Publish time: 2020-5-22
The full text of the Guidelines is as follows:
I. Definition and application scope of online hearings
1. The term “online hearings” as used in these Guidelines refers to arbitration hearings conducted by one or more parties or tribunal members, or all participants, through the internet using software platforms including audio and video communication technology in arbitration proceedings.
2. Under any of the following circumstances, without obstacles to holding an online hearing or situation that makes an online hearing not applicable, the arbitral tribunal may decide to conduct an online hearing:
(1) All parties apply for an online hearing;
(2) One party applies for an online hearing and the other parties raise no objection; and
(3) The arbitral tribunal considers it necessary to hold an online hearing and the parties raise no objection.
3. Under any of the following circumstances, the conduct of an online hearing may not be applicable:
(1) The key facts to be ascertained is highly dependent on the physical authenticity of specific evidence;
(2) The matters in dispute involve state secrets, trade secrets or higher requirements for secrecy;
(3) There is the possibility of sham arbitration; and
(4) Other circumstances arbitral tribunals do not consider it appropriate to conduct an online hearing.
Q1: Why is an online hearing matters?
A: An online hearing can not only effectively reduce the gathering of personnel during the epidemic, but also significantly save the costs when the arbitrators, parties, evidence/witnesses or other arbitration participants are in different regions, and advance the arbitration proceedings more cost-effectively. The arbitral tribunal and parties are encouraged to make full use of the relevant technology and other reasonable means to promote the arbitration proceedings according to the circumstances of the case.
Q2: Is it feasible to conduct an online hearing?
A: Based on existing practice, an online hearing meets the principle of direct speech, and can be considered a mean of hearing. Based on the circumstances of individual case and the consent or no objection of the parties, the arbitral tribunal may adopt reasonable means, including an online hearing, to conduct the arbitration proceedings.
In order to improve the legitimacy of the proceedings, the BAC/BIAC also encourages all parties to further study through practice the display and verification of evidence, proof and cross-examination, the confidentiality of cases and subsequent recognition of judicial supervision so as to address the relevant concerns more appropriately both in theory and practice.
Q3: What kinds of cases are suitable for an online hearing?
A: An online hearing applies to situations in which one or more parties are unable to appear in person due to epidemic or other objective reasons, and there is a need for cost control among the parties, as well as the first hearing, which is mainly based on the statements and arguments of the parties, or the supplementary hearing after the on-site hearing.
Q4: What kinds of cases are not suitable for an online hearing?
A: An online hearing does not apply to situations where all parties disagree and one or more parties raise objections to the online hearing on reasonable grounds.
Q5: What are the obstacles to holding an online hearing?
A: Such obstacles usually include the following:
(1) In the proceedings of the case, one or more parties have not made sufficient preparations for their own request, defense or claim, so the arbitral tribunal is still unable to comprehend the dispute or organize targeted statements, defenses, debates and other arbitration proceedings;
(2) One or more parties are obviously limited in their ability to use network tools due to habits or other factors or are unable to quickly find a relatively independent and undisturbed space in which to participate in the hearing. The BAC/BIAC will ensure adequate management capacity and level in cases, assist parties in the preparation of proceedings and strive to provide objective conditions for all parties.
II. The conducts of online hearings
1. The software platform used for an online hearing can be chosen by the parties through consultation, but the BAC/BIAC recommends selecting a software platform with desirable functions. In particular, all parties should pay attention to assessing the number of people to be accommodated, definition of pictures, ease of operation, sustainable duration, confidentiality and other features of the specific software platform.
Q1: Are there any recommended online hearing software platforms?
A: The BAC/BIAC will not recommend specific software platforms for the time being. The arbitral tribunal and parties may check the functions of the relevant software platform and choose one that meets the specific usage needs according to the circumstances of the case.
In the limited online hearing practice of the BAC/BIAC, the learning cost of users who use the “Tencent Meeting” software platform is lower. At the same time, the BAC/BIAC has cooperated with overseas partners to expand to software platforms that are more convenient for overseas users, such as the Arbitration Place Virtual (APV) service launched by Arbitration Place, a Canadian dispute resolution service provider.
Q2: What specific functions should the software platform provide?
A: The software platform should provide such essential functions as a conference room reservation and password setting function, screen sharing and interaction function, and host control function (active mute/silence function). On this premise, the BAC/BIAC encourages the arbitral tribunal and parties to accumulate more experience in practice. Under suitable conditions, the BAC/BIAC will also take specific measures to further improve functional requirements related to online hearings. Meanwhile, in addition to the compatibility and stability of the software platform itself, the network environment of all parties is also an essential factor for ensuring the effectiveness of the online hearing. The BAC/BIAC suggests that all parties should choose devices that are directly connected with fixed network lines (that is, not through Wi-Fi or a routing transit network) to conduct an online hearing.
