Introduction
“There can be no life without change, and to be afraid of what is different or unfamiliar is to be afraid of life.”
— Theodore Roosevelt
Arbitration is often hailed for its exemplary flexibility and time effective process, as an ingenious dispute resolution mechanism. With physical hearings of courts, tribunals, etc. coming to a halt[1], Covid-19[2] pandemic made virtual hearings, the new normal. Virtual arbitration or even virtual adjudication is an unconventional eventuality that has been spurned upon the legal fraternity across oceans. Wherein, the legal fraternity was used to appearing in person before the courts or various tribunals, everyone has been thrust to a world of remote hearing, as a matter of urgency and desperation so that the judiciary is not overburdened due to a major time lapse.
It is often said: “justice delayed is justice denied”. In order to tackle the preceding issue, the Indian judiciary came up with effective solutions to move forward with their work and manage the rise of cases as they come, as justice never sleeps. Howbeit, there was a certain lack of illumination in regards to our alternate dispute resolution mechanism i.e. arbitration. Wherein our country and judiciary hails themselves to be a pro-arbitration regime, they sure have failed to take charge to emphasise that stance. With hearings in arbitration hardly moving past the initial stage, we have become what one might call “stagnant”. As a developing arbitration regime, being stagnant in this time and day is unpropitious news. In order to avoid becoming a dinosaur in the arbitration community, our country would have to take major significant steps to curb the conundrum which our country does not fully realise.
Vis-à-vis the aforementioned inception, the authors have penned down their thoughts on virtual arbitration in India. The article highlights the benefits and downfalls in virtual hearings in arbitration through an analysis undertaken by White & Case, elucidates the existing procedural framework and deals with the legal and ancillary issues subsisting and posed by the Covid-19 pandemic, concluding with the way forward for India to effectively adapt and tackle the predicament in order to become a hub for arbitration in the future.
A statistical analysis by White & Case
Internationally renowned firm, White & Case, in association with Queen Mary University of London and School of International Arbitration conducted a survey.[3] It stated that the use of virtual hearings has been brought upon as a result of Covid-19 pandemic. It has allowed for people to evaluate the alternatives available to in-person hearings.[4]
Inter alia, the survey pinpointed the wish of the people and exhibited their opinion on virtual arbitration hearings. When posed with the question of procedural delay and scheduled hearing dates which would be hampered as a result of this pandemic, 79% surveyors opted for advancing with virtual hearing on the pre-decided date rather than uprooting the process and causing a procedural delay, 16% opted for postponing the hearing and 4% opted for an award to be delivered based on the documents submitted in front of the Tribunal.[5] So much so, that 40% of arbitrators said they would do without an oral hearing for any procedural matter[6] and 87% would prefer to hold a virtual hearing if an in-person hearing is not an alternative.[7]
It even highlighted the advantages of virtual hearings with 65% going for more benefits of more available dates for hearing, 58% highlighting greater efficiency through use of technology, 55% opting for greater procedural and logistical flexibility, 34% choosing less environmental impact compared to in-person hearings inter alia.[8] Speaking of disadvantages, 40% each chose multiple time zones issues and harder in-between hearing conversations between client and counsel, respectively. 38% stated concern over controlling their witnesses and their credibility, 35% each over technical malfunctions and screen fatigue respectively. Confidentiality and cybersecurity also found 30% of people voting for it as a concern for virtual arbitration. 27% and 15% of the people voted for difficulty in reading arbitrators and other participants and expressed concern on arbitrator’s ability to confer during sessions respectively. Last but not the least ethical or procedural issues and enforcement of awards stood at 11% and 8% respectively.[9]
It is clearly visible from the above survey that virtual arbitrations are not the pariah as they are made out to be. Innovation is termed as need of this hour and in hindsight, by hiding behind the curtain of a pretend pro-arbitration stance, India has basically shot themselves in the foot.
Procedural framework for arbitrations: The rudiment of all dispute resolution
A concrete foundation for a prospective arbitration is actualised via the legal framework that is made applicable to it. It is of paramount significance that the governing/procedural law, substantive law of the contract and the seat is selected as per the peculiar requirements of each party at the time of drafting of the arbitration clause or agreement. India has been taking leaps to strengthen its own procedural framework so as to advance India’s ease of doing business rankings and establish the nation as a growing hub of alternate dispute resolution (hereinafter “ADR”). The Arbitration and Conciliation (Amendment) Act, 2015[10] (providing time limitations, fast-track procedures, narrowing scope of public policy, etc.), the Arbitration and Conciliation (Amendment) Act, 2019[11] (providing for the courts to make reference to certain arbitral institutes, formation of the Indian Arbitration Council, mandating confidentiality, etc.) and the Arbitration and Conciliation (Amendment) Act, 2021[12] (removing qualifications for empanelling as arbitrator) have been notified by the Government. The State is cognizant of institutes like International Chamber of Commerce (ICC), Singapore International Arbitration Centre (SIAC), London Court of International Arbitration (LCIA), Australian Centre for International Commercial Arbitration (ACICA), International Centre for Settlement of Investment Disputes (ICSID), etc. that have tried to minimise disruptions from the pandemic by issuing relevant virtual protocols. There is much to learn from these soft law instruments and these can be used as guiding principles while creating the Indian arbitral framework.
