A Study On The Legitimacy Of Virtual Hearings In International Arbitration

Although the use of information and communication technology was not new in international arbitration,virtual hearings had quickly become a hot topic in 2020 owing to the outbreak of COVID-19.The pandemic has had and will continue to have far-reaching implications for the parties,the arbitral community,transactions and dispute settlement,which forces international arbitration to change,since the last "difficult problem" in international arbitration—either the merits of cases or hearings on issues of main procedure — usually remains in-person or physical hearings.Governments have adopt restrictions to control the spread of pandemic and mitigate the adverse effects of COVID-19,which has forced international arbitration practitioners to re-examine whether international arbitration proceedings can be conducted virtually.Facing the impact of the pandemic and restrictive measures,international arbitration has shown great flexibility and adaptability,and virtual hearings have come into being with the advantages of flexible and efficient procedures,overcoming distance barriers and alleviating hostile pressure,providing the parties with effective opportunities to settle the disputes and access to justice during the pandemic.Firstly,this paper addressed the legitimacy issues of virtual hearings,including concerns caused by the legitimacy of information technology tool itself,and the unequal treatment caused by cheating during witness testimony.From the theoretical level,it should be pointed out that the virtual hearing itself will not infringe the right to be heard,nor will it violate the principle of equal treatment.Then,this paper responded to legitimate concerns at the practical level,and explored the practical operational considerations of virtual hearings,ensuring that the use of information and communication technology tools does not undermine parties’ due process rights and that witnesses do not cheat by means of those tools.Secondly,based on various arbitration laws and rules,this paper analyses and concludes the legal sources of virtual hearings.Although the arbitration rules stipulate that "in-person hearing",the source of legitimacy of virtual hearings can also be found as long as they are properly interpreted.When the arbitration rules empower the virtual hearings,it is necessary to restrict the discretion of tribunal from two aspects,parties’ autonomy and due process.When laws and arbitration rules are silent,the tribunal making a decision on conducting virtual hearings requires careful assessment of relevant factors.Thirdly,we focus on due process which was used by the party to challenge awards,also examine the standards applicable to the court review of virtual hearings.Based on the attitude of the court,we refute the parties who hold that virtual hearings violate the right to be heard and equal treatment,and conclude that virtual hearings does not violate due process.Then,an in-depth analysis of the judicial review of virtual hearings by the Austrian Supreme Court in the context of COVID-19 and its applicable standards of law show that conducting virtual hearings falls within the discretion of tribunal and does not violate due process even if one of the parties objects.At last,based on the recent situation of pandemic prevention and control,this paper examines the efforts made by domestic and foreign institutions—taking ICC,HKIAC and CIETAC as representatives — to mitigate the impact of COVID-19 on international arbitration and regulate the legitimacy of virtual hearings.Combined with judicial practice,it is suggested that the parties should actively participate in virtual hearings and give up due process paranoia,and that tribunal should find a balance between respecting the autonomy of parties and advancing arbitration procedure quickly and efficiently,the court should also set a higher threshold to deal with due process paranoia.In general,virtual hearings in international arbitration have unique advantages,which can adapt to and satisfy needs of practice.The sources of legitimacy of virtual hearings can be found in theory,and courts also set a high threshold of due process challenge to protect virtual hearings.Virtual hearings do bring some new challenges,which also reflects that the contradiction between law and technology is becoming increasingly significant with the development of technology.Technological innovation may bring new risks.However,it is well-known that there is nothing perfect in the world.We should adapt and guide virtual hearings in international arbitration to better promote dispute settlement.