The Challenges raised by COVID-19, its Impact on the Arbitral Process and the Rise of Video Conferencing

Author: Mohamed HAFEZ

Type: Article

ref: 1202185-99

N0:1 of 2021

Pages: 85-99

Despite the widespread of the COVID-19 and its serious implications might seem in the beginning bearing negative impacts on arbitration; however, it might bear some fruits:
With the increasing need to rely on technology for the foreseeable future, it might encourage arbitral institutions, parties and arbitral tribunals to its constant usage. This could lead to lessening the usage of resources, saving time, the necessity of travelling to other countries and its logistics to hold physical arbitration hearings and could help save the environment whereby there would be no need to print out millions of paper in arbitration cases and to process everything digitally. If virtual hearings are embraced as a new standard, opportunities to engage counsel and experts abroad without any additional costs should enhance competitiveness. Virtual hearings avoid a great deal of costly administrative hassle which often weighs down on the process: visas, temporary work permits, arrangements for venue and accommodation, and the provision of food and beverage to name but an obvious few. When drafting future arbitration clauses, consideration could be given by users to select the arbitral institution that could accommodate such advanced technological features, as well as arbitral institutions accommodating in its own arbitration rules the use of advanced technology and virtual hearings. It might encourage the usage of Online Dispute Resolution (ODR) generally in arbitration. It will also affect the way evidence is created, gathered and transmitted. Parties are more likely to conduct document searches, reviews and production digitally. As well, tribunals will prefer digital memorials and document submissions. Also, the current circumstances has highlighted the lenience of using electronic submissions and exhibits in comparison to the necessity of having to deliver several hard copies of such documents to arbitral institutions and the institutions having to deliver them to all arbitration users in a case. This also could encourage following the “Green Campaign” or “Green Pledge” proposed by Lucy Greenwood in 2019, which aims to lessen the amount of unnecessary travelling if using videoconferencing or virtual hearings are possible, and the preference of submitting memos and exhibits electronically instead of in hard copies, amongst other matters that could save the environment.