CAN A BUSINESS AUDIO- OR VIDEO-RECORD AN ARBITRAL HEARING?

When participating in an arbitral hearing to resolve a dispute, a business may wish to make an audio or video recording to preserve the contents of presentations, verify statements made by the parties, or support the protection of its lawful rights and interests. However, unlike an ordinary internal meeting, an arbitral hearing is conducted in private and under the direction of the Arbitral Tribunal (Tribunal).

Current arbitration law does not provide that a disputing party automatically has the right to make its own audio or video recording of the hearing. Accordingly, a business may request permission to make an audio or video recording, but should not proceed on its own without the Tribunal's approval or directions.

1. Arbitral hearings are conducted in private

Clause 4 Article 4 of the 2010 Law on Commercial Arbitration (LCA) provides that dispute resolution by arbitration shall be conducted in private, unless otherwise agreed by the parties. This principle is further specified in Clause 1 Article 55 of the LCA with respect to hearings for the resolution of disputes.

For disputes administered by the Mien Trung Commercial Arbitration Center (MCAC), Clause 3 Article 25 of the MCAC Rules of Arbitration (MCAC Rules) likewise provides that hearings for the resolution of disputes are conducted in private, unless otherwise agreed by the parties. Clause 2 Article 38 of the MCAC Rules also allows the Tribunal to take appropriate measures if it finds that a party has breached this principle.

The private nature of the proceedings does not mean that every form of audio or video recording is absolutely prohibited. However, this principle requires the creation, retention, use and disclosure of recordings to be controlled so as not to compromise the confidentiality of the arbitral proceedings, trade secrets, internal information, or the lawful rights and interests of the parties.

2. Does a business have the right to make its own audio or video recording?

The LCA provides that the parties may attend the hearing directly or authorize a representative to attend; invite witnesses and persons protecting their lawful rights and interests; and sets out the conditions for other persons to attend the hearing. However, the LCA does not recognize a disputing party's unilateral right to make an audio or video recording.

The MCAC Rules likewise do not provide that a business attending a hearing automatically has the right to use a phone, audio recorder, camera or screen-recording function to preserve the course of the hearing. For matters not specifically provided for, Clause 5 Article 38 of the MCAC Rules allows MCAC and the Tribunal to act in the spirit of the MCAC Rules in order to resolve the dispute fairly and efficiently.

3. Is a recording automatically evidence?

The Tribunal's permission to make a recording does not mean that the recording automatically becomes the official minutes or has greater probative value than other documents. When used as evidence, the recording may still need to be examined as to its source, integrity, continuity, the context of the statements, and its compliance with the applicable procedural rules.

In practice, Decision No. 300/2021/QĐ-PQTT dated 9 March 2021 of the People's Court of Ho Chi Minh City referred to a party's submission of an audio recording of the hearing in proceedings seeking to set aside an arbitral award. However, the Court did not need to order an expert examination of the audio recording because the fact to be proved had been admitted by the other party.

This case shows that a recording may be relied upon by a party in related proceedings, but it cannot be inferred from this that every disputing party has a unilateral right to record the hearing or that every recording is automatically recognized.

4. Risks of making an unauthorized audio or video recording

Secretly making an audio or video recording, or continuing to record after the Tribunal has directed that recording stop, may give rise to various risks, including:

• Being regarded as a failure to comply with the Tribunal's directions and conduct of the proceedings;
• Affecting the principle of private proceedings and the confidentiality of arbitration;
• Giving rise to disputes over the legality, authenticity or probative value of the recording;
• Infringing trade secrets, internal information, personal data, or the lawful rights and interests of other persons if the recording is used, disclosed or published beyond the permitted scope;
• Disrupting the hearing and affecting the dispute resolution process.

At MCAC, the Tribunal has the power to take appropriate measures if it finds that a party has breached the principle that dispute resolution is conducted in private. Accordingly, a business should not use audio- or video-recording devices, including screen-recording functions in online hearings, unless permission has been granted.

6. Practical notes for businesses

Before the hearing, a business should:

1. Review the arbitration agreement, the MCAC Rules, the Summons, decisions and procedural directions of the Tribunal;

2. Submit a written request to make an audio or video recording sufficiently in advance, clearly stating the purpose and proposed confidentiality measures;

3. Proceed only after obtaining the Tribunal's clear approval or directions;

4. Request that the permitted scope and conditions for use of the recording be stated in the minutes of the hearing;

5. Do not copy, edit, splice, provide the recording to third parties, or publish it without authorization;

6. Request that the Tribunal record important statements, requests and objections in the minutes rather than relying solely on a recording created by the business.

Conclusion

A business may request permission to make an audio or video recording of an arbitral hearing, but it does not have an automatic or unilateral right to do so. Recording should be carried out only after the Tribunal's approval or directions have been obtained, on the basis of the parties' agreement, the applicable procedural rules and the confidentiality requirements of the dispute.

For a dispute administered by MCAC, a business wishing to make an audio or video recording should submit its request to the Tribunal through the MCAC Secretariat before the hearing date and should record only within the scope permitted.

The article above has analyzed in detail is "Checklist for drafting arbitration clauses: common issues to note". For more detailed information or legal assistance, please contact the MCAC Secretariat:

• Hotline: 0935 925 068 - 0236 3656799
• Email: contact@mcac.vn
• Read more: Benefits and risks of using artificial intelligence in Arbitration