SCC Online Seminar Series - Online hearings
With proceedings turning digital to a higher and higher degree, the SCC arranged two panel discussions on the topic of online hearings. Both panels were moderated by Prof. Patricia Shaughnessy of Stockholm University and introduced by Annette Magnusson, Secretary-General of the SCC. Ms Magnusson indicated in her opening remarks that the challenges posed by the pandemic also present opportunities to rethink and optimise the international arbitration process going forward.
Online Hearings Against the Wish of One Party
The first panel focused on the situation where the parties cannot agree. An international panel of academics and practitioners examined how tribunals might deal with reluctant parties and embrace virtual tools in the current pandemic context.
Prof. Maxi Scherer of WilmerHale provided insight into legal aspects of the issue and estimated that tribunals have the power to order virtual hearings against a party’s objections under most international rules and arbitration laws. Tribunals should be mindful, in this exercise, of their duty to conduct the arbitration expeditiously, the parties’ right to equal treatment and the right to be heard. Wendy Miles of Debevoise & Plimpton concurred and shared insights into dealing with parties and co-arbitrators who are reluctant to move forward with virtual hearings. Users might be sceptical for psychological reasons, but these hesitations can be overcome with efficient communication and, ultimately, with increased experience by the tribunals and parties. To paraphrase one of her conclusions “If you feel you can’t see the arbitrator in the eye in an online hearing - get a bigger screen”.
The impact of the pandemic on arbitration procedures is, however, not limited to virtual hearings. Michael Mcilwrath (Baker Hughes) stressed the need to optimise international arbitration proceedings with or without virtual hearings or tools, such as disposing of certain issues on a documents-only basis or evaluating dispositive issues at the outset of the arbitration. For cases where a hearing might be necessary, Paul Cohen of 4-5 Gray’s Inn Square provided an overview of the virtual tools available. These tools are generally mature and safe technologies. Of course, no single software or technical setup is suited for all types of hearings, but with the plethora of tools out there, there is something for everyone.
A recording of the session can be found here.
Online hearings from a Swedish perspective
On May 5th, the discussion was followed by an online panel in collaboration with the Swedish Arbitration Association, focusing on online hearings from a Swedish perspective.
In this panel, Kristoffer Löf (partner at Mannheimer Swartling) examined online hearings from a legal perspective. Mr Löf dispelled the notion that Swedish law requires any arbitration hearing to take place physically. Whereas parties in Sweden do have a right to a hearing if requested, Mr Löf noted that this requirement would be satisfied if the hearing takes place online. This assessment was shared by the other panellists. The conclusion is underscored by the fact that Swedish courts have come a long way in incorporating virtual tools and online hearings in the proceedings. Similarly to Maxi Sherer in the previous panel, Mr Löf noted that in assessing whether or not to move hearings online, the tribunal needs to balance four aspects - party autonomy, the right to be heard either in writing or orally, the principles of equal treatment of the parties and the obligation to carry out the proceedings in an effective and expeditious manner.
Drawing on on her experience as counsel and arbitrator, Polina Permyakova (counsel at WilmerHale) observed that virtual hearings raise new practical challenges and, if poorly executed, they can create the possibility for the parties to add disruption to the proceedings. Properly anticipating the specific needs of the hearing and scheduling practice rounds will be key to success.
Fanny Gleiss Wilborg (partner at Lundberg & Gleiss) described her recent, positive experience of online arbitration hearings from an arbitrator’s perspective. The dynamic between participants is naturally different than in a physical setting, and certain technical challenges do remain. However, she concluded that with increased experience of these tools, the comfort levels of the parties and tribunals would increase and remove much of the hesitation connected to them.
Participants left both these webinars wondering whether pandemic-induced adjustments might not, in fact, create the opportunity for long-term transformation of the procedural landscape of Swedish and international arbitration.
Summary provided by Velislava Hristova and Malcolm Robach