether interpretation services shall be simultaneous or consecutive. In practice, it is argued that in terms of virtual hearings held via video conference, simultaneous interpretation may not be an appropriate method, taking into account the technical malfunctions that may occur in video, audio or internet connection, and that simultaneous interpretation shall be adopted only if the arbitral tribunal concludes that it may be efficient and useful, after conducting trial runs prior to the hearing.16
  • Determining the procedure for the taking of evidence from factual witnesses is critical for the integrity of factual witness' statements. There shall be an agreement on whether or not the factual witnesses shall be alone in the room during the testimony, whether or not they can have before them marked documents with prepared explanations related to the case file and, if agreed to, how this will be monitored.17 In order to be able to monitor the integrity of the factual witness' statements, it is recommended to have a rotating camera that allows the environment in which the factual witness is located to be observed,18 or a camera to be positioned to show a reasonable amount of the said environment.19 The order of calling and examining the factual and expert witnesses and their connection time and duration of availability shall be determined. In order to ensure that the integrity of any oral factual witness statements is preserved, as well as communication between factual witnesses and parties/counsel during the hearing, the principles of interaction between the examiner arbitrator and the factual/expert witness in a virtual environment will be taken into account. In this context, for example, under Article 1.3 of the Seoul Protocol, the factual witness shall give his/her statements seated at a cleared desk or standing.20 The ICC Guidance Note, however, has no regulation on this issue.

ISTAC's Rules and Procedures for Virtual Hearing

The ISTAC Online Hearing Rules and Procedures determine the rules and principles applicable when it is decided that the hearings will be held virtually upon the request of any party, or upon the approval of the arbitral tribunal, during arbitration proceedings, subject to the ISTAC Rules. These rules and procedures are comprised of ten articles and include provisions on fundamental principles, such as the hearing preparations, hearing the participants and the right to be heard at the hearing.

Hearing participants shall provide themselves with the technical equipment required for their participation in the hearing and the security of the place in which they are located. At the request of the arbitral tribunal or the parties, just like the ICC, the ISTAC Secretariat will, as well, provide technical support for the hearing, within its means (Art. 3).

In order to respect the confidentiality of the arbitration proceeding, the parties shall notify the arbitral tribunal of the hearing participants and, during the hearing, no third party, other than those notified and permitted by the arbitral tribunal may attend the hearing (Art. 4). Even if they are not in front of the camera, any third party other than those notified or permitted, who is witness to the hearing will violate both the ISTAC Online Hearing Rules and Procedures and the principle of confidentiality of the arbitration proceeding.21 Information that will be provided to the arbitral tribunal prior to the hearing includes the credentials of the interpreters who will be used if deemed necessary (Art. 9). Under Article 10(3) of the ISTAC Online Hearing Rules and Procedures, it is forbidden to record any visuals or audio during any stage of the hearing, without the approval of the sole arbitrator or the arbitral tribunal.

Another important issue that is explicitly regulated under the ISTAC Online Hearing Rules and Procedures is the right to be heard at the virtual hearing. In cases where the arbitral tribunal is convinced that one of the parties' right to be heard has been violated, it may end the hearing at any time by giving its reasons for doing so (Art. 7). In addition, the factual or expert witness being heard during the hearing shall be present in front of the camera with their face clearly visible (Art. 8). Observing these individual's gestures and facial expressions during the testimony is important for the arbitral tribunal's assessment. Therefore, it is not possible for the factual or expert witnesses to attend the hearing only by way of audio transmission.22

Matters to be Considered at a Virtual Hearing

Unlike physical hearings, it is crucial to be fully prepared for possible technical problems, such as disconnection, as well as problems related to the confidentiality and cyber security, in terms of virtual hearings. In this regard, the arbitral tribunal and the parties shall pay attention to the following issues, before and during the virtual hearing.

Confidentiality and Cyber Security

Confidentiality of the hearing and data privacy are the primary issues in terms of virtual hearings. The arbitral tribunal should ensure that any video sharing platform that is used for virtual hearings is licensed and that maximum security settings will be set by consulting the parties.23 Use of equipment that interferes with connectivity or allows illicit recording must be avoided. To preserve confidentiality, for example, technical restrictions may be envisaged by the arbitral institutions or service providers to prevent access to the virtual hearing venue before the hearing commences.24

For audio or visual recordings of the hearings, the parties shall definitely be informed of the recording and their explicit consent shall be obtained.25 At this point, it is necessary to take some measures, such as carefully managing the use of e-mail or WhatsApp and other similar applications during the proceeding, in order not to disclose the recorded hearings and to prevent any harm to the parties.26 With the aim of ensuring compliance with the data privacy regulations and ensuring the implementation of the adequate measures, the ICC Guidance Note proposed the preparation of a "Cyber-Protocol" between the arbitral tribunal and the parties regarding the protection of the confidentiality of the hearing and the electronic document platform within the arbitration proceedings. Annex II to the ICC Guidance Note includes suggested clauses for inclusion in the said protocol.27

