OGH: No violation of Art 6 ECHR when video conferencing is ordered in arbitration proceedings

Jan 12, 2021 Benn-Ibler Rechtsanwälte

In the wake of the COVID-19 pandemic, video conferencing is a suitable means of maintaining business operations. According to the Austrian Supreme Court (Oberster Gerichtshof, OGH), if negotiations in arbitration proceedings are ordered in the form of a video conference, there is no violation of Art 6 European Convention on Human Rights (ECHR; right to a fair trial) even if one of the parties does not agree to such a negotiation.

In the present case, the court of arbitration (based in Vienna) ordered an arbitration hearing in the form of a video conference which had been scheduled months in advance. This was due to the worldwide COVID-19-related travel restrictions. One of the parties saw this as a vicious action of the court and filed a motion of rejection against the judges. The petitioner relied in particular on the fact that he was given too little time to prepare for the trial. Furthermore, his residence in Los Angeles resulted in a starting time of 06:00 a.m., which he claimed was unreasonable. Thus an imbalance between the parties had arisen, which the court had accepted.

The Austrian Supreme Court (Oberster Gerichtshof, OGH) stated that the court of arbitration is in principle free to conduct the proceedings at its own discretion, but is bound by the principle of fair treatment of the parties. This principle also applies to the scheduling of negotiations. Furthermore, the OGH stated that the use of video conferencing technology in the proceedings was widespread and recognized. This spread also extends to the arbitration proceedings. In any case, a hearing by means of a video conference is permissible if both parties agree. In the course of the COVID-19 pandemic, these conferences are a suitable means to prevent a complete standstill of the proceedings. For these reasons, there is no violation of Art 6 ECHR when using video conference technology, even if one of the parties does not agree with its implementation.

OGH 18 ONc 3/20s (23 July 2020)