Virtual reality: are remote hearings too risky?

Are remote hearings another pandemic phenomenon soon to be gathering dust along with our virtual backgrounds, peloton bikes and sourdough starters, or are they here to stay?

Introduction

In early 2020, businesses around the globe ushered in a new era of remote working practically overnight. This included tribunals and courts switching to remote hearings on a scale never attempted before.  Given the cross-border nature of international arbitration, remote hearings became especially important in international arbitration.

With the world now learning to live with COVID and seeking the "new normal", this article examines the rapid transition to remote arbitration hearings and whether there could be any knock-on effects for the enforceability of arbitral awards.

We do not expect arbitration practitioners and tribunals to turn their back, once the pandemic subsides, on the cost savings and efficiencies that remote hearings offer.  Remote hearings (either fully remote or partial/hybrid hearings) will remain a popular option and suitable for many disputes.  Parties will, however, need to consider how to safeguard the fairness and enforceability of each arbitration to ensure that use of remote technology does not create additional legal risk.

Transition to remote hearings in international arbitration

Remote hearings are not a novel concept in the international arbitration community.  International arbitrations (notably those arising from major energy or construction projects) will often involve many participants from far-flung locations across the globe.  

Prior to the pandemic, parties and arbitrators would sometimes agree to conduct aspects of a case remotely (such as case management conferences) for reasons of cost or convenience. However, for substantive matters and merits hearings, physical (i.e. in-person) hearings remained overwhelmingly the norm. While on occasion the evidence of individual witnesses (often less critical ones) would be heard via remote technology, this was usually as far as it went.

This suddenly changed in 2020, when the pandemic triggered a shift to fully remote evidentiary/merits hearings.  A further trend emerged of "hybrid" or "hub" hearings (i.e. partly remote and partly in-person).

In many cases, these arrangements were put in place with the consent of all parties and the Tribunal.  But if one or more parties do not agree to a remote hearing, how should the arbitration proceed?

Procedural fairness and the parties’ right to be heard

Procedural flexibility is one of the cornerstones of international commercial arbitration. In most instances, parties are provided the opportunity to shape the procedure of their arbitration to their own needs, as long as the parties’ agreed arbitral procedure does not violate mandatory rules of procedural fairness and equality.

The right of a party to present its case is a fundamental concept in arbitration law.  Failure to observe this requirement can leave arbitral awards liable to be set aside or rendered unenforceable.  Most notably, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards provides that recognition and enforcement of awards may be refused where the "party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case":  Article V(1)(b).

Similarly, the UNCITRAL Model Law on International Commercial Arbitration (on which many national arbitration laws are based) provides that an award may be set aside upon proof that a party was "unable to present his case":  Article 34(2)(a)(ii).  In addition, "parties shall be treated with equality and each party shall be given a full opportunity of presenting his case" (Article 18).  In some cases, this requirement has been modified (or is interpreted) to require that a party have a "reasonable opportunity" to present its case:  for example, in Australia, see International Arbitration Act 1974 (Cth) (IAA), s 18C.

In some jurisdictions, including Singapore, there is an additional ground of challenge for a breach of natural justice (i.e. "a breach of the rules of natural justice occurred in connection with the making of the award by which the rights of any party have been prejudiced":  International Arbitration Act 1994 (Singapore), s 24(b)).

Even in jurisdictions which have not adopted the UNCITRAL Model Law (including the United Kingdom and France), there are typically similar requirements of equality and due process contained in national arbitration statutes.[1]  In addition, many of the major arbitral rules contain provisions along similar lines.[2]

Right to a physical hearing?

Most national arbitration laws have no specific prohibition on conducting hearings by telephone or videoconference.  

The International Council for Commercial Arbitration (ICCA) conducted a survey of 78 New York Convention jurisdictions during the pandemic, which found that none featured an express right to a physical hearing.[3]  In a small number of jurisdictions, there may be an implied right to a physical hearing.[4]

However, in a majority of jurisdictions, if the tribunal decides to hold a remote hearing contrary to the parties’ agreement, this may provide grounds for setting aside the award.[5] In some jurisdictions, this ground is only available where the violation of the parties’ agreement has had a material impact on the outcome of the case or caused substantial injustice.[6]

There is no "one size fits all approach" across jurisdictions.  It is essential that parties and their legal representatives consider the position in each relevant jurisdiction on a case-by-case basis.

