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Introducing 'Does a Right to a Physical Hearing Exist in International Arbitration?' and Calling for Contributions

The impacts of COVID-19 have caused a surge in remote arbitral hearings, raising questions as to whether a right to a physical hearing exists in international arbitration. In order to address those questions, as well as the long-standing debates about what constitutes a ‘hearing’ in the context of international arbitration proceedings, Professor Giacomo Rojas Elgueta of Roma Tre University School of Law and Founding Partner at D|R Arbitration & Litigation and James Hosking and Yasmine Lahlou of Chaffetz Lindsey are conducting a research project on the subject in collaboration with ICCA.

Co-editors Rojas Elgueta, Hosking and Lahlou will soon be launching a survey of the international arbitration community on whether a ‘right to a physical hearing’ exists in various member States of the New York Convention.  A comprehensive report on the subject will be published as an instalment of the ICCA Reports Series, due to be released by the end of 2020. The report will include a comparative survey of relevant international arbitration jurisdictions by collecting national reports from key New York Convention States, aimed at collating information relevant to arbitrators and counsel, as well as judges at the seat of arbitrations or where recognition and enforcement may be sought.  The survey will seek to identify common jurisprudential themes on topics such as party agreement to holding a remote hearing, application of institutional rules and minimum due process expectations.  The report will not only be a ‘snapshot’ of the law but may provide a set of practical considerations to guide future practice.

In addition to an analysis of the survey, the report will be complemented by a series of essays addressing key conceptual issues raised by the increased use of remote hearings, such as  implications for access to justice, as well as practical and technical challenges created by this development.  

“The front-burner topic of the right to a physical (versus a virtual) hearing is perfect for the ICCA Reports Series,” says ICCA President Lucy Reed. “The editors’ plan to combine the results of their survey of the relevant law in key New York Convention jurisdictions with essays examining the theory underlying the right to a hearing will meet ICCA members’ needs in these unprecedented COVID-19 times and in the longer term. I, as one among many, am looking forward to the publication.”

The co-editors are now calling for expressions of interest in participating as a national reporter. Expressions of interest should be received in writing by no later than Friday 25 September 2020 addressed, together with a CV, to the ICCA Bureau at hearingproject@arbitration-icca.org.

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