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

March 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 tranche of national reports from an additional 20 Convention jurisdictions: Austria, Barbados, Bolivia, Bulgaria, the British Virgin Islands (BVI), Chile, Costa Rica, Egypt, Germany, Guatemala, Hong Kong, Kenya, Mauritius, the Netherlands, Nigeria, the People’s Republic of China, Portugal, Sweden, Switzerland and Ukraine. The latest round of reports reinforces core trends and key divergences found in the first tranche of reports. A summary of key findings from the reports is available here.

These national reports come in addition to the 26 that have been individually published on this dedicated page of the ICCA website. Around 30 more national reports will become available by the end of April 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.