Australian position

In Australia, international arbitration is governed by the IAA, which implements the UNCITRAL Model Law.

There is no express right in the IAA to a physical hearing for arbitrations seated in Australia.  Beyond upholding the express rights that parties have to be treated “with equality” and given a “reasonable opportunity to present [their] case”,^[7] arbitral tribunals have a broad discretion to conduct proceedings in the manner they consider “appropriate”.[8] It follows that the arbitration proceedings may be conducted by a physical hearing, a remote hearing, on the papers, or some combination thereof, as may be appropriate in the particular circumstances of the case.

1. Remote arbitration hearings

Even before the pandemic, Australian courts had rejected challenges to arbitration awards issued following remote hearings. In the leading Australian case Sino Dragon Trading Ltd v Noble Resources International Pte Ltd,^[9] the Federal Court of Australia said that:

“the mode of evidence by telephone or video conference, although less than ideal compared with a witness being physically present, does not in and of itself produce ‘real unfairness’ or ‘real practical injustice'.”^[10]

More recently, in the Supreme Court of Western Australia, a challenge to a domestic arbitral award which followed a 2 day telephone hearing held during lockdown restrictions was given short shrift:  Venetian Nominees Pty Ltd v Weatherford Australia Pty Ltd [2021] WASC 137.[11]  The Court described the telephone hearing as "perfectly fair" (at [126]).  The main grounds of challenge were based on an alleged lack of opportunity to address arguments which arose at the hearing for the first time and/or which did not arise on the parties' pleaded cases.  The Court dismissed these challenges, on the basis that the hearing was fairly conducted and the parties were given an opportunity to submit further materials after the hearing.  Kenneth Martin J stated at [49]:

"Indeed, despite the many layers of lipstick, the essential nature of [the applicant's] grievance is ultimately exposed as being that its advocated rival interpretation of the clause's true meaning was rejected by the arbitrator.  Such a grievance is not a true process grievance.  It is a poorly disguised attempted appeal raised against a decision reached against it.  Save to say, losing is not a violation of procedural fairness principles."

2. Pandemic experiences with court litigation

The Australian courts have also considered the efficacy of remote hearings during the pandemic in the context of litigation.  In most cases, the courts have embraced such hearings (while acknowledging that they have some disadvantages) and rejected arguments based on alleged unfairness.  Even relatively large and complex hearings were conducted remotely at the height of the pandemic.

In Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486, the Federal Court of Australia allowed a 6 week hearing involving 50 factual witnesses to proceed via a fully remote hearing.  Perram J referred to the experience of seeing cross-examination conducted over platforms such as Microsoft Teams, Zoom and Webex:

"My impression of these platforms has been that I am staring at the witness from about one metre away and my perception of the witness' facial expressions is much greater than it is in Court.  What is different – and significant – is that the video-link technology tends to reduce the chemistry which may develop between counsel and the witness.  This is allied with the general sense that there has been a reduction in formality in the proceedings.  This is certainly so and is undesirable."[12]

On balance, Perram J rejected the need for an adjournment.  He noted, however, that the pandemic restrictions then applying were "not ordinary circumstances"[13] and that any scope for witness coaching was of lesser concern given "this is a class action about allegedly defective gear boxes, not a fraud trial".[14]

In cases where allegations of impropriety or credibility issues loom large, the courts have had more reservations.  In Australian Securities and Investments Commission v Wilson [2020] FCA 873, the Federal Court granted an adjournment rather than allow a witness to give evidence from overseas by video-link where that witness' credibility was important.  If the evidence were heard remotely, "the risk is real that the trial will not be a fair one because [the defendant] will not have a proper opportunity to cross examine [the witness]".[15]  These were regulatory proceedings against an individual seeking fines and disqualification from managing companies.  Interestingly, this decision was reversed some 12 months later, given the ongoing obstacles to the foreign witness attending in person and the Court's increasing experience with remote hearings.[16]

More recently, another Federal Court judge indicated that his enthusiasm for remote hearings earlier in the pandemic had abated with "accumulated experience and subsequent reflection" and that, by 2022, he "felt a nagging disquiet that I may perhaps be missing something in assessing the evidence of a witness by reference to the tone of voice or non-verbal signals":  Palmer v McGowan (No 2) [2022] FCA 32; (2022) 398 ALR 524.  In that case, Lee J granted a short adjournment in order to require a senior politician to give evidence in person in defence of defamation proceedings against him, despite travel and quarantine restrictions.

