Introduction
Due to its remote nature, online arbitration, like the conduct of a mediation online, requires preparatory measures specifically designed for the efficient, effective and cost-efficient determination of a dispute by arbitration.
Anthony Lo Surdo SC is able to assist parties with the use of online arbitration platforms and has launched a website dedicated to determination of disputes by arbitration conducted online: www.silk-arbitrator.com.au.
He has developed the following protocols to ease the process and ensure that online arbitration is as seamless and effective.
Preliminary Steps
In an institutional arbitration, the preliminary or preparatory steps may be stipulated in the rules of the institution concerned and must be strictly observed. Where those rules do not make specific provision for particular preparatory steps or are silent as to the conduct of the arbitration by remote means, the arbitrator or arbitral panel will most likely have jurisdiction to make relevant directions under their general procedural powers.
The parties should, wherever possible, act co-operatively to agree the online platform that the parties propose as the medium through which the mediation will be conducted, eg, Zoom, Cisco Webex, Microsoft Teams, Modron and Skype.
It is important that any platform that is used is suitable for the number of participants, contains a split-screen so that all participants can be seen, a function to create virtual party rooms and to mute video and microphones.
Consideration should be given as to whether a third party online arbitration provider, such as, DC Virtual, Arbitration Place Virtual or Law in Order, should be engaged.
In an institutional arbitration, the institution would ordinarily “host” the arbitration and thus make all necessary arrangements for it including to facilitate the attendance of all parties, their legal representatives and any witnesses. In an adhoc arbitration, the arbitrator(s) (or an ad hoc clerk if one is appointed) would assume that responsibility.
Procedural hearings
Procedural or directions hearings should be held by telephone or by video.
They should provide for the manner in which written evidence, documents and written submissions are to be served and provided to the arbitrator(s) and, in particular, specify the electronic means by which that will be facilitated, eg, DropBox, GoogleDrive, Files2U.
Unless the institutional rules otherwise provide, the parties may need to agree protocols for the conduct of the arbitration online such as those such as those described in the Seoul Protocol on Video Conferencing in International Arbitration.
It will also be expected that the parties will provide the arbitrator(s) with a hearing schedule. That schedule will also identify each of the participants in the arbitration including any witnesses and when it is expected that those witnesses, if any, will give evidence. Contact details (names, email addresses and telephone numbers [both landline and mobile] for each of the parties, their respective legal representatives and any witnesses should also be disclosed.
Pre-Arbitration Procedural Hearing
A short pre-arbitration procedural hearing should be held no later than 24 hours’ prior to the arbitration via the relevant online platform to discuss any issues pertinent to the arbitration including the proposed hearing schedule and to ensure that the system is working well and that all parties and the arbitrator(s) are comfortable with the chosen platform.
Witnesses
The parties must consider and agree upon the manner in which witnesses will participate and give their evidence in the online arbitration including: how oaths can be validly administered by videoconferencing (if oaths are a requirement under the laws of the seat); ensuring that the witness will be positioned close enough to the camera to gauge facial expressions and other silent cues, but also so that the witness’ upper body is in view; ensure that the witness can clearly hear and see counsel and the tribunal; safeguarding against the risk that a witness is not being coached or prompted off-screen, either by a person or other materials (eg, by requiring witnesses to affirm that they are alone, that they will not look at email or smartphones during the examination and to confirm that the witness is not receiving communications of any sort during the course of his or her testimony or by having a view of the whole of the room in which the witness is located). With expert witnesses, consider whether hot-tubbing is appropriate.
Transcript
The parties will need to make arrangements for transcription services and whether the service engaged provides transcription services via the chosen online platform and access to live transcription.
Translator
It a translator is required consideration should be given to how translation services will be accommodated, noting that many translators can provide services remotely.
Communication within legal teams
Consider how your legal team will be able to communicate efficiently and privately during the arbitration hearing, for example, by use of WhatsApp, Skype, Facetime, or other service chat, especially where individuals are each participating from different locations.
The Arbitration
All participants should log on promptly at or shortly prior to the designated time.
The participants may be placed in a virtual “waiting room” and join when requested to do so by the arbitrator(s).
Prior to joining the arbitration, the parties, their legal representatives and any other participants should:
(a) ensure that they have closed all applications on their desktop that could interfere with the mediation, for example, email notifications and the like; and
(b) mute their microphone when not speaking.
These steps will not only maintain privacy and confidentiality but is likely to enhance audio and visual quality.
The participants must not privately record any aspect of the arbitration.
(c) Anthony Lo Surdo SC, 2020