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As COVID-19 swept the world, and face-to-face meetings diminished, the legal profession was forced to adapt. For arbitration, this meant a new way to conduct oral hearings, virtually or remotely.
As we cross the 12-week threshold of lockdown in the UK and see measures slowly beginning to lift in many jurisdictions, we have probably all by now either taken part in or watched a virtual hearing, or webinar on virtual hearings. Similarly, with the increase for the need for such hearings I have witnessed a directly proportionate rise in guidance and protocols in respect of the same being released by a whole host of organisations. Most of them are useful, some more than others. In this article, I will endeavour to summarise their provisions, commenting on what I have found the most useful in my experience.
One observation I make, is when it comes to virtual hearings, I do not think there is much utility in making a distinction in virtual court hearings and virtual arbitration hearings. I think the proper and reasonable considerations are often interchangeable in either context. The obvious exception often being confidentiality.
When considering virtual hearings, there are a number of matters which require discreet consideration beyond that of an ordinary face-to-face hearing. For ease, I would put those into 5 categories:
Before considering the 5 categories above, parties and tribunals should first determine whether a virtual hearing is necessary. Are there other reasonable alternatives, such as a decision on papers only?
In my view, COMBAR’s Guidance Note on Remote Hearings helpfully distinguishes interlocutory hearings from trials. All though each hearing must be considered on a case by case basis, the reality is interlocutory hearing are more likely to be viable and appropriate for virtual hearings than trials. That will especially true in complex arbitrations involving a high volume of documents, parties, witnesses and experts. A useful tool in considering that initial decision is DELOS’ Checklist on Holding Arbitration and Mediation Hearings in Times of COVID-19.
When considering this question as an arbitrator, I have used a series of questions to decide how appropriate it may be to proceed in the context of temporary nature of the status quo. Wherever you are in the world, a tribunal is under a positive duty to render an enforceable award. That primary duty can often be broken down into subsidiary duties. These are found under the English Arbitration Act 1996, under section 33. The risk of ordering a hearing to proceed virtually, against one or more of the party’s choice, is that any award may be set aside on the basis that one or more of those subsidiary duties have been breached.
I would therefore propose that, at the very least, the following points are considered by tribunals faced with that question:
If upon proper consideration of the issues set out, a hearing is to proceed virtually, I would highly recommend scheduling a pre-hearing review to discuss, and where possible agree, the 5 categories. COMBAR’s guide provides a PHR checklist. The reality is, from the anecdotal evidence available, that many parties object to substantive trials proceeding in this way and tribunals have been adjourning them until next year. It is firmly believed that face-to-face hearings will become possible again by then.
However, if a second or third wave of COVID-19 is experienced, such adjournments may become less frequent.
Helpfully, both Practical Law (Procedural Order for Video Conference Arbitration Hearings) and CPR (Model Annotated Model Procedural Order for Remote Video Arbitration Proceedings) have published model Procedural Orders (POs) for this purpose.
I suspect many reading this had never heard of Zoom before COVID-19. It has, however, been one of very few enterprises to thrive during the pandemic. Like Zoom, many other platforms are often used for virtual hearings. Anyone involved with the Vis Moot, will be familiar with Immediation, the platform adopted by the organisers. I include a non-exhaustive list of hearing platform providers below:
I personally have experienced Zoom, Immediation, Microsoft Teams, Blue Jeans and Starleaf. There are a number of issues in respect of usability and security raised by a number of parties. As far as I am aware, they generally arise because of “human error”. In other words, either users have not taken proper advantage of the available security settings or failed to devote enough time to familiarise themselves with the technology. In truth, it comes down to personal preference rather than any justified objection.
Where a platform is agreed, parties and the tribunal must decide who will operate the software at the hearing. Although the tribunal is traditionally in charge of directing the hearing process, this is not always practicable in virtual hearings. First, because many if not most arbitrators simply do not hold the technical ability to do so. Secondly, it is probably in the best interests of time and costs to have a professional engage in this task. And finally, a question which to me has remained unanswered to date, is who will be liable if it all goes wrong on the day? The best solution I am aware of is for the appointment of such a person or organisation to be recorded in a PO, with costs liability for technical failure to be shared between the parties.
