See Schatschaschwili v. Germany, case no. 9154/10, and Al-Khawaja and Tahery v. The United Kingdom, case nos 26766/05 and 22228/06. The Swedish Supreme Court has come to the similar conclusion with reference to the ECHR, in a matter decided by Stefan Lindskog when he was at the court; see NJA 2017 s. 955, 24 Nov. 2017, case no. B 279-17. In the case, which concerned a criminal case, the Supreme Court found that the lower court’s decision to allow for the victim (and accuser of the crime) to participate in the hearing by telephone had not violated the prosecuted person’s right to a fair trial. The Supreme Court stated that the lower court has the ultimate responsibility for ensuring due process in these respects. In this regard, the court should consider the requirements for a fair trial under the ECHR.
Hänvisas från p. 13 (s. 413)
1.2.1 How the term is used in the Arbitration Act and in other procedural legislation The requirement to have a hearing if a party so requests is found in section 24 of the Arbitration Act: ’The arbitrators shall afford the parties, to the extent necessary, an opportunity to present their respective cases in writing or orally. If a party so request, and provided that the parties have not otherwise agreed, an oral hearing shall be held prior to the determination of an issue referred to the arbitrators for resolution.’ (Emphasis added.) The first sentence differentiates between oral and written presentation of the case; a party must be given an opportunity to present its case in writing or orally. A party’s right to present its case can thus be satisfied by affording the party opportunity primarily to develop its case in writing. However, even if a case has been presented in writing, an oral hearing must be held in addition to the written pleadings, if a party so requests. The right to a hearing is not unlimited in the extent or number of hearings and a party’s right to present its case does not entail that it must be afforded a right to present every aspect of the case orally, if the party already has been given opportunity to present the case in writing. A literal interpretation of the paragraph’s two sentences thus suggests that ‘oral’ is to be understood as opposed to ‘in writing’.s. 409
2.Accordingly, the qualitative requirement on the hearing set out in the Arbitration Act is that it be oral. Apart from that, the Act says nothing about how the hearing is to be conducted, whether in terms of length, space, setting or procedure, in order to constitute a hearing. In the travaux préparatoires to the Arbitration Act, the legislator clarifies that it is for the arbitral tribunal to determine the manner in which the hearing is to be conducted, should the parties not agree on this. This is thus in line with most issues when it comes to arbitration.s. 409
3.The legislator also mentions examination of witnesses ‘via telephone or TV-monitor’ (this was in 1998, before Teams and Zoom) as an alternative to physical presence at the hearing and explicitly recognises that ‘the boundaries are not determined by law, but by the available technology’. The legislator thus had the foresight not to legally limit future users of arbitration from benefitting from the possibilities that technology may bring, thus delivering on the promise that arbitration is to be flexible and pragmatic.s. 410
4.The Arbitration Act is obviously not the only legislative act in Swedish law that requires a hearing to be held. The same requirement is found, most prominently, in the Code of Judicial Procedure. The Code explicitly mentions telephone and video as alternatives for participating in hearings, albeit the main rule is for the participants to be physically present at the meeting.s. 410
5.In a case under the Code, however, the hearing plays a role far more important than in arbitration. Under the Code, the court may only rule on requests for relief, facts and evidence that have been presented at the hearing. In arbitration, the opposite applies: There is no requirement that facts be invoked or evidence presented orally in order for the arbitral tribunal to consider them. It suffices that the party has made its case clear in writing; the Swedish judicial principles of orality and immediacy, which applies in Swedish litigation, do not apply in arbitration. Thus, if a virtual hearing may qualify as a hearing in a case under the Code, it ought to be obvious that it qualifies as a hearing under the Arbitration Act.s. 410
6.In the travaux préparatoires to the changes made to modernise the Code some decade ago, the legislator explains that the purpose and rationale behind the hearing requirement coincide with and satisfy the purposes and objectives underpinning Article 6 of the European Convention on Human Rights (ECHR). Pursuant to chapter 5 section 10 of the Code of Judicial Procedure, the court may decide that a party or other person who is to be present at a meeting, such as a hearing, is to participate by audio only or audio-visually. If someone participates in that way, that person is deemed to be participating in the hearing. When introducing this possibility to participate in a hearing, the legislator specifically considered Article 6 ECHR and concluded that the proposed (and subsequently enacted) legislation complied with the requirements of the article.s. 411
7.Consequently, even in procedures pursuant to the Code of Judicial Procedure, it may be possible to conduct a hearing virtually. And it is still a hearing. This has also been confirmed by courts.s. 411
8.In September 2020, the Court of Appeal for Western Sweden ruled that a district court erred when cancelling a hearing in a commercial dispute with reference to the Covid-19 pandemic. In its decision, the Court of Appeal pointed to the district court’s obligation to conduct the proceedings in an expeditious manner (an obligation on which there is even more emphasis in arbitration) and the court’s authority to allow for participation in meetings through telephone or video conference. The Court of Appeal concluded that, instead of cancelling the hearing, the district court should have consulted the parties and taken the appropriate measures to proceed with the hearing, using technology that allows for remote participation if necessary. The Court of Appeal’s reasoning ought to be equally applicable to arbitrations in Sweden and, in my view, the ruling confirms that under Swedish law a remote hearing fulfils a requirement that a hearing be held.s. 411
