New technologies are already widely used in arbitral proceedings. With the use of the Internet, documents can be transmitted instantaneously to arbitrators and parties at a modest cost. Many arbitrators find dealing with electronic documents easier than with hard copies, especially when submissions have numerous pages. In addition to this daily use of information technology, the Internet seems to have a more profound impact on arbitration procedures. Traditionally, arbitration relied on meetings of arbitrators and parties appearing in person or through duly authorized representatives. Now, we observe that the Internet encourages remote dispute resolution, and physical meetings are more and more often eliminated, or more accurately, replaced by diverse electronic exchanges.79 These developments seem to bring benefits to both arbitrators and parties: the former can proceed without leaving their hometowns, the latter avoid incurring travel costs.
According to communis opinio, parties are free to agree that the whole or part of arbitral proceedings are conducted online, with the use of whether asynchronous80 (e.g. e-mail) or synchronous (e.g. video- or audio-conference) electronic means (on the other hand, parties are also free to agree on the exclusion of the use of electronic means for the conduct of arbitral proceedings).81 The principle of procedural autonomy82 (some authors refer instead to the concept, or principle, of “party autonomy”83) allows parties to decide on the procedure to be followed by an arbitral tribunal in conducting proceedings. Thus, on the basis of that fundamental principle of arbitration law, it is possible to “adapt the procedure to the electronic arena”84, and conduct online arbitration in many various ways. Every such electronic arbitration procedure is nonetheless still subject to general principles of arbitration law, since “contractual freedom cannot undermine the mandatory regulations that govern the arbitration procedure”(Cachard85).
An analysis of applicable mandatory rules is of great practical importance, though it may occur troublesome, since ‘place’, or ‘seat’, of online arbitration seem to be “virtual”. The principles of tribunal’s impartiality and equal treatment of parties, expressed e.g. in Article 12 and Article 18 the MAL, are certainly of particular relevance among such mandatory rules. It seems clear that online techniques can be used in arbitral proceedings, provided that their application does not prejudice one party. Drawing from literature, a party might be prejudiced, “if it had less access to or know-how of the technology than the other party” (Hörnle86). For example, it would be unacceptable to “impose transmission of documents via CD-Rom if one party states that it does not have the facilities for reading CD-Roms” (Hill87). Manevy wrote that “the conduct of a fully automated process might contradict due process and adversarial principle”. Though this claim sounds both reasonable and interesting, it has not been thoroughly discussed in legal literature yet. Role and Lodder&Thiessen88 referred very briefly to “automated arbitration” in their writings, and Carrington only outlined a vision of future virtual arbitration as “an entirely digitized event”89. Apparently, the question of whether computers will be ever capable of replacing human arbitrators have been considered too naïve, and therefore has not received major consideration by scholars thus far. Indeed, many authors have been very sceptical about its twin concept of “automated judge”90. Thus, it seems that in the predictable future the role of technology will consist in supporting rather than replacing arbitrators. In any case, in order to secure the fairness of arbitral proceedings, the use of electronic means, regardless of its scope, should be appropriately formalized in procedural orders issued by the arbitral tribunal or, preferably, by agreement between the parties.
Thus, parties are free to agree on the use of electronic means for the conduct of arbitral proceedings, in the extent, to which it does not conflict with mandatory provisions of applicable laws. When the parties’ agreement is missing, it seems plausible to conclude that an arbitral tribunal can decide on the use of electronic means. This view is supported by Article 19 (2) MAL that provides that failing the parties’ agreement on the arbitration procedure, “the arbitral tribunal may, subject to the provisions of [the MAL], conduct the arbitration in such manner as it considers appropriate”. We hold that if there is no agreement between parties, in certain circumstances the arbitral tribunal is not only authorized to order the use of electronic means, but also to large degree obliged to do that, given the tribunal's duty to avoid unnecessary delay or expense. For example, under Article 20.1 of the ICC Rules of Arbitration, arbitrators have an obligation “to establish the facts of the case by all appropriate means”, “within as short a time as possible”.
If parties agree on institutional arbitration, applicable arbitration rules also have to be taken into consideration. Specific provisions contained in such rules may conflict with the parties’ intent to conduct arbitral proceedings online. Where necessary, such provisions must be specifically overridden by an explicit agreement between the parties.91 Otherwise, there would be a risk that an award in a given case could not be enforced. Since the arbitration rules are deemed to be agreed between the parties, possible violation of the rules would be considered as violation of the parties’ agreement, which could result in a refusal to enforce the award in accordance with Art. V(1)(d) NYC.92