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Rethinking The Practicalities Of Arbitration In The Age Of A Pandemic

In an age when Social Distancing is the new normal and the gospel for survival, its reverberation and impact can be seen in almost all possible walks of life. The biggest challenge that one needs to face at this juncture is to be able to successfully cope with the challenges that the present situation has to offer. Ever since the outbreak of COVID-19, the world has come to a sudden halt and has consistently been striving to find a way to get the situation back to normal.

The basic object of arbitration can be said to provide the parties to a dispute a speedy and efficacious remedy without the rigors of law[1]. Hence, the laws governing arbitration were always formulated in a manner to keep the convenience of the parties as its priority as far as possible. Further, most disputes which can be arbitrated upon are civil in nature and hence the settled principle of civil law of balancing the convenience of both the parties is also taken into account[2].

Thus, while determining the venue of arbitration it must be finalized by a mutual agreement between the parties. On several occasions, it has been found that the party which is in a dominant position tends to dictate the venue of arbitration and it is thrust upon the opposite party. Such factors only contribute to causing hardship and in our opinion, it deters the ultimate goal of an arbitral proceeding. As it had been aptly pointed by Lord Chief Justice Hewart, justice should not only be done but should manifestly and undoubtedly be seen to be done [3],which in most cases stand grossly defeated today by keeping such coercive terms[4].

Arbitration In The Current Scenario

It is often found that most arbitration agreements come with a pre-determined seat and venue. However, when we delve further and speak of an extraneous situation such as the present situation amidst COVID-19, the preliminary issue that emanates is as to how the parties can honor the venue of arbitration as had been agreed upon mutually between the parties when they entered into an agreement and continue the arbitral proceeding without delay.

It is indeed a sad reality wherein, the arbitral proceedings are taken recourse to by humungous companies which tend to designate such venues or choose arbitral institutions which by default comes with extravagant venues that further the stature of the company in a dispute[5].

However, in the present era of technological advancement, it is indeed saddening to note that the existing legal framework of our country only enables parties to enter into an arbitration agreement to refer their existing or future disputes to arbitration through the exchange of emails[6],but the Act leaves a lacuna by not making any provisions to carry out arbitral proceedings virtually or enabling online institution of arbitral proceedings[7].

With the outbreak of COVID-19, the arbitral institutions across the world have taken a lead and paved the path to deal with disputes referred to them by virtual hearing thereby ensuring that the disputes are not kept unnecessarily stalled for long. In this regard, it becomes apt to take note of the joint statement which was issued on April 16, 2020 by the International Federation of Commercial Arbitration Institutions and other leading arbitral institutions such as Hong Kong International Arbitration Centre,Singapore International Arbitration Centre, London Court of International Arbitration etc.

wherein they have emphasized on the need for cooperation between various stakeholders inter-alia, the parties, the arbitrator(s), the arbitral institution as the case may be and devise techniques that may allow virtual hearing facilities without parties travelling to the venue, keeping in mind the social distancing measures and enforcing restrictions on travel.

Most of the leading arbitral institutions of the world that were a part of the joint statement have unanimously agreed to make virtual hearings the norm for all pending disputes with adequate cyber-security measures, the parties too have been directed to communicate through email and telephone and adhere to the prescribed time-frame and the communication of awards too has been directed to be done by issuing virtual copies[8]. These institutions have also paved the path for initiating fresh arbitration applications as well as for entertaining emergency applications for the commencement of arbitral proceedings through email[9].

The Present Indian Scenario & The Road Ahead

Most of the major arbitral institutions of the world have been receptive to the present scenario and have accordingly amended their rules, in order to meet up with the unprecedented situation that has been caused as a result of the pandemic. But, closer home, the arbitral institutions in India such as the Indian Council of Arbitration, the Delhi International Arbitration Centre and the Mumbai Centre for International Arbitration are yet to make any move to make arbitral proceedings virtual, a reality.

These institutions were formed to promote the culture of arbitration in India and to facilitate the expedited resolution of disputes but, they have not adapted to the new normal, which arbitral institutions internationally have adapted, is indeed a step backward. The Arbitration & Conciliation Act, 1996, was amended in 2019 which led to the establishment of the Arbitration Council of India with the aim to adopt measures to facilitate arbitration in India[10].

