Virtual Arbitration – Will the “new normal” continue to be “normal” post COVID 19.

- Er. Alpesh Subhash Yadav[1]

1. Introduction

The Pandemic of COVID 19 literally tripped the circuit breakers on physical interactions around mid March 2020 and pushed the commercial world to adapt to a new reality of conducting businesses virtually considering the travel restrictions and compulsory social distancing measures. The legal profession and the administration of justice have been no exception.

Technology has been quick to address the need for remote conduct of arbitration, from the very early stages of the current pandemic. Virtualisation of arbitration proceedings has been largely found efficient, affordable, and substantially eliminated (or at least reduced) the risk of getting infected by virus during such proceedings. A considerable number of efficient and reliable tools for conducting arbitration through audio visual mode were discovered / evolved and parties to arbitration got themselves acquainted (more or less) with this digital mode of doing business. Sharing of data, documents, charts, photographs, and the like, virtually, digitised, easy to navigate, searchable documents, organise and position at the disposal of counsels, witness, and tribunal made things smarter. The time-consuming fumbling of paper pages look like a thing of the past. The accomplishment for which virtual arbitration must also be applauded is the coverage of geographical distances that otherwise had been expensive and time consuming.

Given the advantage of virtual proceedings over physical proceedings and with advancement in tools and technology being available with the commercial and legal fraternity, it would be difficult to argue that virtual hearings are not efficient. However, are they effective and will they continue to be mode of arbitration once the pandemic ends and normalcy prevails is what is discussed in this article.

2. Criticisms and Positives of Virtual hearings

While lockdown and restrictions, imposed to control the spread of virus, are been substantially relaxed in many parts of world, spread of COVID 19 by and large seems to be coming in control and vaccination for eradicating the virus being commenced in many parts of the World including India, voice for resuming physical proceedings or rather urge to accept and work with corona environment by taking all necessary precautions is increasing.

The Chairman of Bar Council of India, in his letters[2] addressed to the Chief Justice of India[3], has expressed concern over the gap between availability of resources with lawyers of humble background from rural cities as compared to those from urban cities for such virtual proceedings. The letter highlights the fact that "90% of the advocates and judges are unaware of the technology and its nuances”. The Bar Counsel also expressed that virtual court cannot displace and replace traditional courts even partly due to lack of knowledge and training in technology, lack of technological infrastructure and due to law and procedures of dispensation of justice in trail matters. A recent letter[4] by Supreme Court lawyers to CJI, seeking resumption of physical functioning at the top court, express similar concerns. The representation made by senior lawyers highlights virtual court has more lacune than benefits and that it has failed to adequately serve the cause of justice. More or less similar concerns also apply to arbitration.

The sudden necessity to adopt technology stimulated due to pandemic has raised several concerns, including arbitrator / counsel / client not familiar with technology or are not tech savvy, difficulty in briefing clients / counsels virtually, frequent interruptions due to internet connectivity, hyperactive antivirus, improper permissions, incompatible operating systems, etc. particularly in India, where ad hoc arbitrations are still prominent. In institutional arbitration such challenges can be overcome to some extent as proceedings are administrated centrally, and technical assistance can be made available on demand.

The other major concern is the difficulty in communicating during virtual proceedings particularly when participants involved from a particular side are not at the same venue. Similar concern also exists with arbitrators if they want to discuss amongst themselves during the hearing. Solutions presently available through various virtual platforms and messaging tools for such private communications have their own shortcomings.

It is believed that gravity of proceedings can be viscerally felt when it is physically experienced in practice which is unlikely in case of virtual hearings where participants are in their familiar home environment. The counsels (both lawyers and nonlawyers) practising arbitration commonly feels that the art of advocacy to some extent is getting ineffective in virtual proceedings. Especially during arguments and cross examinations due to lack of direct eye contact which plays a very vital role. It has a very significant impact on a witness that knows and feels is being looked at directly and a very significant feedback on the tribunal and counsels when direct eye contact is received during arguments. This important impact/feedback cannot be experienced in virtual proceedings as direct, mutual, and simultaneous eye contact is technically impossible. This sometime lead to detached and subconsciously uninvolved experience, when compared to the more intense environment of a physical setting. Compounded to this ineffectiveness, it is possible for witness coaching to take place through mobile or email communications. There also always exist the risk of technological failures and disturbances during proceedings.

