Right to physical hearing a mandatory provision?

I came through an article under the search scope of the oral hearing in international commercial arbitration and I decide to analysize it alongside with the Malaysian Laws.

The main key point of the article was, does international arbitration allows for a 'Right to Physical Hearing'. In this similar vein let us compare the available Malaysian Jurisdiction with the Model Law (Parent Act) UNCITRAL Model Law for International Commercial Arbitration. 

In Malaysian Jurisdictions; 

Section 26.1 of Malaysian Arbitration Act 2005 Unless otherwise agreed by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or oral arguments, or whether the proceedings shall be conducted on the basis of documents and other materials.

Section 26.2 Malaysian Arbitration Act 2005 Unless the parties have agreed that no hearings shall be held, the arbitral tribunal shall upon the application of any party hold oral hearings at an appropriate stage of the proceedings. 

Prof Dr. Sundra Rajoo in his book UNCITRAL Model Law & Arbitration Rules commented that, Section 26 (1) & (2) of the AA 2005 refer to the default standards to determine whether or not a hearing shall be held. As an overriding principle section 26 allows the parties to decide on whether to have a hearing or not subject to the operation of section 20 (Equal treatment of parties) and section 21 (Determination of rules and procedure) of the AA 2005. The tribunal is bound by the consensus of the parties. However, if the parties have not agreed on any procedure, this section grants parties the right to make a request for an "oral hearing" at any point. This ensures natural justice and 'audi alteram partem', ensuring no prejudice against any one party. 

Both Sections are restatement after Article 24.1 of Model Law. Take note that, both the sections are stressing the party's autonomy for the consideration for the appropriate method in deciding the hearing basis to conduct the arbitration proceeding. If the arbitral tribunal failed to hold a hearing at a request of a party the court may intervene in 'violation of the right to be heard'. However, the right to physical hearing is silent. 

Article 17.3 of the AIAC Arbitration Rules If at an appropriate stage of the proceedings any party so requests, the arbitral tribunal shall hold hearings for the presentation of evidence by witnesses, including expert witnesses, or for oral argument. In the absence of such a request, the arbitral tribunal shall decide whether to hold such hearings or whether the proceedings shall be conducted on the basis of documents and other materials.

In this article of Asian Internation Arbitration Centre, AIAC Rules, the party autonomy is still being stressed for hearings at a request from any party. However, the key term "Physical hearing" is not mentioned anywhere. This means that a party can request a virtual oral hearing. This is because in pursuant to; 

Article 28.4 of the AIAC Arbitration Rules The arbitral tribunal may direct that witnesses, including expert witnesses, be examined through means of telecommunication that do not require their physical presence at the hearing (such as video conferencing)

Thus, I can conclude that 'physical hearing' is not stressed as long a virtual hearing can ease the physical absence of a party especially in times of the pandemic. 

Since we have analyzed the Malaysian Jurisdiction, let us get back to the article. 

The article clarifies that;

1. There is no single jurisdiction express provision regarding granting a right to a physical hearing
2. Reporters from Ecuador suggest it can be inferred by way of interpretation from the principles of civil procedure law and Ecuador's constitutional guarantees. 
3. A right to a physical hearing is limitedly recognized for the first hearing in Venezuela
4. UAE laws expressly assign jurisdiction of arbitrators to hold remote hearings
5. Thailand rules out the right of a party to request a hearing. 
6. The court can intervene and set aside the awards when the arbitral tribunal has conducted against the interest of parties agreement or request

I am very much excited to read the final report which will be presented at the XXVth ICCA Congress to be held in Edinburgh in September 2021.

Read the full article HERE