In 2019, no fewer than 6,779 arbitrations have been lodged with the world’s main arbitral establishments. This quantity, which doesn’t account for arbitrations administered by regional or sector-focused establishments and advert hoc arbitrations, solely represents a fraction of disputes truly submitted to arbitration final yr. Given the amount of circumstances and the common size of a world arbitration, it’s truthful to imagine that lots of of arbitration circumstances are being determined within the present surroundings. 

Claire Morel de Westgaver

Arbitration customers go for a three-member tribunal as a result of they imagine or anticipate {that a} collegial choice based mostly on the opinion of three individuals, fairly than one, will improve equity and impartiality inside the choice course of and the standard of the award.

Following the implementation of remote-working and journey bans, establishments have given tips to minimise the influence of Covid-19 restrictions on arbitral proceedings, and practitioners have contemplated the topic of digital hearings. However there’s little or no steering as to how arbitrators ought to talk earlier than, throughout and after digital hearings, and find out how to conduct deliberations in a method that aligns with the events’ expectations and preserves the proceedings’ integrity.

Within the absence of formal steering, I’ve compiled a five-point guidelines for arbitrators who’re deliberating remotely.

1    Confidentiality of communication

No matter whether or not an arbitration is itself confidential, deliberations are invariably topic to a strict confidentiality provision underneath all arbitration regimes. A leak of arbitrators’ communications could jeopardise the legitimacy of the proceedings and the validity of the award. It might give rise to knowledge safety liabilities and, in excessive circumstances, it could possibly put arbitrators’ private safety in danger or affect monetary markets. It’s subsequently paramount that arbitrators use a safe methodology to speak in the course of the proceedings, together with digital hearings.

Most platforms used for digital hearings present breakout rooms in addition to chat features that can be utilized for messages exchanged between arbitrators throughout plenary classes. Nevertheless, to keep away from the chance of messages being by chance entered and disclosed in the principle listening to chat room, some arbitrators use a separate platform, similar to WhatsApp, to speak with one another; one thing they need to not do except the platform is safe.  

2    Satisfactory and well timed deliberations    

Assuming that there isn’t any requirement for deliberations to happen in individual, arbitrators mustn’t delay deliberations till journey bans are lifted. Certainly, an necessary issue of sufficient deliberations is that they happen in a well timed method, when the problems and proof introduced on the listening to are nonetheless contemporary within the arbitrators’ minds. Additional, delaying deliberations will inevitably delay the rendering of the award, a recurring challenge raised by arbitration customers.

Arbitrators are subsequently inspired to determine on circumstances remotely. Nevertheless, this doesn’t imply that they’ll dispense with a debate on all the points within the case earlier than continuing with making ready the draft award. That is vital to make sure that the award is a real reflection of the arbitrators’ collegial choice, and to keep away from the dangers related to deliberations performed solely on the premise of the draft award; a pattern that will have intensified within the present distant working surroundings.

3    Inclusion and truncated tribunals

As a consequence of workload or technical causes, scheduling a deliberation assembly in a well timed method, after the listening to or after the final submissions, may give rise to critical problem. But, excluding or showing to exclude an arbitrator from deliberation can have critical penalties. Certainly, courts across the globe have discovered that the failure to incorporate one of many arbitrators within the deliberations or to deliberate a difficulty may result in the award being annulled.

If an arbitrator fails to participate in all or any deliberation calls, or if no settlement might be reached between the arbitrators, tribunal chairs could nonetheless proceed with the deliberations and challenge the award. Most arbitration regimes present that an award might be rendered on the premise of a majority. In these conditions, chairs ought to hold a file of the tribunal’s communications about digital conferences to have the ability to show that the lacking or dissenting arbitrator was supplied applicable discover in regards to the deliberation conferences.  

4    Confidentiality of draft awards

Arbitrators ought to deal with draft awards with nice warning to protect the confidentiality of deliberations. The 2 details of weak point with draft awards are the style during which they’re shared and the place they’re saved. Draft awards are routinely shared by e mail with out encryption. Relying on the techniques and WiFi connections used, this provides rise to critical cybersecurity dangers. Arbitrators also needs to be cautious of dangers related to sharing content material features of digital platforms. The placement the place draft awards are saved may also represent a difficulty if the related IT infrastructure just isn’t secured. On this regard, arbitrators are inspired to have their very own techniques checked and to undertake good doc administration hygiene.

5    Formalities for signature

With respect to signatures, arbitrators ought to test that no particular requirement exists (eg, for arbitrators to be positioned on the seat of the arbitration when signing the award). Additional, with a view to accelerating the method of rendering the award, arbitrators could need to take into account signing the award in counterparts or electronically. Earlier than doing so, they need to discover out whether or not the relevant guidelines and authorized system(s) enable these practices. Lastly, sure units of guidelines ponder the likelihood for award being notified to the events by e mail.

 

The creator is grateful to Danial Butt, trainee at Bryan Cave Leighton Paisner, for his help with this text.

 

Claire Morel de Westgaver is a professional arbitration practitioner for England and Wales and the US (New York)