Turkey: Remote Hearıngs - Then, Now And In The Future

Covid-19, in March of the past year, dramatically changed the lives of the majority of the world, almost overnight. As in many areas of life, it also brought along many problems in the legal community. Further, declaration of the pandemic by the World Health Organization due to the current situation along with the enormous increase in the number of cases and deaths due to Covid-19 in almost every country had resulted in very heavy and restrictive measures taken by the governments. Thus, the majority of the world had to face radical changes and difficulties in many areas such as trade, industry, work life, social life, and education. While "adapting" is one of the most important phenomena that human beings have adopted and kept alive since their existence, as it actually somehow ensures survival; it perhaps, as in every field, clinched the first spark of fundamental changes in the legal community.

As a result of the current situation and the restrictive regulations that come with it, the hearings postponed for many reasons such as the closure of courthouses and the introduction of travel bans have made the concept of remote hearings, which will perhaps become the norm in the legal community in the coming years, a "necessity" rather than an "option". It is an indisputable fact that the transition to the new order was much easier and faster in international arbitration than in other fields since it was one of the readiest and prone to the concept among other dispute resolution methods. However, perhaps the most important question on many minds today is whether the remote hearing system is an emergency solution method brought by necessity and is temporary, or whether this system will solidify its foundation in the coming years and will come to the minds of the parties as a first option in the future. Within the framework of the above-mentioned matters, the concept of remote hearing and the meanings and distinctions attributed to this concept by the doctrine, the regulations and developments brought about in this regard due to Covid-19, the current remote hearing practices in international arbitration, and the position that the system may reach in the coming days will be emphasized in this Article.

I. The Concept of Remote Hearing

In general terms, remote hearings are defined as hearings conducted partially or entirely outside the physical courtroom.¹ Further, non-face-to-face hearings are referred to as virtual, remote, online, and others as many labels have been loaded and different meanings and distinctions have been attributed to these labels accordingly by the international doctrine. As a matter of fact, since the "remote hearing" system is a concept that has existed in our lives for years with the development of technology, however, it was relatively less preferred, it cannot be described as a system that the whole world met overnight due to Covid-19.

The most emphasized points on the distinction of this concept, which already exists in a wide scope in our lives, from simple teleconference calls to advanced live video conferences, can be considered as the definition of remote hearing as fully or semi-remote. In this context, "semi-remote" hearings are defined as situations where some participants are physically present in the same environment, but one or more participants attend remotely. On the other hand, "completely remote hearings" refer to sessions in which each participant is present in a different physical environment.² In this Article, similar to the systematic adopted by Mr. Maxi Scherer³ and Mr. Joshua Karton⁴, rather than dwelling on the definitions of the concept of remote hearing with different labels, the above-mentioned dual distinction will be contented.

II. Remote Hearings Before Covid-19

As mentioned above, the concept of remote hearing is actually a system that has existed in our lives for many years, even before the Internet, and was used by national courts and arbitral tribunals before Covid 19. While there are many reasons for the development of various different ways of conducting remote hearings, such as making everyday life practical and ensuring that justice is carried out in a timely and correct manner; these development efforts have also caused different factors to come into play in the context of remote hearings.⁵ As such, three different remote hearing systems, i.e., audio, visual, and paper hearings, have been adopted by different legal systems. While audio hearings refer to hearings conducted by telephone or audio-only systems, visual hearings are conducted on the basis of a video conference system. Further, paper hearings are generally executed through written evidence and typically the use of affidavits.⁶

Although the remote hearing system, with its three typical examples mentioned above, is actually suitable for both remote and semi-remote hearing systems based on the definition we have mentioned above, it is seen that remote hearings before Covid-19 can generally be evaluated within the concept of "semi-remote hearings".⁷ In other words, these methods, which offer convenience for remote hearing, were generally used as secondary and alternative methods in order to ensure the continuity of justice and adaptability within the conditions of that day, which comes from the characteristics and nature of each dispute. An example of this can be served as cross-examinations of distant witnesses by being connected to the courtroom via teleconference or video surveillance.