A further consideration is to ensure that all participants have appropriate hardware, software and bandwidth. What I mean by that is mainly video, audio and internet connection. Most computers and laptops work perfectly well for a video conference lasting a few hours. However, for a virtual hearing that may last days, or weeks you should take into account the robustness of your webcam, microphone, internet service provider, wi-fi, backup 4/5G, battery life and more. I have found that Annex 1 of the Seoul Protocol on Video Conferencing in International Arbitration to be particularly helpful, setting out minimum requirements. Having said this, I point out that everyone should be aware of Moore’s Law, which provides that computer processing power doubles every 18 months. Today’s recommendations can become redundant quickly.
The ICDR has also published comprehensive guidance specific to Zoom, Virtual Hearing Guide for Arbitrators and Parties Utilizing Zoom. Many of the principles may be applied sensibly to other platforms.
It is highly recommended that dummy runs and connection “triage” is carried out in anticipation, wherever possible to avoid disappointment. What I mean by the latter, is that it is helpful to have someone knowledgeable check the hardware, software and connection and make recommendations for change beforehand.
The second category is that of document presentation. It may be that documents are available in hard copy. In that case, arbitration practitioners will already be familiar with the process. However, at times documents are all in electronic format, or more commonly, a hybrid is used.
I do not know of any virtual hearing where documents have been, in their entirety, in electronic format. In my personal experience, someone has always wanted some documents, in printed hard copy. Often that person is me. However, that does not negate the possibility of an all e-document arbitration, especially with a younger, more technologically savvy generation coming up the ranks.
There are some organisations such as Opus 2 or Caselines who will provide a tailored solution. Depending on the value and cost of the arbitration, these can be prohibitively expensive, or disproportionate to parties who must foot the bill. For example, many shipping arbitrations will be low value comparative to LCIA, ICC, SCC or ICSID arbitrations. Such a system would doubtless not be employed. Helpfully, the SCC has launched its Platform for Ad Hoc Arbitrations, which includes documents management aimed at Ad Hoc arbitrations, such as many shipping arbitrations.
A popular alternative has been the humble PDF. An electronic bundle in PDF format, requires no more than a PDF editing tool. Such a tool allows for ordering, paginating and indexing of bundles. It also allows for highlighting, adding notes, hyperlinking pages and searching for terms within documents. It is, on any view, a versatile and affordable tool for any party to an international arbitration, without exception.
There are nonetheless some caveats, however. First, beware of document editing. Words in a clause or contract can be changed by dishonest parties and users must be vigilant of the integrity of documents. Secondly, too many PDF files should be avoided where possible. The right balance between a workable file that does not freeze or takes too long to scroll through and the need to avoid so many volumes that time is wasted trying to locate the correct one, must be struck. Thirdly, much like hard copy bundles, scanned documents can often cut out sections, come out blank or illegible. Care must be taken to ensure all documents are properly legible and not corrupted. Finally, virtual hearings do not permit documents to be handed up to the tribunal at the hearing. Parties must ensure that all necessary documents are included in the bundle in advance, especially in light of the flurry of last-minute exchanges, which are common and sometimes inevitable.
The moment a virtual hearing is considered, issues of confidentiality and security must also be considered. Beyond the inherent confidential nature of an arbitration, attention must also be given to data protection, hacking of electronic document depositories and cloud storage, distribution of hearing recordings and what has been termed as Zoom-bombing, ie external parties high jacking video or audio.
A number of protocols have been issued on this and I am familiar with ICDR’s Best Practices Guide for Maintaining Cybersecurity and Privacy, the IBA’s Cybersecurity Guidelines, ICCA-IBA’s Joint Task Force on Data Protection in International Arbitration Proceedings and the ICCA-NY State Bar-CPR’s Protocol on Cybersecurity in International Arbitration. Together, they provide a comprehensive checklist of matters to be considered for virtual hearings.
Some of the solutions to these problems have been to adjust the security settings on the hearing platforms. Most paid services allow users to increase the measures so as to avoid any issues and this is certainly true, as far as I am aware, in respect of the Zoombombing issue. Where someone is in charge of operating the software, this should be done in anticipation. Separate breakout rooms can also be created for caucuses such as claimants, respondents and the tribunal to meet and hold discussions in private. The identities of those who will participate should be taken in advance and steps taken to ensure they are the only ones present in the virtual hearing venue. Measures such as logging into a waiting room, prior to be given access to the main hearing room have proven effective.
