6/30/2021
We have been living in pandemic conditions for more than 1 (one) year. After all this time, we no longer have any doubts about the possibility of an arbitration proceeding being conducted in an entirely virtual manner. When we say entirely virtual, we include even evidentiary hearings for the hearing of witnesses, legal representatives, experts, etc.
Several, if not most arbitration institutions, national and international, have adapted to the virtual system. In Brazil, for example, although the submissions of the parties and procedural orders were already being sent electronically, before the pandemic, the physical filing was not dismissed afterward. Currently, other than the physical filing having been dispensed, it is now possible to have access to the entire procedure in the so-called “clouds”, such as SharePoint, used by the Arbitration and Mediation Center of the Brazil-Canada Chamber of Commerce (CAM-CCBC).
Although social coexistence has been reduced, which, for many, is a cause for distress, there is no doubt that this mitigation occurred for the sake of time. It is known that the speed of the arbitration procedure, when compared to other dispute resolution methods, is one of the main characteristics of arbitration. The transformation of the arbitral procedure into a digital format was beneficial for speed. The compatibility of schedules for holding a hearing was a factor that had a direct impact on speed. The factor of making it virtual has made it easier to reconcile the schedules of all those who participate in an evidentiary hearing, for example.
The vaccination for most of the population in the near future brings the hope of social coexistence, and with this, the distance will be a past or, at best, an option. The question is whether arbitration proceedings will revert to its old habits.
In a recent survey by the Queen Mary University of London (“2021 International Arbitration Survey: Adapting Arbitration to a changing world”), respondents, when asked whether after the pandemic they will choose to hold hearings “in person”, “virtually” or “mixed” – where some of the participants attend and others act remotely – answered, for the most part, that they will choose the virtual model, due to the reduction in time and cost.
John Fellas, a renowned lawyer from New York who has participated in several international arbitrations, in a recent article published in the New York Law Journal, informed that, in the arbitrations in which he participates the evidentiary hearings are being scheduled for the end of 2021 and the first half of 2022, none of the involved parties have chosen to schedule the evidentiary hearing in a virtual format.
The effects that the pandemic has had on arbitral proceedings are mostly beneficial. We do not know which procedures will be maintained post-pandemic. What is beyond doubt is that the disputes, which were under arbitral jurisdiction at the start of the pandemic, have taken their normal course. Unlike those under state jurisdiction, of which the economic losses are incalculable, many of them are still stalled.
Once again, arbitration proved to be an excellent method of conflict resolution, both for its main characteristics – speed, specialized judges, confidentiality – and because it fits global needs.
Coauthors: Júlia Guimarães Rossetto, Silvia Pachikoski and Tonico Monteiro da Silva