Q3: How can all parties become familiar with the relevant functions of the software platform?
A: After the parties discuss and determine the specific software platform, the arbitration case manager will become familiar with and learn the specific software platform functions in time and can provide specific operating instructions and guidelines when required by the parties. However, it is recommended that the arbitral tribunal and parties should, as far as possible, choose a software platform that conforms to the habits of all parties and has a low learning cost.
It should be noted in particular that the specific users of specific functions related to the software platform should be agreed upon by the parties prior to the hearing (e.g., hosting functions). It is suggested that the arbitration case manager should be responsible for the functional operation of the hearing as far as possible to ensure that the arbitrators and parties can focus on the substantive proceedings of the hearing.
2. Pre-hearing procedure for an online hearing:
(1) The arbitral tribunal shall promptly study the case files and, following the provisions of Article 36 of the Arbitration Rules, promptly organize the parties to carry out procedures such as the clarification of arbitration claims or counterclaims (for example, the specific composition of the requested amount, corresponding evidence, liquidated damages, interest calculation, etc.), submission of defense and exchange of evidence;
(2) On the basis of the written submissions of the parties or in consultation with the parties, the arbitral tribunal shall decide on the procedural steps to be conducted in the online hearing, evaluate the confidentiality requirements of the cases and explain the measures against the non-cooperation of either party that may occur in the process of the proceedings;
(3) After the arbitral tribunal has negotiated with the parties to determine the software platform, time and participants of the online hearing, the arbitration case manager shall be instructed promptly to complete the booking of the network conference room, setting of the meeting password, service of the hearing notice and other procedural notices (attention should be paid to the different time zones of the parties);
(4) The arbitral tribunal shall organize or authorize the arbitration case manager to organize the parties to debug the necessary devices before the hearing to ensure that the hardware devices of the parties participating in the online hearing can achieve clear sound and video, and there are no technical interference factors;
(5) Depending on the specific circumstances of the case, the arbitral tribunal may organize the parties to sign a confidentiality agreement for the online hearing (Annex I); and
(6) The parties shall actively cooperate with the arbitral tribunal to electronically process the case materials necessary for the online hearing so as to improve its efficiency.
Q1: What should the arbitral tribunal do when the parties do not cooperate with the submission of relevant materials or respond negatively to the procedural arrangements of the arbitral tribunal?
A: The arbitral tribunal may take measures such as setting deadline and sending notices. If necessary, the online hearing may be canceled and other measures arranged promptly to conduct the arbitration proceedings. The arbitral tribunal may also consider applying the provisions of Article 52 (3) of the Arbitration Rules to adjust the proportion of arbitration fees.
Q2: Can the relevant notices of the online hearing be served by e-mail?
A: The service of any documents involving the online hearing shall still follow the relevant provisions of the Arbitration Rules. Subject to the consent of the parties, the arbitral tribunal may use e-mail service, provided that such consent of the parties is recorded in a clearly verifiable manner.
For example, the parties or their agents with appropriate power may express their consent by e-mail, text message or other means. The arbitral tribunal may also take the initiative to make arrangements for electronic service and require the parties to raise objections within a time limit. If there is no objection within the time limit, the parties shall be deemed to have agreed to carry out electronic service.
Q3: What should be done when the evidence cannot be presented as an electronic document?
A: In this article, “evidence” refers to a copy of evidence submitted to the arbitral tribunal, and does not involve the originals or original evidence. For materials that cannot be presented in the form of electronic documents, an electronic version can be submitted by means of photography, video recording, etc. However, in order to reduce the risk of data confusion and data tampering due to compatibility issues, the parties should submit materials in PDF document format without hindering the arbitral tribunal from requiring the parties to submit Word documents at the same time.
Q4: Do the parties still need to submit hardcopies of evidence after submitting electronic documents of the evidence?
A: Unless otherwise agreed by the parties and arbitral tribunal, the parties shall still submit the corresponding hardcopies. The purpose of the submission of electronic documents is to facilitate proper display in the course of the online hearing and reduce the distraction of the participants. The arbitral tribunal shall pay attention to the consistency between the electronic version and the hardcopies of the evidence and clarify it at the hearing.
Q5: How is the evidence displayed and verified?