3. Enforcement position in Australia

Clearly, each dispute will give rise to its own unique considerations. 

Overall, given their generally pro-arbitration stance in the application of the IAA (including with respect to enforcement of awards),[17] the Australian courts are likely to be reluctant to accede to challenges to awards based principally on the use of remote hearings (or remote evidence).  The fact that remote hearings involve some compromises or disadvantages does not, of itself, render such hearings unfair or mean that a party has been deprived of the opportunity to present its case.  Likewise, the fact that courts and tribunals have been prepared to adjourn cases rather than hear evidence remotely does not necessarily mean a remote hearing, had it proceeded, would have been procedurally unfair so as to require any award to be set aside.

The Australian courts are only likely to intervene at the enforcement stage if there are specific factors present that suggest a remote hearing has compromised procedural fairness.  Allegations of dishonesty or serious credibility issues may be examples.  However, even here, the party seeking to set aside the award will need to prove that real unfairness or real practical injustice has occurred as a result of the procedure adopted.[18]  

Institutional rules and practice

Leading arbitral institutions have shown support for remote hearings by publishing updated rules (for example, ICC and LCIA) and guidance (for example, ICC and CIArb)[19] on remote arbitrations. Recent modifications to the ICC[20] and LCIA[21] Rules expressly empower the tribunal to order remote hearings.  Other institutions may well follow suit.  In other cases, tribunals may need to rely on their general case management powers as a basis for ordering remote hearings.

The updating of institutional rules to accommodate remote hearings is welcome.  It should give additional comfort to parties and tribunals in pursuing remote hearings in arbitrations held in the major arbitral seats.  However, parties should still check the position under the local law at the seat of arbitration and any jurisdiction in which enforcement is likely to be required.  In addition, as the guidance makes clear, the fact that remote hearings are expressly permitted does not mean that they are a suitable option for every case.

What’s next?

In short, remote hearings are here to stay. 

The experience of the pandemic has made the international arbitration community familiar with the pros and cons of remote hearings and has refined processes for conducting them.  Given the successful conduct of arbitrations remotely during the pandemic (albeit with some recognised limitations), and with obvious savings in travel time and cost, we expect remote hearings to remain an established part of the landscape in the future.

For procedural and case management hearings, the rationale for such hearings is especially strong. 

Even for merits hearings, remote hearings will remain an attractive option in many cases.  While fully remote hearings may mostly be limited to simpler hearings, we expect to see widespread use of "hybrid" hearings, with partial hearing of evidence and/or submissions remotely.  For example, it should become the norm that minor witnesses of short duration (at least where there are no serious credibility issues) will be asked to give evidence remotely.

In addition, the technical advances made in conducting remote hearings during the pandemic are likely to remain, with further refinement likely in the years ahead.

The new normal should involve a case-by-case assessment of the most appropriate form of hearing (e.g. fully remote, hybrid, in-person with selected remote witnesses, etc.), bearing in mind factors including:

• amounts in dispute;
• potential cost savings available through remote hearings;
• nature of allegations and witness evidence (e.g. fraud allegations, credibility issues, etc.);
• scale and complexity of hearing (number of witnesses, need for joint witness conferencing, time zones, etc.); and
• legal risks arising from remote hearings in the law of the seat and principal enforcement jurisdictions and under applicable arbitral rules.

As to these legal risks, while case law is limited at this stage, in the major arbitral seats this is likely to involve a fact-sensitive assessment looking at the characteristics of the arbitration at stake.  Overall, however, courts in these jurisdictions are likely to be supportive, in principle, of the flexibility of remote hearings unless a party can show real unfairness or injustice has resulted.

The challenge in the years ahead will be to harness the substantial benefits of remote technology without creating additional legal and enforcement risks.