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REMOTE ARBITRATION PROCEDURE 'NOT UNFAIR', RULES AUSTRIAN SUPREME COURT IN A LANDMARK DECISION

On 23 July 2020, the Austrian Supreme Court (Der Oberste Gerichtshof, OGH) handed down what is believed to be a landmark decision in the area of 'remote' arbitration hearings. The case concerned the issue of whether conducting an arbitration hearing by videoconference, despite the objection of one of the parties, may violate ‘due process’. It is an issue that has received very little legal scrutiny – until now.


During an arbitration seated in Vienna and heard at the Vienna International Arbitral Centre (VIAC) in March 2020, the arbitral tribunal decided to hold an evidentiary hearing remotely, by videoconference. One of the parties objected to this and challenged it on the basis of the rules of the arbitral centre. However, the VIAC rejected the challenge. The case then went on appeal to the Austrian Supreme Court (Der Oberste Gerichtsholf, OGH).


There were several grounds of appeal. However, one of them was that videoconference hearings violate the right to a fair trial and the right to be heard. The appellants (applicants) claimed, in particular, that:


· it could not be ensured which documents the witness was using; and

· it could not be ensured that no other person was in the room during the hearing.


Additionally, the appellants (applicants) were concerned about potential bias. The arbitral tribunal had not ordered any measures to protect witnesses from unlawful interference during the hearing (the software used apparently allowed a witness to receive private messages through the ‘chat’ function.

The Austrian Supreme Court rejected these arguments. It held that the decision of the arbitral tribunal to conduct the hearing remotely did not violate the fundamental principle that all parties should be treated fairly. The Supreme Court stated that the use of videoconferencing technology was widely used in state courts. It also referred to the fact that the Austrian legislature had encouraged the use of videoconferencing technology during the Covid-19 pandemic, allowing people access to justice that they might not have had without that technology.


Importantly, the court also referred to, and relied on, Article 6 of the European Convention on Human Rights, which provides for the principle of parties having access to justice and to be heard. In the circumstances, allowing one or both of the parties to pause the proceedings until they could be heard ‘in person’ would, in effect, be denying them these fundamental rights.


The decision is believed to be the first anywhere in the world to deal with the issue of remote arbitration hearings in the context of their 'fairness'. The ruling of the Supreme Court was generally favourable in relation to the issue of using videoconferencing technology for arbitration proceedings. It will be interesting to see whether other challenges are made to the use of such technology, both in Austria and other countries, and what the outcome of such challenges might be.


EXERCISE


Consider the following words and phrases from the text. Write a brief, ‘plain English’ explanation for each of the words.


1. to hand down

2. a landmark decision

3. to violate

4. scrutiny

5. seated

6. evidentiary

7. grounds (of appeal)

8. measures

9. legislature

10. outcome




[SUGGESTED] ANSWER KEY


1. In the context of the decision of a court or tribunal on an issue, ‘to hand down’ means to deliver, give, or notify that decision.


2. A ‘landmark decision’ is a decision of a court which has special importance or significance; for example, because it creates a new legal principle or sets a precedent in some way.


3. In this context, ‘to violate’ means to break or fail to comply with a law, rule or other legal regulation or procedure.


4. ‘Scrutiny’ (a noun) in this context, means examining something very carefully or thoroughly. If you do this, you ‘scrutinise’ it.


5. ‘Seated’, in this context, means ‘located’ in a particular place. For example, the International Criminal Court is seated in The Hague, Netherlands.


6. ‘Evidentiary’ is an adjective which essentially means ‘relating to evidence’.


7. ‘Grounds of appeal’ are the legal reasons, or justifications, you rely on for bringing an appeal against a decision of a court or tribunal.


8. ‘Measures’, in this context, are official plans or courses of action for the purpose of producing a particular result. The governments of Europe have implemented public health measures to deal with the coronavirus outbreak.


9. A ‘legislature’ is an official assembly, such as a national parliament, which has the authority to make laws for a particular area or jurisdiction. In Germany, the legislature is the Bundestag.


10. An ‘outcome’ is a result.

© Cambridge Legal English Academy 2020

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