“Does a Right to a Physical Hearing Exist in International Arbitration?”: ICCA Project Releases Second National Reports

February 2021 – In September 2020, Co-editors Giacomo Rojas Elgueta, James Hosking and Yasmine Lahlou, in collaboration with ICCA, formally launched the research project “Does a Right to a Physical Hearing Exist in International Arbitration?”  The project arises from the need for reliable, jurisdiction-specific, information on the core legal questions posed by the increased use of remote arbitral hearings due to the COVID pandemic.

As the project’s centerpiece, the Co-editors sought expressions of interest to participate as national reporters in a comparative survey. The response was overwhelming: around 150 applications covering some 86 New York Convention jurisdictions. Thanks to the national reporters, the Co-editors are now compiling a uniquely comprehensive resource with input from across the globe.

All reporters were provided a standard survey questionnaire and model response. The survey, and therefore each national report, aims to provide clear and user-friendly answers to questions such as: Is a right to a physical hearing expressly provided by – or can it be inferred from – the relevant arbitration law; what is the impact of the parties’ agreement on the arbitrators’ procedural discretion to order a remote hearing; and can remote hearings affect the enforceability of an award?

The Co-editors are pleased to release the second batch of three national reports from 22 Convention jurisdictions: Bahrain, Belgium, Brazil, Canada, Colombia, Czech Republic, Denmark, England and Wales, France, Georgia, Greece, Hungary, India, Indonesia, Mexico, Morocco, New Zealand, Peru, Russia, South Africa, Sri Lanka and Turkey. The majority of the reports found that the right to a physical hearing may be excluded from the jurisdictions’ arbitration laws. The reports came to that conclusion based on provisions giving tribunals broad procedural discretion to decide how hearings are conducted, the possibility for tribunals to order documents-only arbitration, and provisions in the arbitration rules of the most relevant institutions in those jurisdictions expressly allowing remote hearings.

The initial publication of national reports released in December 2020 from Australia, Italy, Vietnam and the United States reveal some subtle divergence as to whether a right to a physical hearing exists in arbitration, as well as identifying important practical considerations in conducting remote hearings to preserve the inviolability of the award. The reports also draw on emerging law emanating in the litigation context that may inform the development of principles applied to international arbitration.

All national reports will be published individually on this dedicated page of the ICCA website, allowing the international arbitration community access to this user-friendly resource. The remaining national reports will come out in March 2021.

The publication of the survey results will be followed by a general report that will appear as an installment of the ICCA Reports Series. In addition to the Co-editors’ analysis of the findings of the survey, the report will include a series of essays addressing the interplay between remote hearings and key conceptual issues in international arbitration. The report will be presented at the XXVth ICCA Congress to be held in Edinburgh in September 2021.

Coverage by Law360 of the report’s findings can be found here (a subscription to Law360 might be required).