The Council however, till date has not been able to formulate any mechanism for online initiation of proceedings, conduct of proceedings remotely. If we now look at arbitral proceedings taking place in Arbitral Tribunals in India which are either constituted by the court or by the parties, such tribunals in India do not have any provisions for carrying out arbitral proceedings virtually.

However, one cannot blame such tribunals for they derive their power from the Arbitration & Conciliation Act, 1996. Since the Act till date is silent as to the aspect of virtual proceedings, the Courts too have their hands tied and they cannot direct proceedings to be carried out online.For doing so, it would mean that the court while constituting such tribunal travelled beyond the scope of the legislation and such a move by the court, would therefore be regarded as bad in law.

The need of the hour is to bring in amendments to the Arbitration & Conciliation Act, 1996, to recognize virtual or remote institutions of arbitral proceedings, online hearings to constitute the arbitral tribunal and finally creating a legislative framework to enable virtual or remote hearing of the arbitral proceedings and delivery of the award virtually. The Arbitration Council of India should exercise its powers in a manner to promote virtual proceedings and should encourage arbitral institutions and arbitrators to be able to adapt to such mode of arbitration.

Finally, the Arbitral Institutions in India should amend their rules thereby relaxing the provision as to the venue of arbitration and should take a liberal stand offering parties to carry on all existing proceedings virtually which would enable the institutions go a long way by not only being able to honour the time frame but also expedite the process which is one of the paramount objectives of an arbitral proceeding.

These institutions should make provisions for online institutions for new disputes and should devise mechanisms to manage such disputes effectively.
In the international arena, institutions such as American Arbitration Association-International Centre for Dispute Resolution provides for Virtual Hearing by Videoconference, as well as establishes a professional practice training document for arbitrators and parties[11].

The Hong Kong International Arbitration Centre also provides an opportunity for automated hearings through their comprehensive interactive hearing facilities[12].
The International Chamber of Commerce too tends to use a video sharing platform which is used for virtual hearings and is licensed to ensure the greatest possible security. The Guidance Note also sets out the 'Suggested Provisions for Cyber-Protocols and Procedural Orders Dealing with the Operation of Virtual Hearings' with the necessary security[13].


Video Conferencing Of Arbitral Proceedings: The Safeguards & Challenges

The 7th Asia Pacific ADR Conference, held in Seoul, Korea on 5-6 November 2018, wherein an extensive discussion on the viability of using video conferences for conducting arbitral proceedings was taken up[14].

The Conference at the outset went on to discuss some of the key challenges that such virtual proceedings could be faced with. Taking a detailed note of the major issues which could arise in the process, the Seoul Protocol (hereinafter referred to as Protocol) was formulated by a panel of experts and practitioners, who compiled and synthesized the best practices for planning, testing and performing video conferencing for international arbitrations and also took note of the problems which may arise as a result of this process and went on to formulate a two-fold mechanism to deal with issues of hacking and confidentiality as well as formulating safeguards to uphold the due process of law as far as practicable.[15]

The key issues that were identified are as follows:

  • Possible Hacking and Issues of Confidentiality
    It has often been found that in international arbitral proceedings, cyber security violations often tend to occur in such virtual proceedings. For instance, during the 2015 Philippines-China territorial dispute, the hackers reportedly attacked the Philippines Department of Justice, a law company representing the Philippines, and the website of the Permanent Court of Arbitration. Articles 2.1(c) and 2.2 of the Protocolspecifically addressed the possibility of a breach of security and recommended that the connection to a videoconference be adequately protected. They have put forth the responsibility for the parties to make the best of their actions and ensure the health of the videoconferencing participants[16].
  • Ensuring the Due Process of Law Might be a Problem
    Article 2.1(c) of the Protocol ensures that the parties have an equal opportunity to present their case during the examination of the witness, since it provides that the videoconferencing venue is located in a neutral location which gives the parties concerned a fair , equal and reasonable right of access. In fact, Article 4.1 of the Protocol guarantees that the hearings are transparent by requiring all relevant documents to be specifically identified and revealed. Article 3.1 of the Protocol tackles the problem of witnesses being manipulated by off-screen people, since it allows all the parties in the videoconferencing venue to be applicable to the hearing and recognized at the outset of the videoconferencing[17].
  • Witness Tutoring
    A major factor that deserves consideration is that of witness tutoring, which can be performed in the context of a document that could have been written prior to the trial or with directions from a third party during the testimony. These aspects may be present or located inside the hearing room, where the camera may not be focused. However, it is relatively easier to trace the true character of a witness during an in-person hearing[18], whereas in virtual hearings it remains essential to ensure that the witnesses are not involved in acts that would undermine the credibility of their statements[19].


