Aconsiderable amount of administrative and IT support is involved while conducting international commercial arbitration. To ensure that all administrative activities[1] are running smoothly, it has now become acceptable and established practice, especially in large and complex international commercial arbitrations, for the arbitral tribunal to appoint an arbitral secretary to take charge of all the administrative work involved since the arrangements are required to be made by or on behalf of the arbitral tribunal itself, rather than by the parties. For institutional arbitrations, the organization/institution themselves offer to undertake such administrative work.

Information technology is progressively seeping into the day-day management of affairs of commercial arbitration proceedings to make it faster, convenient, and more efficient. When it comes to hearings, one of the tasks regularly undertaken by arbitral secretaries is to arrange for the presence of interpreters and for a transcript of the proceedings to be made through a stenographer or transcriptionist who records live proceedings, the testimony of witnesses, experts and interpreters, all oral submissions made by parties and directions passed by the arbitral tribunal. Information technology intrinsically aids to untangle and simplify all the rigmarole associated with such multiple requirements to support the arbitration process.

We find that it has become usual for parties to appoint live transcriptionist who are present at the hearings and record entire proceedings. This way, it becomes useful for parties and arbitrators to refresh their memories, avoid confusion/dispute over oral submissions and at the same time maintain informality and integrity of the process. More so, where a particular witness or expert is unable to physically attend the hearings, the arbitral tribunals resort to the technical mechanism of recording the witness’ or expert’s testimony over tele-and videoconferencing.

Further, in large international commercial arbitrations, involving extensive volumes of documentary evidence, parties appoint technical professionals for the preparation of electronic hearing bundles, electronic convenience bundles (aka compilations) and indexes to those bundles with simple descriptions of the exhibits/documents and hyperlinks for easy access to the exhibits/documents making navigation through large volumes of exhibits swifter. Even at hearings, parties take the help of these technical professionals for displaying multiple documents exhibited by the parties through projectors or monitors, which is a very efficient way of making submissions, conducting cross-examinations and for overall facilitation of the arbitral tribunal during the hearing.

Sometimes the use of video recording is also permitted, however, since this isn’t a norm, some tribunals consistently prohibit the use of video recorders. Practices on the use of verbatim transcription, sound and audio-visual equipment and video recordings vary largely across jurisdictions. In most common law countries, such as Canada, administrative tribunals are in fact not required to record proceedings, unless mandated by a statute.[2] Many argue that presence of microphones et al, are (i) intimidating factors;[3] (ii) introduces an unnecessary and unhelpful degree of formality to the proceeding;[4] (iii) risks confidentiality of the proceedings;[5] and (iv) intensifies accountability of parties and arbitral tribunal during enforcement proceedings, or when arbitral awards are challenged.

Regardless of the foregoing, it is indeed material to ensure a reasonable degree of transparency without compromising on confidentiality. Further, it is also important to understand that justice and fairness is key in all international commercial arbitration proceedings and one of the reasons for challenging an award is ‘bias’, and if proceedings are recorded seamlessly, this question becomes much easier for courts to decide upon when the transcripts are handy. Therefore, globally it is now becoming a regular feature for parties in international and domestic commercial arbitrations (institutional and ad-hoc) to have a live transcription, document projection, audio-visual, tele and video conferencing facilities present at arbitral hearings for the facilitation of the arbitral proceedings. Many institutional arbitration centres around the world offer such technical facilities and information technology-related services in-house, such as the Permanent Court of Arbitration at Hague, Singapore International Arbitration Centre, etc.

Lately, in India many international and domestic commercial arbitrations under the Indian Arbitration Act, 1996 are adopting the global trend of utilizing the ever-evolving potential of information technology’s contribution in arbitration proceedings. A positive step towards this has recently been taken by Mumbai Centre For International Arbitration which provides transcription facilities at the centre if requested by parties.[6] Only a handful of companies in India such as Perception Minds[7] are currently providing professional IT related services for commercial arbitration proceedings, such transcription services, recording of depositions, electronic evidence presentation, etc. Nevertheless, even a small step in the direction of evolution is commendable. Infusion of information technology with the run-of-the-mill mechanisms of dispute resolution has indeed changed our perspective of execution, delivery and outcome of international and domestic commercial arbitrations and continues to reap benefits to the society.

[1] Meeting arrangements between parties and arbitral tribunal members, recording of witnesses, interpreters, translators, recording of hearing proceeding, creating timetables and recording submissions, etc. all have to be done by the parties and arbitral tribunal.

[2] Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793; Also, arbitral proceedings under Australian Workers Compensation Commission allows audio recording of decisions/directions by arbitrators if pronounced orally, a transcript of the decision is obtainable by any party upon request.

[3] Kohut v. National Automobile, Aerospace and Agricultural Implement Workers (C.A.W.-Canada), Local 303, 1990 CanLII 5705 (ON LRB)

[4] Ibid (see fn 3)

[5] Amendment to Section 42A in the Arbitration and Conciliation (Amendment) Act, 2019.

[6] https://mcia.org.in/about/

[7] http://www.translation.perceptionminds.com/

Picture curtesy – Bruce Emmerling from Pixabay

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