Evolving doors

A reluctance to opt for litigation during the pandemic has seen new opportunities for arbitrators and other alternative dispute resolution practitioners. Shalvi Mehta assesses what should stay and what should go

Covid-19 and the subsequent lockdown hit the world out of the blue. Due to its unprecedented nature, none of us knew how to react or deal with it. Many lawyers were put out of work.

With the onset of covid-19, the response was to shut all public places and practise utmost social distancing. As a consequence of the rise in infections, the courts have been shut since mid-March 2020. It was time for everyone to step up and become adept at technology, and hence came the dependence on virtual hearings.

As we continue to maintain social distancing, even after the nation has been technically “unlocked”, the focus on practising online dispute resolution (ODR) is greater than ever. ODR is defined as a means to resolve disputes online, but a strict definition would suggest the inclusion of only alternative dispute resolution (ADR) methods of resolving disputes online.

Going online

Arbitration hearings are now regularly being conducted online, and both ad hoc and institutional arbitrations have adapted to virtual hearings and submissions. Having dealt with an institutional arbitration, as well as a few ad hoc arbitrations, during the lockdown, the author has observed an upward trend of accepting remote hearings and training with technology.

A common concern in both types of arbitration is about the way witness examinations will be carried out. The process of witness examinations may be easily interfered with when carried out virtually, and hence more reliance on witness statements is being given, rather than witness examinations. Witness examinations are an important process for resolving a dispute, and skipping the process completely might do harm to cases. Innovative ways to counter such a lacuna need to be figured out.

To give an example, one reputed international arbitral institute has reset the procedural timetable for an ongoing arbitration in such a way that the oral hearings for witness examinations fall in the middle of next year. Hopefully by then we can expect the situation will be good enough for us to travel and arrange for physical hearings.

This goes to show that even the best arbitral institutes are wary of conducting witness examinations virtually. No one is able to vouch for the confidentiality, transparency and reliability of a virtual witness examination.

In order to adapt to the pandemic situation, and to be able to take charge, all reputed arbitral institutes have uploaded FAQs for how to deal with written submissions and oral hearings virtually. The London Court of International Arbitration has also come up with new rules in 2020, which include virtual hearings as an option. What is to be noted, however, is that none of the arbitral institutes have reduced their fees, even though hearings are conducted virtually and the parties do not require arbitrators to travel.