Covid-19 and arbitral best practices
With the onset of the Covid pandemic, arbitral friendly nations and institutions perceived the inevitability of the evolution of virtual hearings and accepted this challenge with utmost compassion. Choosing the right arbitral institution with facilities such as e-filing of documents, live help-desk features, panel of emergency arbitrators, panel of experts on various subjects, protocols for online dispute resolution, cybersecurity policies, etc. would solve half the dispute at hand. Many of these institutes like Singapore International Arbitration Centre, World Intellectual Property Organisation (WIPO), etc. have also been using, third-party management services such as those of Maxwell Chambers to meet their logistical needs through curated meeting rooms, breakout rooms, screen-sharing facilities, etc.
Timely case management conferences to determine procedure and choosing the right meeting platform are the cornerstone of a successful arbitral session.[13] Necessity is the mother of invention and India needs to provide impetus for the creation of platforms like Cisco Webex, Zoom, etc. with end-to-end encryption under its Make in India and Digital India initiatives. Online meeting etiquette dictates that meeting time be decided keeping in mind the difference in time zones (if any)[14] of the parties, giving proper notice, providing a list of participants who will be present in the meeting and sticking to the agenda of the meeting.[15]
Speedy and complete justice can be guaranteed by tweaking procedure to include more partial awards for different issues, accepting only documentary submissions for adjudicating upon issues and no evidence[16], allowing very limited arguments on certain contentions,[17] identifying issues that can be resolved without witness statement or expert evidence, etc.[18] A documents-only procedure as adopted by SIAC[19] or use of Redfern Schedule for limiting documentary production[20] are suitable examples of a hybrid procedure. The only way to conceive virtual arbitrations in India is through digitisation, both in terms of procedure adopted in the arbitration and in working of appellate court. Arbitral awards in India have to be rendered in writing[21], have to bear the arbitrators’ signatures[22], have to be delivered to the parties[23] and have to be submitted to Court in order to be recognised and enforced. However, Section 5 of the Information Technology Act, 2002[24] (hereinafter “the IT Act”) provides that a digital signature has the same effect as that of a paper signature and thus, digitally signed copies/scanned copies sent via e-mail[25] and original copies sent via post (as is being done by the leading arbitral institutes[26]) both can be filed in Court for enforcement of the award.
Legal and ancillary issues that converge in virtual arbitrations: Can they be dealt with?
Various challenges may be posed in virtual arbitrations but the authors herein have discussed some core issues to exhibit how they can be dealt with effectively by the parties, Tribunal and the appellate courts. The fundamental principle of each solution is that every virtual arbitration will endorse mutual consent juxtaposed with party autonomy, to ensure equity.
I. Accessibility to internet services and technology
Virtual arbitrations in the time of a pandemic will go on to secure justice for all as enshrined under Article 39-A of the Constitution.[27] However, as of now, only 55% of the Indian population has access to internet[28] which is now a protected right under Article 19 of the Constitution.[29] Only 23% of the urban and 4% of the rural population possesses computers,[30] which creates obstacles in accessibility to technology for virtual hearings. In the same way, certain hardware and infrastructural requirements are also supposed to be met.[31] Although infrastructure comprising hardware, LAN, DG set, UPS, internet connectivity and CIS software is available in the premises of almost all the lower courts, their usage has to be completely overhauled. E-governance initiatives in India, recognising the lacuna of accessibility of internet services and technologies, creation of more common service centres (CSS) and legal aid cells around the country and promotion of institutionalisation of arbitration can plug these administrative loopholes and allow virtual arbitrations to flourish in India.
II. Arbitrability of complex disputes
While simple contractual matters may easily be dealt with in virtual arbitrations, multi-party matters with multiple claims and voluminous evidence may render the process inaccessible.[32] While considering resolution of complex disputes the Supreme Court held that, “There appears to be need to consider categories of cases which can be partly or entirely concluded ‘online’ without physical presence of the parties by simplifying procedures where seriously disputed questions are not required to be adjudicated.”[33] Modified procedures such as considering the nature of the dispute before passing an order/direction for e-disclosure, retention or preservation of e-documents[34] will have to be made the norm. Therefore, wherever possible, virtual recourse must be sought.
III. Technological complexities
Videoconferencing facilities have been set up across various Benches of the Income Tax Appellate Tribunal (ITAT) such as Ahmedabad, Delhi, etc., turning them into e-courts,[35] and an e-filing portal has been instituted for the ITAT.[36] Digital Negotiable Instruments Courts have been set up by the Delhi High Court’s State Court Management Systems Committee (SCMSC) for disposal of cheque dishonour cases.[37] These examples are testament to the fact that if proper protocols and logistics are adopted, virtual arbitrations can be made a reality too.
The key is to conduct training/orientation sessions for the parties, arbitrators, etc. to gauge the features of the meeting platform such as chat and breakout features and to families themselves with trouble-shooting features of the meeting platform.[38] Adequate training of judicial officers in computerisation is necessary and is underway,[39] although it needs to be ramped up exponentially. Similarly, the SIAC has been training a number of their counsel in the Secretariat to provide technological support.[40] Thus, even though differing technical capabilities may complicate the inception of virtual hearings,[41] user-friendly platforms, proper training and spreading awareness about e-initiatives can help in navigating through them.
