Online Arbitration During the COVID-19 Pandemic

Given the ongoing coronavirus pandemic, judges/arbitrators/lawyers/parties are now deciding whether remote resolution of disputes in the EU, USA & other jurisdictions will be the best way of handling the upcoming arbitrations & trials. As far as arbitrations in Europe are concerned, some difficulties are likely to arise with regard to assessing the reliability of witness statements during virtual hearings.

Issues Arising From Virtual Dispute Resolution During the COVID-19 Pandemic

Those interested in resolving a dispute through arbitration in the EU should keep in mind that holding virtual hearings may be problematic in terms of functionality and completeness of evidence. However, there are some measures that can be taken to ensure the integrity of the virtual arbitration process.

When it comes to virtual hearings, arbitrators, lawyers & witnesses must ensure that all judicial and procedural requirements are met. Using a virtual arbitration platform in Europe and other jurisdictions raises a number of problems, such as:

• swearing in witnesses remotely
• taking precautions to avoid problems
• ensuring that witnesses do not use ‘cheat sheets’ while testifying
• Individuals in the courtroom giving improper instructions to witnesses remotely

Resolving a dispute in the EU through using online platforms requires the adoption of certain procedural guarantees and extending oaths to witnesses:

1. When the hearing begins, all participants must be identified. The commission chairman must interview the parties & the attorney to confirm that the only persons allowed to attend the proceedings are the ones approved by the attorney & the commission.
2. The chairman must identify all persons present at the location of the witness, and the witness must always remain visible to the commission & the lawyer.
3. The lawyer must confirm to the commission that each remote witness was informed of the procedures or protocols regarding remote witnesses that were endorsed for use in virtual arbitration in the UK and EU.
4. Witness must give an extended oath adapted to the new conditions; any unauthorized persons must be prevented from attending the testimony stage.

Conclusion

If you intend to initiate a trial during the coronavirus pandemic, you should keep in mind that the same approach can be used during trials.