Survey To Ask If Parties Have Right To A Physical Hearing

By Caroline Simson
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Law360 (September 4, 2020, 5:53 PM EDT) -- With COVID-19 having pushed many international arbitration hearings online, a new survey announced Friday will seek guidance from commonly used jurisdictions in international arbitration on whether parties have a right to conduct in-person hearings.

Had you asked the international arbitration bar before 2020 whether they preferred to have in-person or remote hearings, it's a fair assumption that many would have said they prefer the former. But as the novel coronavirus continues to color the lives of many throughout the world, with no clear, immediate end in sight, can parties claim they have a right to conduct physical hearings?

That's the question being posed to various jurisdictions in the survey unveiled Friday, which is being conducted as part of a research project undertaken by Professor Giacomo Rojas Elgueta of Roma Tre University School of Law, who is also the founding partner at D|R Arbitration & Litigation, and James Hosking and Yasmine Lahlou of Chaffetz Lindsey, in collaboration with the International Council for Commercial Arbitration.

The survey will ask countries that have signed the New York Convention — the international treaty through which international arbitration agreements and awards are enforced — a series of questions relating to whether parties have a right to hold a physical hearing. It also seeks to address the long-standing debate about what constitutes a "hearing" in international arbitration proceedings, the announcement noted.

Co-editors Rojas Elgueta, Hosking and Lahlou will be publishing a comprehensive report on the subject as an installment of the ICCA Reports Series, which is expected to be released by the end of this year or early next year.

"The front-burner topic of the right to a physical (versus a virtual) hearing is perfect for the ICCA Reports Series," ICCA President Lucy Reed said in a statement. "I, as one among many, am looking forward to the publication."

The report will include a comparative survey of the various jurisdictions, in which the authors will try to identify common themes on such topics as party agreement to holding a remote hearing, the application of institutional rules and minimum due process expectations.

It will also include a series of essays addressing key conceptual issues raised by the increased use of remote hearings, the implications for access to justice, as well as practical and technical challenges created by this development, according to ICCA.

Those interested in participating as a national reporter should reach out to the ICCA bureau by Sept. 25.

--Editing by Daniel King.

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