News Update Arbitration

1 April 2021

In times of COVID-19 most of the in-person meetings and/or hearings have been postponed or have been continued subject to strict guidelines by national governments. To ensure that the pending dispute resolution proceedings are not unduly delayed, meetings and/or hearings are often conducted by virtual means (video or telephone conferences).

In November 2020 the Netherlands Arbitration Institute ("NAI") and the Dutch Arbitration Association ("DAA") have published the "The Hague Video Conferencing and Virtual Hearing Guidelines 2020". These guidelines aim to provide a practical approach to videoconference hearings for arbitrations with a Dutch seat. More recently, the International Bar Association ("IBA") introduced protocols for virtual hearings in its revised version of the Rules on the Taking of Evidence in International Arbitration (the "2020 IBA Rules"), formally released on 15 February 2021.

This News Update provides a high-level overview of the Dutch legal framework for virtual hearings and an analysis of the "The Hague Video Conferencing and Virtual Hearing Guidelines 2020". A comparison to the 2020 IBA Rules is made where relevant, and finally an overview of various other guidelines and protocols is provided.

LEGAL FRAMEWORK VIRTUAL HEARINGS IN ARBITRAL PROCEEDING

Dutch arbitration law, as laid down in Articles 1020 -1076 of the Dutch Code of Civil Procedure ("DCCP"), provides for electronic proceedings in Article 1072b DCCP. With the prior consent of the arbitral tribunal, parties may submit (procedural) documents and requests electronically. Additionally, all parties involved, including witnesses and experts, may communicate with the tribunal using electronic means (Article 1072b (4) DCCP). It is for the arbitral tribunal, in consultation with the parties involved, to determine which electronic means will be used and how this will be done. Finally, an arbitral award can be rendered in electronic form (Article 1072b (3) DCCP).
Just as in the case of a hearing in-person, the arbitral tribunal will have to respect the fundamental principles of procedural law in virtual hearings. One can think of the right to a fair hearing by an independent and impartial arbitral tribunal as laid down in Article 6 of the ECHR and Article 1036 DCCP. Fair treatment includes the right to be heard but also the right to be treated on an equal footing - equality of arms - (Article 1036 (2) DCCP). In addition, the principle of a decision within a reasonable time (Article 1036 (3) DCCP) must be taken into account, on the basis of which the parties and the arbitral tribunal have an obligation to prevent unreasonable delay of the arbitration proceedings.

All the above shows that Dutch arbitration law provides for the basic guidelines and tools to conduct virtual hearings and respect the fundamental principles of procedural law. Various (practical) virtual hearing protocols introduced by the arbitration community further facilitates this process.

THE HAGUE VIDEO CONFERENCING AND VIRTUAL HEARING GUIDELINES 2020

The Hague Video Conferencing and Virtual Hearing Guidelines (the "NAI Virtual Hearing Guidelines") are a set of useful recommendations that covers crucial issues related to conducting a hearing in a virtual reality. Those range from the practical insights on the usage of digital platforms regarding pre-hearing arrangements, hearing venues, confidentiality, privacy and security, online etiquette but also touch upon the relevant legal aspects of the e-hearing that relate to a notion of due process, the presentation of evidence and the examination of witnesses.

First of all, the use of any videoconferencing provider comes with a risk that technical issues occur. The NAI and the DAA recommend setting up a virtual pre-conference before the start of the actual hearing to prevent such issues as much as possible (Article 1 of the NAI Virtual Hearing Guidelines). The pre-conference will also provide the arbitral tribunal, the parties and their counsel an opportunity to discuss the key features of the platform that will be used for the hearing. In contrast to the NAI Virtual Hearing Guidelines, the 2020 IBA Rules do not provide any recommendations on setting up a virtual pre-conference, but the 2020 IBA Rules do provide rules and protocols for remote hearings for the taking of evidence in international arbitration (Article 8 2020 IBA Rules).