Conclusion
It is thus apt to say that, the time is ripe for our country to pilot an extensive restructuring of the arbitral process in our country. To this end, the newly established Indian Council of Arbitration could play a major role by initiating a twofold reform.

Firstly, a thorough amendment should be brought in the Arbitration and Conciliation Act, 1996 giving express recognition for carrying out arbitral processes virtually as well as allowing virtual filings which would largely ensure that the arbitral proceedings are not unduly stalled and the time frame can be adhered to and thus uphold the objective of speedy disposal of disputes.

Secondly, the Council should take steps to ensure that all the arbitral institutions design their case management mechanism which not only allows virtual filings but also virtual hearings and delivering of the award virtually while keeping in mind the various safeguards that the Seoul Protocol has recommended.

If such reforms can be made, it shall not only go a long way in effectively dealing with the present situation which has arisen as a result of the pandemic but also, it would help in harmonizing the arbitral system of our country with the established and most sought after global standards thereby making the goal to make India a global arbitration hub in the near future a reality.

End-Notes:

  1. Dr. P.C. Markanda, Naresh Markanda& Rajesh Markanda, Law Relating to Arbitration & Conciliation 35 8th ed 2013 LexisNexis.
  2. ONGC Ltd. v. Oil Country Tubular Ltd., 2011 SCC OnLineBom. 426.
  3. R v. Sussex Justices, ex parte McCarthy, [1924] 1 KB 256.
  4. Dolphin Drilling Ltd. v. M/s. Oil and Natural Gas Corporation Ltd.,(2010) 3SCC 267.
  5. Id.
  6. The Arbitration and Conciliation Act, 1996, 7, No. 26, Acts of Parliament, 1996 (India).
  7. Atish Chakraborty, Online Arbitration Model: A Need of the Hour, 4 Cal. LT 14, 28 (2019).
  8. Janet Walker, Virtual Hearings: An Arbitrator's Perspective,Int-Arb Arbitrators (June 05, 2020,10:54 AM), https://int-arbitrators.com/wp-content/uploads/2020/03/Virtual-Hearings-An-Arbitrators-Perspective.pdf. (hereinafter Janet Walker)
  9. Id.
  10. The Arbitration and Conciliation Act, 1996, 43D(1), No. 26, Acts of Parliament, 1996 (India).
  11. Covid19-flattening the curve,https://go.adr.org/covid19-flattening-the-curve.html (last visited May 10, 2020).
  12. Online Dispute Resolution: Now and the Future, https://www.hkiac.org/events/online-dispute-resolution-now-and-future (last visited May 12, 2020).
  13. ICCA-IBA Joint Task Force on Data Protection in International Arbitration Proceedings, https://www.arbitration-icca.org/projects/ICCA-IBA_TaskForce.html (last visited May 12, 2020).
  14. The Seoul Protocol on Videoconferencing and the Coronavirus (COVID-19) Pandemic, https://www.jdsupra.com/legalnews/the-seoul-protocol-on-videoconferencing-89404/ (last visited May 10, 2020).
  15. Jiyoon Hong, Safeguarding the Future of Arbitration: Seoul Protocol Tackles the Risks of Videoconferencing, (May 12, 2020, 9:40pm), http://arbitrationblog.kluwerarbitration.com/2020/04/06/safeguarding-the-future-of-arbitration-seoul-protocol-tackles-the-risks-of-videoconferencing/. (hereinafter Hong)
  16. Id.
  17. Hong, supra note 15.
  18. Janet Walker, supra note 8.
  19. Vivek Joshi & Rohan Gulati, Steering Virtual Arbitration Hearings in the Right Direction, NLUJ Law Review Blog (May 25, 2020, 10:10am), http://www.nlujlawreview.in/steering-virtual-arbitration-hearings-in-the-right-direction/.

Written By:

  1. Mr. Atish Chakraborty is a Fifth Year Law Student at Amity Law School, Kolkata specializing in Intellectual Property Law and
  2. Mr. Aurin Chakraborty is a First Year Law Student at Symbiosis Law School, Noida.

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