A: The arbitral tribunal may make full use of the pre-hearing procedure to deal with the displaying and verification of evidence in light of the circumstances of the case. The arbitral tribunal is also encouraged to explore forms of evidence displaying and verification in the process of the online hearing without objection from all parties. The BAC/BIAC notes that with regard to the facts reflected by the evidence in commercial arbitration cases, the parties can verify the authenticity of the evidence by checking their own data and information in most cases.
If one party explicitly requests the original evidence to be reviewed on the spot, the arbitral tribunal may arrange for the party to check the original evidence before the hearing following the provisions of Article 37 (1) of the Arbitration Rules, and in light of the necessity of such evidence verification, comprehensively consider whether or not to apply the provisions of Article 52 (3) of the Arbitration Rules to determine that the party shall bear the costs incurred or increased therefrom.
Q6: What should be done when there is a need for witnesses or appraisal institutions to appear in court?
A: If the hearing of a case involves the attendance of witnesses, appraisal institutions or other arbitration participants, the arbitral tribunal may take flexible measures to arrange and respond to these situations. For example, the BAC/BIAC may provide or determine a place to ensure that the relevant personnel testify independently and in isolation through the introduction of notaries. The arbitral tribunal shall consult with the parties in advance to deal with the additional expenses incurred.
3. Steps and notes requiring attention for the online hearing:
(1) Before the formal start of the online hearing, the arbitral tribunal shall consult with the arbitration case manager to determine the specific functions and scenarios of the online hearing software platform; for example, what kind of information should be displayed in the specific hearing steps, when are screens/materials switched, who is responsible for the displaying, confirmation of hearing discipline control instructions, etc. (e.g., the moderator function of “Tencent Meeting”);
(2) Before the formal start of the online hearing, the arbitral tribunal shall arrange for the arbitration case manager to enter the software platform/conference room in advance and confirm the identities of the persons appearing in front of camera and the environments of the specific personnel one by one; in the case of confirming that the personnel of all parties has arrived in court, the arbitration case manager shall notify the arbitral tribunal to enter the software platform/conference room;
(3) For cases requiring a panel discussion, the arbitral tribunal may instruct the arbitration case manager to determine the discussion time in advance and book a separate conference room;
(4) When the arbitration case manager acts as the software platform/conference room moderator, the arbitration case manager is responsible for observing the pictures of the participants, and according to the needs of the hearing, perform (lift) the silence and mute function, remove and transfer the electronic files of relevant documents to display them on the main screen of the conference room, mark the key points and guide all parties to pay attention to specific information;
(5) In the course of observing the pictures of the participants, when the arbitration case manager finds or either party takes the initiative to prompt one party to be disconnected, the arbitral tribunal shall suspend the hearing and wait for the disconnected party to reconnect. The disconnected party shall also contact the arbitration case manager by phone or e-mail in time to coordinate the reconnection.
(6) All parties shall, as far as possible, avoid and refrain from interrupting and intervening at will during the hearing. If either party has any objection to the statement of a participant, it shall record it on its own and shall not raise its objection until such participant has finished its presentation. If, after the advice of the arbitral tribunal, one party continues to interrupt or intervene, the arbitral tribunal may, in accordance with the provisions of the Arbitration Rules, silence the specific personnel and decide on the duration of the silence; and
(7) In accordance with the relevant provisions of the Arbitration Law of the People’s Republic of China and Arbitration Rules, the BAC/BIAC will make a transcript (verbatim) and screen recording of each online hearing. In principle, the arbitral tribunal shall consult all parties no later than the end of the hearing and decide whether to send and reply by e-mail instead of signing the transcript after the hearing. The parties may also agree to replace the transcripts with screen recording and agree that the screen recording will be retained directly, and the court transcripts (verbatim) are for reference only and do not need to be signed by the participants. In the process of the online hearing, the arbitral tribunal shall still fully allow the parties’ exercise of the procedural rights, including to apply for withdrawal, proof, cross-examination, statement, debate, final statement and so on.
Q1: How does the arbitration case manager know when and what to do?
A: The arbitration case manager shall observe the online hearing in accordance with the arrangements for procedural matters prior to the online hearing of the arbitral tribunal [Article 2 (2) of this part]. The instructions of the arbitral tribunal on specific operations shall be strictly followed when performing (lifting) the silence function and mute function, as well as the removal operation.
Q2: Can the arbitral tribunal act as the moderator of the meeting?
A: Yes. However, if the arbitral tribunal acts as the moderator and carries out the relevant operations, this will obviously affect its attention to the hearing. If the presiding arbitrator or sole arbitrator requests or is willing to act as the moderator, a drill shall be conducted in advance.