Secondly, Article 2 of the NAI Virtual Hearing Guidelines recommends that the parties involved shall agree on a reliable provider of videoconferencing considering the technical requirements necessary to ensure an adequate audio-visual connectivity. Also, it is recommended to have technical support available to make sure that the hearing does not get unduly delayed as a result of any technical issues. It is recommended that the parties should agree in advance on the procedure for alerting the arbitral tribunal during the virtual hearing in case of any technical difficulties. This to ensure that the right to adversarial proceedings is not compromised because of a disruption of the connection. The 2020 IBA Rules contain similar but less extensive provisions relating to in advance testing of the technology.

Thirdly, confidentiality and privacy could be a concern for parties involved in virtual hearings. The NAI Virtual Hearing Guidelines provide various recommendations in Article 4 to ensure the confidentiality. Full names and roles of all participants to the virtual hearing should be circulated in advance between the parties and the arbitral tribunal in accordance with the procedural order or in accordance with additional instructions of the arbitral tribunal. This includes any (technical) support staff attending the virtual hearing. This ensures that that all participants feel secure about the confidentiality of the virtual hearings and that only participants involved in the arbitral proceedings can take notice of what is being discussed during the virtual hearing.

Furthermore, the participants need to ensure that the digital platform offers a password-protection and a certain level of encryption to prevent potential cyber-risks. The NAI and the DAA emphasize that the parties themselves are responsible for complying with relevant applicable laws and regulations with respect to privacy and data protection (Article 4 (d) NAI Virtual Hearing Guidelines). Confidentiality and privacy related matters during a virtual hearing are not explicitly addressed in the 2020 IBA Rules.

To ensure an effective and fair hearing and the hearing of witnesses, the Virtual Hearing Guidelines recommend that each party and its counsel - to the extent possible - are visible at all times, together in one room and on one screen. Especially during a cross-examination, a solid audio and video connection is of great importance as facial expressions and body language of the witness could be of relevance to the arbitral tribunal. The 2020 IBA Rules recommend addressing measures to ensure that witnesses giving oral testimony are not improperly influenced or distracted. For example, by requesting witnesses to show a 360° view of the room in which they are situated (Article 8 2020 IBA Rules).

When considering a videoconferencing provider, the parties should choose a platform which enables the participants to share memorials, witness statements and exhibits during a virtual hearing (Article 6 Virtual Hearing Guidelines). Just like an in-person hearing the information provided to the arbitral tribunal should be simultaneously made available to the other participants to the hearing. The NAI and DAA advises to choose a platform permitting all attendees to view the documents simultaneously to minimize disruption of the pleadings of the parties. The IBA also recommends parties to agree on an efficient way to place documents before a witness or the arbitral tribunal.

RECOMMENDATIONS FOR VIRTUAL CONFERENCES

Besides the NAI Virtual Hearing Guidelines there are several other guidelines worth mentioning with respect to conducting virtual conferences and/or virtual hearings. An overview of all virtual hearing guidelines, protocols, fact sheets, checklist, legislation and webinar recordings can be found on the website of Delos. The NAI and the DAA refer to few more protocols on virtual hearings in its newsletter. First of all, The Seoul Protocol on Video Conferencing in International Arbitration (18 March 2020) is mentioned, which serves as a best practice for conducting virtual conferences in international arbitration. Furthermore, the "Guidance Note on Remote Dispute Resolution Proceedings" (8 April 2020) of the Chartered Institute of Arbitrators and the factsheet "Guidelines for Video Arbitration" (April 2020) by the International Council for Online Dispute Resolution are useful factsheets for virtual arbitral proceedings similar to the NAI Virtual Hearing Guidelines. Therefore, parties have ample guidance for virtual hearings by already developed best-practices within the international arbitration community.

Time will tell whether virtual hearings will continue to be used after the COVID-19 virus is no longer controlling the day-to-day life. The past year has proven that virtual hearings can be a decent alternative to an in-person hearing that could save time and money for all parties involved in certain kind of cases. The NAI Virtual Hearing Guidelines provide a praiseworthy framework for making the hearing as effective, safe and secure as possible.