The need to override certain provisions of applicable arbitration rules may occur when they contain references to a written form, a physical appearance before an arbitral tribunal, or other similar requirements. However, since numerous arbitration institutions have already adapted or supplemented their rules to online proceedings (or at least are planning to do that), such problems are gradually disappearing93.
Provided that it is not inconsistent with an arbitration agreement or applicable arbitration rules, a party wishing to have recourse to arbitration can submit its request for arbitration by e-mail. A notification to a respondent can also well be done in the same way. In international business settings, most parties are currently able to produce and exchange exclusively electronic documents, e.g. in the form of files attached to e-mails. Such electronic submissions are considered to be convenient, and functionally equivalent to those printed on paper. This view is reflected in a number of arbitration rules; for example, Article 3(2) of the ICC Rules specifically authorizes electronic communication with the Court and the Secretariat of the ICC. Parties may also agree to use more advanced IT solutions, such as online electronic file management systems94 that enable parties and arbitrators to file all documentation on a web-based platform and communicate solely, or mainly, through such a platform.
In principle, parties can agree to conduct proceedings by online technology without an oral hearing, i.e. on a documents-only basis95. However, when the parties’ explicit agreement is missing, the situation gets complicated. Article 24 (1) of the MAL states that “unless the parties have agreed that no hearings shall be held, the arbitral tribunal shall hold such hearings at an appropriate stage of the proceedings, if so requested by a party". On the other hand, many national arbitration laws provide for no general right to an oral hearing. Under English law, for example, Section 34 of the Arbitration Act 1996 “gives neither party a right to an oral hearing unless the parties have agreed to an oral hearing or the tribunal orders a hearing”.96 Face-to-face hearings may not be a necessity – as argued Yu & Nasir with citations to relevant case-law – even in traditional arbitration97. In online arbitration, parties may decide to conduct hearings online and to examine and cross-examine witnesses, or hear experts, using teleconferencing98 or videoconferencing99 technology100. Most often, online hearings can suffice to establish the facts of a case. Currently, there are however two major problems that impede the broad application of this technology in international commercial arbitration101. First of them relates to technology itself, the other to law.
According to Cachard (2003), though electronic hearings are technically possible, they involve considerable technical resources, which are currently still accessible only at a high cost.102 Hörnle (2003) expressed some concerns about sufficient quality of transmissions103. Delays and interruptions cannot often be avoided, and witnesses are not clearly seen and heard. “The physical demeanour and tone of voice should be easily detectable to assess the credibility of that witness. For example, it might not be apparent if a witness blushes because the colour resolution of the monitor is not sufficient”104.
A major legal issue concerning electronic hearings in online arbitration concerns the legal significance of evidence produced online. As Hörnle argued, “for evidence given on oath, the oath is only effective, if false testimony amounts to perjury at the place where the evidence is given”105. However, in certain jurisdiction, for example in Japan, arbitrators may not put witnesses under oath or at risk of criminal prosecution for lying106. In consequence, in many circumstances it would be recommendable to have all parties represented, or a member of the tribunal, present at each end of the video-link. Alternatively, in order to guarantee a due conduct of electronic hearings, a trusted third party such as a local arbitral institution or a notary could be involved107. Of course, such restrictions diminish the attractiveness of online arbitration in terms of its cost, time and convenience. A simpler method to hear a witness could consist in using other than videoconferencing, synchronous (real-time) online technologies, such as teleconference (audio transmission) or online chat (written text messages, e.g. Internet Relay Chat). They cannot, however, constitute a real alternative to audiovisual hearing, because of difficulties to assess the credibility of a witness and other like reasons.108
If an arbitral tribunal consists of more than one arbitrator, the question arises whether the arbitrators have to meet in one place in order to decide the case and draw up an award. Modern arbitration laws do not preclude electronic deliberations among arbitrators, since they do not impose any particular procedure concerning the deliberations of the arbitrators and their decision-making process.109
There are four conditions under which electronic deliberations among arbitrators are admissible under Swiss Law. They were discussed in details by Hill110. First, all the arbitrators have to agree on the use of such electronic means. Second, all the arbitrators have to participate in the discussion, unless an arbitrator is excluded for valid reasons such as illness or refusal to participate in any form of deliberation. Third, the arbitrators can deliberate online unless the parties have ruled out such electronic deliberations. And finally, fourth, the procedural basis for such electronic deliberations has to be properly documented, for example in the parties’ agreement or in a procedural order.
Electronic deliberations among arbitrators are also admissible under English law since it does not impose any particular procedure on arbitrators’ decision-making process, as Lord Denning MR discussed in European Grain and Shipping Ltd v Johnson111. The key requirement is that all arbitrators actively participate in decision-making process. Each arbitrator must participate in establishing the facts of a case, and the award must reflect the state of mind of all the arbitrators at the time when they signed it.112 Yet, English law does not stipulate that the decision-making process must be done orally in the presence of all the arbitrators.113
Nowadays, whenever an agreement or award (…) is to be done by two or three jointly, the practice is for one or the other to draw up a draft and send it to the others for their consideration and comments. One or other may suggest amendments and send it back. So it goes to and fro until the draft is agreed.114
Hörnle115 argued that this procedure of deliberating and drawing up an award might be well replicated online by asynchronous electronic means. To this aim, adequate security measures should be taken.
It is worth mentioning at this point that the standpoint of English law has impacted upon several other jurisdictions. The following words urged by a judge of a court in Sri Lanka are very characteristic:
“(…) the Courts have taken into account the changed circumstances resulting from the transformation that was taking place due to technological advancement. When we are barely a decade away from the 21st century, it would not accord with reason to interpret the concept of ‘joint participation’ as being physically present together at one and the same place”.116
Also under French and Italian law there is no doubt that unless agreed otherwise by the parties, deliberations of a panel of arbitrators through electronic means are permitted.117
The above brief analysis leads us to the conclusion that arbitrators may make an award after discussing a case by diverse synchronous or asynchronous online techniques, provided that suitable precautions are taken. A major mandatory requirement of modern arbitration laws is that all the arbitrators must participate in a real way in each discussion and decision. Yet no particular form is imposed for deliberations of arbitrators and their decision-making process.