Istanbul Arbitration Center (ISTAC) introduces procedures for online hearings

Correct as of 30.04.2020. This article is not being maintained.

On 17 April 2020, the Istanbul Arbitration Center (“ISTAC”) introduced online “procedures and principles” for hearings to be held via teleconference or videoconference. By offering virtual hearings, ISTAC has responded to the escalating need for remote dispute resolution services and states that it is the “first arbitral institution that has published online hearing procedures and principles”.

Are the parties obliged to comply with these rules?

Online hearings can be held either upon the request of one of the parties, or where the sole arbitrator or arbitral tribunal deems it appropriate. If the sole arbitrator or arbitral tribunal considers conducting the arbitration process through online hearings, parties can object to this decision, and the sole arbitrator or tribunal would have sole discretion in considering such objection.

On the other hand, the rules set forth by ISTAC have ancillary characteristics: they are not compulsory for the parties. The sole arbitrator or tribunal can stipulate different procedures and principles to be applied to the online hearing process ex officio or at the request of one of the parties.

How will online hearings be held?

Under the rules, the sole arbitrator or arbitral tribunal will determine the software to be used, the measures to ensure the confidentiality and security of hearings and contact details prior to hearings. The sole arbitrator or arbitral tribunal will also provide the information on the usage of the technical infrastructure (e.g. conference identification number, link, PIN and etc.).

On the other hand, once the sole arbitrator or the arbitral tribunal has determined the software to be used the participants will be responsible for providing the necessary software and equipment, and a convenient and secure environment. The new rules also allow the parties and the sole arbitrator or arbitral tribunal to seek support from the ISTAC secretariat.

The rules for conducting online hearings include:

• Parties will notify the sole arbitrator or arbitral tribunal of the participants and will not include any other third party who was not previously notified or permitted by the sole arbitrator or arbitral tribunal to participate;

• Parties will not speak simultaneously, and others will mute their microphones so that the hearings are not interrupted, and will speak if called upon by the sole arbitrator or arbitral tribunal;

• Participants will be able to transmit documents electronically during hearings upon the approval of the sole arbitrator or arbitral tribunal;

• The sole arbitrator or arbitral tribunal will exercise due diligence to ensure that the parties and other relevant third parties are eligible to attend hearings and their right to be heard is not violated. If the sole arbitrator or arbitral tribal deems that a party's right to be heard is being violated, it can end the hearing;

• Witnesses or experts will join hearings via videoconference or video call by facing the camera directly with their full faces in view;

• The sole arbitrator or arbitral tribunal will determine whether to make any documents available to witnesses or experts. The sole arbitrator or tribunal may make this determination during the hearing and may transmit the relevant documents electronically during the hearing, and witnesses and experts can be questioned about these documents;

• The sole arbitrator or arbitral tribunal may allow for hearings to be held through a translator; the translator's credentials will be declared to the sole arbitrator or arbitral tribunal beforehand; and

• The sole arbitrator or arbitral tribunal may decide to record the hearing by notifying the parties and providing them with copies of the recordings afterwards; it is, however, prohibited to record hearings without the permission of the sole arbitrator or arbitral tribunal.

Remarks

ISTAC has regulated the procedure and principles of online hearings in arbitration cases. Although parties may freely determine the rules that apply to the procedure and principles of the arbitration, the party to a contract, which is subject to ISTAC Arbitration Rules, cannot avoid online hearings without a reasonable justification. As a result, the new rules for online hearings carry great importance, especially while the world is struggling with global curfews and travel bans.

Click here ("Virtual hearings: are they really the answer?") for more in-depth discussion on virtual hearings. And for more information on how these new rules can apply to your business or any arbitration you are undergoing, contact your regular CMS advisor or local CMS experts: Dr. Döne Yalçın and Arcan Kemahlı.