Series
Blogs
23 March 2020
The spread of COVID-19 is obviously affecting the way in which companies conduct international business. It will also impact the way in which they resolve their disputes.
While procedural hearings by teleconference and remote witness testimony are well-known in arbitration, the arbitration world may have to adapt to much more extensive use of remote communication, both during and outside of formal hearings.
The most recent and most substantial attempt to develop guidance on this is the Seoul Protocol on Video Conferencing in International Arbitration (available here). The Protocol is not a hasty reaction to the current public health crisis; it has been under discussion among arbitration practitioners since 2018. While it focusses on witness examination and is not designed to be a comprehensive guide to conducting arbitration remotely, it contains a range of useful advice.
The Protocol contains nine articles on video conferencing in arbitration, which are summarised below:
Comment
The Protocol is a welcome first step in establishing international standards for video conferencing in arbitration. It is not, and nor does it purport to be, a comprehensive guide to conducting remote arbitration during a prolonged period of travel restrictions. The arbitration community will have to address a number of important questions not considered in the Protocol, including the following:
As with all arbitral practice, the best guidance will be gained through experience, which will inevitably involve some trial and error. This experience will start to emerge over the coming weeks. One of the world’s largest arbitrations, and best training ground for junior practitioners, the Vis East Moot will be conducted entirely online shortly. One of the Vis East Moot’s new requirements is that participants “solemnly promise” that they are not receiving external assistance while presenting their arguments. This is designed to ensure the integrity of a student competition, but similar concerns might conceivably arise regarding counsel assisting a witness. Lessons will be drawn from litigation too: the UK’s first fully online Commercial Court trial (in which Linklaters is acting as counsel) is due to take place in late March.
While today’s technological standards will enable the arbitration community to accommodate an increasing number of virtual hearings, practitioners will need to be mindful of the cybersecurity implications that this opportunity for technical innovation brings. Now more than ever, the arbitration community should take heed of the guidance on establishing reasonable cybersecurity measures in arbitration, as set out in the 2020 Cybersecurity Protocol for International Arbitration.
While there will no doubt be frustrations, the arbitration community is well-equipped to deal with this challenge. Tinkering with procedure and learning from bitter experience is in the arbitration community’s DNA: it has been a feature of the system for decades