Of Remote Arbitration and Virtual Sittings
Written by Paula Debono
Pacta Sunt Servanda. Three words which in their simplicity encompass a whole body of contract law. For those who roll their eyes at the tedious Latin jargon used by lawyers, pacta sunt servanda simply means that whatever is agreed in a contract must be honoured. As a result, parties to a contract tend to put time and effort into the proper drafting of the terms regulating their future behaviour. However, as a contractual relationship evolves, the parties often realise that the contract may not be adequately addressing all the matters being encountered during its term. Disagreements on the application and interpretation of the contract inevitably arise. MITA found itself in this situation precisely at the time when Government started implementing a number of measures to safeguard public health.
Whereas most contractual disagreements are handled without the need to go down the legal route, in some instances recourse to an independent third party becomes necessary to address an impasse. Recourse to arbitration or to the Courts does not necessarily mean that the contractual relationship has irremediably broken down especially if the speed of the process to resolve the disagreement is such as not to let the storm brew.
Our standard contracts, similarly to those used in many jurisdictions, provide what steps should be taken in the event that disagreements arises. There are two routes that can be activated if amicable settlement fails – submission to arbitration or to Court. It was agreed that our dispute is referred to arbitration. Notwithstanding the moment of public health emergency, there was the clear will by both parties to settle the matter quickly. And, where there’s a will, there’s a way. Blessed by the proactiveness of both the chosen arbitrator and the personnel at the Malta Arbitration Centre, it was agreed that the dispute resolution should proceed.
The first hurdle to be addressed was the exchange of the written submissions as most of the persons involved were not present at their respective offices. So, the requested forms were submitted as scanned signed copies on the understanding that the scanned signature has the same legal effect of the handwritten signature on the physical copy of the forms. It was also decided that a central online document repository is created in order for all the parties to submit their written submissions electronically and making the submissions immediately accessible to the counterparty, arbitrator and Centre. Besides the ease of access, the creation of this repository ensured that all parties view the same electronic copy as against the exchange of different physical documents. Making redundant the need to print multiple copies of the same document is also a feat to the environmental conscious whilst at the same time minimising the administrative effort required.
The creation of the repository was relatively easy with multiple tech companies offering the service of shared platforms. In order to further ensure that uploaded documentary evidence containing confidential information remains securely stored in the repository, the document was protected through a password exchanged through electronic mail.
The second hurdle that had to be addressed was ensuring that all the parties attending the sitting could easily access the virtual sitting on the agreed date and time. All parties convened on an agreed earlier date and time to test the platform used for the virtual sitting. The virtual sitting itself ran smoothly with all the principles of natural justice duly respected but some key takeaways follow.
Firstly, to ensure that the oral submissions are properly submitted by one party and heard by the rest, a good internet connection is a sine qua non. Disconnections disrupt the smooth progress of the sitting with the risk of either party missing parts of the oral submission. By controlling the microphones of all the attendees, the chairperson is able to exercise a greater control over the conduct of the oral submissions compared to physical sittings, guaranteeing that the principle of audi alteram partem is strictly adhered to. The only hitch experienced, amplified due to the public health measures, is the inability of both legal counsels to readily communicate with the respective parties. Whereas in the courtroom, the client stands behind counsel while the case is being heard and information can be quickly exchanged through a whisper, the same could not take place in the virtual sitting. Although information could be exchanged through smartphone and email, attention of counsel could be easily distracted from the sitting itself.
My positive experience with the virtual sitting is not simply emanating from the fact that I work in the technology sector. The Maltese Chamber of Advocates has published two reports highlighting the need to modernize court procedures, not only in the light of the current public health emergency but to adopt “less time-consuming procedures, digital communication and remote filing that will replace what, in a 21st century society, are obsolete processes and procedures”. The Chamber’s second report refers to the remote hearings adopted for Planning Authority hearings and by the Appeals Board. Another Appeals Board which has taken proactive measures to avoid stopping its sittings is the Public Contracts Review Board.
Regulation (EU) No 524/2013 on online dispute resolution for consumer disputes is one initiative by the European Union to give consumer of online shopping access to quality dispute resolution tools. The Regulation facilitates the online notification of the compliant to the trader and to the chosen dispute resolution body but the adjudication process follows the traditional judicial procedures.
Beyond our borders, the need for online courts has been repeatedly advocated by Professor Richard Susskind. Prof Susskind is an inspirational icon for IT lawyers and one of his latest efforts is remotecourts.org, a website which in his words is “designed to help the global community of justice workers……to share their experiences of ‘remote’ alternatives to traditional court hearings”. The site offers a plethora of information on how the judicial systems in various jurisdictions are using technology during these challenging times.
Although a number of actions have already been taken at a national level to introduce electronic processes within the judicial including various Legal Notices enabling the electronic filing of applications, a golden opportunity can emerge from the current difficult situation. This article does not impart Government’s position on the implementation of remote sittings and it is understandable that a judicial system with a long procedural history cannot realistically undergo a complete digital transformation overnight. However keeping tabs on small achievements like the virtual sittings of tribunals and arbitrations will surely lead to bigger accomplishments.
Keeping tabs on small achievements like the virtual sittings of tribunals and arbitrations will surely lead to bigger accomplishments.