This article offers a US-focused response to van Zelst’s5 analysis of remote arbitral hearings under Article 1072b(4) of the Dutch Code of Civil Procedure (CCP), which authorizes tribunals to order electronic hearings but requires careful calibration against core principles of procedural justice. Building on van Zelst’s emphasis on party parity, fairness, and reasoned, context-sensitive decision-making, the article examines the interplay between ‘hard law’ (the Federal Arbitration Act (FAA) and the New York Convention) and ‘soft law’ protocols developed by leading arbitral institutions. It highlights a persistent ambiguity in FAA §7 regarding subpoena power in virtual proceedings that complicates remote evidence-taking and creates uneven procedural safeguards across jurisdictions. The analysis centres on Small and Medium Enterprises (SMEs), for whom remote hearings can significantly reduce costs, lower environmental impacts, and enhance access to justice, yet also present risks of asymmetry in technology, witness management, and confidential communications. To address these tradeoffs, the article proposes a framework that integrates van Zelst’s five guidelines prioritizing party autonomy, dialogue, restraint, holistic balancing, and reasoned orders, with concrete technical and procedural safeguards drawn from institutional best practices (including International Chamber of Commerce (ICC), The London Court of International Arbitration (LCIA), American Arbitration Association (AAA)/International Centre for Dispute Resolution (ICDR), Hong Kong International Arbitration Centre (HKIAC), and Singapore International Arbiration Centre (SIAC). The framework culminates in a practical ‘5 Cs’ approach to guide tribunals in structuring remote hearings that are both efficient and fair. The article concludes that, when grounded in principled discretion and robust safeguards, remote hearings constitute a durable advancement in arbitration, particularly for SMEs and other resource-constrained parties.
Arbitration: The International Journal of Arbitration, Mediation and Dispute Management