I. Introduction 3 II. General Characteristics of Online Arbitration 5




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83 Supra Note Error: Reference source not found at 3; Supra Note Error: Reference source not found; Supra Note Error: Reference source not found at 465; Supra Note Error: Reference source not found at 394.

84 Supra Note Error: Reference source not found at 31.

85 Ibid.

86 Supra Note Error: Reference source not found at 3.

87 Supra Note Error: Reference source not found

88 C. Rule, Online Dispute Resolution for Business (Jossey-Bass, 2002) at 57-58.

89 Supra Note Error: Reference source not found at 669.

90 “Fifteen years ago people were still talking about the automated judge – a computer that would, after being ‘fed’ legal facts, render ‘correct’ decisions. This naïve euphoria is gone. The substantive use of technologies and networks in the legal world has a different focus today.” – V. Mayer-Schönberger, “The International Lawyer in Times of Cyberspace” in J. Drolshammer & M. Pfeifer, eds., The Internationalization of the Practice of Law (The Hague: Kluwer Law International, 2001) 401 at 407.

91 Supra Note Error: Reference source not found; Supra Note Error: Reference source not found at 4.

92 Supra Note Error: Reference source not found at 121; Supra Note Error: Reference source not found and Supra Note Error: Reference source not found at 4.

93 Supra Note Error: Reference source not found at 121.

94 Supra Note Error: Reference source not found at 3

95 Ibid.

96 Ibid. Section 34 of the Arbitration Act 1996, online: < http://www.hmso.gov.uk/acts/acts1996/1996023.htm>.

97 Supra Note Error: Reference source not found at 465.

98 Such terms as ‘telephone conference’, ‘teleconference’, ‘audio-conference’ and ‘videoconference’ are commonly confused, any the difference between them is not clear any more. According to Webopedia (online encyclopedia dedicated to computer technology, online: ), ‘teleconference’ means just “a conference via a telephone or network connection”.

99 According to Webopedia, videoconferencing means “conducting a conference between two or more participants at different sites by using computer networks to transmit audio and video data. For example, a point-to-point (two-person) video conferencing system works much like a video telephone. Each participant has a video camera, microphone, and speakers mounted on his or her computer. As the two participants speak to one another, their voices are carried over the network and delivered to the other's speakers, and whatever images appear in front of the video camera appear in a window on the other participant's monitor. Multipoint videoconferencing allows three or more participants to sit in a virtual conference room and communicate as if they were sitting right next to each other. Until the mid 90s, the hardware costs made videoconferencing prohibitively expensive for most organizations, but that situation is changing rapidly. Many analysts believe that videoconferencing will be one of the fastest-growing segments of the computer industry in the latter half of the decade.”

100 The use of tele- and video-conferences in court proceedings is currently admissible in many jurisdiction. Probably the most innovative web-based broadband video conferencing system, that allows solicitors to conduct their court hearings from a remote source, has been recently set up in Singapore (see: online ). Hörnle pointed that it is allowed for example in England and Wales and the US. See: CPR Part 32, Rule 32.3, or the US Federal Rules of Civil Procedure: Fed. R. Civ. P. 43 (a): "The court may, for good cause shown in compelling circumstances and upon appropriate safeguards, permit presentation of testimony in open court by contemporaneous transmission from a different location." – Supra Note Error: Reference source not found at 12.

101 Ibid.

102 Supra Note 36

103 Supra Note Error: Reference source not found at 12.

104 In her article Hörnle gave also some practical advice, e.g., “in order to avoid a coaching of the witness, the picture [transmitted during a video-conference] should cover the whole room at the witness end, which necessitates at least two cameras” – Supra Note Error: Reference source not found at 12.

105 Ibid.

106 See: A. M. Pardieck, “Virtuous Ways and Beautiful Customs: The Role of Alternative Dispute Resolution in Japan” (1997) 11 Temp. Int'l & Comp. L.J. 31 at 49.

107 Supra Note Error: Reference source not found at 12.

108 Ibid.

109 The issue of arbitrators’ deliberations is not regulated in the MAL. As for decision making by panel of arbitrators, the MAL provides only that if there is more than one arbitrator, “any decision of the arbitral tribunal shall be made, unless otherwise agreed by the parties, by a majority of all its members. However, questions of procedure may be decided by a presiding arbitrator, if so authorized by the parties or all members of the arbitral tribunal.”