Q3: Can each party turn on/off the microphone/camera according to their individual needs?
A: In order to avoid interference from non-case personnel, maximize the confidentiality of the arbitration and ensure the complete transmission of information between parties, the parties shall turn on/off their microphones sequentially in accordance with the arrangements of the arbitral tribunal, but shall not turn off their cameras. The arbitration case manager shall always observe the pictures of the participants, and when abnormal circumstances are found within the visible range (such as intervention/assistance to a party), the arbitral tribunal shall be reminded to pay attention to and deal with them promptly. The arbitration case manager and stenographer may turn off the microphone and camera with the consent of all parties.
Q4: What if the parties fail to attend the online hearing on time?
A: In cases where the parties have clearly agreed to the online hearing in advance, the failure of the parties to attend the online hearing on time without justifiable reason shall be deemed to be in accordance with the provisions of Article 32 of the Arbitration Rules; the arbitral tribunal may conduct a default hearing or it shall be deemed to be the withdrawal of the arbitration claim/counterclaim by such parties. The arbitral tribunal shall be entitled to the right to cancel the online hearing and arrange other measures to conduct the arbitration proceedings promptly.
Q5: What if the parties withdraw from the online hearing without reason?
A: The withdrawal of parties from the online hearing without reason may be regarded as being following the provisions of Article 32 of the Arbitration Rules, and the arbitral tribunal may conduct a default hearing or it shall be deemed to be the withdrawal of the arbitration claim/counterclaim by such parties. The arbitral tribunal shall be entitled to the right to cancel the online hearing and arrange other hearing measures to advance the arbitration proceedings promptly.
Q6: How to verify the identity of the participants in the online hearing and ensure confidentiality?
A: When entering the software platform/conference room, each party shall display the identity documents consistent with the authorized information of the materials on record to the arbitration case manager through the camera, and the arbitration case manager may also require specific personnel to display their environment through the camera to ensure that no one else is involved in the hearing. All parties shall also strictly abide by the requirement of confidentiality.
Q7: What if the parties concerned have any objection to the transcripts?
A: The parties can choose to directly check the transcripts and raise objections or conduct oral confirmation in the online hearing conference room through the relevant functions of the software platform, or they can agree a time limit with the arbitration tribunal and raise objections by e-mail afterward. If a reasonable objection is raised by e-mail, the arbitral tribunal shall correct the transcript and resend it to the parties and request a reply within a time limit. If the parties agree or do not reply within the time limit, they shall be deemed to have agreed. The transcripts of the online hearing shall not need to be signed in writing. The process of verification, confirmation and objection by all parties will be recorded in an appropriate manner in the case file.
III. Schematic diagram of the online hearing process
Appendix: Template of Non-Disclosure Agreement (might be in the form of a separate agreement or arbitration notice and subject to the consent of the parties concerned within the specified time limit. After a full assessment of the risks following these Guidelines at the arbitral tribunal, the relevant work may also be promoted to the extent that the parties concerned raise no objection)
1. We/the Parties agree that for the (20XX) Jing Zhong An Zi No. XXXX arbitration case, an online hearing will be adopted via the XXXXX software platform.
2. We/the Parties agree to report accurately to the arbitral tribunal the identity of the participants and warrant that any technician/consultant/supporting personnel who is involved in the process of the hearing session for the purpose of assisting us/the Parties is in line with the power of attorney for the arbitration procedure submitted before the hearing.
3. We/the Parties warrant that all of our personnel participating in the online hearing session shall not disclose any information or matters in the process of the hearing session to the public, nor privately negotiate/communicate/consult with any other personnel in the process of the hearing session.
4. We/the Parties warrant not to record any part of the hearing session (including audio recording, video recording and screen recording) without the prior authorization of the arbitral tribunal.
5. We/the Parties are aware of the legal risks that may exist in the arbitration procedure of this case and subsequent judicial examination procedure of jurisdictions with respect to the matter of the online court session, and to the extent of the online hearing session, voluntarily waive any rights that we may have in respect of privacy, confidentiality, data protection and security requirements based on the laws and rules of such jurisdictions.
6. Where we/the Parties deem it necessary to take further security measures to maintain the integrity of the hearing session or reduce the risk of a network attack, penetration or unauthorized access to the hearing session, we/the Parties shall report the relevant matter immediately after becoming aware of the same. We/the Parties agree that the arbitral tribunal may decide on the measures that should be taken (if any) in this regard based on negotiations with the Parties.