Virtual Arbitration Hearings under Swedish Law

Abstract

Videoconferencing is increasingly used to conduct entire remote hearings, i.e., virtual hearings. This raises the question if it is possible under Swedish law to hold a virtual hearing against the objection of one of the parties. The fundamental principle relevant to the question of virtual hearings is the universally recognized principle of due process and equality in the treatment of the parties, established in section 24 of the Swedish Arbitration Act. Section 24 of the Swedish Arbitration Act is an expression of due process as expressed in Article 6 of the European Convention on Human Rights. The European Court of Human Rights considers videoconferencing in general to be compatible with due process. Virtual hearings are also accepted as meeting the standards of due process according to the Swedish Code of Judicial Procedure. It can also be noted that there is nothing under the Arbitration Institute of the Stockholm Chamber of Commerce Arbitration Rules from 2017 or the IBA Rules on the Taking of Evidence that prohibits a hearing by virtual means. Moreover, many arbitration institutes explicitly accept virtual hearings. It would therefore appear reasonable to assume that section 24 of the Swedish Arbitration Act permits virtual hearings, also against the objection of one of the parties. Whether a virtual hearing can be held against the objection of a party is yet to be tried under Swedish law. Consequently, time will tell if virtual hearings are compatible with the Swedish Arbitration Act.