Integrity of Factual Witness' Statements

In a virtual hearing environment, the arbitral tribunal may not have the same opportunity as in a physical hearing, to analyze the factual witness' body language or their answers to the questions.28 At this point, it may be necessary to take some measures to ensure the integrity of the factual witness' statements. For example, upon the parties' agreement or the arbitral tribunal's order, it may be decided that the camera of the factual witness giving evidence shall have a 360-degree visual angle, or that there shall be two cameras positioned one in front and one behind the factual witness, and/or that an supervisor shall be present in the room where the factual witness is giving evidence during the testimony.29 For example, in cases where the factual witness' connection is lost due to "technical malfunctions" during the testimony just after a critical question was addressed, or where it is obvious that the factual witness is being directed by the opposing party's counsel, it may be agreed not to take into consideration the factual witness' statement, at the expense of time and money.30

Order and Etiquette of Virtual Hearings

Scientific evidence has revealed that for various reasons virtual hearings progress more slowly than physical hearings and are more taxing on all participants. Therefore, while determining the timetable and schedule of the hearings, it may be beneficial to factor in the extra time and add frequent breaks, in terms of preventing possible delays and the healthy progress of the hearing.31

Under Article 5 of the ISTAC Online Hearing Rules and Procedures, during the hearing, only one person is permitted to speak at any one time and the participant seeking to speak, shall do so by permission of the arbitral tribunal. Similarly, under Annex I to the ICC Guidance Note, non-interruption of the speaker and observing reasonable and responsible use of the platform and bandwidth, are required during the hearing. In addition, the screens and cameras of the participants shall be carefully positioned in a way that allows them to appear to be looking at the camera. Otherwise, the appearance of looking away from the camera may be distracting for the other participants and it may cause the participant to appear as if they are not paying attention to the arbitration proceeding.32

Although participants may join the virtual hearing from their home, it is important that they dress professionally, their children or pets are not seen on the camera, they do not appear as a dark silhouette on the screen and well-position the lighting (for example, not to sit in front of a window receiving bright light) so that their faces can easily be detected.33

Footnotes

1. Joint Statement, Arbitration and COVID-19. Please click the following link to access the Joint Statement: https://iccwbo.org/content/uploads/sites/3/2020/04/covid19-joint-statement.pdf

2. Presidency of Administrative Affairs General Directorate of Law and Legislation, Fundamental Notions, Regulations and Recent Developments Regarding Arbitration (Tahkime İlişkin Temel Kavramlar, Düzenlemeler ve Güncel Gelişmeler), 44. Please click the following link to access the release: https://www.mevzuat.gov.tr/MevzuatMetin/Publications/TAHK%C4%B0M%20K%C4%B0TABI/TAHK%C4%B0ME%20%C4%B0L%C4%B0%C5%9EK%C4%
B0N%20TEMEL%20KAVRAMLAR,%20D%C3%9CZENLEMELER%20VE%20G%C3%9CNCEL%20GEL%C4%B0%C5%9EMELER.pdf

3. Seda Özmumcu, Istanbul Law Review, Istanbul University Press, Online Arbitration and its Applications in the Context of Online Dispute Resolutions in the World and Our Country (Dünyada ve Ülkemizde Online Uyuşmazlık Çözümleri Bağlamında Online Tahkim ve Uygulamaları). Please click the following link to access the research article: https://dergipark.org.tr/en/download/article-file/1351647

4. Please click the following link to access the ISTAC Online Hearing Rules and Procedures:

https://istac.org.tr/en/dispute-resolution/arbitration/istac-online-hearing-rules-and-procedures/

5. Please click the following link to access the news article regarding ISTAC Online Hearing Rules and Procedures' global leadership: https://www.dunya.com/ekonomi/istanbul-tahkim-merkezinden-dunyada-bir-ilk-haberi-468601

6. International Court of Arbitration, ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic, para. 31. Please click the following link to access the ICC Guidance Note: https://iccwbo.org/content/uploads/sites/3/2020/04/guidance-note-possible-measures-mitigating-effects-covid-19-english.pdf

7. Janet Walker, Virtual Hearings: An Arbitrator's Perspective, 2. Please click the following link to access the article: https://a.storyblok.com/f/46533/x/f51aefc9b6/virtual-hearings-an-arbitrator-s-perspective.pdf

