Authority to Order a Remote Hearing over a Party Objection: A Model Law Perspective - WAMR 2019 Vol. 13, No. 1
Marc R. Labgold is Founding Member of The Law Offices of Marc R. Labgold, P.C. and Of Counsel to the Tokyo-based international law firm of Nagashima Hashimoto & Yasukuni. Dr. Labgold received his JD from the National Law Center at George Washington University, his PhD in chemistry from the California Institute of Technology (Caltech) and his BA from New York University (NYU). Email: email@example.com.
Megan C. Labgold, is an Associate at Marc R. Labgold, P.C. She received her JD from Florida International University (FIU) and her BA in biology from West Virginia University. Email: firstname.lastname@example.org.
There is a general consensus within the international arbitration community that the parties can agree to proceed with a remote hearing unless expressly prohibited by national law. After all, the touchstone of international arbitration is the parties’ agreement. Thus, where both parties agree to proceed with a remote hearing, there is little risk that either party will be able to rely on the fact that the hearing was remote as a basis for challenging or resisting enforcement of a final award. Such an agreement should operate as a waiver of any such issues.
Similarly, when both parties agree that they do not want to proceed with a remote hearing, the tribunal can take comfort in the fact that the decision to adjourn the hearing on a wait-and-see basis is unlikely to provide an effective ground to challenge or resist the enforcement of a final award. Here again, the parties’ agreement should work as a waiver of such an argument.
What happens, however, when one party objects to proceeding with a remote hearing; does the tribunal have the authority to order a remote hearing over the one party’s objection? In this paper, we analyze the tribunal’s inherent authority under the Model Law and demonstrate that absent an express prohibition on remote hearings in the arbitration agreement, institutional rules or the applicable national law(s), the tribunal has the requisite authority to order a remote hearing over a party’s objection.