Transition to remote dispute resolution in international arbitration in the post-COVID era: taking into account the practice of foreign courts

The COVID-19 pandemic has significantly accelerated the process of the digitalization of justice, and this will continue in the future. However a number of issues arise regarding the transition to online justice, including: prerequisites for remote hearing and specificities of their organization; implementation of principles of immediacy, openness and transparency; assessment of the credibility of testimony in remote hearings. The experience of international arbitration, which was the first to employ information technology in its process, provides us with insight to these issues. The experience accumulated by international arbitration can be used for the successful digitalization of Russian state courts. It should be understood that the use of information technology in the process is not an end in itself. It should be only be used if a comparable result can be achieved – a reasonable and equitable solution, at a lower cost. Three tests can be used for deciding whether to use remote hearings, each proposing a different burden of proof. Proving the need to use remote consideration of the case has three possible results, (1) which initiates remote hearings, (2) which opposes remote hearings, or (3) a “balancing test” whereby the court itself decides on the form of the hearing. The second and third approaches are preferable, as they avoid unjustified exclusion from the advantages of technology. Various arguments can be accepted to satisfy the burden of proof: commitment to the “green pledge” movement or the presence of a severe disease, like with the COVID-19 pandemic. The severity of the arguments is determined by the court dependent upon the degree of technical equipment (sustainability of the Internet connection, reliability on the electronic platforms that transmit video), dominance of certain ideas in society (for example the need to reduce carbon footprint), as well as the circumstances of the particular case. The author concludes that the practice of remote hearings will increase and that this does not detract from the advantages of traditional hearings held in the same space in the direct presence of persons involved in the case. Both formats will take their places in the dispute resolution system and will be used according to the requirements of the particular case.

About the author: Viktoria Erokhina – Master of Laws, Research Assistant at the Laboratory of International Justice, Higher School of Economics, Moscow, Russia.

Citation: Erokhina V. (2021) Perekhod k distantsionnomu razresheniyu sporov v mezhdunarodnom arbitrazhe v postkovidnuyu epokhu: uchyot praktiki inostrannykh sudov [Transition to remote dispute resolution in international arbitration in the post-COVID era: taking into account the practice of foreign courts]. Mezhdunarodnoe pravosudie, vol. 11, no. 4, pp. 154–169. (In Russian).

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