154 NEWSLETTER 2021 This protocol provides useful recommendations, mainly on documents, venue, witnesses, observers, technical issues, interpretation, and recording. The American Arbitration Association (“AAA”) also published virtual hearing guides, orders, and procedures. The ICC Guidance is not only related to virtual hearings, but rather covers a wide range of issues. What comes across as interesting is that, early in 2020, the ICC regulated virtual hearings explicitly in its 2021 Arbitration Rules. Even though this revision was made prior to the COVID-19 pandemic, the timing of the 2021 ICC Rules of Arbitration fit very well with the needs of practitioners. Even before the revision, the wide discretion given by the ICC to arbitral tribunals allowed for the conduct of virtual hearings. Currently, this issue is regulated explicitly in Article 26 of the 2021 ICC Rules of Arbitration, which states that hearings can be conducted remotely by videoconference, telephone, or other appropriate means of communication. The ICC Guidance provides tips to users by focusing on cost and time-effective measures. It recommends procedures to ensure due process. There are certain practical issues an arbitral tribunal should consider: the type of the hearing, multiple time zones, travel barriers, the duration of the hearing, the number of parties / experts / witnesses, whether the hearing will be recorded, the need for language interpretation, the procedure for taking evidence, and the use of electronic hearing bundles are just some of them. The ICC Guidance further recommends that parties agree on a cyber protocol and lists suggested provisions. This is an important document and a tool that parties should consider complying with, as it deals with issues such as data privacy rules and ensuring cybersecurity. There is no doubt that one of the biggest advantages of virtual hearings is the reduction of costs. One of the major drawbacks of arbitration is the costs associated with it, and thus this is a very sensitive issue. Accordingly, arbitral tribunals must pay attention to costs when deciding on procedural considerations. Another important consideration is the enforceability of the award. In this respect, it should always be kept in mind that having a virtual hearing should never be an obstacle before the enforcement of
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