110 Hill cited in extenso the sentence of the Swiss Supreme Court, in which the court held that the arbitrators need not meet in person and are free to conduct deliberations by electronic means, including e-mail, provided that suitable precautions are taken. The sentence was rendered under the regime of the Concordat sur l'arbitrage (CIA), an arbitration law that is no longer in force. However, as Hill explained, the provisions of the current law, the Swiss Private International Law Act (LDIP), are analogous to those of the CIA for what concerns the matter in hand, so the sentence should be applicable to arbitrations conducted under the regime of the LDIP – Supra Note Error: Reference source not found.

111 Supra Note Error: Reference source not found at 13, European Grain and Shipping Ltd v Johnson, CA, [1982] 3 All ER 989 (992)

112 The 1996 Act stipulates that unless parties have not agreed to the contrary, arbitral tribunal’s decisions are to be made by majority of votes. If a chairman has been appointed, his vote is counted as the votes of other arbitrators. However, if there is neither unanimity nor a majority, the view of the chairman prevails as to any decision, order or award.

113 European Grain and Shipping Ltd v Johnson, CA, [1982] 3 All ER 989 (992)

114 Ibid.

115 Hörnle argued that drafts of an award “could be exchanged as e-mail attachment or uploaded (and accessed) on a secure platform until the award has been finalized. (…) Finally the method used must provide for adequate security in two respects. The first concern is to ensure the privacy of the proceedings. (…) Second, it is important to ensure that the communications of the arbitrators are properly authenticated. This could be achieved by password or pass-phrase protection to gain access to the communication platform, where appropriate and by electronic signatures. Therefore, provided certain precautions are taken, it is possible for the arbitrators to deliberate online at a distance” – Supra Note Error: Reference source not found at 13.

116 Paddy Marketing Board v. S. V. Industries (Ceylon) Ltd., C.A. No. 1257/86, D.C. Colombo 2458/SPL, online: at 29.

117 According to the French Cour d’appel de Paris, “no particular form is imposed for the deliberations of the arbitral tribunal; in international it is difficult to hold multiple meetings of a group of people who live in different countries” Paris, 22 décembre 1978, IMR c/ Lynx Machinery, Revue de l’arbitrage, 1979, at 276. This decision was confirmed by the Cour de Cassation,Cass, 1ère civ, 28 janvier 1981, Revue de l’arbitrage, 1981, at 425 – Supra Note Error: Reference source not found with citation to French law and Italian law, which explicitly allow for deliberation by video-conferencing.

118 For the purposes of this paper, we assume that the meaning of the terms 'seat of the arbitration' and 'the place of arbitration' are, in principle, identical – A. Vahrenwald, Out-of-court dispute settlement systems for e-commerce, online: at 83.

119 Supra Note Error: Reference source not found at 669.

120 Supra Note Error: Reference source not found.

121 Supra Note Error: Reference source not found at 9.

122 Supra Note Error: Reference source not found at 473.

123 Supra Note Error: Reference source not found at 394.

124 Supra Note Error: Reference source not found at 617.

125 Supra Note Error: Reference source not found at 83.

126 Ibid.

127 Some authors hold that those terms have identical meanings: K. Lionnet, Handbuch der Internationalen und nationalen Schiedsgerichtsbarkeit (Stuttgart: Boorberg 1996) at 95; Supra Note Error: Reference source not found at 83.

128 Supra Note Error: Reference source not found at 463.

129 Supra Note Error: Reference source not found at 82.

130 Supra Note Error: Reference source not found at 53

131 Ibid. – with citation to the decision of Court of Appeal of Paris, 28 October 1997, Société Procédés de préfabrication pour le béton v. Lybie, Revue de l’arbitrage, 1998, at 399, note Bruno Leurent.

132 ICC Bulletin (1999) 10 (1). See the info online: .

133 It must noted, however, that according to some writers such requirements should be construed under the NYC – See: M. E. Schneider, Ch. Kuner, “Dispute Resolution in International Electronic Commerce”, (1997) 14 J. Int’l Arb. at 24. Certainly, in 1958, all arbitral awards were written on paper and signed, in ink and by hand, by arbitrators.

134 Supra Note Error: Reference source not found at 50.

135 Supra Note Error: Reference source not found at 122.

136 Supra Note UNCTADError: Reference source not found; the above issue pertains specifically the NYC; other major sources of international arbitration law, such as Article 31.1 of the MAL, do not refer to “an original”, but instead require that the award be in writing and that it be signed by the arbitrators.

137 The “functional equivalent” approach is promoted by the Model Law on Electronic Commerce, as discussed in the first part of this article. See also: Guide to Enactment of the UNCITRAL Model Law on Electronic Commerce (New York, 1997) at 20 (section 15).