A “data disruption” and “meeting disruption” policy will cater to technological issues, so that parties are not excluded from any part of the hearing without their consent.[42] These include internet connectivity issues, dropped calls, audio-video disruption, etc.
IV. Cybersecurity, privacy and data protection
Various cybersecurity protocols such as ICCA-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration (2020 Edition) can be referred to secure safety of the parties. A prior agreement on the participants allowed into the meeting, proper identification and verification of participants done before the commencement of the virtual hearing, etc. will ensure that there is no breach of trust amongst the parties involved.
The right to privacy being a fundamental right in India, private information disseminated during such proceedings must be handled with caution. The protocols provided under the Personal Data Protection Bill, 2019[43] and the Personal Data Protection Bill, 2018 and the EU General Data Protection Regulation (“GDPR”) can be followed for limited processing, storage, transmission and erasure of information for all principals. Express consent for processing information and record of said processing will rein in data protection and privacy concerns. Password protected and secured personal networks can be accessed for internet connectivity, rather than public networks. Filing of documents, correspondence and posting of orders in e-format can be done through secure online channels/dockets[44], on a cloud service,[45] through a licence fee-based documents sharing platform, so that it is accessible to all parties, as is their right.[46]
V. Confidentiality
Section 42-A, added by the 2019 Amendment Act imposes data confidentiality obligations on the parties and the arbitrator. Confidentiality, an implied aspect of arbitration,[47] may be achieved by the arbitrator by binding all parties and participants involved to a confidentiality undertaking. Adopting a confidentiality clause or rules of a designated arbitration service provider that require specified confidentiality levels, can also have the same effect. Professional meeting software can be used to ensure meetings are end-to-end encrypted and are not infiltrated by Trojan horses or bugs and have provisions of breakout rooms for privileged communication.
VI. Admissibility and veracity of virtual evidence
The definition of “evidence”[48] under the Indian law includes all statements made by a witness in court and documents, including e-documents (they are legally recognised as records[49]) produced in court. The Supreme Court has held that evidence recorded in videoconferencing “would be as per procedure established by law”[50] and therefore, would be well within the periphery of due process of law. In fact, very recently, the Delhi High Court asked appearing counsel to submit video recordings along with concise documents containing their arguments to adjudicate upon a matter virtually.[51]
So long as the accused and/or his pleader are present while the evidence is recorded by videoconferencing, the evidence is said to be taken in the “presence” of the accused[52] and will be admissible. If the videoconference is set up in the presence of the Judge himself, the requirements of recording evidence under Sections 274[53] and 275[54] of the Code of Criminal Procedure, 1973 will be fulfilled too.[55] The natural corollary, ergo, is to apply these ratio decidendi to virtual arbitrations as well, as they are ejusdem generis to court proceedings. Commissions issued by the courts under CrPC have been permitted to record evidence of unavailable witnesses, through video conferencing.[56] Similarly, the court may issue commissions under the Arbitration Act[57] to provide electronic evidence to the Tribunal and penalties/disadvantages may be imposed on the persons failing to attend them.[58]
VII. Witness examinations
India is not completely amiss of the merits of virtual examinations and has allowed them in the past.[59] It has been stated that videoconferencing would allow seeing the witness better, observing their demeanour, replaying or rehearing their deposition and testimony.[60] Witness statements and their examination must be sought on live meeting, under oath[61] and in the presence of the learned arbitrator and relevant court officers, after seeking proof of identity of the witness. All relevant exhibits and documents being used in the process of examination must also be provided to the opposing party prior to the commencement or shared at the time of the hearing with the opposing party[62] and to the witness for their perusal.[63] If questions put to the witness and the answers given by them are typed by a stenographer and made visible on the screen, it will ensure transparency in the process.[64] Reasonable opportunity must be given to the counsel to object to questions and statements put to their witnesses.
The Tribunal must not conduct the witnesses examination or allow adduction of evidence in the absence of parties, unless the parties have otherwise chosen to remain absent, despite proper notice.[65] Despite the concerns surrounding virtual arbitrations, they work to eliminate visual, behavioural and verbal bias that is created in the mind of the Tribunal and put the spotlight solely on the testimony presented.
VIII. Witness coaching
To ensure that the witness is not coached/prompted, a party may require its duly empowered legal representative to be present at the location of the witness, upon having sought the permission of the Tribunal. For a witness outside India, an officer of the Indian Consulate/Embassy may be placed in the room with the witness.[66] Moreover, the witness may be asked to show his surroundings via camera to prove that there is no one else present with him.[67] He should not be allowed to confer with his counsel,[68] use virtual backgrounds or use electronic devices other than the computer during the hearing.[69]
IX. Challenge to proceedings
If awards pronounced in virtual arbitrations are challenged under the garb of unfair treatment of parties or the public policy umbrella, the credibility of such arbitrations is thrown out the window. A work-around can be for parties to agree to not challenge the award or seek its annulment on the ground that the proceedings were not held in-person.[70] Moreover, parties are estopped from challenging a mutually decided procedure[71] and strict interpretation of public policy[72] will render such challenges infructuous in the court of appeal. Furthermore, even the Supreme e-Committee draft rules suggest that proceedings conducted by way of videoconferencing are judicial proceedings.[73]
X. Costs
As per Section 31-A of the Act, all expenses incurred in connection with the arbitral proceedings are included in the definition of “costs” and as a general rule, the losing party bears such costs, unless there is an agreement between the parties stating differently. Some protocols require the requesting party to bear costs for videoconferencing facilities,[74] whereas some mandate equal cost sharing.[75] The Tribunal may also refuse the request to use novel technology upon an analysis of the unreasonable financial burden it lays down on parties.[76]
XI. Due process
Due process holds the Government subservient to the law of the land and protects individuals from the excesses of State.[77] Conscious use of technology like teleconferencing and videoconferencing should be encouraged as they can replace the formal physical settings and manifest into a more efficient and smoother arbitral process.[78]
The Arbitration and Conciliation Act, 1996[79] (hereinafter “the Act”) or the 1985 UNCITRAL Model Law on International Commercial Arbitration[80] on which it is based, have no overt references to virtual arbitrations. Section 18 of the Act only talks about the treatment of parties with equality and the provision of adequate opportunity to present their case, in line with the principles of natural justice. The juristic principle of audi alteram partem is enshrined under Section 18 and the principle constitutes a fundamental policy of Indian law.[81] Thus, it only needs to be ensured that:
(i) There is availability of proper internet and infrastructure for all the parties involved that provides them a sufficient opportunity to argue their case.
