Virtual Hearings in International Arbitration - Chapter 3 - Soft Law in International Arbitration - Second Edition

MÉLIDA HODGSON. With three decades of experience practicing at the intersection of international arbitration and sovereign obligations, Ms. Mélida Hodgson represents clients operating anywhere in the world across the range of arbitration fora, including the International Centre for Settlement of Investment Disputes (ICSID), the International Chamber of Commerce (ICC) and the United Nations Commission on International Trade Law (UNCITRAL). Her sectoral experience includes infrastructure, construction, mining, transportation, energy, telecommunications and post-merger disputes. Ms. Hodgson is also an arbitrator. Ms. Hodgson is ranked by Chambers, and recognized in Who’s Who Legal: Arbitration, including as a Thought Leader, Legal 500 and Latinvex. She currently serves as a Vice President of the American Society of International Law, a Vice Chair of the ICC Institute of World Business Law and serves on the ICC Commission on Arbitration and ADR and its Task Force on Corruption in Arbitration. She is also on the Council of the American Arbitration Association/International Centre for Dispute Resolution. Ms. Hodgson is a founding member of the Washington Women in International Arbitration. Ms. Hodgson is a former US government litigator at the US Department of Justice and Associate General Counsel at the Office of the US Trade Representative. Before attending law school, she was a banker.

SEBASTIÁN CANON URRUTIA is an International Arbitration Advisor at Arnold & Porter Kaye Scholer LLP in Washington, DC. He focuses his practice on international disputes, specially representing corporate entities as well as states and state-owned entities in international commercial arbitrations and investor–state arbitrations before tribunals established under the auspices of the International Centre for Settlement of Investment Disputes (ICSID), the International Chamber of Commerce (ICC) and the United Nations Commission for International Trade Law (UNCITRAL), among others. Before joining Arnold & Porter, Mr. Canon Urrutia was an associate at the international arbitration group of Jenner & Block LLP (Washington, DC). Mr. Canon Urrutia is a graduate of Universidad de la República Oriental del Uruguay (J.D. equivalent) and of Georgetown University Law Center (LL.M., with Honors and Dean’s List).

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Originally from Soft Law in International Arbitration, Second Edition

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Introduction

While virtual, or remote, hearings are not new in international arbitration, the conduct of a fully virtual hearing was not common before the COVID-19 pandemic. In pre-pandemic times, the concept of a virtual hearing generally revolved around allowing a witness or expert to testify via videoconferencing. After the initial shock of not being able to travel to hearings, and the realization that the pandemic would not be brief, international arbitration practitioners pivoted to entirely virtual proceedings. Safety concerns, travel restrictions, mandatory quarantines, and social distancing requirements make it almost impossible to hold in-person hearings. Consequently, parties are faced with the option of postponing their hearings indefinitely or embracing technology and conducting remote, or virtual, hearings.

Most of the arbitration rules of the major arbitral institutions expressly or impliedly provide for the possibility of conducting virtual hearings. Similarly, most of these rules grant tribunals wide discretion with respect to the proceedings – both substantively and logistically. We do not address here the due process implications of forced virtual hearings. In response to the new reality, and to continue managing arbitration proceedings efficiently during the pandemic, arbitral institutions have adopted guidelines and protocols to govern virtual hearings. The guidelines are intended to address the range of legal and practical issues that may arise in relation to virtual hearings, while ensuring the hallmark efficiency of arbitral proceedings. The result is a suite of standards that constitute the soft law of virtual hearings. In this chapter, we analyze the soft law established by various arbitral institutions across the globe for the conduct of virtual hearings.