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




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Notification of the award to the parties


The next arising question concerns the form in which the award must be sent to the parties. The importance of this issue results from the fact that the act of notification of the award to the parties has significant effects of both substantive and procedural nature. It allows the parties to take cognizance of the substance of the decision, and then take further necessary steps. As Cachard wrote, “the award immediately acquires the authority of res iudicata150. Thus, it is particularly important to transmit the award without alteration. A major procedural effect of the notification consists in the fact that the notification constitutes the starting point for various time periods151, inter alia, for correction and interpretation152, and appeals against the award. For that reason, the date of notification must be certain153. We subscribe to the views that these requirements can be met by the means of electronic communication. “Notification by secure e-mail ensures that the award is timed and dated, and guarantees its integrity and attribution to the arbitrators” (Cachard154). There is no doubt about that under the most liberal among national arbitration laws, the English Arbitration Act 1996, which explicitly provides that the parties are free to agree on the requirements as to notification of the award (Section 55 (1)). In such a case, the parties may well agree that the arbitral award is to be notified to them by e-mail or uploaded on a secure platform accessible to them155.

Enforcement


The ability to have an arbitral award relatively easily enforced internationally is one of the most attractive and distinctive features of international arbitration.156 The New York Convention itself has been described as "the single most important pillar on which the edifice of international arbitration rests"157, and “perhaps (…) the most effective instance of international legislation in the entire history of commercial law"158. Arbitral awards rendered in online procedure have all attributes of traditional arbitral awards: they are authoritative, binding and final, subject to an action to set aside for limited procedural grounds. To return to so-called “non-binding arbitration”, decisions that do not qualify as ‘arbitral awards’ within the meaning of the NYC “are either not enforceable or enforceable [only] like contracts, so for instance settlements reached in mediation”.159

We don’t share the optimistic views that in online arbitration, “voluntarily fulfillment of the arbitral award by the losing party is the most likely outcome”160. A few authors defended such a claim pointing out that “cyberspace connects its residents by interest and profits”161, and the residents of this virtual “interest-based world”162 voluntarily participate in online activities. Given that “there is no pressing need for legal accountability when the parties share a strong set of legally acceptable values and seek to use arbitration as a means of preserving and enhancing their relationship163, voluntary compliance with the arbitral award would be – as they argued – the most likely outcome. We are of the view that such claims are too optimistic. We doubt whether there is so much difference with respect to the fulfillment of arbitral awards in online or offline settings. Thus, in our view, in the predictable future, the role of the enforcement mechanism established by the NYC shall remain the backbone of international commercial arbitration.

Thus, online arbitration inevitably comes into contact with the territory-based arbitration framework and, to the same extent as traditional arbitration, may be subject to the examination by relevant national courts. A main difficulty with the recognition and enforcement of online awards concerns the ‘territorial principle’ in the current regime of international arbitration. Two major issues arise on that ground under the NYC. The first relates to Article I.1 NYC, which defines the scope of the NYC’s application by the reference to “arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought”. This problem may be easily overcome if parties or arbitrators have specified the juridical seat of the arbitration (as discussed in the previous section of this paper). Both under the NYC and the MAL, an arbitral award is deemed to be made at the seat of arbitration164, regardless of where the hearings were held, or where the arbitrators signed the award.

The second problem relates to Article V.1.(d) NYC which provides that the recognition and enforcement of an award may be refused, if “the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place” (this provision is reproduced verbatim in Article 36(1)(a)(iv) MAL, and now adopted in over 40 jurisdictions165). Manevy argued that “if the seat of arbitration cannot be determined (…), it may be difficult to verify whether the arbitral procedure was “in accordance with the law of the country where the arbitration took place”166. To solve this problem it is necessary to refer once again to the concept of the seat of arbitration. As discussed in the previous section of this paper, the strictly legal nature of the seat of arbitration overcomes the problem of multiple physical locations of procedural acts, and ambiguities about territorial locations of procedural acts conducted online. According to Article 20 MAL, “parties are free to agree on the place of arbitration [, and] failing such agreement, the place of arbitration shall be determined by the arbitral tribunal”. Of course, difficulties will arise if the parties or the arbitrators overlook the importance of the determination of the place of arbitration. Another issue at the stage of enforcement refers to the requirement to “supply the original agreement referred to in Article II [i.e. “agreement in writing” within the meaning of the NYC] or a duly certified copy thereof”. Since the problem of how the requirements concerning “in writing” and “original” can be reconciled with online arbitration were presented in the previous sections of this paper, there is no need to repeat this argumentation.


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