Publicação

Remote hearings in international arbitration and due process or the right to be heard

Ver documento

Detalhes bibliográficos
Resumo:This thesis aims at answering if a remote hearing conducted against the request from one of the parties for an oral hearing violates due process. This is done through the prism of civil procedure rules, ad hoc and institutional arbitration rules in England, Germany, France, Sweden, Switzerland and Portugal. Unlike the civil procedure rules, that for some ten years or more have allowed remote hearings (save for in Switzerland), both hoc and institutional arbitration rules make remote hearing a question of party agreement failing which it is for the discretion of the tribunal to decide. But there is one impediment here, article 24(1) of the Model Law and UNITRAL Rules article 17(3), which both entitles a party a right to an oral hearing, which in any event is what lawyers and judges generally prefer. The question then arises: what is an oral hearing? The analysis shows there is no definition in the civil ordinary proceeding rules of what oral means or that would allow an a contrario conclusion that would exclude remote hearings. The same is true for the arbitration acts governing ad hoc arbitrations. What an oral hearing is, appears instead of the functionality allotted to it which in general is to state the case, present the evidence and make the arguments. In this way the functionality has an obvious link to what due process require. All six jurisdiction are 1958 NY convention. Article V 1.(b) says that an award shall not be enforced or recognized if a party was not able to present his case. This protection has been the model for article 34 of the Model Law, which in its turn has influenced the national arbitrations statutes. So, if the videoconferencing allowed the party to present his case, no violation of due process has occurred. In any event, a decision by the tribunal to proceed on a remote basis against a request for an oral hearing should always, given that the tribunal always must factor in time and cost, be considered to fall within the procedure judgment rule, giving the tribunal a bona fide leeway to balance conflicting interests. An argument often raised against remote hearings is that it is more difficult to judge veracity and demeanor remotely. Behavioral science does not support that argument. Also, it has been argued that it is more difficult to cross-examine remotely. However, courts have generally accepted remote cross-examinations. So has also the ECtHR.
Autores principais:Svensson, Gunnar Lars-Olof
Assunto:Processo civil Arbitragem internacional Audiência Direito comparado Teses de mestrado - 2023
Ano:2023
País:Portugal
Tipo de documento:dissertação de mestrado
Tipo de acesso:acesso aberto
Instituição associada:Universidade de Lisboa
Idioma:inglês
Origem:Repositório da Universidade de Lisboa

Registos relacionados

Registos relacionados