(ii) No party is heard in the absence of the other as it would constitute a violation of fundamental principles of natural justice.[82]
(iii) Real-time transcripts or video records of the proceedings[83], will also be available to the differently abled.
(iv) Interpreters will be used, whether in a staggered manner or simultaneously.[84]
Section 19(2) gives the parties autonomy to choose the procedure to be followed in the proceedings, which could be virtual or physical hearings. If a procedure is not agreed to, Section 19(3) mandates the Tribunal to conduct proceedings in the manner it considers “appropriate”, ex aequo et bono, after giving due reasoning[85] and ensuring that requirements under Section 18 are met.[86] Thus, virtual hearings may be conducted by the Tribunal either via oral hearings or on the basis of documents and other materials submitted by the parties.[87] Brief, coherently structured written submissions also reduce the likelihood of error and help in saving time.[88] Since Section 24(3) ensures full disclosure of applications filed, reports and documents referred to etc. between the parties and the arbitrator, the mandate of due process will definitely be upheld.
Objections to virtual hearings
Before taking such a decision, Tribunals are to remain flexible[89], consider all the circumstances and consequences of the Covid-19 pandemic, the pertinent reasons for proceeding with the virtual hearing, the nature and complexity of the case, adequate time for the parties to prepare, enforceability of such an award and adopt procedures that are not contrary to the agreement between the parties.[90] An opportunity will be given to the objecting party to raise their concerns and the Tribunal will address said concerns and record reasons for its decisions.[91]
Section 20(3) of the Act allows the Tribunal to “meet at any place it considers appropriate for consultation.”[92] Similarly, a switch from the “physical venue” to the “online virtual venue” can also be done if it is deemed necessary. In Adani Ennore Container Terminal (P) Ltd. v. Kamarajar Port Ltd.,[93] the Madras High Court ordered the parties to the dispute to have a Zoom meeting to see if there is any scope for mediation between them.
Section 24 allows documentary or oral hearings, but does not mandate in-person hearings and cannot be equated to the latter necessarily.[94] “In person” may simply mean a live, adversarial exchange which may be done virtually.[95] Evidence taken over videoconferencing also suffices the requirements under Section 273[96] of the Code of Criminal Procedure, 1973 as the witness is perfectly visible. Electronic discovery of documents is permissible under Section 24 and the scope of the discovery can be limited to what is strictly necessary.[97] This is useful when conducting virtual arbitrations and is a widely accepted practice.[98]
Therefore, it can be deciphered from the above that not only is it possible to conduct virtual arbitrations, but they also have inherent benefits that will reflect in any such proceeding.
Overview and analysis
Virtual arbitration in essence cater to the needs of a section of the society that are completely forgotten in conventional arbitrations in India — the differently-abled individuals. Chairperson of the e-Committee of the Supreme Court recently wrote a letter to the Chief Justices of the High Courts to make provisions for the disabled and physically challenged in terms of filing cases, attending proceedings in an accessible manner, etc.[99] Accessibility is a natural corollary to Articles 14, 19(1)(g) and 21 of the Constitution and virtual arbitrations help solve the issue of accessibility for all. Meetings can be accessed from the comfort of a home and interpreters/translator/sign language experts can provide specialised aid to the parties/counsel to make their submissions,[100] which may not be possible in an open, in-person hearing.
