Remote arbitral hearings are permitted - even over the objection of a party

In the worldwide first national supreme court ruling, the Austrian Supreme Court declared conducting arbitral hearings remotely via videoconference to be in line with due process requirements, even if a party to the arbitration objects (18 ONc 3/20s).

For years, the use of videoconferencing technologies has been common practice in arbitral proceedings. They are commonly used for organisational conferences and to facilitate the taking of evidence. These technologies have become increasingly important in international arbitrations as parties, legal representatives and, not least, witnesses are often located in different countries. However, until recently, arbitral tribunals have been slightly reluctant to hold evidentiary hearings fully remotely (as opposed to semi remotely, where only individual participants join the hearing via videoconference). During the Covid-19 pandemic, the use of videoconferencing technology gained increasing importance due to travel restrictions and health concerns. Prior to the recent Austrian Supreme Court ruling, it had been disputed whether arbitral hearings can be held via videoconference even if one party objects thereto, or whether this would violate due process rights (Art 6 ECHR).

The Austrian Supreme Court ruling is based on a VIAC arbitration which had been pending since 2017. The arbitral tribunal had set a hearing date for an in-person-hearing in Vienna to hear witnesses. Considering the travel restrictions due to the Covid-19 pandemic, the arbitral tribunal ordered the hearing to be conducted by means of a videoconference instead. Respondents, who objected to a remote hearing, challenged the arbitral tribunal on the grounds of bias. After the VIAC dismissed the request for challenge, Respondents applied to the Austrian Supreme Court to declare the arbitral tribunal biased. Respondents alleged, i.a. that the conduct of a video-hearing ordered by the arbitral tribunal would violate their due process rights because such hearings would increase the potential for witness tempering and – due to time-difference - the hearing would take place at 6 a.m. for their US based representative.

The Austrian Supreme Court confirmed the decision of the arbitral tribunal and dismissed Respondents’ request. The use of videoconference technology is already an international standard in court proceedings. Its use in this case therefore was not a violation of due process, even if the hearing was held outside “normal” office hours. The Austrian Supreme Court expressly ruled that remote hearings are in line with Art 6 ECHR, which grants parties the right to effective access to justice and the right to be heard. Especially in a situation where the administration of justice could otherwise not be continued due to a pandemic, videoconference technology is a welcome tool to safeguard both the right of access to justice and the right to be heard. Thus, there is a strong presumption that fully remote hearings are legitimate. Objections against the use of videoconference technology might only be successful, if one party could demonstrate concrete circumstances resulting in substantial unfair treatment or specific reasons for concerns regarding witness tampering. These prerequisites were not met in the case at hand.  

This Austrian Supreme Court ruling appears to be the first ruling of a national supreme court addressing the practice of conducting arbitral hearings via videoconferences. Even though the ruling was rendered in the context of an arbitrator challenge, its significance goes beyond that. The Supreme Court declares that remote arbitral hearings - even against the objection of one party – are neither a violation of the right to be heard nor the right to equal treatment. Thus, the conduct of a video-hearing (in itself) cannot constitute grounds for challenging an arbitral tribunal, nor can it lead to the setting aside of an arbitral award. Referring to Art 6 ECHR, the Austrian Supreme Court has made a landmark decision on the admissibility of arbitral hearings via videoconferencing technologies, with significant importance beyond the borders of Austria.

The chairman of the arbitral tribunal is a partner of Binder Grösswang.

Please note: This blog merely provides general information and does not constitute legal advice of any kind from Binder Grösswang Rechtsanwälte GmbH. The blog cannot replace individual legal consultation. Binder Grösswang Rechtsanwälte GmbH assumes no liability whatsoever for the content and correctness of the blog.