Advocate Sushila
ROLE OF VIRTUAL ARBITRATION DURING THE COVID-19 PANDEMIC
Advocate Sushila Ram 25 Apr 2020

ROLE OF VIRTUAL ARBITRATION DURING THE COVID-19 PANDEMIC

In the light of the onset of #Covid-19, resulting in physical #distancing for an indeterminate period, in-person activities have become impossible. In person court hearings and #arbitrations has become impossible. However, when one door closes another always opens.

Due to such restrictions, the framework of in-person arbitrations seems the next best alternative method viz., #videoconferencing or virtual hearings. #Virtualarbitration as the name suggests means a resolution of disputes by using technology. Such virtual hearings will have to comply with several laws and in particular the #InformationTechnologyAct, 2000. Under the current challenging circumstances, it seems there is no option but to explore virtual arbitration and courts to ensure access to justice and adjudication of disputes.

As the #lockdown in India has been increased by several weeks people are now looking at alternate ways of resolving their legal issues as the pandemic continues indefinitely. There is now a scramble for exploring options to use #technology to reduce physical interface and maintain distancing. One such option that is being looked at very seriously by the Indian Legal System is advent of virtual hearings be it arbitrations or court proceedings.

The #SupremeCourt has already paved the way for virtual courts vide its guidelines for Courts functioning through video conferencing on 06.04.2020. Though virtual courts were being used as an experiment it is a system that will stay. Though #virtualcourts may not be a panacea in every case it can be considered as a viable option for some types of matters where the evidence is not very difficult to handle. Currently it seems the only viable option.

Currently the most effective, efficient and accessible platform for dispute resolution is arbitration. It is a device whereby the settlement of a question, which is of interest for two or more persons, is entrusted to one or more other persons; the arbitrator(s), who derive their power from a private agreement, not from the authorities of a State, and who are to proceed and decide the case on the basis of such an agreement.

This available avenue for adjudication of disputes can be conducted virtually. Such virtual arbitrations can be conducted either fully or in piecemeal depending on the parties and the arbitral tribunal. As parties are allowed to make their own rules for conducting arbitration they can decide whether they should use virtual arbitration for the entire dispute or only for preliminary issues.Such virtual adjudications will save time and money. It will also lead the way for simplifying the process as interface time can be reduced. It will also restrict adjournments and delays in the matter.

The use of technology as part of legal proceedings is ordinary. In many jurisdictions we have seen some witnesses providing evidence remotely by video-conferencing. As India, is digitally very advance, entrepreneurs can come up with a number of online platforms which are capable of hosting a virtual hearing. Such platforms also allow sharing of documents and its review by the parties. The virtual arbitrations can be done through virtual break out rooms and private chat features, either for one-to-one conversations or as a group is also available on such platforms.

Though, virtual arbitration provides a number of advantages such as low costs and saving of time it is not the ultimate solution. It cannot be denied that virtual hearings will not be appropriate in all circumstances. Some factors which make virtual hearings probably unviable are:

Lengthy Hearing: Anyone who has participated in a lengthy video conference will attest that it is more difficult to maintain focus virtually than it is meeting in person. Delays and disruptions, possibly arising from technology failures, may be amplified over a prolonged period.

Atmosphere for witnesses: Witnesses tend to be more relaxed giving evidence by video link. Where a witness’s evidence is contentious, the cross-examiner might be unfairly disadvantaged by not being able to see the witness in the flesh and to be seen in the flesh by them. This cuts both ways, with a party’s own witnesses and also their opponent’s witnesses.

Sitting hours: In a cross-border dispute with various time zones, some or all parties may be forced to sit at unsociable hours, potentially creating an imbalance.

Availability of internet: A fast, reliable and secure internet connection for each participant is a necessity. While this is ordinarily taken for granted in many parts of the world, internet performance is not guaranteed during this pandemic as telecommunication networks come under increasing strain.

The pandemic has now opened a new avenues and virtual arbitration is being considered as a valuable option. The ability to design a flexible dispute resolution process and to anticipate what issues may arise in a virtual setting has to be examined carefully.Parties to a legal proceeding should weigh up all the factors and work out what is best for them.

Reference

  1. https://main.sci.gov.in/supremecourt/2020/10853/10853_2020_0_1_21588_Judgement_06-Apr-2020.pdf

Lakshmi Vishwakarma

Associate

The Indian Lawyer & Allied Services

Edited by

Sushila Ram Varma

Chief Consultant

The Indian Lawyer & Allied Services

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