The other concerns are confidentiality, including the need to ensure the hearing itself and data, documents, transcripts, and videos shared during the proceedings are not compromised. Procedural fairness and the associated implications. Enforcement of an arbitral award passed with remote proceedings by using virtual technology would be challenging.

In an event[5] organised by Confederation of Indian Industries and Society of India Law Firms, Justice Rajiv Sahai Endlaw, Judge, Delhi High Court opined, “It is the new normal till the pandemic lasts. I don't see it as a normal for normal times…….” Agreeing with Justice Endlaw, Senior Advocate Sibal remarked, “Technology is not a fulltime solution to everything. For technology to work, you need to have infrastructure. Technology is for the rich and the powerful. Unless the infrastructure reaches the poor. what are you talking about!.....”

Therefore, argument in favour for resuming physical hearings is increasing, particularly when no lockdowns are in force and where international traveling is not required for some or all of the persons that must attend.

3. Conclusion

Virtual procedures or online arbitration practices adopted even partially, if not for the entire arbitration, could significantly reduce time and costs of travel, and of organising physical hearings.

A combination of virtual and physical hearings depending on the requirements and mode of business to be conducted in the proceedings, could prove to be both efficient and effective without compromising, either the health of the attendees or the immediacy of arguments and scrutiny of witness.

Parliamentary Standing Committee[6] on Personnel, Public Grievances, Law and Justice, in its interim report submitted to Rajya Sabha suggested virtual proceedings are likely to become permanent particularly for statutory arbitrations such as Telecom Dispute Settlement Appellate Tribunal, Intellectual Property Appellate Tribunal, National Company Law Appellate Tribunal, etc. The committee acknowledged the difficulties in virtual proceedings and admitted need for massive investments to put in place the infrastructure necessary to support the digitised hearings. The report highlighted ‘Justice delayed is Justice denied’ but ‘Justice hurried is also Justice buried’.

Currently, due to pandemic, the virtual hearings have been used as an interim tool for avoiding disruptions, but sooner or later the virtual hearings are bound to become normal especially for internationals and cross-border disputes owing to their expeditious and cost-effective means for resolution of disputes. The government and arbitration institutions should enact the necessary changes for adopting virtual hearings under the Arbitration and Conciliation Act, 1996 and issue model guidelines on virtual hearing for all the arbitrations in India.

[1] Alpesh holds a bachelor’s degree in Civil Engineering from Mumbai University and is postgraduate in Infrastructure Development and Management from National Institute of Construction Management and Research. He also has Diploma in Construction Management from Institute of Engineers. He is currently pursuing Master of Business Laws (MBL II) from National Law School of India University and have also enrolled for Post Graduate Diploma in Environmental Law from NLSIU. He has over 16 years of experience in the field of contracts management and arbitration and holds senior management position in one of India’s top construction organisation. He can be contacted at alpesh.yadav@hotmail.com [2] Chairman of Bar Council of India letters dated 28.04.2020 and 26.05.2020 addressed to CJI. [3] Justice Sharad Arvind Bobde, CJI. [4]Representation, written by advocates Shri Kuldeep Rai, Shri Ankur Jain and Shri Anubhav and signed by 505 other lawyers including Senior Advocates, seeking resumption of physical functioning of top court. [5]Confederation of Indian Industries and Society of India Law Firms to hold an online panel discussion on 'Virtual Courts' on 21st November 2020. [6]Hon’ble Rajya Sabha Member and Chairman of Standing Committee on Personnel, Public Grievances, Law and Justice, Shri Bhupender Yadav on 11th September 2020 submitted an Interim Report on the “Functioning of the Virtual Courts/Court proceedings through video conferencing” to Hon’ble Rajya Sabha Chairman Shri M Venkaiah Naidu.

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