In a landmark decision, rendered on 23.07.2020,¹ the Austrian Supreme Court (Oberster Gerichtshof, OGH) considered the validity of conducting arbitral hearings via electronic means of videoconferencing despite party objections. The Court held that in the context of challenge proceedings, remote hearings in arbitration are admissible provided they do not violate principles of due process that would otherwise give rise to a rightful challenge of the tribunal.

The case is notable for a number of reasons. Firstly, it constitutes the first decision by a national Supreme Court examining the admissibility of remote videoconference hearings in absence of a party’s consent. Additionally, it offers practical guidance on procedural matters and addresses concerns regarding the effective prevention of witness tampering during the remote taking of evidence.

Facts

The case at hand concerns objections raised by the Respondents in an arbitration seated in Vienna and administered by the Vienna International Arbitral Centre (VIAC). Following the Respondents’ unsuccessful challenge of the arbitral tribunal over its decision to conduct an evidentiary hearing by means of videoconferencing, the case was brought before the OGH.

The claim arises from discussions during a case management conference held in March, in which the parties took diverging stances on the issue of whether to hold a hearing² remotely given the ensuing mobility restrictions in light of the COVID-19 outbreak. On 08.04.2020, the tribunal held that the hearings would be conducted via videoconference and proceed as scheduled, starting at 3 pm Central European Standard Time.

The Respondents challenged this decision on the basis of procedural irregularity, claiming the tribunal’s conduct gave rise to bias that resulted in unfair and unequal treatment.

The OGH rejected the Respondents’ submissions and held that in order for the application to be successful, the alleged misconduct must constitute serious or permanent (dis)advantages to the party. The Court further emphasised that Austrian arbitration law does not generally deny hearings to be held remotely and confirmed that tribunals are afforded broad discretionary powers in terms of the way such proceedings are conducted and organized.

Submissions by the Respondents

The Respondents claimed, that the tribunal’s decision concerning the videoconference hearing amounted to an infringement of fundamental procedural principles, namely to be afforded access to a fair trial and the right to be heard. More specifically, it was argued that:

• The Respondents were not provided with sufficient notice regarding the hearing date since the decision against its postponement was issued three days in advance, therefore leaving insufficient time for adequate preparation;
• The parties were not treated equally since the Respondents’ counsel and one of the witnesses were based in Los Angeles (CA), placing the beginning of the hearing at 6 am Pacific Standard Time (compared to 3 pm Vienna local time).
• A fair trial could not be guaranteed in light of the lack of adequate measures that were put in place to:
  • Undermine witness tampering (use of WebEx software allowing messages to be received unnoticed via chat function);
  • Verify what documents witnesses would have access to;
  • Ensure other individuals would not be present in the witness room.

The OGH Decision

In its decision, the OGH addressed three distinct matters:

1. Standard for challenging arbitrators;
2. Legitimacy of the tribunal’s decisions not to postpone the hearing;
3. Unfair and unequal treatment regarding:
   1. Difference in time zones;
   2. Witness Tampering.

Concerning the first issue, the OGH held that a challenge against arbitrators will only succeed on the basis that the circumstances at hand give rise to justifiable doubts regarding their impartiality or independence. This standard would also apply to conduct falling short of the qualifications mutually laid down by the parties in advance. Procedural irregularities, inadequacies or errors on the part of arbitrators would thus not be considered improper or subject to justifiable challenge. Instead, parties must meet the high threshold of demonstrating that the conduct at hand has resulted in detrimental or preferential treatment of a party.

Regarding the tribunal’s decision to conduct the hearing remotely using videoconferencing, the OGH highlighted the following:

• Videoconferencing technology has been widely used both before state courts as well as in arbitral proceedings. Following the outbreak of the COVID-19 pandemic, it has been endorsed as an efficient tool to maintain court operations irrespective of national security measures and travel restrictions.
• Requests for postponement are subject to approval by the tribunal and may not be granted. Parties have to consider the possibility of having their application denied. In this case, the Respondents were given appropriate notice of the hearing, namely when the hearing date was announced (15.01.2020) rather than the date the tribunal communicated its decision not to postpone (08.04.2020).
• Article 6 ECHR had not been violated by the use of videoconferencing technology. In light of the COVID-19 pandemic and the impending halt of court operations, it has proven to be an effective means to ensure access to justice is granted and the right to be heard can be ensured.

With respect to the third challenge, the OGH acknowledged that the difference in time zone would cause the hearing to fall outside regular business hours for some participants. Nevertheless, since the arbitration agreement was to be administered by the VIAC, the parties impliedly accepted the disadvantages that could arise from geographical distance. Lastly, the OGH added that the early start of the virtual proceeding could not outweigh the burden that would result from international travel as required for an in-person hearing.

In response to the Respondents’ concerns regarding the abuse of videoconferencing during witness examination, the OGH found the risk of witness tempering to be equally prevalent in in-person hearings. Contrary to the challenges raised, the Court suggested ways in which the use of technology may offer protectionist mechanisms that may go beyond those available during traditional physical proceedings. These include:

• Recording the evidence given during witness examination;
• The option of closely observing the person questioned from the front;
• The ability to ask witnesses to look directly into the camera and hands to be visible onscreen throughout the examination (undermining risk of reading messages via chat function);
• Being shown the room in which the witness is sitting to ensure they are not influenced by third parties.

Comment

The OGH decision sets a precedent in addressing the issue of whether and how to conduct remote arbitration hearings in the context of challenge proceedings. While being of particular significance in times of extraordinary circumstances, such as the COVID-19 pandemic, the Court’s reasoning and practical guidance will likely prove a useful point of reference on how to ensure principles of fair trail are observed and effective continued access to justice can be guaranteed in the future.