One of the major advantages (hallmark) of Arbitration as an ADR is its procedural flexibility. The flexible nature of arbitration means that it is well-placed to adjust, to not just short-term disputes, but also to long-term broader changes. It allows the parties to choose a procedure which is most suitable to their circumstances in order to achieve the most quick and cost-effective resolution to their disputes. One of the many procedures of Arbitration is the Documents-only Arbitration, which generally applies to straightforward, mid-to-low value disputes.
As the name suggests, documents-only arbitrations are those in which tribunals base their determinations entirely on written submissions and documentary evidence, with no opportunity to hear from counsel or take evidence from witnesses at oral hearings. In this kind of Arbitration, the parties agree for the dispute to be resolved without an oral hearing. Written documents include pleadings, evidence, and statements of witnesses. This kind of Arbitration may be useful in cases where there is no need for cross-examination of witnesses.
Documents-only Arbitration is also a cost efficient form of arbitration, since a proceeding without an oral hearing eliminates the costs such as travel costs, lawyers, witnesses, etc. It enables the tribunal to render the award in a shorter time-frame and hence it is not time-consuming. It generally enhances the efficiency of the tribunal because email becomes the primary means of communication when travel is not required. For a case to proceed on documents-only basis, it is essential for all the parties to the dispute to agree to the same since party autonomy is a significant ingredient of arbitration.
However, when this approach is being adopted, there are certain points to consider. This method may not always be possible as a matter of law and it may not be suitable for all cases (for acting as a counsel and sitting on the arbitral tribunal at the same time may not be applicable to many cases). It must be mentioned that any decision to proceed on this basis should be made as early as possible so that parties can prepare their respective submissions and approach to the proceedings accordingly. This also has converse effects for if one party makes objections early on, then the proceedings will appear to favor the material approach of one party over another. Considering the above mentioned issues, it may not be possible for all disputes to be determined on a documents-only basis.
However, in the current scenario, where COVID-19 has disrupted the daily lives of the people and where companies are struggling to adjust with the new rules of social-distancing, this method seems highly recommended as well as applicable. Parties faced with low-to-mid value disputes should consider whether the benefits of a documents-only arbitration outweigh the perceived benefits of an oral hearing. It provides parties with an innovative tool to manage time and costs while maintaining their right to be heard in a neutral forum. Given that remote working is (for now) the “new normal”, the call for documents-only arbitrations may well increase.