Electronic service addresses the geographical constraints of traditional approaches when serving notice, ensuring effective notification while improving efficiency and information exchange. This aligns with the goal of commercial arbitration to efficiently resolve disputes and serve the interests of the parties.
In arbitration practice, the parties may opt for electronic service before and during proceedings, with the flexibility to agree on the means, addresses and other details of service. Arbitration institutions and tribunals can consider the means of service as an important issue in case procedure management through procedural orders, encouraging the parties to adopt electronic service.
By selecting the arbitration rules, the parties are presumed to be aware of and consent to relevant provisions, including service clauses. Provisions on electronic service, and the authority granted to arbitration institutions, extend party autonomy. Against this backdrop, the proactive use of electronic service by arbitration institutions and tribunals should be fully respected.
Effectiveness
The assessment of electronic service validity differs significantly between commercial arbitration and civil litigation. Arbitration prioritises the practical effectiveness of service over strict procedural scrutiny. Service is deemed valid if it ensures parties are informed of the arbitration process and guarantees equal opportunities to present their case. In Wang Bin v Zhong Sihui [2024], the Singapore High Court highlighted that actual notice meeting the above-mentioned criteria suffices to dismiss objections over improper service. This case offers valuable insights into evaluating the validity of electronic service.
Specific methods of electronic service. The means of electronic service in arbitration have expanded in recent years, incorporating emails, text messages, platform notifications and public account alerts. However, when adopting new ways, their accessibility in commercial practice and the recipient’s ability to use them must be carefully considered to avoid imposing undue burdens. In the enforcement of the lease contract dispute Guangzhou Zhimohang Electronic Commerce Co Ltd v Liu Cailong, the arbitration institution sent only file names and login links electronically, requiring the parties to access documents online. The court criticised this approach, stating it infringed on the respondent’s fundamental rights.
Whether the electronic address for service meets the reasonable expectations of the parties. If the address is derived from the contract or publicly provided by the recipient as a regular contact method, it is generally presumed – unless explicitly stated otherwise – that the recipient anticipates receiving notifications through that address. In such cases, the recipient must ensure the address remains functional for receiving notifications and promptly update or notify relevant parties of any changes.
Actions of the addressee in the procedures. If the recipient acknowledges receipt, participates in arbitration, or demonstrates awareness through actions such as challenging enforcement and seeking to annul the award, the service process is considered to have fulfilled its core purpose of ensuring the recipient’s right to information. Minor technical defects should not undermine the validity of the service in such cases.
Service records. In judicial practice, the party serving a notice generally bears the burden of proof to demonstrate that the notice has been issued. As electronic delivery methods advance, service records must be improved to include clear details such as the delivery method, recipient, dispatch time and reading time. Technologies like blockchain can enhance reliability, while one-click e-signature tools can prompt recipients to acknowledge receipt proactively.
Constructive service
Failure to serve a notice does not automatically invalidate the effectiveness of electronic service. Its validity can still be assessed based on the contract and arbitration rules. Major domestic arbitration institutions commonly include constructive service clauses in their rules, stipulating that service sent to the recipient’s “last known address” after reasonable efforts is considered valid. While these rules do not exclude electronic services, it is typically treated as a supplementary method in practice. Due to risk considerations, electronic service is rarely deemed valid under constructive service provisions if it fails to serve actual notice.
Commercial arbitration institutions lack the enforcement power and judicial resources of courts, making it challenging to require them to verify the ownership and control of electronic service addresses. Given the autonomy of arbitration proceedings and the parties’ obligation to participate in the arbitration process honestly and in good faith, the standard of liability for senders should not be overly stringent.
If the source of an electronic service address is reasonable and credible, the principle of constructive service should apply. As mobile numbers and platforms like WeChat are often linked to real-name registrations, judicial support or access to verification channels could assist arbitration institutions or parties in fulfilling reasonable verification obligations and reducing the risks associated with constructive service.
Takeaways
The revision of China’s Arbitration Law reflects a legislative shift, emphasising respect for party autonomy and the flexibility of arbitration rules in commercial arbitration. With clearer legislative direction and evolving judicial perspectives, electronic service is poised for broader application in arbitration proceedings. Arbitration institutions should align with these developments, actively exploring and implementing practices to maximise the efficiency of electronic service.
He Siyang is a case manager at the Beijing Arbitration Commission/Beijing International Arbitration Court (BAC/BIAC)
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