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We will now take into consideration one particular example of a sector of the law where such questions arose, it being that of arbitration proceedings. With many international participants, the travel effort, associated costs and planning difficulties of such events have always proven to be a significant hindrance [1] and with the coming of the Digital Age, the use of video conferencing technology, so-called "virtual hearings", seemed poised to easily overcome this hurdle.

However, arbitral tribunals have been very reluctant to use video technology in the past. Why, you might ask? The reason has to do with a legal doubt regarding the possible violation of the "right to be heard" under Article 6 of the ECHR, the European Convention on Human Rights, especially if a party were to object to the implementation of such a practice.[2]

Specifically, the ECHR provisions aim to secure the citizen’s right to a public hearing where he may freely be heard, to protect them against “the administration of justice in secret with no public scrutiny”. Holding the trial online, or in a closed-doors virtual meeting, might prove to be arguably a flawed (at best) form of publicity for the arbitration proceeding.

Thus, it took the COVID-19 crisis (as in many other areas) to secure the digitalization of arbitration. In a landmark decision [3], the Austrian Supreme Court was the first national high court to allow the admissibility of online arbitration proceedings, even against the will of a party. In the specific case, the question was once again whether a virtual hearing violated fundamental procedural principles: the parties' right to be heard and their right to be treated fairly.[4]

Article 6 grants each party the right to present its point of view during ongoing proceedings. The fact that the basic use of video technology does not violate Article 6 had already been established by the ECHR. It should also be borne in mind that Article 6 also grants a right to effective legal protection, and virtual hearings can prove to be an excellent help for the effective enforcement of rights. The Supreme Court stated that, especially in times of a pandemic, remote hearings offer a significant alternative while preserving both the right to be heard and effective access to justice.

In addition, for more practical examples, three guidelines on the use of virtual hearings in arbitration have already been published, the ICC Guidance Note, the HKIAC guidelines and the Seoul Protocol. Without going into the details, the most important features are mentioned below. Each of the three guidelines shares the same objective of assisting parties during virtual hearings.[6]

-       The ICC Guidance Note[7] focuses on issues that may arise from holding hearings virtually and encourages parties to consider specific measures that promote efficiency during arbitral proceedings. 

-       The HKIAC Guidelines[8] also aim to promote efficiency during arbitral proceedings but encourage parties to use the available resources of the institution. 

-       The Seoul Protocol[9] offers guidance concerning the logistical challenges presented by remote arbitration hearings. Its guidelines focus on default standards applicable to streamline video-conference proceedings. 

Under both the precedent set by the Austrian court and the aforementioned protocols it is clear that the main obstacle to the integration of virtual hearings into arbitration has shifted from a legal and procedural nature to a new purely technical kind, as the main focus is now perfecting new procedural rules that, in due time, will become enshrined in statutes and regulations across both the EU and the rest of the world.