Abstract

The COVID-19 crisis caught the international arbitration community off-guard. Few contracts or arbitration rules —if any— anticipated how procedural issues, such as hearings, must be carried out in circumstances such as the one created by the COVID-19 pandemic. Specifically, one question that has arisen within the international arbitration community is what to do with hearings that have had to be suspended because of gathering and travel restrictions. Even though these restrictions will be waived at some point, it is impossible to foresee when this will be. Therefore, Arbitral Tribunals presented with this problem will have to determine how to proceed in a way that preserves the parties’ procedural rights, without risking the annulment of the award for denying the parties’ right to be heard. Under force majeure circumstances —such as the one created by the COVID-19 pandemic— Arbitral Tribunals will have three options with regards to hearings: suspend them indefinitely, cancel them, or conduct the hearing virtually. In this paper, the arguments for and against these three options will be presented. In addition, it will explained why it is likely that as a result of the COVID-19 pandemic, virtual hearings will become a growing trend within the international arbitration community in the near future.

This paper is part of a series of TDM papers on "Force Majeure, Hardship, etc", More information here https://www.transnational-dispute-management.com/news.asp?key=1813