Virtual Arbitration in India

Given the ongoing coronavirus pandemic, those considering resolving international disputes through arbitration in India should seek alternative ways of resolving their disagreements. There’s not so many of them, which is why the choice currently boils down to a single alternative - videoconferencing. 

India: Selecting an Arbitration Site

Initiating international arbitration in India requires ensuring that the chosen arbitration site meets the following standards:

• uninterrupted transmission of video feed;
• availability of at least one technician capable of assisting participants;
• ensuring non-interception of video feed by 3rd parties.

Compliance with IT Requirements 

Parties must ensure compliance with basis requirements. However, they can also agree on specific technical requirements for an upcoming video conference.

Seoul Protocol 

Designed to be an ultimate videoconferencing guide, the Seoul Protocol contains various expert recommendations, including:

• termination of a videoconferencing session if one of the participants is unfairly treated;
• ensuring unobstructed access of the participants to an arbitration site;
• making arbitration-related documentation available to all participants;
• providing the participants with an opportunity to choose videoconferencing equipment;
• testing video conferencing equipment at least twice;
• getting tribunal & parties’ approval for recording a videoconferencing session.

Ensuring Confidentiality

Initiating litigation in India requires identifying all participants at the very beginning of a videoconferencing session & ensuring their safety.

RDRP Guidelines

Containing recommendations on remote resolution of disputes during the coronavirus pandemic, the RDRP Guidelines comprise 3 parts:

Part 1

• providing tribunals & parties with private meeting rooms;
• agreeing on deadlines for submitting information prior to the commencement of remote hearings;
• agreeing on a digital platform for transmitting & storing recordings of remote proceedings prior to resolving a dispute via videoconferencing in India.

Part 2

• instructing participants on the need to comply with legislation on the validity of remote hearings; 
• recommending that participants conclude a formal agreement on conducting virtual international arbitration.

Part 3

• consulting with the relevant arbitral institutions & complying with the rules issued by those institutions.

WC Guidelines

Providing recommendations on remote questioning of witnesses, the WC Guidelines specify that successful resolution of international disputes through virtual arbitration depends on arbitration courts’ issuing instructions on:

• testing videoconferencing equipment;
• ensuring the presence of the participants’ legal representative;
• ensuring the presence of an interpreter, 
• making available all documents related to the questioning of witnesses.

Cybersecurity Protocol

The Cybersecurity Protocol aims to provide information on security measures during resolution of international disputes via arbitration. In particular, it focuses on:

• scope & applicability;
• security standards
• cybersecurity measures;

The Protocol contains no obligations & only serves as a general framework. 

IAF Guidelines

Adopted at the National Arbitration Forum, IAF guidelines focus on ways of using innovative practices for settling international disputes via arbitration in India.

In particular, they provide for:

• the use of affordable equipment;
• remote questioning of witnesses if they can’t be physically present;
• conducting a hearing via videoconferencing if it saves the participants' time & money.

Conclusion

Given that the coronavirus pandemic is continuing at an unrelenting pace, using the best international practices for settling disputes through arbitration in India is assuming ever greater importance. We hope that the above recommendations will be helpful to individuals considering conducting virtual arbitration in India.