Right to a Physical Hearing Project: The Release of 22 New Reports Reveals Interesting Trends and Significant Convergences
Following the initial publication of four national reports on 18 December 2020, Co-editors Giacomo Rojas Elgueta, James Hosking and Yasmine Lahlou, in collaboration with ICCA, are pleased to release today 22 additional reports from New York Convention jurisdictions across the globe: Bahrain, Belgium, Brazil, Canada, Colombia, Czech Republic, Denmark, England and Wales, France, Georgia, Greece, Hungary, India, Indonesia, Mexico, Morocco, New Zealand, Peru, Russia, South Africa, Sri Lanka and Turkey.
ICCA President Lucy Reed welcomed the release of the national reports, saying:
“Most (if not all) of us are in need of reliable and jurisdiction-specific information on issues surrounding the increasing use of virtual hearings during the COVID pandemic. ICCA is pleased to share this valuable “need to know” information, and I thank the editors and the 26 sets of country reporters who have worked so expertly and thoroughly under intense time pressure.”
These reports reveal many common trends and convergences in response to the core questions of the survey. In particular, none of those jurisdictions’ lex arbitri contains any express provision recognizing a right to a physical hearing. Instead, the majority of the reports released today suggest that such right can in fact be excluded by looking at three main indicia, namely, the broad procedural discretion of the arbitral tribunal as to the modalities of the hearing; the possibility to order documents-only arbitrations; and provisions in the Arbitration Rules of the most relevant institutions in those jurisdictions expressly allowing remote hearings (such as the LCIA and CEPANI, as well as the Economic and Agricultural Chambers of the Czech Republic and the ICAC in Russia).
In most of those jurisdictions, the arbitrators’ procedural discretion is essentially limited by their duty to safeguard the parties’ due process rights (with the important exception of Indonesia). In practice, this will require a balancing of two key considerations. On the one hand, due process requires a case-by-case fact-specific evaluation of whether the key participants to the hearing are able to attend remotely and have an effective opportunity to present their case. On the other, this must be balanced against considerations of access to justice and the duty to decide the dispute without undue delay (especially in jurisdictions where Article 6 of the ECHR is applicable).
In Model Law jurisdictions, the provision granting the parties the right to request an “oral” hearing gives rise to different interpretations as to whether a right to a “physical” hearing must be inferred. In the majority of those jurisdictions, (Canada, Colombia, Georgia, Greece, India, New Zealand, South Africa, Sri Lanka, Turkey) the reporters have concluded that the right to an oral hearing does not exclude holding it through videoconferencing. In Hungary, however, the right to a physical hearing is now specifically excluded as a consequence of a recent reform that deleted the word “oral” from the corresponding norm of the lex arbitri. In Bahrain and Denmark, whether “oral” means “physical” remains unsettled.
The surveys have also revealed some interesting divergences. For example, the parties’ agreement to hold a physical hearing is not binding on the arbitral tribunal in the Czech Republic. In Brazil, France and Indonesia it is binding, but only when such agreement was made prior to the constitution of the tribunal. In turn, violation of the parties’ agreement would in itself likely entail annulment of the award, without any additional showing, in Bahrain, Hungary, India, Russia, Sri Lanka and Turkey, whereas in England and Wales, such violation will not entail annulment of the award unless it has caused substantial injustice.
The surveys also provide insight into domestic courts’ interpretation of the New York Convention. The courts of England and Wales again stand out, as reporters note that they would assess violations of due process against domestic notions of natural justice without looking at whether a right to a physical hearing exists at the seat of the arbitration. The same approach is reported for India. However, in the Czech Republic, Georgia and Russia, reporters note that courts will give deference to the provisions of the law of the seat.
The Co-editors look forward to seeing whether the reports on the next batch of jurisdictions, to be released in early March, show similar trends or highlight different national approaches.
All national reports will be published individually on this dedicated page of the ICCA website, allowing the international arbitration community access to this user-friendly resource.
The publication of the survey results will be followed by a general report that will appear as an instalment of the ICCA Reports Series. In addition to the Co-editors’ analysis of the findings of the survey, the report will include a series of essays addressing the interplay between remote hearings and key conceptual issues in international arbitration. The report will be presented at the XXVth ICCA Congress, to be held in Edinburgh in September 2021.