9.Last but certainly not least, the Supreme Court has confirmed that a statutory right to have an oral hearing may be satisfied by means of a video hearing. The case Ö 1023-20 regarded the issue of whether the requirement of a ‘hearing’ under the Extradition Act (1957:668) could be satisfied by means of a video hearing. The Supreme Court said yes. Pursuant to section 18 of the Extradition Act, a hearing must not be refused, unless (i) a hearing has already been held and is deemed satisfactory, or (ii) the matter of the case is manifestly obvious. In the case, none of the exemptions were activated and, thus, there should be a hearing. The defendant was held in custody in Helsingborg and wanted to be transferred to Stockholm to be physically present in the Supreme Court for the hearing. He also invoked that he believed the quality of the hearing would suffer, should he participate audio-visually. The Supreme Court referred to chapter 5 section 10 of the Code of Judicial Procedure, concluding that the court may decide that a party or other person who is to be present at a meeting, such as a hearing, is to participate by audio only or audiovisually. The Supreme Court thus confirmed that there is no absolute requirement for a hearing to be conducted with the participants physically present, not even when one of them is a person facing potential extradition. The Supreme Court then considered other aspects, such as whether remote participation would be inappropriate, but concluded that remote participation would be satisfactory in that case.s. 412
10.The Supreme Court has thus determined that a statutory requirement that a hearing be held may be satisfied by means of a video conference against a party’s objection. The case should be relevant for the understanding of the Arbitration Act as well. It would be odd indeed if Swedish law were to give the word hearing a stricter and more narrow meaning in the Arbitration Act than in other legislation where the same requirement is found. 2.2 Further on the purpose of the rule requiring a hearing to be held As explained above, as far as I have been able to ascertain, ordinary sources of law do not support a view that the term oral hearing is legally to be understood as physical hearing. To the contrary; numerous sources of law indicate that the term is to be understood in accordance with its wording. Then how does Lindskog reach the conclusion that only a traditional physical hearing is a hearing pursuant to the Arbitration Act?s. 412
11.As already alluded to, the main argument advanced by Lindskog for reaching his conclusion, is the purported purpose of the rule (regeländamålet). However, that purpose is defined by Lindskog himself. He asserts that the purpose of a hearing is to have a physical meeting, thus establishing his ultimate conclusion as a premise for the analysis that is to lead to the conclusion. This purpose of the rule is not expressed in any of the travaux préparatoires to the procedural law legislation in which the requirement of a hearing can be found.s. 413
12.However, in the travaux préparatoires to the Arbitration Act, the legislator points out that the right to a hearing under the Act is in line with the fundamental right to a fair trial pursuant to Article 6 ECHR. It may therefore be inferred that the purposes of the hearing requirement in the Arbitration Act coincide with (and are motivated by) the same purposes as underpinning Article 6 ECHR. In other words, if the requirements of Article 6 are fulfilled, the purposes of the hearing requirement in the Arbitration Act are also fulfilled.s. 413
13.The ECHR accepts video conferencing as a means of fulfilling the requirements for a fair trial. The European Court of Human Rights has established that even the minimum right of a person charged with a criminal offence to be able to cross-examine any witness in the case, set out in Article 6.3 ECHR, may be satisfied by means of video conferencing.s. 413
14.Lindskog argues that a physical hearing but not a virtual one increases the parties’ confidence in the procedure and that, should an arbitral tribunal decide to conduct a virtual hearing against a party’s will, this would diminish said party’s confidence in the proceedings. The same could be said for all decisions by the arbitral tribunal that go against one of the parties, be it with respect to the conduct of the hearing or other procedural issues. But this does not mean that such decisions constitute challengeable errors. As mentioned above, the legislator determined such issues to be within the arbitral tribunal’s discretion when the parties disagree.s. 413
15.I also do not believe it to be correct that a party’s confidence in the proceedings is negatively affected by a decision to conduct a virtual hearing. The parties to arbitration are commercial entities. In my experience, they want their dispute to be decided expediently and in a practical, professional manner. They themselves conduct their business with the use of modern technology — otherwise they will soon be irrelevant — and they expect commercial arbitration to develop alongside them.s. 413
16.Importantly, the hearing cannot be an end, but a means to an end. At least from a practical perspective, the purpose of a party’s right to a hearing ought to be the benefits obtained through such a hearing. The questions should thus be: What are the benefits obtained through a (traditional) hearing and are those possible to obtain or safeguard also through a virtual hearing?s. 414
17.A hearing allows a party the right to summarise and argue its case in the direct presence of the arbitral tribunal and the counterparty. This direct presence enables the parties and the arbitral tribunal to immediately react, intervene and ask questions in a way which is not possible in writing. Fulfilment of such purposes requires the participants to be able to interact at the same time, regardless of whether this is done in the same physical room or through a virtual platform. One may think that this is more difficult in a virtual environment than a physical, but my personal experience (from close to 40 virtual hearing days in the past year) is that a well-organised virtual hearing provides a closer, more direct atmosphere than many physical hearings, where the room is sometimes large, poorly set up and where you perhaps can see the arbitrators only slightly from the side.s. 414
18.Apart from the possibility to interact simultaneously, another important purpose of the hearing is of course the taking of the oral evidence — to conduct examinations and, more importantly from a due process point of view, cross-examinations of experts and fact witnesses. It is primarily in this respect that Lindskog has reservations as to the quality possible to achieve in a virtual hearing. At the same time, however, witnesses examination through video is possible also in Lindskog’s understanding of the word hearing, so this cannot be the issue. Be that as it may; some of the most effective cross-examinations that I have witnessed, have taken place through video both before and during the pandemic, and the witnesses’ reactions appear in better view through a well-arranged camera than in most hearing rooms.s. 414
19.Thus, if a hearing is a means to the ends of simultaneous interaction and the efficient taking of oral evidence, a well-conducted virtual hearing meets both those ends. At the same time, a poorly managed and conducted physical hearing can fail to achieve those same ends.s. 414