Effective access to justice is a part of the basic structure doctrine, conceptualised by the Supreme Court.[101] Under the 1996 Act, disposal of both domestic and international commercial arbitrations disputes is time-bound[102] which propels speedy justice in India. However, due to the pandemic, conventional arbitrations have been adjourned sine die which is against the mandate of the Act. Complications may come as part and parcel with virtual hearings, but the solutions are equally ubiquitous. Early case management conferences, a widely accepted practice in all leading arbitral institutions and can help determine the applicable procedure, rules, logistics and clarify the concerns of the parties towards this revolutionary virtual experiment. Prospective arbitrators, technical specialists, etc. can be trained at par with international standards[103] and empanelled in alternate dispute resolution (hereinafter “ADR”) Committees set up by the High Courts in their jurisdiction. The 2020 Ordinance promulgated by the President has also omitted the Eighth Schedule to the Act which provided for minimum qualifications to become an arbitrator, thereby, opening the door for everyone to set foot in the realm of arbitrations.[104] Gaps in technological knowhow continue to challenge the proposed scheme of virtual ad hoc arbitrations. The learning curve is steep but proper coaching, awareness about third-party management services and institutional arbitrations, grant-in-aid for infrastructural costs and good faith between the parties can plug the administrative loopholes that exist in this realm. There also have been various discussions about use of artificial intelligence to aid the user with management and automated service processes.[105] Various protocols have been effectuated to cater to cybersecurity issues,[106] such as the ICC issued ICC-NYC Bar Protocol[107] or the IBA issued Cybersecurity Guidelines.[108]
It is rightly said that justice delayed is justice denied. Therefore, rather than running away from the problem, we must face the challenge head on and with utmost vigour. Arbitration matters that have been stuck in oblivion due to the pandemic can finally be put to rest by the mutual cooperation of the parties[109] and thus, it is necessary that all stakeholders come together and support each other to make virtual arbitrations a new reality.
† Associate at Jurisconsultus, Advocates, Business & Commercial Solicitors. Author can be reached at aafreenchoudhary1@gmail.com.
†† LLB 2021, Lloyd Law College, Greater Noida can be reached at dhruv.srivastava4@gmail.com
[1]Mohamed S. Abdel Wahab, Chapter 1: Dispute Prevention, Management and Resolution in Times of Crisis between Tradition and Innovation: The COVID-19 Catalytic Crisis in Maxi Scherer, Niuscha Bassiri, et al. (eds.), International Arbitration and the COVID-19 Revolution.
[2] See Covid-19, Kluwer Arbitration Blog (26-6-2021, 12.05 p.m.), COVID-19 Archives — Kluwer Arbitration Blog.
[3]White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf>.
[4] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, at 21.
[5] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, at 20.
[6] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, at 14.
[7] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, at 22.
[8] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, at 23.
[9] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, at 24.
[10] Arbitration and Conciliation (Amendment) Act, 2015.
[11] Arbitration and Conciliation (Amendment) Act, 2019.
[12] Arbitration and Conciliation (Amendment) Act, 2021.
[13]In a recent letter written to Justice Dr D.Y. Chandrachud, the Madhya Pradesh State Bar Council has highlighted the glitches, disruptions, heavy data load and complicated user interface of the “Jitsi” platform which is being used by courts all across India to conduct virtual hearings. See Khadija Khan, Jitsi not User-Friendly, Shift Madhya Pradesh High Court Hearings to Zoom/Webex: M.P. Bar Council Chairman writes to Justice D.Y. Chandrachud (29-6-2021, 7.30 p.m.), Jitsi not User-Friendly, Shift Madhya Pradesh High Court Hearings to Zoom/ Webex: M.P. Bar Council Chairman Writes to Justice D.Y. Chandrachud (barandbench.com).
[14]Indian Arbitration Forum, Protocol on Virtual Hearings for Arbitrations, Para 2(a)(ii), p. 2, September 2020 accessed at <https://indianarbitrationforum.com/wp-content/themes/iaf/assets/IAF-Protocol-on-Virtual-Hearings-for-Arbitrations-Oct-2020.pdf> (indianarbitrationforum.com).
[15]International Chamber of Commerce, ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the Covid-19 Pandemic, Para 8, p. 2, 9-4-2020 accessed at <https://iccwbo.org/content/uploads/sites/3/2020/04/guidance-note-possible-measures-mitigating-effects-covid-19-english.pdf> (iccwbo.org).
[16] Satpal P. Malhotra v. Puneet Malhotra, 2013 SCC OnLine Bom 689.
[17] Sukhbir Singh v. Hindustan Petroleum Corpn. Ltd., 2020 SCC OnLine Del 228; Also see Sohan Lal Gupta v. Asha Devi Gupta, (2003) 7 SCC 492.
[18] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf> Para 8, p. 2.
[19] Singapore International Arbitration Centre, SIAC Covid-19 Frequently Asked Questions (FAQs) (30 June, 4.39 p.m.), SIAC Covid-19 Frequently Asked Questions (FAQs) <www.siac.org.sg/faqs/siac-covid-19-faqs>.
[20] See Union of India v. Reliance Industries Ltd., 2018 SCC OnLine Del 13018; also see, Thiess Iviinecs India v. NTPC Ltd., 2016 SCC OnLine Del 1819.
[21] The Arbitration and Conciliation Act, 1996, S. 31(1).
[22] The Arbitration and Conciliation Act, 1996, S. 31(1).
[23] The Arbitration and Conciliation Act, 1996, S. 31(5).
[24] Section 5, Information Technology Act, 2002.
[25] Delhi High Court, Guidance Note for Conducting Arbitration Proceedings by Video Conference 2020, Para 2.3, p. 2, (30 June, 4.50 p.m.), Public Notice_QS9BF6S2KSA.PDF (delhihighcourt.nic.in).
[26] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at < http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf>.
[27]Constitution of India, Art. 39-A.
[28] Niti Aayog and United Nations, SDG India Index & Dashboard 2020-21 Partnerships in the Decade of Action, p. 136 (1-7-2021, 4:00 p.m.), accessed at <https://www.niti.gov.in/writereaddata/files/SDG_3.0_Final_04.03.2021_Web_Spreads.pdf>.