III. Remote Hearings After Covid-19

Following the rapid attention and adaptation process with the introduction of the reality of Covid-19 into our lives, different alternative solution methods have been assigned in order to carry out the daily necessities with the necessary precision in many points of life, and a new order, "new normal", suitable for the isolated lifestyle that should be adopted by people in this process, has emerged. In this context, there was a need to establish a balance between public health and the continuity of court services and justice, and to bring reform to the judicial system without compromising the safety of the relevant personnel and parties to the dispute.⁸

Since the hearings were frequently postponed in the first place due to the pandemic and the prolongation of the trial process had the potential to cause serious losses, both material and moral, for the parties, depending on the subject of the dispute, almost every country and arbitration institution relatively adopted a "remote hearing system" in their legislation after the initial shock was over, and even developed regulations that promote this system accordingly.⁹ Since this Article focuses on the remote hearing system in arbitration, these new regulations adopted by various arbitration institutions, especially the International Court of Trade ("ICC"), shall be addressed separately below.

IV. Remote Hearings in International Arbitration

International arbitration has always been open and accustomed to keeping up with innovations, technology, and the developments it brings since its emergence as a dispute resolution method that is increasingly being adopted by companies from different countries, especially in large commercial disputes. For this reason, as a result of the current situation that came with Covid-19, the rapid adaptation of arbitration institutions, arbitrators and party lawyers to the process actually reflects a normal, expected, and in a way prepared situation. In addition to the advantage of being undertaken by a community that has already embraced technological developments and tools, as mentioned above, arbitration is generally the preferred resolution method in commercial disputes based on high amounts. As such, it should be also considered as quite natural for these companies, which are not thought to have great difficulty in providing the necessary technical opportunity to their lawyers and team during Covid-19, to keep up with the process in order not to face more damage instead of waiting for face-to-face hearings.¹⁰

For the aforementioned reasons, 2020 has been defined as the "year of remote hearing" for the international arbitration community¹¹, in which more than three times as many full-time remote hearings were held and/or planned in the second quarter of 2020 compared to the entire period prior to 15 March 2020.^12,13 Undoubtedly, this situation reflects the high rate of the initiative taken in order to overcome the problems that may arise in this context, while the uncertainty brought by the Covid-19 process, as well as the possibility of delaying the trial days more than once, turned the effect of the prolongation of the trial process into gray.

Concerns also remain about the adoption of a remote hearing system, unlike the above, as arbitration also reflects a concept called equality of arms, which is of high concern to the parties within the scope of procedural justice. This concern arises from the potential of the parties, who have to pay high sums as a result arbitral awards released against them, to use some of the qualities and features of the remote hearing in order to have the arbitration decision annulled or to have its enforcement refused.¹⁴ As a matter of fact, perhaps one of the most challenging phases of international arbitration is the recognition and enforcement phase, which is initiated following the publication/release of the arbitral award. In this context, justified concerns arise as the parties, who were ordered to pay the amount determined to the other party as a result of the said arbitral award, adopt the principle that justifies and consideres permissible to try every way to prevent or delay this payment.

While the fact that remote hearings, especially during the pandemic, offer a more effective and faster and generally relatively less costly trial process, is indisputable; the concern in relation to the recognition and enforcement of arbitral awards that will be rendered entirely as a result of full-remote hearings is also constant.

In this regard, it is also known that remote hearings may have special features that are relatively debatable, depending on the dispute in question and the current conditions. On that note, the following situations may be given as an example that may violate the principle of equality of arms mentioned above: (i) situations where human interaction is necessary and no efficient results are expected from remote hearings; (ii) conflicts that are relatively more complex and complicated in terms of the facts and claims; (iii) the parties being in different time zones, (iv) problems that may be encountered in terms of technical errors and inefficiencies.

It is a known fact that the arbitration rules published and adopted by various arbitration institutions allowed the remote hearing system even before the pandemic. However, due to the above-mentioned situations, prior to the pandemic, this system was relatively less preferred by the parties in general and even by the arbitral tribunals. For this reason, technologies that enable the remote hearing system have been used in cases such as cross-examination by videoconference of a witness who could not be present on the hearing day, as given above, instead of conducting the hearings completely remotely. In other words, by adopting a semi-remote hearing system instead of a full remote hearing system; both the parties and the arbitral tribunals aimed to eliminate the risks related to recognition and enforcement, taking into account the above-mentioned concerns.

