Procedural Formalities in Arbitration: Towards a Technologically Neutral Legal Framework

Abstract

This article addresses the ongoing process of digitalization in arbitration proceedings, particularly in light of the recent coronavirus disease 2019 (COVID-19) pandemic. It focuses on the different communications that occur throughout arbitration proceedings, i.e. written communication at the start and during the proceedings, oral communication at hearings, and the rendering of the arbitral award. The authors assess the past, present and future use of digital means of communication in relation to each of these instances, and analyse the extent to which the applicable legal framework (institutional rules, national laws, and the New York Convention) is actually an obstacle to digitalization. They find that the evolution towards more technologically oriented proceedings had already started, but that the COVID-19 pandemic will likely be a decisive step towards fully digital arbitration proceedings. The authors welcome that evolution, and argue that there are no overriding legal or policy arguments to hold back this trend. Arbitration, Digitalization, COVID-19, Procedure, Formalities, Technology, Institutional Rules, Communication, Request for Arbitration, Remote Hearings, Electronic Awards

New (and inevitable) Horizons for International Economic Law: The Aftermath of the 2020 Pandemic

“…International arbitrators, arbitral institutions and parties in international arbitration proceedings were used to the utilization of remote hearings, submitting claims and counterclaims in writing from State A to State B (country where the lawyers of the party from State A were based) to finally reach State C (country where the arbitration is made; country where the arbitral tribunal is "seated) or to States D, E and F (countries where one member of the arbitral tribunal actually is living at the moment and exercising his professional activities 33 ) (Pinsolle, 2022). Moreover, international arbitrators, arbitral institutions and parties of International Arbitrations were already used to have hearings developed in an absolute digital environment, to produce evidence online, to store valuable proof in the cloud (designated only for that dispute by the arbitral institution), to store sensitive information in a shared cloud, accessible for 1 of the parties and its lawyers (administered by the lawyers in charge of that dispute within the Law Firm in which they work), and a big etcetera, before the 2020 pandemic (Ongenae & Piers, 2022). Second, whilst local domestic courts were forced to suspend operations, numerous arbitral tribunals swiftly adapted to the new normal by shifting the proceedings into virtual space (Imposing Virtual Arbitration Hearings in Times of COVID-19, 2021).…”