[29] Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.
[30] National Statistical Office, Key Indicators of Household Social Consumption on Education in India, NSS 75th Round (July 2017–June 2018) (1-7-2021, 4.21 p.m.), <http://mospi.nic.in/sites/default/files/publication_reports/KI_Education_75th_Final.pdf> (mospi.nic.in)
[31]72% of the judicial officers emphasised the development of better infrastructure and 8% wanted the internet facilities to be improved. See National Council of Applied Economic Research, Evaluation Study of eCourts Integrated Mission Mode Project (1-7-2021, 5.41 p.m.), Evaluation Study of eCourts Integrated Mission Mode Project <www.doj.gov.in/sites/default/files/Report-of-Evaluation-eCourts.pdf>
[32]TadasVarapnickas, Will COVID-19 Revolutionize Arbitration? What’s Next for Business and Arbitration?, TGS Baltic Webinar.
[33] Meters and Instruments (P) Ltd. v. Kanchan Mehta, (2018) 1 SCC 560.
[34] Chartered Institute for Arbitrators, Protocol for E-Disclosure in International Arbitration, International Arbitration Protocol, Art. 3.1, p. 3 accessed at <www.ciarb.org/media/1272/e-iscolusureinarbitration.pdf>.
[35] Special Correspondent at The Hindu, e-Court Launched at Income-Tax Appellate Tribunal in Chennai, (1 July 7.21 p.m.), The Hindu.
[36] Press Information Bureau, Law Minister Shri Ravi Shankar Prasad Launches “itat e-dwar”, an E-Filing Portal of Income Tax Appellate Tribunal. Portal will Enable Online Filing of Appeals, Applications, Documents, etc. by Various Parties. Cases of Income Tax Appellate Tribunal should be Integrated in National Judicial Data Grid: Shri Ravi Shankar Prasad (1-7-2021, 3.34 p.m.), Press Information Bureau <www.pib.gov.in/PressReleaseIframePage.aspx?PRID=1730394>
[37] Delhi High Court, Digital NI Act Courts, (1-7-2021, 2.20 p.m.), Digital NI Act Courts <www.delhidistrictcourts.nic.in/digitalnicourts.html>
[38] International Institute for Conflict Prevention and Resolution, CPR Model Procedural Order for Remote Video Arbitration Hearing, Para B(2) accessed at NEW: CPR’s Annotated Model Procedural Order for Remote Video Arbitration Proceedings | CPR International Institute for Conflict Prevention & Resolution Inc. (cpradr.org); also see White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf > Para B(ii) and (v), pp. 2, 9.
[39] Ministry of Law and Justice, Initiatives Towards Computerisation of Courts, Initiatives Taken by the Ministry of Law & Justice During the Two Years of the Present Government (1-7-2021, 5.35 p.m.), accessed at <https://lawmin.gov.in/sites/default/files/2year-achi.pdf> (lawmin.gov.in).
[40]Singapore International Arbitration Centre, Open Letter from SIAC President (1-7-2021, 3.15 p.m.), (Open Letter from SIAC Court President) Arbitration at SIAC during COVID-19.pdf
[41]Gabrielle Kaufmann-Kohler and Thomas Schultz, The Use of Information Technology in Arbitration, Jusletter, December 2005, at 62, available at <http://lk-k.com/wp-content/uploads/The-Use-of-Information-Technology-in-Arbitration.pdf> (hereinafter “Kaufmann-Kohler & Schultz”); Christoph Liebscher, The Healthy Award: Challenge in International Commercial Arbitration 243-273, 344 (2003).
[42] Rudramuni Devaru v. Shrimad Maharaj Niranjan Jagadguru, 2005 SCC OnLine Kar 173.
[43] Personal Data Protection Bill, 2019.
[44] World Intellectual Property Organisation, WIPO eADR Practices (1 July, 4.41 p.m.), WIPO eADR Practices <www.wipo.int/amc/en/eadr/wipoeadr>
[45] Seoul International Dispute Resolution Center and KCAB International, Seoul Protocol on Videoconference in International Arbitration, Art. 4.3, 18-3-2020 accessed at <www.kcabinternational.or.kr/user/Board/comm_notice_view.do?BBS_NO=548&BD_NO=169&CURRENT_MENU_CODE=MENU0025&TOP_MENU_CODE=MENU0024>; also see Hogan Lovells Protocol for the Use of Technology in Virtual International Arbitration Hearings, Art. 3.2(a), p. 7, April 2020 accessed at <https://www.hoganlovells.com/~/media/hogan-lovells/pdf/2020-pdfs/2020_04_09_hogan_lovells_international_arbitration_digital_hearing_protocols.pdf> (hoganlovells.com)
[46] Ssangyong Engg. and Construction Co. Ltd. v. National Highways Authority of India, (2019) 15 SCC 131.
[47] Malaysian Newsprint Industries Sdn Bhd v. Bechtel International Inc., (2008) 5 MLJ 254.
[48] The Evidence Act, 1872, S. 3.
[49] The Information Technology Act, 2000, S. 4.
[50] State of Maharashtra v. Praful B. Desai, (2003) 4 SCC 601.
[51] Sat Prakash Soni v. Union of India, 2020 SCC OnLine Del 2027.
[52] The Code of Criminal Procedure, 1973, S. 273.
