In these troubling times, there is some good news for arbitration practitioners: according to its annual report, the International Court of Arbitration has experienced its second highest caseload of newly registered cases in 2019, with 869 new cases filed in a record breaking 147 countries and independent territories worldwide.
Maintaining this growth is no mean feat, especially in an era where (on occasion) we have all known defeat at the hands of the mute button. Since COVID-19, the bulk of the work that would have previously taken place in the office or the client’s place of business must for now take place remotely.
One area of interest is the emerging etiquette on handling witnesses in the course of proceedings.
It is important not to underestimate witness preparation requirements. Giving evidence by video conference can be equally (if not more) daunting than giving evidence in person. Care should therefore be taken to provide the witness with a full test run of the technology so that they have confidence that they will be heard, are able to hear properly, and that they know where to look.
It goes without saying that in-person hearings typically take place in a single time zone, with testimony or submission by video link being the exception and not the rule. For virtual hearings in international cases, this is not the case: our last hearing involved witnesses and experts from three different continents (Europe, Asia and America) over the course of five days. Timetabling, in these circumstances, becomes an endeavour in itself. Typically, however, we have found that the earlier discussions can start, the better. Since running late can have a drastic impact given witness availability, it is also advisable to err on the side of caution and build in slack to the hearing schedule.
A protocol should also be developed to account for and address any potential irregularities that may arise during the hearing by virtue of it being held virtually (for example, counsel losing connection). In this way, risks can be mitigated, and arguments avoided down the road.
Assuming that some form of chess-clock procedure is used, it will also be advisable to give some thought as to how to apportion time spent resolving technical difficulties: should it be split between the parties, or deducted from neither? At the very least, provision should be made to avoid either party being unfairly prejudiced.
Time and tide wait for no one, including when it comes to filings and case preparation. As such, over the past three months, witness interviews have largely been conducted by video conference, without the added risks or expense of travel, especially pertinent in international arbitration proceedings. While not the only approach which could sensibly be adopted, in my recent experience the following guidance has been helpful when interviewing witnesses:
- Keep documents to a minimum. Since video-conference platforms such as Zoom, Webex and Microsoft Teams all provide document-sharing facilities, it can be tempting to go overboard with sharing documents for discussion. Although this may work fine and come off without a hitch, users can experience a lag between when the document is shared and when it is displayed on others’ screens, particularly for international clients from further afield. Introducing a large number of documents at a high frequency can disrupt the flow of conversation.
- Share documents locally. Technology is a wonderful thing, until it stops working. To the extent that a witness will be referred to a document during an interview, it can therefore help to provide these documents in advance so that they can be saved and accessed locally. This means that if (for whatever reason) a witness cannot see a document on their screen, they can follow along using the offline version.
- Be a good host. In both Webex and Zoom, the “host” facility enables an individual to take more control over the meeting, including the power to mute and unmute others. While this control should be used sparingly, it can be useful to have a host on hand who is aware of and able to use this functionality. They can then jump in and mute inadvertent background noise or assist in resolving any basic technical difficulties if or when they arise.
- Take a break. To avoid Zoom fatigue, discuss and schedule in breaks, or even adjourn for the day so that the discussion can carry on later with the benefit of reflection. Bear in mind that although you may have a video link to the witness, you may not be picking up on body language to the same extent as you would meeting in person : breaks will also provide the witness with the opportunity to collect their thoughts in a way that may not otherwise be possible.
It will be interesting to see what impact virtual hearings will have on the growth of international arbitration in 2020 and beyond. What is clear is that virtual hearings have changed the witness experience, possibly forever. At the very least, it has paved the way in creating greater flexibility when it comes to accommodating constraints in travel, cost or witness availability.