Joshua Karton, ‘The (Astonishingly) Rapid Turn to Remote Hearings in Commercial Arbitration’

ABSTRACT
This article, a contribution to a Queen’s Law Journal symposium on the legal response to the COVID pandemic, considers the turn to remote hearings in commercial arbitration. It was written primarily for a non-specialist Canadian audience, but arbitration lawyers from any jurisdiction confronting these issues may find it valuable.

Commercial arbitration, like litigation, was forced by the pandemic to resort to remote proceedings. The arbitration community had both the capacity and the motivation to go remote, and did so at remarkable speed. However, it is unclear how durable these emergency adaptations will be – are remote hearings a new normal, or a crisis response that will fade along with the pandemic? The author argues that remote hearings are indeed here to stay. The experience of commercial arbitration in 2020 shows that the cost and accessibility benefits provided by remote hearings are significant, and that most of the concerns either have practical fixes or evaporate with greater familiarity. Remote hearings neither will nor should become universal, but will likely be a default option in arbitration, especially for international disputes.

Nevertheless, planning, vigilance, and a commitment to expend sufficient resources are needed to make remote hearings accessible, effective, and fair. The author concludes by listing five lessons that other forms of dispute resolution, in particular litigation, can learn from the experience of commercial arbitration during the pandemic: (i) attention to the technical setup is vital, (ii) the necessary infrastructure is not cheap and the costs are ongoing, (iii) remote hearings are not an all-or-nothing matter, (iv) their greater flexibility makes it possible to customize procedures for each dispute, and (v) frequent breaks are necessary.

Karton, Joshua, The (Astonishingly) Rapid Turn to Remote Hearings in Commercial Arbitration (May 27, 2021). (2021) 46:2 Queen’s Law Journal 399.

First posted 2021-06-04 14:45:55

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