Right to a Physical Hearing Project: Newly Released Reports Confirm Core Trends and Divergences

Co-editors Giacomo Rojas Elgueta, James Hosking and Yasmine Lahlou, in collaboration with ICCA, are pleased to announce the release of the third and final batch of national reports on the Right to a Physical Hearing Project. Following the publication of 46 national reports in February and March, today 31 more New York Convention jurisdictions are added to the survey: Argentina, the Bahamas, Bangladesh, Benin, Croatia, Dominican Republic, Ecuador, Finland, Iran, Ireland, Jamaica, Japan, Lebanon, Lithuania, Norway, Pakistan, Philippines, Poland, Qatar, Scotland, Singapore, Slovak Republic, South Korea, Spain, Thailand, Tunisia, United Arab Emirates, Uruguay, Uzbekistan, Venezuela and Zimbabwe.

ICCA President Lucy Reed commented:

"ICCA congratulates the Co-editors and contributors on this final batch of national reports. It is an extraordinary accomplishment for them to have produced 77 comprehensive and user-friendly reports in a matter of months, thereby providing a hugely valuable contribution to the arbitration community as we navigate virtual practice."

"We are proud to publish this final instalment of the national surveys—the culmination of a lot of hard work by the country reporters and Co-editors but even more so by our talented and tireless colleagues Benedetta Mauro and Marcel Engholm Cardoso," say James Hosking and Yasmine Lahlou on behalf of the Co-editors.

This final set of reports further confirms the core trends and divergences highlighted in the previous releases. First and foremost, none of the surveyed jurisdictions contains any express provision granting a right to a physical hearing. However, adding to a small group of jurisdictions previously identified, the reporters from Ecuador suggest that such right can be inferred by way of interpretation, drawing from the principles of civil procedure law and Ecuador’s constitutional guarantees. A right to a physical hearing is also recognized in Venezuela, although limited to the first hearing, which must be held physically (or at least not fully remotely). In some other jurisdictions, including Benin, Norway and Tunisia, whether a right to a physical hearing can be inferred remains unsettled. To the contrary, the laws regulating arbitration in the UAE (including in Abu Dhabi Global Market) expressly assign to the arbitrators the discretion to hold remote hearings.

The newly surveyed jurisdictions also continue to disclose variations in interpretation of the UNCITRAL Model Law, and in particular of the provision in Article 24(1) that the arbitral tribunal shall hold an “oral” hearing if a party so requests. Whether the right to request an “oral” hearing translates into the right to request a “physical” one is again excluded by most Model Law jurisdictions (Argentina, Croatia, Dominican Republic, Iran, Ireland, Jamaica, Japan, Philippines, Poland, Singapore, Slovak Republic, South Korea, Spain, Tunisia, UAE, Uruguay, Uzbekistan), whereas in Zimbabwe the right to an oral hearing is arguably a right to a physical one, considering the practical difficulties of conducting remote hearings due to unreliable power and poor internet connections. A conclusive answer cannot be reached in Norway, the authors suggest. Based on domestic practice and the rules of civil procedure, some scholars argue for extension of the right to a physical hearing to arbitration proceedings as well; but, on the other hand, if the Norwegian lex arbitri is interpreted in light of the international legal sources upon which it is built, one can reach the opposite answer. Interestingly, this problem is non-existent in Thailand, where the wording of the corresponding provision of the lex arbitri has been amended in such a way as to rule out the parties’ right to request a hearing at all.

Further interesting nuances are highlighted in relation to the arbitral tribunal’s powers in the presence of party agreement to hold a physical hearing. In many jurisdictions, holding a remote hearing against the parties’ agreement could lead to the setting aside of the award (Bangladesh, Benin, Dominican Republic, Finland, Jamaica, Korea, Lithuania, Pakistan, Poland, Spain, Thailand, Uruguay, Zimbabwe), but this ground for setting aside is often qualified by the further requirement that the violation of the parties’ agreement has had a material impact on the outcome of the case or caused substantial injustice (Argentina, Japan, Norway, Scotland, Singapore, Slovak Republic, Tunisia). Some reporters argue that in their jurisdiction the arbitral tribunal could still order a remote hearing despite the parties’ agreement otherwise if, for example, respecting the parties’ agreement would delay the conclusion of the arbitration beyond the statutory time limit (UAE) or violate  the arbitrators’ duty to conduct the proceedings without undue delay (Croatia, Iran and Qatar). Further possible justifications for the arbitral tribunal’s decision to override the parties’ agreement to hold a physical hearing include the integrity of the arbitral process and the equal treatment of the parties (Venezuela), as well as consideration of principles of independence, impartiality, concentration, publicity, immediacy and access to justice (Ecuador). Further, should there be a violation of the parties’ agreement, setting aside is not the only possible consequence. In the Bahamas, the parties could revoke the arbitrators’ authority (as in Finland) or seek to have them judicially removed, while in Scotland, a court may even order that the arbitrators are not entitled to payment of their fees and expenses.

The survey also continues to reveal the diversity of approaches to applying the New York Convention. For example, due to the wording incorporating Article V(1)(d) into Croatian law, whether a right to a physical hearing existed at the seat of arbitration would be irrelevant. Interestingly, this would be relevant but not of itself sufficient to deny enforcement, in each of Argentina, Ireland, Norway and Uzbekistan, where the court would arguably require an additional showing that the violation of such right caused actual prejudice or had a material impact on the process. In both the Dominican Republic and Finland, the authors suggest that it would further be necessary that the award have been set aside by the courts of the seat.

The publication of this final instalment of national reports marks the conclusion of the first stage of this Project, with a total of 77 jurisdictions covered at present. (The reports from a handful of additional jurisdictions may be added later.) The findings of this global survey are made available on this dedicated page of the ICCA website as a service to the international arbitration community. 

The Co-editors now look forward to turning to the second part of the Project, which will culminate in the presentation of a volume of essays at the XXVth ICCA Congress in Edinburgh. This volume will include the Co-editors’ analysis of the conclusions to be drawn from the comparative law survey undertaken over the last several months. In addition, the book will include a series of essays addressing the interplay between remote hearings and key conceptual issues in international arbitration.