In re: Representation preferred to Government regarding the need to frame rules for adopting virtual hearing of arbitration proceedings
To,
- The Ministry of Law & Justice,
3rd Floor, ‘C’ Wing, Lok Nayak Bhawan,
Khan Market, New Delhi – 110003.
Phone: 011-24698655
E-mail: prao-law[at]nic[dot]in
2. Ministry of Corporate Affairs
‘A’ Wing, Shastri Bhawan,
Rajendra Prasad Road,
New Delhi – 110 001
3. Ministry of Finance,
Department of Economic Affairs
Room No. 129-B
New Delhi – 110001(India)
Telephone: 23093230
Intercom: 5012
Fax : 23092420
Email: jsinv-dea[at]nic[dot]in
Sub: Representation for the purposes of manifesting the need for the Government to outline the possible measures for virtual/online hearing of the arbitration proceedings for mitigating the losses on account of delay resulting on account of COVID-19 Pandemic.
Respectful Sir,
The present representation is filed to highlight the need for the Government to outline the possible measures for virtual/online hearing of the arbitration proceedings, with the objective of mitigating the effects of the pandemic COVID-19 on the hearing of the arbitral proceedings and decisions on the claims of the respective contesting parties. In the current circumstances, the major impediment faced by majority arbitrations is the uncertainty regarding the manner of hearing and the ensuing delay which is unduly delaying any adjudication on the respective rights and obligations of the parties. Almost all High Courts and the Hon’ble Supreme Court have adopted the means of virtual hearing for hearing the urgent matter through video conferencing. However, arbitration hearings are suffering owing to the following reasons:
- Since arbitration is the creature of agreement, thus, unless otherwise agreed upon by the parties, it is difficult for the arbitrator/arbitral tribunal to enforce virtual hearing, unless the parties mutually agree to the same.
- Currently, most of the arbitration agreements, unless those governed by institutions like ICC, UNICITRAL, do not envisage the procedure of online or virtual hearing,
- Even the legislation governing Arbitration & Conciliation Act, 1996 do not envisage online dispute resolution or virtual hearings.
Significantly, the Hon’ble Supreme Court vide its order, extended the limitation period for all cases under the Arbitration and Conciliation Act, with effect from March 15. The order embodied that the duration after March 15 and till 15 days after lifting of lockdown in respective jurisdictions will be excluded from the period of limitation. However, even after lockdown, either of the parties and/or the tribunal itself may be reluctant to agree to physical hearing owing to travel restrictions or health issues.
In view of the aforementioned factors, it will be difficult for the Claimant/Respondent to continue with the arbitral proceedings, if the other party is unagreeable to the procedure of virtual hearing, as even if the same is enforced through the order of the arbitral tribunal, it may prompt one of the parties to challenge the arbitral awards, once passed on the grounds that the arbitral procedure was not in accordance with the arbitration clause/agreement signed as between the parties, as time and again it has been held by the Hon’ble Courts that the arbitration procedure should be as per the arbitration agreement or as maybe mutually decided by the parties. Hence in the absence of any statutory directive, the Arbitral Awards thus passed may be rendered unsustainable in law.
It is significant to mention that in view of the aforementioned facts, it is incumbent on the Government to issue policy guidelines or requisite Directives/Notification which would enable the parties and tribunals to adopt virtual hearing. The policy guidelines could be interpreted from the following mandate of the existing arbitration laws:
- Powers of the Arbitral Tribunal under the Arbitration & Conciliation Act, 1996, law of the seat of arbitration or any other arbitration rules:
It is significant to clarify remote or virtual hearings will have be assessed against the backdrop of the existing regulatory framework within which the modus of virtual hearing can be adhered to by the parties and arbitral tribunal, from the provisions relating to the parties’ right to a hearing and the arbitral tribunal’s broad power to determine procedural matters. Under the Arbitration & Conciliation Act, 1996, the arbitral tribunal is allowed considerable latitude with respect to the procedure adopted by the respective Tribunal during the hearing, subject to the fact that the parties are afforded reasonable opportunity of being heard & presented in the case. The said power can be read under Section 19 of the Act, wherein it gives power to the arbitral tribunal to conduct the proceedings in the manner it considers appropriate, unless otherwise agreed. Thus, in current times of unprecedented spread of COVID-19 pandemic, it is paramount to reconsider the laws to make a way for remote hearings, so that the parties are not prejudiced owing to the delay caused due to restrictions in travel and health issues. Furthermore, it is submitted under Part IV of the Act which embodies Supplementary Provision, and prescribe powers of the Central Government under Section 83 and 84 to remove difficulties and to make rules, the Central Government may issue rules relating to virtual hearing for the clarity, averting pendency and reducing uncalled for litigation.