138 A. Lucas, J. Devèze & J. Frayssinet, Droit de l’informatique et de l’Internet [Law on IT and the Internet] (Paris, PUF, 2001) at 577.

139 In practice it is sufficient for the arbitrators to apply their electronic signature to the document, with a certification authority guaranteeing that the pair of keys belongs to the arbitrator – Supra Note Error: Reference source not found at 51.

140 Ibid.

141 A. J. van den Berg, The New York Arbitration Convention of 1958 towards a Uniform Judicial Interpretation (Deventer Boston: Kluwer Law and Taxation Publishers, 1981) at 253.

142 For example, in Germany, Article 1054 (1) ZPO, and in Sweden, Article 31 of the Swedish Arbitration Act.

143 Supra Note Error: Reference source not found at 51.

144 In France, title V of Volume IV of the New Civil Procedure Code, in Poland, art. 708 § 1 Civil Procedure Code, and in Switzerland, Article 189 § 2 of the Federal Law on Private International Law, do not mention awards in writing.

145 Arbitration Act 1996, the website of Her Majesty's Stationery Office (HMSO), online: .

146 Revised Uniform Arbitration Act, the website of National Conference of Commissioners on Uniform State Laws (NCCUSL), online: .

147 Supra Note Error: Reference source not found and Supra Note Error: Reference source not found.

148 Supra Note Error: Reference source not found at 122. Schellekens argued that from a practical perspective, this is not a very large obstacle to online arbitration, if an arbitrator has to send a paper version of an award to parties.

149 Supra Note Error: Reference source not found (Hill), Supra Note Error: Reference source not found (Arsic) and Supra Note Error: Reference source not found (Schellekens) presented similar conclusions.

150 Supra Note Error: Reference source not found at 52.

151 Ibid.; J. Huet & S. Valmachino, “Réflexions sur l’arbitrage électronique dans le commerce international” [Observations on Electronic Arbitration in International Commerce], Gazette du Palais, 9–11 January 2000 at 16.

152 For example, Article 29 of the ICC Arbitration Rules of 1998 provides that the parties may request correction of material errors within 30 days of notification of the award to the parties.

153 Supra Note Error: Reference source not found at 52.

154 Ibid.

155 Supra Note Error: Reference source not found at 17.

156 By contrast, the enforceability of court judgments in foreign courts is dependent on the existence of a bilateral or multilateral enforcement arrangement, and even then, a number of other specific difficulties and complexities peculiar to the foreign courts may arise. The enforceability of international arbitral awards is generally simpler and more certain. See e.g.: R.C. Bordone, “Electronic Online Dispute Resolution: A Systems Approach: Potential, Problems, and a Proposal”, (1998) 3 Harv. Negot. L. Rev. 175 at 185. Yu & Nasir wrote: “as long as an arbitral award fulfills the procedural requirements of Article V the NYC, and is issued within the territory of a country party to the Convention, the winning party can be almost certain that the award will be recognized and enforced.” – Supra note Error: Reference source not found at 470.

157 J. Wetter, “The Present Status of the International Court of Arbitration of the ICC: An Appraisal” (1990) 1 Amer. Rev. of Int'l Arb. 91 at 93.

158 M. J. Mustill, “Arbitration: History and Background”, (1989) 6 J. Int'l Arb. 43 at 49.

159 T. Schultz, G. Kaufmann-Kohler, D. Langer & V. Bonnet, Online Dispute Resolution: The State of the Art and the Issues, E-Com Research Project of the University of Geneva (Geneva, 2001), online: at 82.

160 Supra Note Error: Reference source not found at 470.

161 Ibid.

162 R.C. Bordone, “Electronic Online Dispute Resolution: A Systems Approach: Potential, Problems, and a Proposal” 3 (1998) Harv. Negot. L. Rev. 175 at 188.

163 M. E. Budnitz, “Arbitration of Disputes Between Consumers and Financial Institutions: A Serious Threat to Consumer Protection” (1994-1995) 10 Ohio St. J. on Disp. Resol. 267 at 319.

164 See: Article 31 (3) of the MAL: “The award shall state its date and the place of arbitration as determined in accordance with Article 20(1). The award shall be deemed to have been made at that place”.

165 P. J. Turner & J. Paulsson, Grounds for Refusal of Recognition and Enforcement Under the New York Convention: A Comparative Approach, Experts Group Meeting on Dispute Resolution and Corporate Governance, 2003, online: .

166 Supra Note Error: Reference source not found.

167 Ibid.

168 Ibid.

169 For example Supra Note Error: Reference source not found for 125.
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