[55] State of Maharashtra v. Praful B. Desai, (2003) 4 SCC 601, para 19.
[56] State of Maharashtra v. Praful B. Desai, (2003) 4 SCC 601, para 20.
[57] Arbitration and Conciliation Act, 1996, Ss. 27(4) and (6).
[58] Arbitration and Conciliation Act, 1996, S. 27(5).
[59]International Planned Parenthood Federation v. Madhu Bala Nath, 2016 SCC OnLine Del 85; also see Twentieth Century Fox Film Corpn. v. NRI Film Production Associates (P) Ltd., 2003 SCC OnLine Kar 22.
[60]World Intellectual Property Organization, WIPO eADR Practices (1 July, 4.41 p.m.), WIPO eADR Practices <www.wipo.int/amc/en/eadr/wipoeadr> at paras 19 and 20.
[61] Same protocol followed by the Bombay High Court in the videoconferencing in Taher Fakhruddin Saheb v. Mufaddal Burhanuddin Saifuddin, 2020 SCC OnLine Bom 7551.
[62] Special Correspondent at The Hindu, E-Court Launched at Income-Tax Appellate Tribunal in Chennai, (1 July, 7.21 p.m.), E-Court Launched at Income-Tax Appellate Tribunal in Chennai — The Hindu; Hogan Lovells , Art. 3.2(b), p. 7.
[63]See Covid-19, Kluwer Arbitration Blog (26-6-2021, 12.05 p.m.), COVID-19 Archives — Kluwer Arbitration Blog; Hogan Lovells at Para 5(g), p. 9.
[64] Same protocol followed by the Bombay High Court in videoconferencing in Taher Fakhruddin Saheb v. Mufaddal Burhanuddin Saifuddin, 2020 SCC OnLine Bom 7551; also see White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf> Para E(iv).
[65] Rudramuni Devaru v. Shrimad Maharaj Niranjan Jagadguru, 2005 SCC OnLine Kar 173.
[66] See Covid-19, Kluwer Arbitration Blog (26-6-2021, 12.05 p.m.), COVID-19 Archives — Kluwer Arbitration Blog at Paras 5(i) and (iii), p. 10.
[67] See Covid-19, Kluwer Arbitration Blog (26-6-2021, 12.05 p.m.), COVID-19 Archives — Kluwer Arbitration Blog at Para 5(d)(iii), p. 9.
[68] Africa Arbitration Academy, Africa Arbitration Academy Protocol on Virtual Hearings in Africa, Para 2.1.4, p. 7, April 2020 accessed at <https://www.africaarbitrationacademy.org/wp-content/uploads/2020/04/Africa-Arbitration-Academy-Protocol-on-Virtual-Hearings-in-Africa-2020.pdf> (africaarbitrationacademy.org).
[69] Recently, the Delhi District Court allowed a mutual application moved on behalf of the parties for the recording of evidence through videoconferencing. Guidelines were put forth by the court to ensure that the witness is not being tutored while evidence is being recorded and in case there appears to be any prompting on the side of the witness, or if he deliberately keeps disrupting his internet connection, the proceedings will be adjourned. This can be applied to virtual arbitrations. See Kanwal Nain Singh Mokha v. Rekha Khurana, CC No. 1924 of 2016, decided on 26-6-2021 (Delhi District Court).
[70] The Information Technology Act, 2000, S. 4; also see World Intellectual Property Organisation, WIPO eADR Practices (1 July, 4.41 p.m.), WIPO eADR Practices <www.wipo.int/amc/en/eadr/wipoeadr> at Art. 2.10, p. 5.
[71]Jagjeet Singh Lyallpuri v. Unitop Apartments and Builders Ltd., (2020) 2 SCC 279.
[72]Govt. of India v. Vedanta Ltd., (2020) 10 SCC 1; also see Ssangyong Engg. and Construction Co. Ltd. v. National Highways Authority of India, (2019) 15 SCC 131; also see Associate Builders v. DDA, (2015) 3 SCC 49.
[73] E-Committee of the Supreme Court of India, Draft Video Conferencing Rules, Para 3(ii) (1-7-2021, 6.20 p.m.) accessed at <https://cdnbbsr.s3waas.gov.in/s388ef51f0bf911e452e8dbb1d807a81ab/uploads/2020/08/2020082629.pdf> (s3waas.gov.in).
[74] National Statistical Office, Key Indicators of Household Social Consumption on Education in India, NSS 75th Round (July 2017–June 2018) (1-7-2021, 4.21 p.m.), <http://mospi.nic.in/sites/default/files/publication_reports/KI_Education_75th_Final.pdf> (mospi.nic.in) at Art. 9.1.
[75]World Intellectual Property Organisation, WIPO eADR Practices (1 July, 4.41 p.m.), WIPO eADR Practices <www.wipo.int/amc/en/eadr/wipoeadr> at Art. 2.9(f), p. 5.
[76]International Chamber of Commerce, ICC Commission Report Information Technology in International Arbitration, Para 1.2, 2017 accessed at <icc-information-technology-in-international-arbitration-icc-arbitration-adr-commission.pdf> (iccwbo.org).
[77] Maneka Gandhi v. Union of India, (1978) 1 SCC 248 and Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248 have read the due process doctrine into Art. 21, making them in severable parts of each other.
