Author: Melissa Balıkçı Sezen
Introduction
On 4 September 2020, a research project “Does a Right to a Physical Hearing Exist in International Arbitration?” was launched by an International Council for Commercial Arbitration (“ICCA”) taskforce. Due to the Covid-19 pandemic, many arbitration hearings were held online. Many institutional rules have allowed hearings to be held online. Some of the rules, such as the IBA Taking of Evidence in International Arbitration 2020 have defined “remote hearings.” However, many legal questions have arisen related to remote hearings. As a response to this, and particularly addressing the question of whether a right to a physical hearing in international arbitration exists, a report was published following the publication of the survey (“General Report”). The General Report was released on 19 May 2022, which covers responses received from 78 New York Convention jurisdictions.
The General Report describes the background and methodology of the survey, provides high-level conclusions drawn from the survey results, and offers some concluding remarks. The General Report deals with questions as to whether the lex arbitri expressly or impliedly provided for a right to a physical hearing in arbitration, the rules related to civil procedure and whether those rules may apply to arbitration, whether the parties may waive (for example by adopting institutional arbitration rules that allow remote hearings) their right to a physical hearing, the arbitral tribunals’ power to decide to hold a remote hearing even if the parties had agreed to a physical hearing, and questions related to setting aside of awards based on a breach of such right.