The issue of witnesses is another relevant consideration. The problems vary from jurisdiction to jurisdiction and are case sensitive. Some of the concerns include: whether parties are being coached, legality of virtual evidence in the law of the seat/witness location, taking the oath or affirmation, hardware and connection, documents and translation/interpretation.
There are many references to matters to be considered as far as witness examination goes, these tend to be included with general guidelines, and can be found within the African Arbitration Academy’s Protocol on Virtual Hearings in Africa, COMBAR and DELOS’ guides and HKIAC’s Guidelines for Virtual Hearings, to name a few.
Many of the guides suggest that witnesses attend a neutral physical venue for examination. This could be the office of a law firm or a local arbitral institution’s facilities. An alliance of arbitral institutions has been formed for amongst other, this specific purpose (International Arbitration Centre Alliance). Other suggestions include having a lawyer from the opposing parties present or two or more cameras, one pointing at the witness and others at the rest of the room. These suggestions tend to mitigate rather than eliminate all risks.
Many advocates have been forced to carry out their advocacy from home, in light of COVID-19 lockdown measures. Many of us have seen first-hand the potential difficulties of working via video from a home setting. To me, this was best illustrated by the interview of Professor Robert Kelly, by the BBC. Of course, some instances are unavoidable, but there are a number of factors that to be considered before embarking on the task.
I have will not repeat matters I have dealt with already, which are also applicable to an advocate. However, counsel must be alert to certain realities of virtual hearings that simply are not an issue in face-to-face hearings. Perhaps the most obvious is the fact that there is no feel for the hearing room, tribunal, opposing counsel or witnesses. The physical separation makes the whole experience a little surreal. The simple fact of being at home or in your office can give the illusion of informality. This should be avoided and the same care and respect should be given to the virtual hearing as if it had been face-to-face. You should dress appropriately, have a neutral background, ensure no confidential documents or information are visible and ensure that you are unlikely to suffer unwanted interruption.
Steps should be taken to make sure you can see the tribunal at all times and witness during examination and vice-versa. Microphones should be muted when not speaking. Advocates need to think about how they will communicate, mid-hearing with others. In particular with their own legal team, confidentially. If documents will be available in electronic format, who will be displaying them to everyone? If you are to share your screen ensure that nothing else is shared inadvertently.
As already stated above, it is not possible to hand up papers to your opponents. Extra caution is necessary to ensure everything is ready well in advance. There is simply less room for unforeseen or last-minute eventualities.
I have found the Inns of Court College of Advocacy’s 8 Principles for Remote Advocacy useful in this regard:
As can be seen, there is a whole host of information and guidance available. I have touched upon some of my personal experiences, although I am certain there are many more topics. Two websites I came across especially created to address virtual hearings are: Remote Courts and Virtual Arbitration. NYIAC has also helpfully collated resources from their founding firms with links available from their website COVID-19 Updates.
When reviewing the different guidance and protocols, I found two in particular the most comprehensive and useful. If you do not have the time or disposition to go through them all, I would recommend these two without hesitation. First, CIArb’s Guidance Note on Remote Dispute Resolution Proceedings. The checklist at Appendix 1 is notably helpful. Secondly, the ICC’s Guidance Note on Possible Measures Aimed at Mitigating the Effects of COVID-19 and equally Annex 1 to that document is noteworthy. An older note from 2016, that sets out general considerations for ODR is UNCITRAL’s Technical Notes on Online Dispute Resolution.
I therefore conclude by observing that fully virtual hearings bring with them many challenges with which most of us have not been accustomed to addressing. However, we are lucky to live in an age where the technology exists to allow us to continue working and resolving disputes, even in the direst of circumstances. As a common law barrister, I am not sure it would be my preference to maintain oral trials in a virtual format in a post-COVID-19 world. However, I am sure some of the adaptations will survive this period. As a father of an infant son, I hope the reduction of paper and international travel endure to reduce our environmental impact. But only time will tell how much of all this is here to stay.
A version of this article was first published in Practical Law’s Arbitration Blog.
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