Due process challenges to virtual hearings? Good luck if your arbitration is seated in the United Arab Emirates
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Sarah-Jane Fick
Freshfields Bruckhaus Deringer, Dubai/Singapore
sarah-jane.fick@freshfields.com
Tala Fahoum
Freshfields Bruckhaus Deringer, Dubai
tala.fahoum@freshfields.com
Momentum for the widespread adoption of virtual hearings has been building apace within the arbitration community. Technology has long been used as an efficiency and cost saving measure in the management of disputes, and ‘green arbitrations’ have attracted greater focus amid increasing global sustainability concerns. The Covid-19 pandemic has acted as a catalyst by forcing parties to shift proceedings to virtual forums or risk unquantifiable delays to hearings. That many future arbitral hearings will be conducted virtually now appears to be a general presumption. We explore below the admissibility, and likelihood of potential challenges, to virtual arbitrations seated ‘onshore’ in the UAE.
Due process challenges to virtual hearings
By their very nature, conducting hearings remotely gives rise to unique due process concerns. It is easy to foresee proceedings being derailed by inefficient technology, or to contemplate, for example, unscrupulous parties abusing virtual hearing logistics to direct witness evidence undetected. Tribunals must balance a party’s right to be heard with due process considerations aimed at ensuring equality between the parties, in order to issue enforceable awards.
It is undeniable that arguments for and against virtual hearings will now form part of an arbitration practitioner’s strategic arsenal. Certain parties may still want in-person hearings, perceiving value in the face-to-face experience. However, challenges based on general arguments relating to the nature of virtual hearings are unlikely to be persuasive to many Tribunals, especially those who have experienced successful virtual hearings.
There must be exceptional circumstances in the case that would render a virtual hearing unworkable or onerous, such that any virtual hearing would constitute a violation of due process and render the final award subject to challenge. The success of due process challenges will depend both on the extent to which the procedural law of the arbitration supports virtual hearings, and on the institutional rules and procedural guidance governing the proceedings.
What support exists for due process challenges to virtual hearings under UAE law?
Historically, parties with assets in the UAE have had a selection of due process protections enshrined in local laws to consider as grounds for resisting enforcement proceedings. Against this backdrop, parties facing an award that may require enforcement in the UAE may be particularly sensitive to any objections raised against the use of virtual hearings.
However, as part of a wider aim of establishing the UAE as a regional dispute resolution hub, a raft of legislation that supports the use of technology in claims management has been adopted in recent years. For example, in quick succession, amendments have been made to the UAE federal legislative framework to shift many aspects of court procedure online,[1]to empower judges to conduct civil procedures remotely,[2]expand the technological means recognised for the acceptance of service,[3]and improve the accessibility of judgments online.[4]
In response to the Covid-19 pandemic and ensuing social distancing and quarantine restrictions, the UAE Courts were swift to adopt technology to continue certain court procedures: the Dubai Courts authorised electronic hearings utilising Microsoft Teams[5]and the Abu Dhabi Courts moved to virtual hearings, including for criminal cases.[6]
Most relevant to the arbitration community is, of course, the long-awaited Federal Arbitration Law No. 6 of 2018 (the ‘Arbitration Law’), applicable to domestic and international arbitration proceedings seated onshore in the UAE. Part-based on the UNCITRAL Model Law, the Arbitration Law specifically authorises Tribunals to conduct hearings by means that do not require physical presence at hearings,[7]to examine fact and expert witnesses through means that does not require physical presence at the hearing,[8]and to sign awards electronically.[9]
The UAE Courts have also affirmed the primacy of the New York Convention[10]over provisions of local law concerning the enforcement of international,[11]as well as domestic, awards onshore.[12]However, departing from the New York Convention, pursuant to the Arbitration Law, one of the grounds on which the UAE Court of Appeal may annul an award includes ‘if the procedures are tainted by irregularities that had an effect on the award’.[13]It will be interesting, in time, to see if violations of due process are raised under this provision as grounds for annulment.
Practical considerations
Some institutions have express provisions on the use of virtual hearings, and some also have adopted practice notes or guidance on the virtual management of arbitrations. Even if institutional guidance is available, parties are free to consent to the adoption of other protocols if those are deemed more suitable. For instance, the Seoul Protocol on Video Conferencing in International Arbitration includes comprehensive guidance on minimum technical requirements and logistics specifically tailored to virtual hearings.[14]The parties should seek to reach agreement on the conduct of hearings virtually, the virtual platform to be used and any guidance on technical requirements or logistics at the outset, and ideally in the first procedural order.
In conclusion, the suitability of a virtual hearing will always be case-specific. Parties to arbitrations seated in the UAE may have a particularly difficult time succeeding in objections to virtual hearings, given the local legislative regime’s express support for virtual proceedings. Similarly, there is seemingly limited scope for due process concerns arising from virtual proceedings per se to be used as grounds on which an award may be annulled. As first-hand experience of virtual hearings by arbitrators, clients, institutions and counsel deepens, it is likely that virtual proceedings will be even more widely embraced by the legal community in the UAE and beyond.
Article notes and disclaimers
Sarah-Jane Fick is a Senior Associate, and Tala Fahoum is an Associate, at Freshfields Bruckhaus Deringer LLP. This article does not express the general position of Freshfields Bruckhaus Deringer LLP, nor its authors, on the appropriateness of virtual hearings.
The UAE is comprised of several jurisdictions. This article focuses on ‘onshore’ UAE, being the main federal jurisdiction, excluding the Dubai International Financial Centre (DIFC) and the Abu Dhabi Global Markets (ADGM), which are free-zones with their own legislative framework and court systems, operating on the English common law model.
Finally, the official language of the UAE is Arabic. This article refers to provisions of UAE law using unofficial translations of UAE laws into English. In the event of any dispute between the Arabic and English text of a UAE law or judgment, the Arabic text would prevail.
[1] UAE Federal Decree No. 10 of 2017, amending certain provisions of the UAE Federal Law No. 11 of 1992 (Civil Procedure Code).
[2] UAE Federal Decree No. 10 of 2017. Judges’ powers to conduct hearings remotely are enshrined in Articles 335 to 343 of the Civil Procedure Code.
[3] Article 6, UAE Cabinet Resolution No. 57 of 2018 Concerning the Executive Regulations of Federal Law No. 11 of 1992 permits the use of recorded voice or video calls, mobile SMS, email, fax or any similar means.
[4] Cabinet Resolution No. 33 of 2020.
[7] Arbitration Law, Articles 28(2)(b) and 33(3).
[8] Arbitration Law, Article 35.
[9] Arbitration Law, Article 41(6).
[10] The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Article V.
[11] The Arbitration Law was followed by Cabinet Decision No 57 of 2018, which refined the process for the recognition and enforcement of foreign arbitral awards in the UAE Courts.
[12] Dubai Court of Cassation, Petition No. 631 of 2018 (Commercial), 28 October 2018, (Gulf World Wide Bearings FZE v. TNN Development Limited); Dubai Court of Cassation, Petition No. 132 of 2012 (Commercial), 18 September 2012 (Airmech Dubai LLC v. Macsteel International LLC).
[13] Arbitration Law, Article 53(1)(g).
[14] Korean Commercial Arbitration Board, ‘Seoul Protocol on Video Conferencing in International Arbitration’, March 2020.
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