8. ICC Guidance Note, paras. 31-33

9. Please click the following link to access the ICC Hearing Centre Virtual Hearing Enquiry: https://iccwbo.org/content/uploads/sites/3/2020/12/icc-virtual-and-hybrid-hearing-solutions.pdf

10. King & Chang, Virtual Hearing in International Arbitration. Please click the following link to access the article: https://www.kimchang.com/en/insights/detail.kc?sch_section=4&idx=21549

11. AAA-ICDR, Virtual Hearing Guide for Arbitrators and Parties,Preparing for the Virtual Hearing, 1. Please click the following link to access the AAA Guide: https://go.adr.org/covid-19-virtual-hearings.html

12. King & Chang, 1; Legal Compass, Due process in virtual arbitrations: when two worlds collide, 2-3. Please click the following link to access the article: https://www.thelegalcompass.co.uk/post/due-process-in-virtual-arbitrations-when-two-worlds-collide

13. Troutman Pepper, Virtual International Arbitration and the COVID-19 Pandemic: One Institution's Approach. Please click the following link to access the article: https://www.troutman.com/insights/virtual-international-arbitration-and-the-covid-19-pandemic-one-institutions-approach.html

14. Annex I to ICC Guidance Note, C(i)

15. Reed Smith Client Alerts, Practical tips for successful virtual trials and hearings. Please click the following link to access the article: https://www.reedsmith.com/en/perspectives/2020/10/practical-tips-for-successful-virtual-trials-and-hearings

16. International Institute for Conflict Prevention & Resolution, NEW: CPR's Annotated Model Procedural Order for Remote Video Arbitration Proceedings. Please click the following link to access the article: https://www.cpradr.org/resource-center/protocols-guidelines/model-procedure-order-remote-video-arbitration-proceedings

17. Stewarts, A GC's Guide to 'Virtual' arbitration and the issues to think about. Please click the following link to access the article: https://www.stewartslaw.com/news/a-gcs-guide-to-virtual-arbitration-and-the-issues-to-think-about/

18. Janet Walker, 2

19. Vinson & Elkins, Challenges and Opportunities of Virtual Hearings in International Arbitration, 2. Please click the following link to access the article: https://www.velaw.com/insights/challenges-and-opportunities-of-virtual-hearings-in-international-arbitration/

20. Please click the following link to access the Seoul Protocol on Video Conferencing in International Arbitration: file:///C:/Users/merdem/Downloads/Seoul%20Protocol%20on%20Video%20Conference%20in%20International%20Arbitration.pdf

21. RA. Ahmet Dülger, Conducting Virtual Arbitration Hearings: Examination of ISTAC Rules and Abu Dhabi Arbitration Center Rules (Tahkim Duruşmalarının Online Yapılması: ISTAC ve Abu Dabi Tahkim Merkezi Kuralları İncelemesi), 128. Please click the following link to access the article: http://openaccess.ihu.edu.tr/xmlui/bitstream/handle/20.500.12154/1228/sempozyum5.pdf?sequence=1&isAllowed=y

22. Ibid., 129

23. ICC Guidance Note, para. 32

24. Shook Hardy & Bacon, Virtual Hearings in International Arbitration, 10. Please click the following link to access the article: file:///C:/Users/merdem/Downloads/Checklist_Int_Arbitration_COVID19.pdf

25. Stephenson Harwood, Virtual Arbitration Hearings; Top 10 Tips. Please click the following link to access the article: https://www.shlegal.com/news/virtual-arbitration-hearings-top-10-tips

26. Stewarts

27. ICC Guidance Note, paras. 26-27

28. Vinson & Elkins; Jason Hambury, Coronavirus 'will speed up the adoption of virtual arbitrations', Pinsent Masons. Please click the following link to access the article: https://www.pinsentmasons.com/out-law/analysis/coronavirus-speed-adoption-virtual-arbitration

29. Stephenson Harwood, 4

30. Legal Compass, 3; Diganth Raj Sengal, Problems that arise in virtual cross-examination especially in an arbitration proceeding, iPleaders. Please click the following link to access the article: https://blog.ipleaders.in/problems-arise-virtual-cross-examination-especially-arbitration-proceeding/

31. Judicial College, Good Practice for Remote Hearings, 2. Please click the following link to access the article: https://www.judiciary.uk/wp-content/uploads/2020/03/Good-Practice-for-Remote-Hearings-May-2020-1.pdf

32. Lexis Nexis, Advocacy in virtual arbitration hearings – a practical guide. Please click the following link to access the article: https://www.lexisnexis.co.uk/blog/covid-19/advocacy-in-virtual-arbitration-hearings-a-practical-guide

33. Ibid.; Judicial College, 2

© Kolcuoğlu Demirkan Koçaklı Attorneys at Law 2020

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.