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. 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
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 ,which in most cases stand grossly defeated
today by keeping such coercive terms.
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.
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,but the Act leaves a lacuna by not making any provisions to carry out
arbitral proceedings virtually or enabling online institution of arbitral
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. 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.
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
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.
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.
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.
The Hong Kong International Arbitration Centre also provides an opportunity for
automated hearings through their comprehensive interactive hearing
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.
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.
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
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
- 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.
- 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, 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.
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
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
- Dr. P.C. Markanda, Naresh Markanda& Rajesh Markanda, Law Relating to
Arbitration & Conciliation 35 8th ed 2013 LexisNexis.
- ONGC Ltd. v. Oil Country Tubular Ltd., 2011 SCC OnLineBom. 426.
- R v. Sussex Justices, ex parte McCarthy,  1 KB 256.
- Dolphin Drilling Ltd. v. M/s. Oil and Natural Gas Corporation
Ltd.,(2010) 3SCC 267.
- The Arbitration and Conciliation Act, 1996,§ 7, No. 26, Acts of
Parliament, 1996 (India).
- Atish Chakraborty, Online Arbitration Model: A Need of the Hour, 4 Cal. LT
14, 28 (2019).
- 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)
- The Arbitration and Conciliation Act, 1996,§ 43D(1), No. 26, Acts of
Parliament, 1996 (India).
- Covid19-flattening the curve,https://go.adr.org/covid19-flattening-the-curve.html (last
visited May 10, 2020).
- Online Dispute Resolution: Now and the Future, https://www.hkiac.org/events/online-dispute-resolution-now-and-future (last
visited May 12, 2020).
- 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).
- 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).
- 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/.
- Hong, supra note 15.
- Janet Walker, supra note 8.
- 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/.
- Mr. Atish Chakraborty is a Fifth Year Law Student at Amity Law School, Kolkata
specializing in Intellectual Property Law and
- Mr. Aurin Chakraborty is a First Year Law Student at Symbiosis Law School, Noida.