After months of hard work, rehearsal, and study, a few days ago, the 28th Willem C. Vis International Commercial Arbitration Moot (“Vis Moot”) oral pleadings were held virtually. This year, more than 2,500 students from 345 different teams participated in the world renowned international arbitration competition organized by the Austrian nonprofit “Association for the Organization and Promotion of the Willem C. Vis International Commercial Arbitration Moot—Verein zur Veranstaltung und Förderung des Willem C. Vis International Commercial Arbitration Moot.”[1]
While traditionally the oral phase of the competition takes place in Vienna,[2] this year for the second time, due to the Covid-19 pandemic, it was held virtually.[3] Generally, the possibility of holding arbitration hearings online has been a hot topic in recent months[4] and the employment of online hearings consistently increased during the last year.[5] The issue was also addressed by this year’s Vis Moot problem, which specifically related to whether examination of witnesses could be held online, even if one of the parties to the arbitration objected. This year, Portolano Cavallo was pleased to coach the team representing the University of Padua in the Vis Moot competition for the first time. This resulted in a satisfying outcome for the team[6] and, at the same time, provided an opportunity for debate and further investigation of a heated current topic in the international commercial arbitration scene, that of virtual hearings.
Recently, two landmark decisions were issued on virtual hearings; they seemingly adopted opposite approaches and attracted huge media coverage.
First, on July 6, 2020, the Swiss Federal Tribunal in decision DFT 146 III 194 ruled that the Covid-19 pandemic does not provide sufficient reason to mandate the conduct of hearings online in state court proceedings.[7]
Second, just a few weeks later, on July 23, 2020, the Austrian Supreme Court, in Case No. 18 ONc 320/s, issued a decision in the context of arbitration proceedings under the Vienna International Arbitral Centre (“VIAC”) Rules on whether the arbitral tribunal can conduct a hearing remotely if one of the parties to the arbitration objected to it. Notably, in this case the respondents challenged the arbitral tribunal’s decision to hold the examination of witnesses remotely, despite the respondents’ request to postpone the hearing instead, by arguing, among other things, that the decision violated the arbitral tribunal’s duty to treat the parties fairly. The Austrian Supreme Court disagreed with the respondents and confirmed that the arbitral tribunal did not act in an unfair way toward them, because a) based on Austrian Law and on the VIAC Rules, in the context of Covid-19 conducting hearings remotely is efficient; and b) virtual hearings provide for measures (such as asking the witness to look directly into the camera) that, if adopted, ensure that the examination of a witness is carried out safely.
In the Vis Moot competition, students from all over the world, divided into teams, were asked to represent and defend, alternatively, a party requesting that the hearings be held virtually and the opposing side objecting to it. Relevantly here, teams from different jurisdictions all professionally and consistently referred to the aforementioned decisions to plead their cases. Thus, it is safe to assume that, though the Vis Moot problem was fictional, it spurred development of some stimulating theories whose application in the “real world” will not be long in coming.
[1] More information about the competition and the organization are available here: https://www.vismoot.org/.
[2] The competition also consists of a written phase, where each team is required to submit a memorandum on behalf of a fictional claimant and, a few weeks later, a memorandum on behalf of a fictional respondent, based on a single problem that is provided to all teams all over the world and published on the Vis Moot website in autumn.
[3] Letter, Willem C. Vis International Commercial Arbitration Moot, August 24, 2020. https://vismoot.blob.core.windows.net/messageattachment-6bf91f06-be18-4671-a6f9-50ff4525321b/28th_Willem_C_Vis_Moot.pdf.
[4] Laura Coriddi and Micael Montinari. “Confidentiality of Arbitration Proceedings Hearings: The Shaking of a Cornerstone?” Portolano Cavallo, June 3, 2020. https://portolano.it/news/confidentiality-of-arbitration-proceedings-in-times-of-virtual-hearings-the-shaking-of-a-cornerstone.
[5] According to the Camera Arbitrale di Milano (“CAM”) annual report for 2020, during 2020 76.4% of hearings were held entirely online, while an additional 5.5% were held partially online (i.e., with some participants in the hearing being in physical attendance and others attending online).
[6] The team won Best Memorandum on Behalf of the Respondent Award in the AIAC Pre-Moot and one of the team’s students received Honorable Mention for Best Individual Oralist in the Willem C. Vis Moot.
[7]On this topic, in Italy, pursuant to Section 221.7 of the Law Decree 34/2020, as amended by the Law 77/2020, “The judge, with the prior consent of the parties, may provide that a civil hearing that does not require the presence of subjects other than the defenders, the parties, and the auxiliaries of the judge […] be carried out via audio-visual links at a distance identified and regulated by order of the Director General of Information and Automated Systems of the Ministry of Justice.”
