Adjusting to internet arbitration cases

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arbitration

The oral hearings of arbitration cases in mainland China were cancelled after the spring festival due to social distancing measures to control the COVID-19 pandemic. Since then, arbitration institutions have been seeking an alternative to hear cases while complying with the epidemic prevention policy.

The China International Economic and Trade Arbitration Commission (CIETAC) has constructed its CIETAC online hearing platform at kt.cietac.org, and successfully held an oral hearing via the platform on 9 April 2020. Online hearings provide an alternative to onsite oral hearings and documents-only examinations. This article introduces the online oral hearing procedure of CIETAC and the application of the internet in CIETAC arbitration cases.

Online hearing procedures

First and foremost, the arbitral tribunal considers whether it is appropriate to have an oral hearing online. According to the CIETAC Guidance of Promoting the Arbitral Procedures during COVID-19 Pandemic released on 28 April 2020, the decisive factors of whether to have an online oral hearing include the parties’ opinions, the complexity of the case, the amount of evidence, the witnesses, etc.

Taking the arbitral procedure of the above-mentioned case on 9 April as an example, the tribunal considered the circumstances of the case and resolved to hold an online oral hearing. Subsequently, the secretary of the tribunal asked for parties’ consent, and forwarded a confirmation of the online oral hearing to the parties.

After attaining the confirmation, the secretary sent a notice of oral hearing, a notice of hearing representatives, and a detailed technical guidance. The parties shall complete the notice of hearing representatives with information (including name, identity number, location of joining the online oral hearing, etc.) of all the hearing representatives, and submit it to the Arbitration Court of CIETAC.

After this, the secretary opens accounts for the hearing representatives on the platform according to the power of attorney, witness’s application to attend hearing, notice of hearing representatives, etc. Hearing representatives shall test the equipment on the platform on the time specified in the notice of hearing. Before the hearing, parties may upload their evidence to the platform at any time.

According to the guidance, if the hearing representatives are in different jurisdictions, or the language of the oral hearing is not Chinese, the online oral hearing could be held via other venues agreed by the parties and approved by CIETAC, or via the co-operative platform between CIETAC and foreign arbitral institutions.

The hearing representatives shall obey the CIETAC rules of online hearing. Before the beginning of the hearing, the representatives shall pass the identity check via facial recognition and read the rules of the oral hearing on the screen put forward by the secretary. The video recording starts when the hearing begins, and the speech recognition feature of the platform saves a transcript of the dialogue among all participants of the hearing.

Compared to the onsite hearing, it is important to confirm that the parties have no objection to the hearing representatives of the other parties, that the oral hearing takes place by means of online video, and the need to examine the original evidence. All the participants of the hearing have access to the uploaded evidence. The arbitrators can further put the evidence on the screen of all the participants and make annotation.

After the oral hearing, the parties examine the hearing records and ask the secretary to make corrections before signing the record on their smart phones. Meanwhile, the tribunal can deliberate together on the platform.

Online hearing analysis

Online oral hearings are not new, And the following issues regarding online oral hearings in arbitration cases have attracted attention.

The first consideration is the legitimacy of online oral hearings. The Arbitration Law does not limit the venue of the oral hearing. Article 35 of the effective CIETAC arbitration rules provides that the arbitral tribunal shall examine the case in any way it deems appropriate, unless otherwise agreed by the parties.

Under all circumstances, the arbitral tribunal shall act fairly and afford a reasonable opportunity for both parties to present their cases. Therefore, the online oral hearing is legitimate and effective, provided that the parties fully enjoy their right to be heard.

The second consideration is whether the parties’ consent is a prerequisite of having an online oral hearing. There is an argument that the parties have an equal right to be heard concerning the procedural issues, as the arbitral tribunal derives its power from parties’ consent. Where there are no definite rules in the arbitration laws and rules, parties shall decide together whether the oral hearing will be conducted by means of online video.

However, another argument is that the parities can hardly agree on a procedural issue since they have antagonistic sentiment as opponents in practice. Further, the online oral hearing, as an alternative to the onsite hearing, speeds up the arbitral proceeding and helps the claimant realize his interest of claim. Therefore, the respondent is usually reluctant to use the online oral hearing proposal.

In this situation, giving the power to decide an online oral hearing to the tribunal, after considering the circumstances of the case and opinion of the parties, especially the reasonableness of a party’s disagreement to have an online oral hearing, is beneficial to solving the disputes effectively. The guideline adopts the latter approach.

The third consideration is whether the online oral hearing jeopardizes the confidentiality of arbitral proceedings. Data generated from the online oral hearing have to be exchanged on an internet platform. The confidentiality of this process depends on the privacy policy of the platform, the terms of service of the network operator, and the local regulation of the internet.

The CIETAC-owned platform protects confidentiality from the platform perspective to the largest extent, and adopts face-recognition technology to ensure the participants match the authorized representatives. Moreover, CIETAC has sub-commissions in Shanghai, Shenzhen, Tianjin, Zhejiang, Chongqing, Sichuan, Fujian, Jiangsu, Shandong, Hubei, Shanxi and Hong Kong, apart from its headquarters in Beijing. Arbitrators and parties can opt to join the online oral hearing at the headquarters or the nearest sub-commission via internal internet, to ensure the confidentiality.

The fourth consideration is the inconvenience of examination of the evidence. Admittedly, it is harder to tell the authenticity of the evidence online, since parties can only present the originals on the camera in an online oral hearing. If a party insists on checking the originals onsite, a plausible and safe way is to ask the submitting party to send the originals to CIETAC, and CIETAC would keep them temporarily for the other party to check onsite. It is not advisable for arbitration cases with large quantities of evidence, or strong objections to authenticity, to have an oral hearing online.

Online oral hearings are a supplement of onsite oral hearings. The online oral hearing is not restricted by geographical location, but bears an inconvenience with examinations of evidence. The author believes that the onsite oral hearing is irreplaceable, especially for complicated cases.

For cases with less evidence, if the oral hearing involves mainly the exchange of legal opinions that are unable to be conducted onsite for various reasons, then an online oral hearing is an alternative to the document-only examination of the case.

Wang Yi is a case manager at China International Economic and Trade Arbitration Commission (CIETAC)

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