However, with the pandemic, taking into account the possibility of opposition to the remote hearing system only for the purpose of prolonging the trial process, the adoption of the full remote hearing system has started to be seen as almost an "obligation" rather than an "option". Considering that when the parties prepare their arbitration agreements or arbitration clauses, as they may not even have the possibility to foresee conditions such as the pandemic they will be in in the future, the necessity of adapting to the current conditions has become fixed even in the arbitration dispute resolution method, which is actually based on the common will of the parties.

This sudden and rapid change was also reflected in the rules adopted by the arbitration institutions, as stated above. For example, pursuant to Article 25, paragraph 2, of the ICC Arbitration Rules ("Rules") in effect at the time of the onset of the pandemic, arbitral tribunals were required to hold a face-to-face hearing as long as one of the parties requested it. The existence of this rule rightly raised the concerns mentioned above regarding the recognition and enforcement process. In this context, this rule, which actually constituted a kind of basis for the parties who wanted to prolong the proceedings, also imposed a danger on the enforceability of the awards rendered as a result of the arbitration proceedings conducted with remote hearings.¹⁵

However, ICC has taken very swift measures in alleviating the concerns adopted by the arbitration community in this regard and in providing transparency in relation to the concerns raised on arbitration hearings conducted during the pandemic process. On that note, firstly, on April 9, 2020, the "Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic"¹⁶ regarding remote hearings was published, and directives were made regarding the interpretation of Article 25. Accordingly, ICC has allowed the Arbitral Tribunals to decide that a remote hearing procedure may be adopted even if there is an objection by one of the parties, to the extent that the arbitration procedure is swift and cost-effective and does not prejudice the particular circumstances of the present dispute.¹⁷

In addition to the above guidance, under the new ICC Arbitration Rules¹⁸, which came into force as of January 1, 2021, all concerns regarding the adoption of a remote hearing system have been removed and the preferability of remote hearings, which is expected to become the norm in arbitration proceedings in the coming years, has been accelerated. In this context, pursuant to Article 26, paragraph 1 of the ICC Arbitration Rules in force today, the authority of arbitral tribunals to decide, after consulting the parties and based on the facts and circumstances of the relevant dispute, that any hearing may be held in physical attendance or remotely has become undisputed.¹⁹

It is clear that remote hearings have been adopted along with the pandemic in the field of international arbitration, as a result of the adoption of a systematic similar to the changes and developments in the ICC Rules reported above, by other institutions such as the London International Court of Arbitration.²⁰ As stated, the advantages of the remote hearing system, which makes the arbitration process more preferable in terms of expenditures and costs, and therefore offers an effective trial process despite adverse conditions, are considered today rather than its cons. For this reason, it is expected that this system, which is thought to become a norm rather than an exceptional situation in the coming years, will be developed through much more comprehensive arrangements in the coming days.

Footnotes

1. Legg, M., & Song, A. (2021). The courts, the remote hearing and the pandemic: From action to reflection. University of New South Wales Law Journal, 44(1), 126-166.

2. Legg & Song, at. 128

3. Scherer, M., "Remote Hearings in International Arbitration: An Analytical Framework" (2020) 37:4 Int'l Arb 407 at 410-14.

4. Karton, J. (2021). The (astonishingly) rapid turn to remote hearings in commercial arbitration. Queen's Law Journal (QLJ), 46(2), 399-414.

5. Legg & Song, at. 128.

6. Legg & Song, at. 128.

7. Legg & Song, at. 128.

8. Legg & Song, at. 129.

9. Karton, J., at 401.

10. Karton, J., at 401.

11. Karton, J., at 400.

12. Karton, J., at 401.

13. Gary Born, Anneliese Day & Hafez Virjee, "Empirical Study of Experiences with Remote Hearings: A Survey of Users' Views" in Maxi Scherer, Niuscha Bassiri & Mohamed S Abdel Wahab, eds, International Arbitration and the COVID-19 Revolution (Kluwer Law International, 2020) 137 at 140-41.

14. Karton, J., at 402.

15. Karton, J., at 403.

16. See "ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic" (9 April 2020), at https://iccwbo.org/content/uploads/sites/3/2020/04/guidance-note-possible-measures-mitigating-effects-covid-19-english.pdf

17. Karton, J., at 403 & 404.

18. See, ICC Arbitration Rules 2017 & 2021 -Compared Version at https://iccwbo.org/content/uploads/sites/3/2020/12/icc-2021-2017-arbitration-rules-compared-version.pdf

19. Karton, J., at 404.

20. Karton, J., at 404.

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