Playing devil's advocate: The case against virtual hearings in Ad Hoc Arbitration
September 19, 2020
Introduction
The COVID-19 pandemic has undeniably revolutionized both foreign and domestic dispute resolution regimes. Although the transition from in person hearings to virtual hearings was necessitated by the prevailing circumstances, the disregard of the ground realities of the legal industry has led to many difficulties. This transition has been smoother in cases before arbitral institutions than those before ad hoc arbitration. However, since ad hoc arbitrations are significantly more prevalent in India, it is necessary to address the growing issues in the administration of ad-hoc arbitrations in order to ensure the deliverance of justice.
While Courts and Tribunals of the country have not issued extensive guidelines with respect of conduct of virtual hearings, some specific issues have been considered; for example, the Supreme Court has recommended that litigants have a bandwidth of 2 mbps and above, and noted that, ‘such expectation in the contemporary age cannot be called unjustified by any standard’.[1] The Registrar General of the Delhi High Court however, issued a direction to subordinate courts to ‘not pass adverse orders in non-urgent matters where the advocate/litigant is unable to join the hearing through video conferencing’.[2] Therefore, in an attempt to recognize the obstacles to virtual hearings, the Courts observed that a litigants cannot be forced to join the hearing through video conferencing.
Challenges of virtual hearing
In the case of virtual arbitration, there are multiple legal obstacles to designing a virtual arbitral procedure that preserves the sanctity of the award. The lack of national laws on virtual hearings makes it is more important to analyze the possibility of all parties to participate in the proceedings. The foremost issue is the violation of Section 18 of the Arbitration and Conciliation Act, 1996 [“Arbitration Act”] which expressly provides for equal treatment of all parties involved. This may prove to be problematic when one considers that a virtual arbitration hearing requires the parties to be technologically sound and literate. Consequently, the disparity between parties in terms of technological resources and capabilities may lead to unequal treatment. In order to stay true to the spirit of the Arbitration Act in its endeavor to provide unimpeded justice, a party should not have to suffer due to inadequate technological skills.
Section 24 of the Arbitration Act states that “oral hearings” may be conducted at the discretion of the tribunal or on request of parties for the purpose of arbitration proceedings. However, it may be premature to assume that virtual hearings fall within the ambit of “oral hearings”. The absence of a clear and evident reference to a virtual hearing in the arbitration clause is an issue that often leads to concerns about the validity of the arbitration agreement. The question of whether virtual hearings are equivalent to in-person oral hearings under the Arbitration Act has not yet been considered by the Supreme Court. The Supreme Court in State of Maharashtra v. Praful B. Desai,[3] decided in favour of using video conferencing for recording of evidence under the Code of Criminal Procedure, 1973. However, definition given to a word or expression in a particular Act cannot be used for interpretation of a similar word occurring in a different Act unless the Acts are in pari materia.[4] Thus, the same cannot be automatically applied to Section 24 of the Arbitration Act. Therefore, without a conspicuous reference to virtual hearings and guidelines on interpretation of Section 24 of the Arbitration Act, the validity of virtual hearings falls into a grey area.
The requirement of confidentiality of proceedings, documents, evidences etc., as mandated under Section 42A of the Arbitration Act, is also a matter of concern. In the institutional context, the International Chamber of Commerce [“ICC”] recently issued its ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic, which includes an entire portion dedicated to Confidentiality, Privacy and Security.[5] Similarly, the Seoul Protocol on Videoconferencing in International Arbitration[6] contains a section on guidelines to safeguard the confidentiality of arbitration in cases of virtual hearings. It is evident that everyone seems to be in agreement on one fundamental point: in the context of virtual hearings, hypothetical breaches of confidentiality are easier and thus more likely to occur. In India, The Personal Data Protection Bill, 2019 is yet to become a law and there is no proper comprehensive legislation governing data protection. Moreover, almost all web communications are done through open networks, which makes them extremely vulnerable to data security threats.[7] Therefore, there is a high risk of breach of confidentiality in conducting virtual hearings. It is also important to note that technological and technical limitations such as difficulties in managing documents via virtual hearings, and the complex covenants involved therein may inevitably lead to unequal treatment of parties. Thus, such non-fulfillment of due process requirement causes hindrance to the entire arbitral proceeding.
Section 19 of the Arbitration Act empowers the arbitral tribunal to formulate its own rules of procedure. Thus, the arbitrator can always use its powers under Section 19(3) of the Arbitration Act to conduct virtual hearings, nonetheless, it is an oft-repeated grievance that virtual hearings do not grant parties a complete opportunity to present their case. Section 34(2)(iii) of the Arbitration Act stipulates that an arbitral award may be set aside by the Court if the party is unable to present his case; hence, not being given a chance to present a case in its entirety, yet again may prove a hindrance to the enforcement of an award because of unfair treatment. While online proceedings might be convenient in simple contractual disputes, it will not be as optimum for multifaceted disputes that include multiple parties, multiple claims, and voluminous evidence.
Conclusion
The Courts have yet to decide on the issue of whether virtual hearings are prejudicial to the rights of the parties and is a violation of the due process. Even though technological deployment in the judicial procedure is a step forward, the Courts and Tribunals cannot draw assumptions on parties’ technical capabilities and therefore, the parties cannot be compelled to argue from remote locations. There is no doubt that virtual hearings are not only more expeditious as compared to physical hearings, but also cost effective. However, most ad hoc arbitrations in India are conducted without the infrastructure to administer online arbitration and in the absence of any concrete guidelines for the same. In such circumstances, it is probable that such arbitration proceedings may be liable to be set aside under Section 34 of the Arbitration Act. Hence, in order to foster inclusivity into dispute resolution processes, it is essential to serve the interests of ad hoc arbitrations of our country.
[1] Supreme Court of India, Press Note On Virtual Court System, 2 May, 2020. Available at, https://images.assettype.com/barandbench/2020-05/06c7b93c-c27a-4702-9b16-5a47841aa88f/Note_on_Open_Court_Hearing.pdf.
[2] Registrar General, High Court of Delhi, Letter No. 249/RG/DHC/2020, 6 August, 2020. Available at https://delhidistrictcourts.nic.in/Circulars/Aug20/11.pdf.
[3] State of Maharashtra v. Praful B. Desai, (2003) 4 SCC 601, ¶ 19, 20.
[4] F.A.R. Bennion, Bennion on Statutory Interpretation, 4th Ed. (2002), p. 708.
[5] International Court of Arbitration, Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic, 9 April, 2020, ¶ 3. Available at https://iccwbo.org/content/uploads/sites/3/2020/04/guidance-note-possible-measures-mitigating-effects-covid-19-english.pdf
[6] Korean Commercial Arbitration Board, Seoul Protocol on Video Conference in International Arbitration, 18 March, 2020. Available at http://www.kcabinternational.or.kr/user/Board/comm_notice.do?BD_NO=172&CURRENT_MENU_CODE=MENU0015&TOP_MENU_CODE=MENU0014.
[7] Vikrant Sopan Yadav, Cyber arbitration through lenses of Indian legal system: An analysis, International Journal of Law, Volume 2, Issue 2, March 2016, p. 31-33.