Is international dispute resolution ready for an all-inclusive online approach?

The author is Tarazi Mohammed Sheikh, a final year student at BRAC University.

Introduction

The inclusion of online dispute resolution (ODR) in international contexts has gained momentum over the past few years, with its adoption further accelerated by the unprecedented challenges posed by the COVID-19 pandemic, as a significant number of dispute settlement procedures have been conducted by different courts and tribunals remotely as both the parties and arbitrators agreed to adapt to the new normal. However, complete online dispute settlement between parties remains relatively infrequent. Instead, online methods have primarily been utilised for preliminary steps, including exchanging letters of notifications, engaging in conversations to determine costs, settling the time, date, and venue of conferences between the parties and arbitrators, as well as facilitating the selection and confirmation of arbitrators. Hence, it has become a subject of deliberation whether, in this digital era, international dispute resolution methods can be fully encouraged and embraced through a comprehensive online approach.

Status of ODR in International Dispute Resolution

ODR is defined in the 2016 UNCITRAL Technical Notes on Online Dispute Resolution which provides that it is an information-technology-based platform and is facilitated through electronic media and other technology. The Permanent Court of Arbitration (PCA) is the most prominent intergovernmental organization that provides dispute resolution services to the international community. The jurisdiction and arbitral procedures of the Court outlined in the Hague Convention of 1899 do not refer to the procedure of ODR. Hence, the Administrative Council members and parties to the dispute rely on the mechanisms of the UNCITRAL, which provides certain specifications as to the procedure of ODR. Moreover, the Court highly relies on case administration support in arbitration under the UNCITRAL Arbitration Rules which provides a comprehensive set of procedural rules for the parties as well as the arbitrators.

Article 28(4) of the Arbitration Rules of the UNCITRAL provides the jurisdiction to administer certain steps of the arbitration procedure, such as that witnesses and experts are allowed to be heard remotely, but it does not provide any indication for the administration of legal arguments and cross-examination via online methods. Hence, the Court in general considered the provision as a bar to conduct legal arguments and cross-examinations online unless the parties agree otherwise.

Challenges of Adopting All-inclusive ODR in International Dispute Resolution

The challenges of adopting an all-inclusive method of ODR under the UNCITRAL in international dispute resolution are twofold. Firstly, the online procedure often tends to fail to stem the integrity of the due process of law. The expression of strict maintenance of the due process of law is recognized under Article 18 of the UNCITRAL Model Law on International Commercial Mediation (1985). Further, it is also provided under Article V(1) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) which provides if any of the contesting parties fail to comply with the equal treatment of law or if the agreement between the parties is breached, the arbitral award shall not be enforceable. The provisions also clarify that the expression refers to equal opportunity for all parties in law and avoidance of illegalities. In an ODR process, this provision remains highly unguarded. For instance, the arbitral tribunal may not be well-acquainted with modern technologies and might misread the body language and eye contact of the witness during witness testimony in an ODR. Moreover, the witness may also be secretly advised off-camera or maybe screen-reading documents without the knowledge of the tribunal or the opposing party. Again, the security and confidentiality of the procedure are also at risk during an ODR process as the arbitrators, parties and witnesses may join the online platform using different home networks, ultimately leaving scope for the online hackers to sneak into the process amid the arbitration.

Secondly, the online method of dispute resolution has a scope of unequal treatment of the parties. According to the provisions of Article 34(2)(a) of the UNCITRAL Model Law, an arbitral award shall be provided upon confirmation of equal opportunity and access to the resources of the dispute resolution method. It has been further reiterated in Article 36(1) of the UNCITRAL Model Law which provides grounds for refusing recognition and enforcement of an arbitral award. Thus, technical blunders such as uneven access to technology, issues relating to translation and interpretation, and uneven distribution of time zones play a key role in the repulsion of adopting an all-inclusive ODR procedure.

Recommendations & Conclusion

Despite the challenges of ODR, the PCA set the parties at liberty to decide whether they want to pursue an all-online dispute resolution procedure or a hybrid method. However, considering the development and adoption of technology in both legal and commercial arenas as well as its cost and time-efficient virtue, more parties are inclined to adopt the all-inclusive online method in recent times. Therefore, it is pertinent to address the issues relating to legal and procedural shortcomings of the ODR method for ensuring fair delivery of justice for both parties. In that regard, settling the understanding of the right to be heard and the right to be treated equally under the law among the parties before an arbitral hearing is significant. Again, parties must also ensure the facilitation of the due process of law and equal technical and resource efficiency of both parties. Further, more frameworks relating to the newly emerged issues can be adopted. In addition, the Arbitration Rules of the UNCITRAL is a versatile instrument in nature which can be amended and adjusted in the interest of time and age.