2. Adherence to expeditious disposal of the arbitration proceedings should be strictly construed
It is pertinent to mention that pandemic does not change the fundamental principles of the arbitration proceedings which is to conduct the arbitration in an expeditious manner. Section 29(A)(1) of the Arbitration and Conciliation Act, 1996 reflects that the intent of the Act to conclude the arbitral proceedings in an expeditious manner, i.e. within 12 months after the completion of the pleadings. Furthermore, the sub clause (2) also envisages early completion of the arbitration within 6 months from the date when the arbitrator enters upon reference. The sub clause (4) places a duty on the arbitral tribunal to complete the proceedings within the statutory time limit or the extended period; in the dereliction of which the mandate of the arbitral tribunal gets terminated automatically and may also have adverse consequences on the fees of the arbitrator. Significantly, the act, under Section 29(B) also envisages fast track procedure for conducting arbitral hearing, if the same is consented to by the parties, either before or at the time of appointment of the arbitral tribunal. Thus, it is submitted that when the statutory mandate of the Act specifies that the arbitrations have to be conducted and concluded in an expeditious manner, there is a need to lay down guidelines/directives in congruence to the objective of the Act, outlining the need for the parties to adopt the mode of virtual hearing, so that the arbitration proceedings or urgency of the claims are not adversely affected or frustrated owing to the delay in conducting the arbitral proceedings when one of the party or arbitral tribunal does not agree to the remote hearings.
3. Certain stages of arbitration which should not be delayed
It is taken into account that certain aspects of the arbitral process should not be materially delayed by the pandemic. For instance, competition of pleadings, or preparation and declaration of the award. Relevant directions should be given to the arbitral tribunals and the parties to adhere to the timelines towards completion of pleading, service of documents or such other compliances which could be fulfilled through remote locations. The law may be amended with specific directives to enable the arbitral tribunal adhere to the Information Technology and Electronic Book keeping and management techniques and also require the parties to adhere to the same.
The major procedural requisite on the part of the tribunal when it decides to proceed with a virtual hearing without a particular party agreement, or over party objection, it should ensure that the parties are fairly heard, document the reason for adopting the virtual hearing insipte of one of the party’s denial and then decide for the virtual hearing by ensuring adequate participation of the contesting parties.
4. Virtual Hearing should be held synonymous to regular hearing:
It is relevant to mention that the “hearings and written proceedings” under Section 24 of the Arbitration & Conciliation Act should be interpreted to include virtual hearing too, provided both the parties are granted reasonable opportunity to be heard and present their cases. It must be outlined that to ensure that parties are treated equally and given full opportunity to present their case during a virtual hearing, the tribunal should consider several issues, such as the different time zones in fixing the hearing dates, logistics of the location of participants, arbitral tribunal should lay down clear procedure for taking evidence from the witnesses identification of all participants, consultation between the tribunal and the parties on the examination of witnesses, etc. Furthermore, parties and arbitrators need to agree on the selection of IT platforms for videoconferencing and document sharing.
5. Existing rules relating to virtual hearing in institutional hearings:
Pertinently, for framing the policy related to virtual hearing and management of arbitral proceedings, the following standards/norms may be relied upon which have specified rules relating to virtual hearing:
- UNICITRAL has already issued Notes on organizing Arbitral Proceedings in 2016, the said document laid down that the manner of hearing could be either through the physical presence of all participants, or remotely via technological means of communication.
- Furthermore, Even ICC International Court of Arbitration has also issued guidelines to its affiliates/members for conducting arbitration proceedings through video conferencing or any other virtual means for ensuring that the arbitrations are conducted in a fair, expeditious, and cost-effective manner.
Since the Arbitration and Conciliation Act, 1996 is modelled on the UNICITRAL model laws, thus, the aforementioned notes issued by UNICITRAL on organizing Arbitral Proceedings should be taken into consideration for carving out a scope for virtual hearing through Information technology means.
In view of the aforementioned facts and circumstances, it is submitted that the benefits of virtual hearings would be diverse and include saving time, reduction in costs and expeditious disposal of cases. When the world was facing the outbreak of the pandemic which curtailed all physical movement, technology has already removed most of the barriers in communication, access, functioning of the economy, the same is essentially required to be made applicable in disposal of arbitral hearings. It is significant to mention that virtual hearings will inevitably, in the near future, become the norm, thus, we should start practicing virtual hearings, so that the same will be an easier transition to move and adhere to the procedures online. It is the ideal opportunity to revisit some of our current practices and then streamline the procedures to suit to the emergent times. Thus, it is requested from your good-offices to adopt policy measures and pass directives through requisite notifications:
- For enabling the conduct of virtual hearings of the arbitral proceedings.
- If parties are able to carry arbitral proceedings through virtual/remote hearings, the unnecessary extensions should not be given thus making the compliance with the statutory timelines to the extent possible and adhere to the mandate of the Act.
Thanking You,
Yours truly,
- Suren Uppal,
Advocate,
Managing Partner, SUO Law Firm
2. Sneha Baul,
Advocate,
Joint Partner, SUO Law Firm.
