Challenges in International Arbitration

SINCElast year, I’ve been part of a few discussions with arbitral institutions on international arbitration. One of these discussions is with the Singapore International Arbitration Centre (SIAC). Just last week, SIAC conducted a webinar on “Strategies on Virtual Hearing” in conducting arbitration proceedings. The purpose of this discussion is for international arbitration practitioners and arbitrators to share practical tips and guidance on the conduct of virtual hearings. Due to the pandemic many arbitral hearings involving Filipino parties have been held virtually to ensure expeditious resolution of disputes.

Consequently, the SIAC proposed t hat counsels i n arbitration proceedings should consider the legal framework for virtual hearings, and also the strategic and technical issues involved in the preparation and conduct of evidentiary hearings.

Additionally, arbitrators should consider issues of due process and allow all parties fair and reasonable opportunities to present their cases so that the integrity of the arbitral proceedings and the eventual award are protected.

The panelist during t he webinar discussed their respective experiences in virtual hearings and shared how challenging it is especially when there are problems in internet connection. Differences in time zones are also a challenge. They also discussed that parties should make an agreement whether they would proceed on a document-only basis or virtual hearings.

The most challenging part of virtual hearings is conducting the evidentiary hearing. The SIAC has already applied the SIAC Rules 2016 on Expedited Procedure. They identified and agreed on what service provider to be used. They also explored other methods of conducting expert witness conferencing by way of a video facility.

So what are the i mportant considerations in virtual hearing?

There are a lot, actually. The tribunal should consider the time and cost. It should consider if virtual hearing is feasible in a certain case and the ability of the parties to present their case virtually. This includes the time-zone differences of the participants because they are located in different geographical locations.

The relevant technology should be well- organized t o i nsure that parties have uninterrupted hearing. There should be order in the communication to ensure that parties do not speak over each other. However, there will be times that parties will be disconnected so the tribunal should consider solutions on how to address this matter – who to contact or follow up, or take few minutes to wait for the reconnection.

They should also address the data privacy concerns and on how they can take evidence. There is this so-called zoom-bombing where hackers could crash the hearing thus interrupting the hearing. It is important to set precautions on cybersecurity to ensure the security of the case.

For everyone’s information, the term “zoom-bombing” refers to an unwanted, disruptive intrusion by hackers into a video conference call.

We are now living in the “new normal.” And this kind of hearing is also the “new normal” in handling arbitration proceedings. This will continue in few more months or even years. As the days pass by this should be refined and improved because we never know if when we are going back to what we used to or if we will entirely embrace this “new normal.”/