The Covid-19 pandemic has exerted an unprecedented impact on arbitration proceedings by forcing arbitrators to rely heavily on means of electronic communications. From hearings conducted via video conference to the use of electronic platforms, arbitration practitioners have had to adapt to the use of emerging technologies.
In some instances, participants to an arbitration have created WhatsApp groups for the purposes of a faster communication. Although these WhatsApp groups might appear, at the outset, like “informal” ways of communications, the issue arises as to whether a WhatsApp message can be considered a valid notice.
The Jordanian Court of Cassation held that the notification of an arbitral award through WhatsApp messaging services is valid and triggers the deadline for filing a request for annulment of the award.
The facts of the case were relatively straightforward. On May 24, 2021 an Arbitral Tribunal rendered an additional award which held that one of two respondents was jointly and severally liable with the other, in his personal capacity and in his capacity as a guarantor and ordered both respondents to pay to the Claimant the sum of two million three hundred and seventeen thousand Jordanian Dinar.
As soon as the award was rendered, it was sent to a WhatsApp Group that included the parties to the arbitration as well as the members of the arbitral tribunal.
On September 23, 2021, the respondents filed a request for the annulment of the award before the Jordanian courts.
RULING OF THE JORDANIAN COURT OF CASSATION
On December 9, 2021, the Jordanian Court of Cassation rejected the annulment request on the grounds that it was filed outside the 30-day legal period that runs from the time of notice of the award. According to the Court of Cassation, article 6 (a) of the Jordanian Arbitration Law n˚31/2001 states that “unless otherwise agreed by the two arbitrating parties, any (written) communication is deemed to have been received by a party, if it is delivered to the addressee personally, or delivered at his place of business, habitual residence, or mailing address known to both parties, or according to the method of written or electronic communication previously exchanged between the two parties to the arbitration”.
The Court pointed out that a letter submitted by the President of the Arbitral Tribunal stated that the award was notified to the parties on May 24, 2021, by a message sent to the WhatsApp Group in accordance with the Arbitration Agreement that was signed by the Parties.
The Court held that the notice of the arbitral award made through WhatsApp messaging services on May 24, 2021 was a valid notice and that the annulment request, filed on September 23, 2021, was filed outside the 30-day deadline.
THE DISSENTING OPINION
The decision of the Court of Cassation was rendered by a majority of six judges out of nine. The remaining three judges published a dissenting opinion wherein they objected to the decision of the Court of Cassation on the grounds that the submission of the additional arbitral award on the WhatsApp group was not made in accordance with the rules on the notification of judicial decisions.
According to the dissenting opinion, the rules on the electronic notice of judicial decisions, as provided by the system of using electronic means in civil judicial procedures for the year 2018, apply to the notification of the additional arbitral award.
The dissenting opinion pointed out that these rules require a clear notice of the operative part of the decision and a copy of the full decision. According to the dissenting opinion, the parties did not produce any evidence supporting that these requirements have been met and the submitted screenshot of the WhatsApp group showing the phone numbers of the parties as well as a document entitled “additional award” did not constitute sufficient proof that these requirements have been met.
According to the dissenting opinion, the request for annulment should have been deemed admissible because the notification of the arbitral award did not meet the requirements of the system of using electronic means in civil judicial procedures for the year 2018.
By holding that that the notification of an arbitral award through WhatsApp messaging services is valid, the Jordanian Court of Cassation made a bold statement in favor of the liberalization of the means of notification.
However, this decision raises several issues and creates several risks pertaining to the proof of receipt of the award, as evidenced by the dissenting opinion. For example, we may wonder whether a party who has turned off the read receipts option from her WhastApp account is considered to have been validly served, or if valid notice is considered to have been made only when the blue ticks can be seen.
Although the decision of the Jordanian Court of Cassation can be considered ground-breaking, it may have, inadvertently, opened Pandora's box which creates the risk of more complex proceedings at the enforcement stage.