[78]Law Commission of India Report No. 246, Amendments to the Arbitration and Conciliation Act, 1996, Point 16, p. 13 (2-7-2021, 8.40 p.m.)
[79] Arbitration and Conciliation Act, 1996.
[80] UNCITRAL Model Law on International Commercial Arbitration, 1985.
[81] Associate Builders v. DDA, (2015) 3 SCC 49.
[82] Sulaikha Clay Mines v. Alpha Clays, 2004 SCC OnLine Ker 79.
[83] E-Committee of the Supreme Court of India, Draft Model Rules for Live-Streaming and Recording of Court Proceedings, Para 10, p. 13 (30-6-2021, 1.15 p.m.), Rules on Live Streaming (mygov.in); also see Hague Conference on Private International Law, Guide to Good Practice on the Use of Video-Link under the 1970 Evidence Convention, p. 98 (30-6-2021, 12.24 p.m.) <https://assets.hcch.net/docs/569cfb46-9bb2-45e0-b240-ec02645ac20d.pdf> (hcch.net); also see Kanwal Nain Singh Mokha v. Rekha Khurana, CC No. 1924 of 2016, decided on 26-6-2021 (Delhi District Court).
[84] World Intellectual Property Organisation, WIPO eADR Practices (1 July, 4.41 p.m.), WIPO eADR Practices <www.wipo.int/amc/en/eadr/wipoeadr> at Art. 3.5, p. 7.
[85] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf> at Para D(iii).
[86] Sukhbir Singh v. Hindustan Petroleum Corpn. Ltd., 2020 SCC OnLine Del 228.
[87] The Arbitration and Conciliation Act, 1996, S. 24(1).
[88] Kiran Chhabra v. Pawan Kumar Jain, 2011 SCC OnLine Del 803.
[89] Narendra Kumar Anchalia v. Krishna Kumar Mundhra, 2002 SCC OnLine Cal 485.
[90] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf> at Paras 18 and 22.
[91] See Covid-19, Kluwer Arbitration Blog (26-6-2021, 12.05 p.m.), COVID-19 Archives — Kluwer Arbitration Blog at Para 2, p. 2.
[92]In line with this, the venue of arbitration was changed from Kuala Lumpur, Malaysia to London, due to the breakout of the Severe Acute Respiratory Syndrome (SARS) virus, which was designated as a mere physical change in Videocon Industries Ltd. v. Union of India, (2011) 6 SCC 161.
[93] 2020 SCC OnLine Mad 2708.
[94] Yvonne Mak, Do Virtual Hearings Without Parties’ Agreement Contravene Due Process? The View from Singapore (8-7-2020, 7.15 p.m.), Do Virtual Hearings Without Parties’ Agreement Contravene Due Process? The View from Singapore — Kluwer Arbitration Blog; <http://www.scconline.com/DocumentLink/Dgqf5o4W>.
[95] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf> at Para 23.
[97] Union of India v. Reliance Industries Ltd., 2018 SCC OnLine Del 13018.
[98]Pyrrho Investments Ltd. v. MWB Property Ltd., 2016 EWHC 256; Da Silva Moore v. Publicis Groupe SA, 11 Civ 1279 (ALC) (AJP) (SDNY 2012) Judge Peck; Irish Bank Resolution Corpn. v. Quinn, 2015 IECH 175.
[99] ANI, Need to Create Accessible Infrastructure for Lawyers, Litigants, with Disabilities: Justice D.Y. Chandrachud to High Courts (29-6-2021, 12.40 p.m.), Need to Create Accessible Infrastructure for Lawyers, Litigants with Disabilities: Justice D.Y. Chandrachud — The New Indian Express.
[100]Same protocol followed by the Bombay High Court in the videoconferencing in Taher Fakhruddin Saheb v. Mufaddal Burhanuddin Saifuddin, 2020 SCC OnLine Bom 7551 at Para 5.9.3.
[101]Kesavananda Bharati Sripadagalvaru v. State of Kerala, (1973) 4 SCC 225 .
[102] Arbitration and Conciliation Act, 1996, S. 29-A.
[103] See New Delhi International Arbitration Centre Act, 2019, S. 29(1), No. 17.
[104] The Arbitration and Conciliation (Amendment) Act, 2021, S. 4.
[105] Aditya Singh Chauhan, Future of AI in Arbitration: The Fine Line between Fiction and Reality (29-6-2021, 8.51 p.m.), Future of AI in Arbitration: The Fine Line between Fiction and Reality — Kluwer Arbitration Blog.
[106] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf> at 14; also see Claire Morel de Westgaver, Cybersecurity in International Arbitration — A Necessity and An Opportunity for Arbitral Institutions (29-6-2021, 8.47 p.m.), Cybersecurity in International Arbitration – A Necessity and An Opportunity for Arbitral Institutions — Kluwer Arbitration Blog.
[107]ICCA-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration (2020 Edition) ICCA Reports n6-v4-A5-v4 (arbitration-icca.org).
[108]International Council for Commercial Arbitration, The ICCA-IBA Roadmap to Data Protection in International Arbitration accessed at ICCA-IBA Roadmap to Data Protection in International Arbitration: 2020 Edition (arbitration-icca.org).
[109]Kanwal Nain Singh Mokha v. Rekha Khurana, CC No. 1924 of 2016, decided on 26-6-2021 (Delhi District Court).
