COVID-19 and Arbitration Hearings

Last week I held a prehearing conference with counsel in a small international arbitration being administered under AAA domestic rules by agreement of the parties. We set a date for the hearing. I proposed setting the hearing down as an audio-visual hearing, with an option to change it to an in-person hearing if conditions warrant. Counsel for both parties favored an in-person hearing, but of course they understood the concern. So what we ended up with was the following: “The hearing will be held in-person. However, in light of the COVID-19 pandemic, the parties have agreed that the arbitrator will have the discretion to direct that the hearing will be held by audio-visual means if in his judgment conditions warrant.”

I should note that when I talk about using my judgment, of course I mean following the best public health recommendations available at the relevant time from the Centers for Disease Control, the Massachusetts Department of Public Health, the Boston Public Health Commission, and of course guidance for arbitrators from the AAA. And of course we all must follow mandatory orders regarding business closures and the like.

There have already been moves towards reducing unnecessary travel in connection with arbitration. For example, the Campaign for Greener Arbitrations proposed the use of videoconferencing in taking witnesses’ testimony as a step towards reducing the carbon footprint of arbitration. Now we have a new public health rationale for similar steps. I wonder what other arbitrators, both big-league and minor-league, are doing. Please share your experiences here!

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