161 ARBITRATION LAW Remote Hearings As a result of the Covid-19 pandemic, many hearings have been held online. In line with this, the IBA Rules 2020 now include a definition of a remote hearing which reads as follows: “A hearing conducted, for the entire hearing or parts thereof, or only with respect to certain participants, using teleconference, videoconference or other communication technology by which persons in more than one location simultaneously participate.” Article 8 has also been amended and now expressly refers to Remote Hearings and states that even parts of a hearing may be held remotely. According to article 8.2, at the request of a Party or on its own motion, the arbitral tribunal may, after consultation with the Parties, order that the evidentiary hearing be conducted as a Remote Hearing. In that event, the Rules state that, the arbitral tribunal should consult with the Parties with a view to establishing a Remote Hearing protocol to conduct the Remote Hearing efficiently, fairly and, to the extent possible, without unintended interruptions. The said article also addresses certain items that the protocol may address, such as the technology to be used, testing of the technology, or training in the use of the technology, the start and end times considering, in particular, the time zones in which the participants will be located. The article also suggests that measures to ensure that witnesses giving oral testimony are not improperly influenced or distracted should be considered. Tribunal powers A new provision to article 9 has been added which clearly empowers the arbitral tribunal with the authority to exclude evidence obtained illegally, either at the request of a party or on its own motion. In addition, article 8.5 states that parties may agree, or the arbitral tribunal may order, that the witness statement or expert report shall serve as that witness’s direct testimony. A new sentence has been included that in this event the arbitral tribunal may, nevertheless, permit further oral direct testimony. This clarifies the arbitral tribunal’s power to order direct testimony even if the other party has waived its right to cross-examine that witness.
RkJQdWJsaXNoZXIy MjUzNjE=