Do Virtual Hearings Without Parties' Agreement Contravene Due Process? The View From Singapore

• Published date: 30 June 2020
• Subject Matter: Litigation, Mediation & Arbitration, Coronavirus (COVID-19), Arbitration & Dispute Resolution, Operational Impacts and Strategy
• Law Firm: Withers LLP
• Author: Ms Yvonne Mak

Introduction

The use of virtual hearings is not new in international arbitration. However, the COVID-19 pandemic has necessitated, and accelerated, a shift from in-person hearings to virtual hearings. With travel bans in place and no visibility of when countries will open their borders again, in-person hearings will likely be the exception rather than the norm for the next 12 to 18 months.

One important issue is how parties and arbitrators can ensure that virtual hearings, especially of the main evidential hearing or an application that may be dispositive of the entire case, comply with due process. This will be crucial to avoid a subsequent successful setting aside application, especially by parties who may be strategically resisting meaningful participation in virtual hearings.

Protocols and Guidance Notes on Virtual Hearings

Various protocols and guidance notes, which parties may elect to apply, have been issued to assist parties. These include:

• The ICC's Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic ("ICC Guidance Note"), which provides a checklist for a virtual hearing protocol that will ensure each party is treated equally and given a full opportunity to present its case. The ICC Guidance Note, as well as other relevant ICC tools, have been discussed in another post.
• The CIArb Guidance Note on Remote Dispute Resolution Proceedings , which provides guidance on technology and logistical, legal, and procedural matters relating to virtual hearings.
• The Seoul Protocol of Video Conferencing in International Arbitration ("Seoul Protocol"), which provides best practices for a virtual hearing. The Seoul Protocol has been discussed in another blog post.
• The HKIAC Guidelines for Virtual Hearings, which provide practical guidelines on matters such as confidentiality the preparation of electronic bundles, and transcription and interpretation services.

However, while helpful, these guides are not without their shortcomings. Importantly, they do not address the situation where one or both parties object to a virtual hearing.

Delay versus Due Process

Even if one or more parties object to a virtual hearing, a tribunal may nonetheless direct a virtual hearing against the wishes of the objecting parties. The tribunal, in deciding this, should consider factors such as delay and due process.

A tribunal may hold off convening a virtual hearing in the hope that an in-person hearing may be possible soon. However, an indefinite adjournment of the hearing, or even multiple adjournments in the face of an evolving pandemic, may contravene a tribunal's duty to conduct the arbitration efficiently and with reasonable expedition.¹ Delay in arbitration may also give rise to due process arguments by a party, where expedient resolution of the matter...