The Fragility of E-Arbitration: Emerging Issues and Debates

Platform Control and Confidentiality

E-arbitration promises efficiency but moving arbitration to digital platforms exposes flaws in procedural integrity. One of the bigger concerns is who controls these online platforms and how that affects qualities such as neutrality and party autonomy. Compared to a physical neutral venue, an online platform’s ownership and data routing could raise issues on trust .

Some parties may be reluctant if a platform stores data in a jurisdiction they are not very confident in. Arbitral institutions and parties now often explicitly agree on the choice of platform and cybersecurity measures mitigate surprises, the Africa Arbitration Academy’s 2020 Protocol even urges parties to agree on the technology and software to be used and on minimum cybersecurity standards.

The issue seems to rise mainly under the umbrella of confidentiality where some parties worry about unauthorised recording or data leaks during remote meetings. This is an ongoing effect of 'Zoombombing' incidents in 2020 that showed that uninvited users could sometimes intrude if security is lax. A single unauthorised recording risks disclosure of pricing models, trade secrets, or strategic concessions to direct market rivals, bidding competitors, or state-aligned entities, damage that no later annulment can undo. It could sometimes be hard to be sure who is in the virtual room or whether the session is being saved.

Arbitrators and counsel are thus taking precautions such as using waiting rooms, passwords, and requiring written pledges that no one will record or broadcast the hearing without permission. They also circulate participant lists and lock the virtual door once a session begins. Despite these measures the risk of a breach, a hacker accessing the feed, or a participant secretly inviting an observer is an ever-present concern.

Many argue that strong encryption and clear protocols can preserve privacy and confidentiality in e-hearings noting that these risks are manageable with diligence. Others caution that if a breach does occur it could reduce the legitimacy of the award, a leaked confidential hearing might even be grounds to challenge an award for violating procedural privacy. What is clear is that e-arbitration demands far greater IT risk management than traditional hearings: arbitrators must become quasi-IT experts or hire support to ensure the digital hearing is as secure and neutral as the physical one it replaces.

Parties have already begun testing the fault lines of digital arbitration, for example, in the United States, this surfaced most visibly in LaPaglia v Valve Corporation, where a losing party applied to vacate an arbitral award on the allegation that the arbitrator had relied on generative AI to draft the decision without disclosure or consent. The claimant argued that this undermined the parties’ expectation of a reasoned decision rendered by a human arbitrator, and amounted to an excess of mandate. While no court has yet set aside an award on this basis alone, the case is frequently cited as an early warning of how undisclosed AI use may be reframed as a due-process violation.

Losing the Theatre of Justice

Arbitration, beyond human law, has a performative, human aspect that develops trust in the process. The solemn ritual of parties and witnesses entering a hearing room, the arbitrators robed in seriousness, the subtle cues and decorum, all contribute to the theatre of justice, which is now being threatened by the migration to online platforms. Arbitrators and advocates worldwide have observed that virtual hearings feel more like routine video calls than quasi-judicial proceedings, which can alter how participants behave.

There maybe concern that individuals may behave less respectfully or less truthfully when appearing via screen. People often say or do things online that they would hesitate to in person, feeling a degree of distance or impunity. An experienced arbitrator mused whether a witness testifying alone to a screen might be less inhibited about bending the truth than if they were in a room facing three arbitrators and opposing counsel in person. Likewise, counsel might be more tempted to make aggressive or exaggerated arguments from behind a keyboard than at counsel table.

There has also been a practical loss in communication as body language and eye contact suffer in a tiled video gallery. Arbitrators report that it is harder to read a witness’s demeanor or pick-up on an advocate’s sincerity through a screen. One keynote on ethics in online arbitration noted that many lawyers feel it’s difficult to assess the witness’ credibility remotely as you might miss subtle physical cues. Technical glitches can interrupt the flow of cross-examination, and slight audio delays can throw off an advocate’s rhythm. The cumulative effect is that a virtual hearing may not convey the same gravitas and immediacy as being there in person. Parties often perceive in-person hearings as more “real” or important, believing a neutral who is physically present will listen more intently and give more thorough consideration. Virtual proceedings must put in more effort to earn that same level of perceived legitimacy.

On the other hand, many reports have shown that virtual hearings have performed better than expected on a technical and due process level. Initially, there was widespread fear that remote merits hearings could never be fair, yet during the pandemic numerous complex cases were heard online successfully. Surveys of practitioners (including arbitrators traditionally skeptical of online hearings) show that feedback on virtual merits hearings has been 'mostly positive' and many earlier hesitations did not materialise in practical.

This raises a discourse that are some of these theatrical elements nice-to-have but non-essential? Or does their absence quietly erode the quality of justice over time? There is no clear answer yet.

However, It is agreed that arbitrators need to adapt their management style such as laying down clear ground rules to preserve formality. Some tribunals even require witnesses to be on camera with hands visible and no other screens, to prevent off-camera coaching or referencing of notes.

Digital Exclusion and Equality of Arms

But the most pressing area of debate is about equality of arms in a digital environment. E-arbitration assumes all parties can participate equally, but what if one side has unstable internet, older hardware, or no access to efficient tools?. What if one party is in a jurisdiction with poor internet or electricity that cuts out hourly? What if one party lacks proper laptops or technical support while the other has state-of-the-art setups?. Such disparities can materially prejudice a party’s ability to present its case. If Party A’s connection drops frequently, they may miss crucial arguments or lose flow in cross-examining a witness, whereas Party B sails through uninterrupted. Or if one side can afford real-time AI transcription and multiple screens while the other is dialing in by phone line from a remote area, the playing field is uneven.

These issues can be seen in African contexts and other developing regions. Surveys in 2022 found that in many African jurisdictions, high-speed internet connectivity was lacking and negatively affected legal practice during the pandemic. Many African arbitration users struggled with connectivity, and indeed many scheduled hearings were suspended or had to be moved to another venue with better facilities during COVID, so even basics like consistent electricity cannot be taken for granted in some regions.

These problems directly challenge the fairness of remote arbitration. Parties have already begun formulating objections in these terms: a tech glitch or lack of access can translate into a due process claim. For instance, if an award went against a party who had objected to a virtual hearing due to their inability to participate fully, that party might later argue they were denied an equal opportunity to be heard.

To address these risks the arbitral community is developing standards and creative solutions. The Africa Arbitration Academy’s Protocol on Virtual Hearings (2020) directly tackles digital exclusion, it urges arbitrators to consider local realities and suggests that if a participant lacks necessary equipment or connection, they should be allowed to use facilities of arbitral centres or institutions in their country. The Protocol even provides that arbitral tribunals can direct a virtual hearing only after consulting parties and ensuring that it would not unfairly prejudice either side. It also encourages parties to sign a Pre-Virtual Hearing Agreement, explicitly consenting to a remote hearing and waiving objections, to prevent later tactical challenges. These measures highlight that equality of arms is front of mind in e-arbitration, technology must be accessible to all sides on an equal basis.

The debate on whether a tribunal can order a virtual hearing over a party’s objection also rages on. Some argue that if one party objects strenuously, fundamental fairness dictates that an in-person hearing should occur when feasible. Others point out that arbitration rules and laws (post-2020) increasingly empower tribunals to hold remote hearings even without unanimous consent, provided due process is safeguarded.