Virtual arbitration hearing: arbitrator's discretion or the right of the parties?

Abstract

Today, international commercial arbitration remains one of the most effective ways to resolve disputes complicated by a foreign element. Parties to a dispute, preferring arbitration, wish to obtain the desired result in the shortest possible time. This is achieved because the parties to the arbitration proceedings themselves are endowed with an arsenal of rights that are not inherent in national courts: the right to choose a particular arbitration, the composition of the arbitral tribunal, and the law to be applied in the dispute. This is a manifestation of the "autonomy of will" of the parties to the dispute. However, despite such a broad scope of powers, some powers of the arbitral tribunal, which is chosen by the parties, cannot be limited. Although the discretionary powers of international commercial arbitration are regulated by national arbitration laws and rules, their exercise may sometimes contradict the fundamental principles and standards of effective arbitration. One of such powers is the right to determine the format of arbitration hearings, since it is by exercising this right that the arbitral tribunal may make its own decision without taking into account the views of the parties to the dispute. The article provides a comparative legal analysis of arbitration legislation, rules and law enforcement practice of national courts with regard to the possibility of determining a virtual hearing as the most efficient format for consideration of a case. Particular attention is paid to the imperfection of Ukrainian legislative regulation and the lack of a single, consistent court practice on these issues. Therefore, the conclusions propose to eliminate the shortcomings in the legal consolidation of such definitional constructs as "hearing" and "oral hearing".