Originally from the American Review of International Arbitration (ARIA)

PREVIEW

ABSTRACT

In March 2020, the world was impacted by the COVID-19 pandemic. The pandemic has affected not only the lives of, literally, millions of individuals all around the world, but also the natural course of everyday activities and other quotidian practices. In the field of international commercial arbitration, however, the pandemic has also been the main precursor of a considerable increase in the number of video-based hearings (otherwise known as virtual or remote hearings), with some research suggesting that such hearings were eleven times more common after 15 March 2020 than they had been at any time previously. This article provides a concise account of the impact of the COVID-19 pandemic over international commercial arbitration, particularly within the context of video-based hearings. It surveys the past, present, and future of these types of hearings. In doing so this article will also delve into some closely related topics such as the right to a hearing and the right to a video-based hearing with a view to offering several practical suggestions that may help to form the basis for further discussions.

I.     INTRODUCTION

The 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, widely known as the New York Convention,  has been accurately described as “one of the most successful treaties” in the history of the United Nations.  The aim of the New York Convention is to bring about the recognition and enforcement of (1) international arbitration agreements and (2) foreign arbitral awards.

The New York Convention is of such importance that the history of international commercial arbitration has been divided into two periods, i.e., before the New York Convention and after the New York Convention.   Throughout more than sixty years of history, such a treaty has witnessed quite a few changes, the most notable of them being the popularisation of email services and the arrival of COVID-19.

The popularisation of email services facilitated the delivery of, literally, millions of documents that were previously sent with the assistance of public and private postal services.  Over the years, email has become the primary means of correspondence exchange from the commencement until the termination of an arbitration,  thereby enabling arbitration practitioners to send and receive numerous documents at the push of a button.

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The article has been structured as follows: section II surveys the phenomenology of the transition from face-to-face hearings to video-based hearings; section III focuses on the right to a hearing (in general); section IV focuses on the right to a video-based hearing (in particular); section V gives details as to the practicalities of these kinds of hearings; and section VI draws some concluding remarks.